Research Handbooks in International Law series
Edited by Catherine Brölmann and Yannick Radi
Chapter 16: The making of international human rights law
The paper discusses how human rights norms are created in international law. After explaining the limits of the sources of positive international law (and especially the problems that are inherent to custom making), it turns towards the role of international courts and tribunals and discusses the ways through which they may recognise the existence of human rights. The paper identifies a number of means that are available to international courts for that task (such as the expansion of already existing legal bases on the basis of socio-normative evolution and the helpfulness in that respect of the respect-protect-fulfil classification of human rights) and highlights the distinction between consensus-based reasoning, and decision making based on human rights principles.
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