Research Handbook on the Theory and Practice of International Lawmaking
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Research Handbook on the Theory and Practice of International Lawmaking

Edited by Catherine Brölmann and Yannick Radi

The global landscape has changed profoundly over the past decades. As a result, the account of the making of international law based on the traditional theory of sources is increasingly challenged. This Handbook offers a comprehensive guide to the theory and practice of international law‐making today. It takes stock at both the conceptual and the empirical level of the instruments, processes, and actors involved in the making of international law. The book contains essays by leading scholars on key aspects of international law-making and on law-making in the main issue areas, with an interest in classic processes as well as new developments and shades of normativity.
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Chapter 16: The making of international human rights law

Vassilis P. Tzevelekos


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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