Advances in human rights are not dependent only on States. Non-governmental organizations have been very influential in advancing awareness on important issues and have prepared the ground for declarations and treaties subsequently adopted by the United Nations.164
The role of civil society is of particular importance when the contentiousness of an issue inhibits State action. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a case in point. Although it was adopted in November 2006 by 29 experts from only 25 countries, the 29 principles contained in the document related to State obligations in respect of sexual orientation and gender identity are becoming an internationally accepted point of reference and are likely to steer future discussions.165
The international human rights law landscape today looks radically different from 60 years ago when the Universal Declaration was adopted. Significant advances have been made since the Second World War in expanding the normative reach of international human rights law,
163 Ibid.
164 Report by the Global Citizenship Commission on ―The Universal Declaration Of Human Rights in the 21st Century a Living Document in a Changing World‖ (2016) http://www.equalrightstrust.org/ertdocumentbank/Brown-Universal-Declaration-Human-Rights-21C.pdf Accessed 3 May 2017.
165Ibid.
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leading to the proliferation of human rights law at the international level.166 Over the last few decades, however, attention has shifted to the implementation and enforcement of human rights norms, to the development of more secure safety nets and to a critical appraisal of the impact of the norms. Greater concern for human rights has also been accompanied with greater emphasis on the individual liability of those responsible for gross human rights violations in the form of genocide, crimes against humanity and war crimes.167
The creation of international criminal tribunals, including the International Criminal Court in 1998, constitutes a trend towards the humanization of international law. The further juridification of international human rights law is exemplified by the establishment of more courts, the extension of judicial mandates to include human rights, and the unequivocal acceptance that all rights are justiciable.168 With the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, there is much clearer acceptance of the principle of indivisibility under international human rights law. However, the constant evolution of the international human rights regime depends greatly on non-State actors, as is exemplified by their role in advocating for and preparing the normative ground for the recognition of the rights of "sexual minorities". There is no doubt that the landscape is to undergo dramatic changes in the next 60 years.169
The core international human rights sources may be listed as follows-170
i. The International Covenant on Economic, Social and Cultural Rights and its Optional Protocol (1996);
166Ibid.
167Ibid.
168 F Viljoen, art cit.
169Ibid.
170Ibid.
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ii. The International Covenant on Civil and Political Rights and its two Optional Protocols (1972);
iii. The International Convention on the Elimination of All Forms of Racial Discrimination;
iv. The Convention on the Elimination of All Forms of Discrimination against Women and its Optional Protocol (1979);
v. The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol (1985);
vi. The Convention on the Rights of the Child and its two Optional Protocols (1989);
vii. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;
viii. The International Convention for the Protection of All Persons from Enforced Disappearance; and
ix. The Convention on the Rights of Persons with Disabilities and its Optional Protocol.
There is a growing body of subject-specific treaties and protocols as well as various regional treaties on the protection of human rights and fundamental freedoms.171 Moreover, resolutions adopted by the General Assembly, the Security Council and the Human Rights Council, case law by treaty bodies and reports of human rights special procedures, declarations, guiding principles and other soft law instruments contribute to clarifying, crystallizing and providing principled guidance on human rights norms and standards, even if they do not contain
171 Report by the Global Citizenship Commission on ―The Universal Declaration Of Human Rights in the 21st Century a Living Document in a Changing World‖ art cit.
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legally binding obligations per se, except those that constitute rules of international custom.172 International human rights law is not limited to the rights enumerated in treaties, but also comprises rights and freedoms that have become part of customary international law, binding on all States, including those that are not party to a particular treaty. Many of the rights set out in the Universal Declaration of Human Rights are widely seen as having this character.
Furthermore, some rights are recognized as having a special status as peremptory norms of customary international law (iuscogens), which means that no derogation is admissible under any circumstance and that they prevail, in particular, over other international obligations. The prohibitions of torture, slavery, genocide, racial discrimination and crimes against humanity, and the right to self-determination are widely recognized as peremptory norms, as reflected in the International Law Commission‘s draft articles on State responsibility.173
Similarly, the Human Rights Committee has indicated that provisions in the International Covenant on Civil and Political Rights that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations.174 The Committee added that ―a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy
172UNHR (2011) International Legal Protection of Human Rights in Armed conflict.
http://www.ohchr.org/Documents/Publications/HR_in_armed_conflict.pdf Accessed 20 March 2017.
173 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law
Commission at its fifty-third session in 2001.
http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf Accessed 20 March 2017
174UNHR (2011) art. cit. at p. 10
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their own culture, profess their own religion, or use their own language.175 And while reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would not be.‖ The Committee, in line with article 4 of the Covenant, has also reiterated that certain rights contained in the Covenant cannot be subject to derogation, including article 6 (right to life).176
The jurisprudence of the International Court of Justice, which the Court‘s Statute recognizes as a subsidiary means for the determination of rules of law, is increasingly referring to States‘ human rights obligations in situations of armed conflict.177 These decisions have provided further clarification on issues such as the continuous application of international human rights law in situations of armed conflict.
2.3 The Relationship between International Human Rights Law and International