The chapter deals with the ICJ and human rights. It argues that, while the Court is not and will never be a specialised human rights court, it has a significant role in the protection and development of human rights. The author explains some structural obstacles and impediments to the engagement of the Court with human rights, and then offers some instances of substantial incorporation of human rights into the fabric of general international law through interpretation and legal concepts encompassing international community interests. The chapter suggests that structural disengagement in the sense of norms allowing only States to litigate before the Court does not impede substantial incorporation which may depend on other factors, including the changing attitudes of the ICJ judges and lawyers before the Court.

This chapter explains the role played by reservations, the application of the rules of the Vienna Convention on the Law of Treaties, and practice in dealing with reservations. It defines reservations and distinguishes them from interpretative declarations and political declarations. It examines whether reservations are permissible or impermissible, including the test whether a reservation is incompatible with the object and purpose of the treaty. It also discusses the rules governing acceptance and objection, the legal effect of reservations, the question whether a prohibited reservation can be severed, and special cases such as human rights treaties, reservations relating to internal law, vague or general reservations, reference to Islamic law, late reservations, and the role of treaty monitoring bodies. It analyses the procedure for making or objecting to reservations or withdrawing them, and the functions of the depositary in relation to reservations.

Since 2008 the Universal Periodic Review (UPR) mechanism of the UN Human Rights Council has become a fixture of the international human rights regime, reviewing the human rights record of every single state once every few years. Over the course of the UPR reviews to date thousands of recommendations have been issued about the protection of human rights with a growing body of evidence showing that states modify their behaviour in response to the outcome of reviews. This chapter analyses how UPR recommendations can be used to identify customary international law. Using the discussion on the identification of custom in General Assembly resolutions as a starting point the chapter examines how scholarship on the identification of custom has argued that there are a different set of rules for the identification of customary international human rights law. Identifying custom in UPR recommendations can help resolve some of the ambiguities and contradictions in relation to the identification of customary international human rights law. This chapter concludes by outlining a three-part model for identifying custom in UPR recommendations which would complement existing rules for identifying customary international law.

The legal status of the West Bank remains one of the core issues of controversy in the Arab-Israel dispute. After the 1948 War, the Gaza Strip came under Egyptian control and the West Bank under the control of Jordan. Both areas came under Israel control after the 1967 war. The Israel legal position as to the status of these territories was that they were not the territories of a foreign state hence legally Israel did not have to apply the IVth Geneva Convention. Israel undertook to apply the humanitarian provisions of the Convention. Israel unilaterally withdrew its armed forces and civilians from the Gaza Strip. The majority of the population of the West Bank are Arab Palestinians who, under international law, have a right of self-determination. The 1947 UN Partition plan recommended that the West Bank be part of an Arab state. The 1922 League of Nations Mandate, however, promised the Jewish people the right to create a Jewish National Home in Palestine, which at the time, included the West Bank. Israel and the PLO have agreed to negotiate the future status of the West Bank. The majority of the Arab population of the West Bank are under the jurisdiction of the Palestinian Authority, however, the major part of the territory of the West Bank, including all Israeli settlements remain under Israeli military administration. To date, the parties have not yet managed to agree on what will be the final status of the West Bank.

This chapter analyses normative pathways that guide the deliberative space involving UN human rights treaty-monitoring bodies and domestic courts. Judges vary in terms of their degree of engagement with treaty body findings. This chapter highlights that international law itself provides a set of justifications that sustain varied modes of judicial engagement. One such justification pertains to an obligation to consider the specific findings of treaty-monitoring bodies. Before domestic courts, explicit reference to such an obligation is rare. Yet normative variations of the obligation to consider have guided domestic courts’ engagement to treaty body findings. The duty to consider and its variations may not create robust normative paths. Nevertheless, they arguably pave the way for a sustainable and forward-looking deliberative space by creating the opportunities for learning and self-reflection for both the monitoring bodies and domestic courts.

Chapter 3 examines which states are parties to the 1980 Hague Abduction Convention and why most Muslim Family Law States are not. Second, we use the law and practice of Muslim Family Law States with regard to reservations under human rights treaties to illustrate the dilemmas and issues they are dealing with in this area of law, but we also seek to better understand the policy and approach of these States. We further examine how certain States that are party to the 1980 Hague Abduction Convention deal with children abducted to or from those Muslim Family Law States that are not party to the Convention. Ad hoc methods such as bilateral memoranda of understanding, for example, have been adopted vis-�is certain States in an attempt to replicate in practice the assumptions of the 1980 Hague Abduction Convention without the Convention’s requisite institutional machinery incumbent on its parties. Through this analysis of both the Hague Conference conventions and human rights treaties, the chapter illustrates how both European and Islamic exceptionalisms operate in International Law and animate the international debate on how best to redress parental child abduction cases.

The book grapples with the applicability and application of international human rights law in geographic areas where the State that is recognised as the sovereign of the territory (territorial State) has lost effective control over a part of its territory. As such regions vary both as to the manner in which the territorial State has lost its territorial control and as to the subject that has taken over territorial control of the area, the chapter classifies and delimits the geographic areas on which the book focuses, and presents its conceptual framework.

Quantitative scholarship about human rights tends to overclaim. Rights are subtler and more complex than these studies presume. This chapter seeks to explain why.

This chapter examines the notion of consent to be bound from the point of view of its motion and change from a classical concept included in the Vienna Convention on The Law of Treaties (VCLT), to its evolution in modern times. It also analyses the question of reservations to treaties, which was one of the projects of the International Law Commission. The chapter deals with the contentious issue of reservations to human rights treaties. The chapter also demonstrates that since consent to be bound is integral to the whole system of treaty law, it can also be identified in situations where we have an increase (auxesis), diminution (meiosis) or even alteration (alloiosis) of the treaty, as can happen when we are dealing with the system of reservations.