International human rights law is not limited to the enumeration of rights
within treaties, but also includes rights and freedoms that have become
part of customary international law, which means that they bind all States
even if they are not party to a particular treaty. Many of the rights set
out in the Universal Declaration of Human Rights are widely regarded to
hold this character. The Human Rights Committee has similarly observed,
in its general comments N° 24 (1994) and N° 29 (2001), that some
rights in the International Covenant on Civil and Political Rights reflect
norms of customary international law. Furthermore, some rights are
recognized as having a special status as norms of jus cogens (peremptory
norms of customary international law), which means that there are no
circumstances whatsoever in which derogation from them is permissible.
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 articles on state responsibility. The International Law
Commission also lists the basic rules of international humanitarian law
applicable in armed conflict as examples of peremptory norms.2 Similarly,
the Human Rights Committee has referred to arbitrary deprivation of life,
torture and inhuman and degrading treatment, hostage-taking, collective
punishment, arbitrary deprivation of liberty, and violations of certain due
process rights as non-derogable, while the Committee on the Elimination
of Racial Discrimination, in its Statement on racial discrimination and
measures to combat terrorism, has confirmed the principle of nondiscrimination as a norm of jus cogens.
3. The nature of States’ obligations under international
human rights law
Human rights law obliges States, primarily, to do certain things and prevents
them from doing others. States have a duty to respect, protect and fulfil
human rights. Respect for human rights primarily involves not interfering
with their enjoyment. Protection is focused on taking positive steps to
ensure that others do not interfere with the enjoyment of rights. The
fulfilment of human rights requires States to adopt appropriate measures,
including legislative, judicial, administrative or educative measures, in order
to fulfil their legal obligations. A State party may be found responsible
for interference by private persons or entities in the enjoyment of human
rights if it has failed to exercise due diligence in protecting against such
acts. For example, under the International Covenant on Civil and Political
Rights, State parties have an obligation to take positive measures to ensure
that private persons or entities do no inflict torture or cruel, inhuman
or degrading treatment or punishment on others within their power.