'Positive law' vs. 'natural law'

When we talk about human rights, we think of post-World War II and Nuremberg trials because these were the major impetus behind the current human rights law. But human rights as a concept had been in existence long before. The problem was only that they were not expressed yet in an authoritative and obligatory way until 1948. Judge Tanaka elaborated this excellently in his dissenting opinion in 1966 I.C.J. 6, 250, 297-298 (July 18), in the case of South West Africa:

Human rights have always existed with the human being. They existed independently of, and before, the State. Alien and even stateless persons must not be deprived of them. Belonging to diverse kinds of communities and societies-- ranging from family, club, corporation, to State and international community, the human rights of man [woman] must be protected everywhere in this social hierarchy, just as copyright is protected domestically and internationally. There must be no legal vacuum in the protection of human rights. Who can believe, as a reasonable man, that the existence of human rights depends upon the internal or international legislative measures, etc., of the State and that accordingly they can be validly abolished or modified by the will of the State?
If a law exists independently of the will of the State and, accordingly, cannot be abolished or modified even by its constitution, becasue it is deeply rooted in the conscience of mankind and of any reasonable man, it may be called 'natural law' in contrast to 'positive law.'
Provisions of the constitutions of some countries characterize fundamental human rights and freedoms as 'inalienable', 'sacred', 'eternal', 'inviolate', etc. Therefore, the guarantee of fundamental human rights and freedoms possesses a super-constitutional significance.
If we can introduce in the international field a category of law, namely, jus cogens, recently examined by the International Law Commission, a kind of imperative law which constitutes the contrast to the jus dispositivum, capable of being changed by way of agreement between States, surely the law concerning the protection of human rights may be considered to belong to the jus cogens.

Enough said. The problem is that while human rights law exists independently of the will of a given state, its enforcement still is very much dependent on the will of that state. Of course, with growing international tribunals, the states have many more pressures. Globalization and interdependence have resulted in even more pressures. But international law making/application is highly political, highly toxic, highly dependent on the will of state actors. With growing non-state actors, the panorama has become even more complicated. Even if states may comply with international law, there are numerous non-state actors who commit various atrocities that remain unpunished or half-way punished.

Sources of International Law: 2

Earlier I commented here on this blog on the sources for international law. While the hierarchy is important and first we search for treaties/conventions on a relevant question, all these sources interact and collide. For example, I would like to compare the treaties with domestic contracts for a moment. Treaties are similar to regular contracts between domestic parties except that they may become binding even for those who have not expressly entered into them. Isn't that a strange concept? Isn't consent after all important in international law?

Insofar as treaties may over time turn into customary international law, they may in fact become binding on those who withheld consent to them and never signed on those treaties. As far as how certain treaties turn into customary international law, that is a complex issue that needs separate discussion. But the International Court expressed this well in the case of North Sea Continental Shelf (with respect to Article 6 of the 1958 Geneva Convention):

... [the view] clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed.

But all this is a highly political and policy-based process. Therefore, at a given time there are always those who try to assert that a given treaty never turned into customary international law because of various reasons. One reason would be that there was no proof of widespread practice of international actors abiding by the principle set out in the treaty. However, in cases applying jus cogens, norms that are not dependent on consent of parties-- genocide, war crimes, crimes against humanity-- no party really can try to win these arguments.

Also, it must be kept in mind that interpretation of treaties becomes important. Given the reservations, understandings, and declarations that states add-on to their signatures on treaties, similar to domestic contractual disputes the courts are asked to interpret the application of a treaty rule on a specific case. The court then will look not only to the other sources of international law, but also to the national courts of the disputing parties and their interpretations of that treaty... It is a very complex and live process that often does not render desirable results and subvert the very principles of the given treaty.