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The Idea of International Human Rights Law$
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Steven Wheatley

Print publication date: 2019

Print ISBN-13: 9780198749844

Published to Oxford Scholarship Online: March 2019

DOI: 10.1093/oso/9780198749844.001.0001

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Customary Human Rights Law

Customary Human Rights Law

(p.129) 5 Customary Human Rights Law
The Idea of International Human Rights Law

Steven Wheatley

Oxford University Press

Chapter 5 looks at customary human rights law, explaining how we can think about custom as a self-organizing system, the emergent property of the performative acts of states, who literally ‘speak’ customary human rights into existence; customary law then binds the same countries that brought it into existence, exhibiting the characteristics of a complex system. Complexity serves to remind us of the importance of path dependence, the power of events, and possibilities of change as states respond to new information. The work shows how the measures targeting apartheid South Africa after the Sharpeville Massacre resulted in the first customary human right on the prohibition of racial discrimination, as well as an evolution in the methodology for custom-formation, allowing reference to General Assembly resolutions and law-making treaties. The chapter further demonstrates how the status of persistent objector was denied to apartheid South Africa, confirming the non-negotiable character of fundamental human rights.

Keywords:   customary international law, state practice, opinio juris, apartheid South Africa, South West Africa cases, persistent objector, treaties, General Assembly resolutions, Universal Declaration of Human Rights

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