Legal differentiation and the concept of the human rights treaty in international law

Abstract

The purpose of this article is to explore a question that is commonly posed, but infrequently answered: what is the nature of the relationship between conventional human rights law, and general principles governing treaty law? In its broadest sense the question, as posed, is part of wider ongoing debate as to the potential 'fragmentation' of international law - a debate which has been encouraged particularly by the development of specific legal regimes with dedicated mechanisms for dispute resolution. More narrowly, the question is concerned with the compatibility of the existing treaty law framework for those legal instruments that purport to protect legal interests other than those of the contracting states. The central point of focus is upon the role and significance of reciprocity in the conceptual structure of human rights 'treaties'. It is argued that, whilst it is possible to maintain that human rights treaties are constructed on the basis of reciprocity, doing so has certain theoretical and practical costs which are not necessarily outweighed by the envisaged harm of understanding them as legal instruments possessing certain distinct characteristics.