Despite the inability of States to adequately define terrorism, the international community has consistently announced that States may not derogate from international human rights standards in their counter-terrorism measures. This article argues that the statements of international fora such as the U.N. General Assembly and Security Council, in combination with decisions of the high courts of several influential nations has given rise to a rule of customary international law prohibiting derogation from human rights standards in counter-terrorism efforts. As a prerequisite, the discussion establishes the value of “non-binding” resolutions in supplying opinio juris for such a rule, as demonstrated in decisions of the I.C.J. The article concludes with an analysis of the resolutions and high court opinions at issue, finding that under the North Sea Continental Shelf framework, a customary rule derived from conventional sources exists.
Joseph Isanga, Counter-Terrorism and Human Rights: The Emergence of a Rule of Customary Int'l Law from U.N. Resolutions, 37 Denv. J. Int'l L. & Pol'y 233, 256 (2009).