Q.NO.5. WHAT ARE THE SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW.

INTRODUCTION:-

International human rights law is part of public international law. Human Rights can be defined
as basic rights and freedoms to which all humans are entitled such as civil and political rights,
the right to life and liberty, freedom of thought and expression, equality before the law, social,
cultural and economic rights, including the right to participate in culture, the right to food, the
right to work, and the right to education.

International Court of Justice:

Article 38 of the International Court of Justice Statute outlines the sources of law as follows:

1. International conventions recognized by contesting states (includes treaties)

2. International custom

3. General principles of law recognized by civilized nations

4. Judicial decisions and teachings of the most highly qualified publicists (academic writings)

A. International conventions:-
International treaties are contracts signed between states. They are legally binding and
impose mutual obligations on the states that are party to any particular treaty (states
parties). The main particularity of human rights treaties is that they impose obligations
on states about the manner in which they treat all individuals within their jurisdiction.
Even though the sources of international law are not hierarchical, treaties have some
degree of primacy. More than forty major international conventions for the protection
of human rights have been adopted. International human rights treaties bear various
titles, including ‘covenant’, ‘convention’ and ‘protocol’; but what they share are the
explicit indication of states parties to be bound by their terms. Human rights treaties
have been adopted at the universal level (within the framework of the United Nations
and its specialised agencies, for instance, the ILO and UNESCO) as well as under the
auspices/support of regional organisations, such as the Council of Europe (CoE), the
 Organisation of American States (OAS) and the African Union (AU) (formerly the
Organisation of African Unity (OAU)). These organisations have greatly contributed to
the codification of a comprehensive and consistent body of human rights law.
B. Universal conventions for the protection of human rights:
The UDHR, was adopted by a resolution of the United Nations General Assembly
(UNGA), although not a treaty, is the earliest comprehensive human rights instrument
adopted by the international community. On the same day that it adopted the
Universal Declaration, the UNGA requested the UN Commission on Human Rights to
prepare, as a matter of priority, a legally binding human rights convention. Wide
differences in economic and social philosophies hampered efforts to achieve
agreement on a single instrument, but in 1954 two draft conventions were completed
and submitted to the UNGA for consideration. Twelve years later, in 1966, the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and the
International Covenant on Civil and Political Rights (ICCPR) were adopted, as well as the
First Optional Protocol to the ICCPR, which established an individual complaints
procedure. Both Covenants and the Optional Protocol entered into force in 1976. A
Second Optional Protocol to the ICCPR, on the abolition of the death penalty, was
adopted in 1989 and entered into force in 1991. The ‘International Bill of Human
Rights’ consists of the Universal Declaration of Human Rights, the ICESCR and the ICCPR
and its two Optional Protocols. The International Bill of Rights is the basis for numerous
conventions and national constitutions. The ICESCR and the ICCPR are key international
human rights instruments. They have a common Preamble and Article 1, in which the
right to self-determination is defined. The ICCPR primarily contains civil and political
rights. The ICESCR consists of a catalogue of economic, social and cultural rights in the
same vein as the ‘social’ part of the UDHR. Besides the International Bill of Human
Rights, a number of other instruments have been adopted under the auspices of the
UN and other international agencies. They may be divided into three groups:
a) Conventions elaborating on certain rights, inter alia:
• The Convention on the Prevention and Punishment of the Crime of Genocide (1948) •
ILO 98 concerning the Right to Organize and to Bargain Collectively (1949) • The
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984) • International Convention for the Protection of All Persons from
Enforced Disappearance (2006)
b) Conventions dealing with certain categories of persons which may need special
protection, inter alia: • The Convention relating to the Status of Refugees (1951), and
the 1967 Protocol thereto • The Convention on the Rights of the Child (1989) • Optional
Protocol to the Convention on the Rights of the Child on the involvement of children in
armed conflicts (2000) • Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution and child pornography (2000) • ILO 169
concerning Indigenous and Tribal Peoples in Independent Countries (1989) • The
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (1990) • The Convention on the Rights of Persons with
Disabilities (2006)
c) Conventions seeking to eliminate discrimination • ILO 111 concerning Discrimination
in respect of Employment and Occupation (1958) • UNESCO Convention against
Discrimination in Education (1960) • The International Convention on the Elimination of
All Forms of Racial Discrimination (1965) • The International Convention on the
Suppression and Punishment of the Crime of Apartheid(1973) • The Convention on the
Elimination of All Forms of Discrimination Against Women (1979)and its Optional
Protocol (2000)
C. Regional conventions for the protection of human rights
The UN Charter encourages the adoption of regional instruments for the
establishment of human rights obligations, many of which have been of crucial
importance for the development of international human rights law. The American
Convention on Human Rights was adopted in 1969, under the auspices of the
Organisation of American States. This Convention has been complemented by two
protocols, the 1988 Protocol of San Salvador on economic, social and cultural rights
and the 1990 Protocol to abolish the death penalty. In 1981, the Organisation of
African Unity, now the African Union, adopted the African Charter on Human and
Peoples’ Rights. Three protocols to the Charter have been adopted: the Additional
Protocol on the Establishment of the African Court on Human and Peoples’ Rights
(1998), the Protocol on the Rights of Women in Africa (2003) and the Protocol on the
Statute of the African Court of Justice and Human Rights (2008). B. International
custom:- Customary international law plays a crucial role in international human rights
law. The Statute of the International Court of Justice refers to ‘general practice
accepted as law’. In order to become international customary law, the ‘general
practice’ needs to represent a broad consensus in terms of content and applicability,
deriving from a sense that the practice is obligatory. Customary law is binding on all
states (except those that may have objected to its during its formation), whether or not
they have ratified any relevant treaty. One of the important features of customary
international law is that customary law may, under certain circumstances, lead to
universal jurisdiction or application, so that any national court may hear extra-
territorial claims brought under international law In addition, there also exists a class of
customary international law, or peremptory norms of general international law, which
are norms accepted and recognized by the international community of states as a
whole as norms from which no derogation is permitted. Under the Vienna Convention
on the Law of Treaties (VCLT) any treaty which conflicts with a peremptory norm is
void. Many scholars argue that some standards laid down in the Universal Declaration
of Human Rights (which in formal terms is only a resolution of the UNGA and as such
not legally binding) have become part of customary international law as a result of
subsequent practice; therefore, they would be binding upon all states. Within the
realm of human rights law the distinction between concepts of customary law, treaty
law and general principles of law are often unclear. The Human Rights Committee in its
General Comment 24 (1994) has summed up the rights which can be assumed to
belong to this part of international law which is binding on all states, irrespective of
 whether they have ratified relevant conventions, and to which no reservations are
allowed:
D. General principles of law
In the application of both national and international law, general or guiding principles
are used. In international law they have been defined as ‘logical propositions resulting
from judicial reasoning on the basis of existing pieces of international law’. At the
international level, general principles of law occupy an important place in case-law
regarding human rights. A clear example is the principle of proportionality, which is
important for human rights supervisory mechanisms in assessing whether interference
with a human right may be justified. Why are general principles used? No legislation is
able to provide answers to every question and to every possible situation that arises.
Therefore, rules of law or principles that enable decision makers and members of the
executive and judicial branches to decide on the issues before them are needed.
General principles of law play two important roles: on the one hand, they provide
guide lines for judges, in particular, in deciding in individual cases; on the other hand,
they limit the discretionary power of judges and of members of the executive in their
decisions in individual cases.
E. Subsidiary means for the determination of rules of law:
According to Article 38 of the Statute of the International Court of Justice, judicial
decisions and the teachings of the most qualified publicists are ‘subsidiary means for
the determination of rules of law’. Therefore, they are not, strictly speaking, formal
sources, but they are regarded as evidence of the state of the law. As for the judicial
decisions, Article 38 of the Statute of the International Court of Justice is not confined
to international decisions (such as the judgments of the International Court of Justice,
the Inter-American Court, the European Court and the future African Court on Justice
and Human Rights); decisions of national tribunals relating to human rights are also
subsidiary sources of law. The writings of scholars contribute to the development and
analysis of human rights law. Compared to the formal standard setting of international
organs the impact is indirect.