Sources of Human Rights

The conventional sources of international law are enumerated under Article 38(1) of

the Statute of the International Court of Justice. These sources can be classified as ‘formal’ or
‘material’. Treaties, custom, and general principles are formal sources. They are
obligatory in nature and legally binding on the parties who are involved in their constitution.
Material sources, on the other hand, are the interpretation of those obligatory rules. They
involve judicial decisions and juristic teachings.

i) International conventions and treaties

Article 38(1)(a) of the Statute provides convention as one of the formal sources of
international law.
 It states that, while deciding any case, the court shall apply general or particular
international treaties that are expressly recognized by the contracting party.
 They are a binding written agreement between two or more parties, creating mutual
rights and obligations. Thus, a treaty or convention is contractual in nature.  They are
also known as a pact, agreement, covenant, charter, and memorandum of
understanding.
 For a treaty to be a source of law and not just a source of obligation, it shall be
universal and affect even the non-parties of the contract. Accordingly, treaties are
divided into two types, that are as follows:
- law-making treaties: These kinds of agreements have a large number of parties.
Thus, they are also called multilateral treaties. They can be used directly as a
source of international law. Further, these treaties have a general legal standing,
rather than being specific to the parties in a contract. They may lay down general
rules or enunciate universal rules. Some examples of multilateral treaties are
the United Nations Charter , Vienna Convention on the Law of Treaties,
1969 (VCLT), etc.
- Treaty contracts: Treaty contracts or bilateral treaties are generally contracted
between two parties. They are drafted in a way that they only suit the object, and
establish the rights and obligations against the parties in the contract. Further, a
 treaty which is originally between two States can later be converted into a
multilateral treaty by adding more parties that will be universally accepted by all.
 Human rights treaties have been adopted at the universal level as well as under the
auspices of regional organisations.
 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.

ii) International customary law

 Custom is known as one of the oldest sources of international law. Before the
emergence of treaties, customs were the sole source of international law. In fact,
various conventions are the product of customs that have evolved with the changing
needs of society.
 International custom is encapsulated under Article 38(1)(b) of the Statute of the
International Court of Justice. It is regarded as the general practice accepted by law.
 However, it is difficult to establish the existence of an international custom in the
court of law. That is the reason why the importance of custom has declined over time,
and treaties and UN charters have replaced them.
 The ICJ in the Asylum Case described custom as, “a constant and uniform usage
accepted as law.”
 Difference between custom and usage: Usage can be understood as behaviour that
may be executed as a courtesy. Unlike custom, a person does not have any legal
obligation to comply with the usages. Custom begins when usage ends. It is the kind
of rule that does not have any legal backing as of yet. Moreover, many usages do not
require any legal attestation as its non-compliance does not lead to any dire
consequences. They are done merely as social consciousness. The International Court
of Justice in the Nicaragua case held that if the opinio juris or legal obligation of
usage can be proved, it will turn into an international custom.
 J.G starke has laid down two tests that should be conducted before giving any State
rule legal attestation in the international platform. (Not necessary to write)
 - The material test refers to the practice of the State. It is the objective element of
the custom that is key to the establishment of a customary rule. It should be
uniformly accepted by the citizens of the state. The duration and frequency of the
practice should also be taken into account before announcing it as customary
international law.
- This test comes into being when the material test is unambiguous. The subjective
element of the custom or the opinio juris helps in distinguishing custom from an
action followed as a matter of choice or for other reasons. It must be inferred
from all the circumstances and not merely from the details that constitute the
material element of the customary rule. 
 The International Court of Justice in the North-Sea Continental Shelf Case laid down
four pre-requisites that must be satisfied for a practice or custom to become law under
Article 38(1)(b):

- Uniformity and consistency of practice: In the Asylum Case the ICJ recognised
the need for custom to be uniform and consistent. This is interpreted from Article
38(1)(b) which refers to international custom ‘as evidence of a general practice
accepted as law.’
- Generality of practice: For a rule to be recognised as an international custom it is
not necessary for it to be uniform however, it should be generally observed by
numerous States. There has to be a sufficient degree of participation by the States
whose interest depends upon the enactment of the customary law.
- Long duration with wide acceptance: Duration plays a significant role in determining
the standing of a custom in municipal law. However, immemorial antiquity is not
given much emphasis in international law, provided generality and opinio juris of the
practice are proved. Customs regarding space law and continental shelf was given
legal backing on the global platform somewhat quickly.

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 judgements 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. Nevertheless, influential contributions have been made by
scholars and experts working in human rights fora, for instance, in the UN Sub-
Commission on the Promotion and Protection of Human Rights, as well as by
highly regarded NGOs, such as Amnesty International and the International
Commission of Jurists

Modern/Unconventional Sources

Numerous international organs make decisions that concern human rights and thereby
strengthen the body of international human rights standards. Such nonbinding human
rights instruments are called ‘soft law’, and may shape the practice of states, as well as
establish and reflect agreement of states and experts on the interpretation of certain
standards.

1. United Nations.

The United Nations is an international organization formed in 1945 that comprises 193
members. The organization aims to maintain international peace and security and develop
friendly relationships among the nations.The decisions and resolutions of the UNGA,
UNSC, and ICJ are the key sources of law. While ICJ is considered as a traditional
source, UNGA and UNSC are categorized under unconventional sources.

Though not binding the resolutions and decisions by UNGA may have normative value.
They sometimes provide significant evidence to establish the existence of a rule or
an opinio juris, without which international custom is not recognized.
The Security Council is responsible to preserve global peace and safety. According
to Article 25 of the UN Charter, the resolutions of the UNSC that enforces the measures
in Chapter VII of the Charter, are legally binding upon the State members. However,
there are controversies regarding the binding force of other resolutions.

Decisions of supervisory Organs: Numerous human rights supervisory mechanisms have

been established to monitor the compliance by states with international human rights
standards. Within the UN context, these supervisory bodies are often called ‘treaty
bodies’. They interpret international treaties, make recommendations and, in some cases,
make decisions on cases brought before them. These decisions, opinions and
recommendations may not be legally bindingper se, but their impact on international
human rights law (standards) is significant.