Velasco, Sharmaine J.

Human Rights Education

Bachelor of Arts in Political Science 2-A October 31, 2023

Activity on Sources of International Human Rights Law

The body of international law that focuses on protecting human rights at international,
regional, and domestic levels is known as international human rights law. Treaties and
customary international law primarily make up international human rights law. While not
legally binding, other international human rights instruments still contribute to the
implementation, understanding, and development of international human rights law. Under
Article 38 of the Statute of the International Court of Justice, these are the internationally
accepted classifications of sources of international law:

A. INTERNATIONAL CONVENTIONS

An international convention or treaty is an agreement or contract signed between different

states that is legally binding to the contracting states. International human rights treaties vary
in titles, which include ‘covenant’, 'convention', and ‘protocol.’ The main distinction of
human rights treaties is that they inflict obligations on states about the manner in which they
treat all individuals within their jurisdiction.

Some examples from this source include the International Convention on the
Elimination of All Forms of Racial Discrimination (1965), a convention that seeks to
eliminate discrimination. Another is the Convention on the Prevention and Punishment of
the Crime of Genocide (Genocide Convention), an instrument of international law that
codified for the first time the crime of genocide.

B. INTERNATIONAL CUSTOM

Customary law, also known as the law of nations, applies when no other authority is
available to create a law. Article 38 of the International Court of Justice Statute provides that
a custom is a general practice accepted as law. In order for it to become international
customary law, the practice is obligatory (opinion juris et necessitatis), or it was carried out
as a legal obligation. One of the key characteristics of customary law is that it may, in some
cases, result in universal jurisdiction or application.

An example of customary international laws is the doctrine of non-refoulement, which

forms an essential protection under international human rights, refugee, humanitarian, and
customary law and prohibits states from transferring or removing individuals from their
jurisdiction or effective control when there are substantial grounds for believing that the
person would be at risk of irreparable harm upon return, including persecution, torture, ill-
treatment, or other serious human rights violations.
 C. GENERAL PRINCIPLES OF LAW

The third source of international law as enumerated in Article 38 are "general principles of
law" that are used in the application of both national and international law. The general
principles of law play two important roles, which include providing guidelines for judges,
particularly in deciding individual cases, and limiting the discretionary power of judges and
members of the executive in their decisions in individual cases. The limitation of discretionary
power is to prevent judges from making decisions based on one’s own judgment or discretion
rather than following strict rules or guidelines.

Examples of general principles of law: laches (based on the idea that a party who
unreasonably delays pursuing a claim or acquiesces to the actions of another party for an
extended period may lose their right to enforce their claim or remedy), good faith (the bona
fide/good faith principle requires parties “to deal honestly and fairly with each other and to
refrain from taking unfair advantage), res judicata (the principle that a cause of action may
not be relitigated once it has been judged on the merits), and the impartiality of judges (the
judiciary should treat all members of the public equally and fairly, no matter who they are).

D. SUBSIDIARY MEANS FOR THE DETERMINATION OF RULES OF LAW

Subsidiary means for the determination of rules of law are judicial decisions and the
teachings of the most qualified publicists. This source base from Article 38 includes judicial
decisions (of both international and municipal tribunals) and scholarly writings as “subsidiary
means for the determination of rules of law;” in other words, these are not authorities, but
rather evidence of the sources of international law.

The decisions of international and municipal courts and the publications of academics can
be referred to, not as a source of law as such but as a means of recognizing the law
established in other sources. For instance, the Court would refer to its past decisions and
advisory opinions to support its explanation of the present case.