The Sources of International Human Rights Law

--> Many religions believe that human beings are a high value of worth and dignity. They have certain fundamental rights that are attached to them since they are born. By virtue of this reason no one can detach the rights from human beings. From this believes that the human rights are universal.

Since the Universal Declaration of Human Rights in 1948 international law has come to the human rights regime where individual rights are being protected by the international community. The protection has acknowledged under several human rights treaties and they are part of the international law. The international community has agreed the classification of the sources of international law in Article 38 (1) of the ICJ Statute which is international conventions, international custom, the general principles of law, judicial decisions and the most highly qualified publicists.   

The international conventions that govern human rights are Convention on the Prevention and Punishment of the Crime of Genocide in 1948, International Convention on the Elimination of all forms of Racial Discrimination in 1965, International Convention on Civil and Political Rights in 1966, International Convention on Economic, Social and Cultural Rights in 1966, Convention on the Elimination of All Forms of Discrimination against Women in 1979, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1984, Convention on the Rights of the Child in 1989 and others. All states parties to those human rights conventions are legally binding.

International customary human rights law has two important components which are state practice and opinio juris. They are the main elements of formulating treaty-based human rights law. Customary law is binding upon all states. Under certain circumstances, customary law leads to universal application of human rights law. Moreover, Human rights norms are part of jus cogens and erga omnes. “The erga omnes nature of customary human rights is thought to be an added dimension assuring more clearly the universal nature of the obligations involved.” Furthermore, many scholars believe that the prohibitions against genocide, torture, and slavery are customary law binding upon all states.  

The general principle of law plays an important role in human right cases, for example of the proportional principle in assessing whether interference with a human right may be justified.

            The judicial decisions are considered as subsidiary source of law while the most qualified publicist contributes to the development of human rights law.

Other instruments regard as soft law that is part of source of international law; although they are not binding instrument such as resolutions – adopting by the General Assembly of the United Nations and Human Rights Councils - deciding on human rights. Besides that, other documents and agreements serve as guidelines for the behavior of states.

In conclusion, the sources of international human rights law should be used as a guideline of the court to adjudicate human rights cases in order to achieve the objective of international community which is to protect human rights and maintain peace in the world.

Bibliography

Paust, The Complex Nature, Source and Evidences of Customary Human Rights, HeinOnline, 25 Ga. J. Int’l & Comp. L. 158, 1995 – 1996

Meron, The Human Rights in International Law: Legal and Policy Issue, Volume I, Oxford, 1984

Paust, The Complex Nature, Sources and Evidence of Customary Human Rights, HeinOnline, 25 Ga. J. Int’l & Comp. L. 148, 1995-1996

Sieghart, The International Law of Human Rights, Oxford, 1983

Newman, Weissbrodt, International Human Rights, Anderson Publishing Co., 1990

D’Amato, The Concept of Human Rights in International Law, Columbia Law Review Vol. 83:1110 http://anthonydamato.law.nortwestern.edu/Pages-papers2/concept-hr-int-law.pdf

Pronto, ‘Human-Rightism’ and the Development of General International Law, Leiden Journal of International Law, 20, 2007, pp. 753-765

Klabbers, The Undesirability of the Soft Law, Nordic Journal of International Law 67: 381-391, 1998

OHCHR, International Human Rights Law and The Role of Legal Professions; A General Introduction, http://www.ohchr.org/Documents/Publications/training9chapter1en.pdf

Icelandic Human Rights Center, Sources of International Law, http://www.humanrights.is/the-human-rightsproject/humanrightscasesandmaterials/humanrightsconceptsideasandfora/theconceptsofhumanrightsanintroduction/souscesofinternationallaw