Sources of International Human Rights Law — Human Rights Law Notes

Sources of International Human Rights Law

When judges of the International Court of Justice sit to decide a case, they do not invent the law — they open a checklist written into Article 38(1) of the Court’s own Statute. That single article is the map of where all international law, human-rights law included, comes from. Learn it and you can never be caught blank on this question.

International human-rights law has no single legislature, so its “sources” are the recognised ways rules come into being. Anchor the answer on Article 38(1) of the ICJ Statute, then add modern soft law.

A. International conventions / treaties

The primary source — written agreements binding the States that ratify them. Examples: the ICCPR and ICESCR (1966), CEDAW (1979), CRC (1989). A treaty binds only its parties.

B. Customary international law

Unwritten rules that bind all States, formed from two elements together: consistent State practice plus opinio juris [the belief that the practice is legally obligatory]. Prohibitions on torture, genocide and slavery are custom, binding even States that signed no treaty.

C. General principles of law recognised by civilised nations

Principles common to the major legal systems — good faith, audi alteram partem [hear the other side], no one a judge in his own cause. They fill gaps where no treaty or custom answers the question.

D. Judicial decisions and juristic writings (subsidiary)

Not law-making sources but evidence of the law — the rulings of the ICJ and regional human-rights courts, and the writings of respected scholars, help identify what the rule is.

E. Soft law (the modern addition)

Declarations and resolutions — the UDHR (1948), General Assembly resolutions, the Vienna Declaration (1993). Not binding as treaties, but they set standards, and over time (as with much of the UDHR) can harden into custom.

🧩 WORKED EXAMPLE — naming a source with its instrument

Facts. A question asks for the sources of international human-rights law.

Rule. The mark is earned by pairing each source with a human-rights example, not just naming the source.

Apply. Treaties → ICCPR 1966; custom → the ban on torture; general principles → natural justice; judicial decisions → ICJ and ECtHR rulings; soft law → UDHR 1948.

Conclusion. Five sources, five examples. The pairing turns a list into a distinction-level answer.

Statute of the International Court of Justice, Article 38(1): the Court applies “(a) international conventions … (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) … judicial decisions and the teachings of the most highly qualified publicists … as subsidiary means.”

In Simple Terms: When there is a dispute, international law is drawn, in order, from treaties, then custom, then shared legal principles, with court rulings and scholars used only to help work out what those rules are. Declarations sit alongside as soft standards.

flowchart TD
    A["SOURCES OF INTERNATIONAL HR LAW<br/>ICJ Statute Art 38(1)"]:::root
    A --> B["Treaties / conventions<br/>ICCPR, ICESCR, CEDAW"]:::leaf
    A --> C["Custom<br/>practice + opinio juris<br/>ban on torture"]:::leaf
    A --> D["General principles<br/>good faith, natural justice"]:::leaf
    A --> E["Judicial decisions & writings<br/>subsidiary evidence"]:::leaf
    A --> F["Soft law<br/>UDHR, GA resolutions"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Prosecutor v Furundžija (ICTY, 1998) — the prohibition of torture is customary international law and a jus cogens norm binding on all States.
Vishaka v State of Rajasthan (1997) — Indian courts may read international conventions (here CEDAW) into domestic law where there is no conflicting statute.

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Sources of International Human Rights Law — Human Rights Law Notes