2 Introduction of social interaction and human rights law

Prof. Nitin Gomber

Do you know from where the law of your country comes from? What are its sources? Well, the answer to this is much straightforward. The Constitution of India, along with the Acts passed by the various State Legislative Assemblies and the Parliament, the Judgements delivered by the courts interpreting these laws, all form the primary “sources” from which we derive our laws.

However, when it comes to figuring the sources of international human rights law, it gets complicated. Why? Well, there is no international Parliament where all countries in the world sit and approve laws. There is no international constitution which all countries abide by. There is an international court (known as the “International Court of Justice” or simple “ICJ”). However, it has very limited jurisdiction, and its decisions are not binding on nations in future cases. Moreover, the ICJ only hears disputes between States, whereas human rights by itself concern individuals primarily.

Given the foregoing, it is imperative to note that international human rights law is decentralized in a way. This means that there is no one organization on top of the ladder which formulates any such law. Therefore, it is very important to figure what exactly are the sources of international human rights law and what value they hold in the eyes of various nations.

As a starting point for this enquiry, we need to look at the Statute of the ICJ. This is a document which established the ICJ as a judicial organ of the United Nations. Its primary function is to decide such disputes as are submitted to it in accordance with international law. Inescapably, Article 38 of the Statute lists out the “law” that the ICJ shall apply in deciding matters before it. It reads as follows:

“(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

• international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
• international custom, as evidence of a general practice accepted as law;
• the general principles of law recognized by civilized nations;
• subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of

(2) This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”

Although, in form this is merely a directive to a particular international body as to what rules it is to apply, the opening phrase stating what the Court’s function is ‘to decide in accordance with international law’, confirms that the application of sub-paragraphs (a) to (d) of Article 38 will result in international law being applied, which consists of everything that is pointed in that Article alone and nothing else.

In addition, subparagraph (d) further clarifies that the judicial decisions and the teachings of the most highly qualified publicists of various nations shall be considered a subsidiary means of international law in comparison to sources listed in sub-paragraphs (a) to (c). This latter issue dealing with whether one source of international law is more important than the other will be dealt with in a separate module. For now, we shall continue introducing you to the topic briefly.

Moving on to Article 38 (2) of the Statute of the ICJ, it empowers the Court to decide a case ex aequo et bono. What does this mean? It means that the Court may give its decision based on equity. Given that this extends beyond recognized international law listed out in Article 38 (1), it is explicitly mentioned that this may happen only “if the parties agree thereto.” Therefore, only and only if the parties to a dispute agree and confer that power onto the ICJ, will the said Court apply the rules of equity in the dispute referred to it by the said parties.

Let us now study each of the sources listed in Article 38 of the Statute of the International Court of Justice in a brief manner.

International Conventions or Treaties

International Conventions come with a wide variety of different names. You may call it a treaty, a charter, a pact, agreement, protocol, an exchange of notes etc. It doesn’t really matter what name you give the document. Essentially, an International Convention in the popular sense1 is an agreement between two or more states. The said agreement becomes binding on the said parties as soon as they ratify the said Convention. In fact, the Vienna Convention on the Law of Treaties, 1969 is a key international agreement which governs the creation, operation and legal effect of most treaties in effect today. It includes the major rules and regulations concerning treaties and, although not all States have ratified it, many of its provisions represent common State practice and thus it will be used as indicative of the law of treaties throughout.

Now, when it comes to international human rights law, treaty law is indisputably its most significant source. There are a plethora of reasons for this, a few of them being:written texts clearly formulate the obligations accepted by each state party; Potentially, a large number of states may become parties to a treaty, thereby providing for a degree of uniformity between States in their understanding of the requirements of international human rights law, among others; etc.

The same treaty law has its own downside as well. How? The binding force of treaties rests on a principle usually expressed as pacta sunt servanda. This principle is arguably one of the oldest principles of international law meaning “agreements must be kept.” In fact Article 26 of the Vienna Convention on the Law of Treaties, 1969 clearly states, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Now, the foregoing principle of international law may seem like “the provision” by way of which treaty law could be fully enforced among nations. However, that is not the case, especially given the inharmonious enforcement mechanisms under the aegis of international human rights law. Given that treaty, language is open to differing interpretations, so states may agree to be bound by the same obligations, but may differ in their precise meaning. The foregoing takes place when at the time of expressing its consent to be bound, States append to the said treaty “an Interpretative Declaration” setting out how the said state understands its treaty obligations.

Further, States may make reservations to some provisions of a treaty, as well. The primary difference between making “an interpretative declaration” and a “reservation” is the fact that by way of making a reservation, the state purports to exclude or modify the legal effect of certain provisions of the treaty. On the other hand, by way of an interpretative declaration, the state merely announces its interpretation of some provisions of the Treaty. We will discuss these concepts in detail in the coming modules.

For now, it is important to note that there are ten (10) core international human rights conventions. Under each of these conventions, there has been established a committee of experts which are responsible for monitoring the implementation of treaty provisions by its State parties. This committee of experts is commonly known as treaty bodies. Each treaty body has its own set of objectives vis-à-vis the enforcement of its respective treaty provisions and follows their own set of procedures to work their way out. The following table3 will help you identify the nine (9) core international human rights conventions, their dates of entry into force and their respective treaty bodies monitoring the enforcement of its provisions.

Name of the Convention	Entry into Force	Monitoring Body
Universal     Declaration     of     Human Rights4 (UDHR)	1948	None
International     Convention     on     the Elimination of All Forms of Racial Discrimination (ICERD)	21 Dec 1965	Committee on the Elimination of Racial Discrimination (CERD)
International Covenant on Civil and Political Rights (ICCPR)	16 Dec 1966	Human Rights Committee (HRC)
International Covenant on Economic, Social and Cultural Rights (ICESCR)	16 Dec 1966	Committee on Economic, Social and Cultural Rights (CESCR)
Convention on the Elimination of All Forms     of     Discrimination               against Women (CEDAW)	18 Dec 1979	Committee    on    the    Elimination    of Discrimination        against        Women (CEDAW)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)	10 Dec 1984	Committee against Torture (CAT)
Convention on the Rights of the Child (CRC)	20 Nov 1989	Committee on the Rights of the Child (CRC)
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW)	18 Dec 1990	Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)
International     Convention     for     the Protection     of     All     Persons     from Enforced Disappearance (ICPED)	20 Dec 2006	Committee              on              Enforced Disappearances (CED)
Convention on the Rights of Persons with Disabilities (CRPD)	13 Dec 2006	Committee on the Rights of Persons with Disabilities (CRPD)

Now, very often, human rights treaties are followed by “Optional Protocols” which may either provide for procedures with regard to the working of a provision in a treaty or address a substantive area related to the treaty. More often than not, Optional Protocols to human rights treaties are treaties in their own right and are open to signature by countries who are party to the main treaty. Until and unless a State which is a party to the main Convention does not ratify the said Optional Protocol, the provisions of the said Protocol do not apply to the State in that context. For example, India is a signatory to the International Covenant on Economic, Social and Cultural Rights. Therefore,

India is obligated to abide by all the provisions laid down under the said Covenant barring the ones for which a valid reservation has been made. Now, the Optional Protocol to the Covenant on Economic, Social and Cultural Rights specifically recognises the power of the Committee on Economic, Social and Cultural Rights to receive complaints from individuals or groups of individuals claiming to be victims of any economic, social and cultural right set forth in the Covenant. Now, it is to be noted that India is not a party to the Optional Protocol to the Covenant on Economic, Social and Cultural Rights.5 Therefore, anyone residing in India may not file a complaint with the Committee on Economic, Social and Cultural Rights, even though India has a general obligation upon it to uphold all the rights listed out in the said Covenant.

The following table6 will help you identify the nine (9) optional protocols that have been enacted post the enactment of the nine (9) core international human rights conventions, their dates of entry into force and their respective treaty bodies monitoring the enforcement of its provisions.

Name of the Optional Protocol	Entry into Force	Monitoring Body
Optional Protocol to the Covenant on Economic, Social and Cultural Rights	10 Dec 2008	Committee on Economic, Social and Cultural Rights (CESCR)
Optional Protocol to the International Covenant on Civil and Political Rights	16 Dec 1966	Human Rights Committee (HRC)
Second    Optional    Protocol    to    the International Covenant on Civil and Political Rights	15 Dec 1989	Human Rights Committee (HRC)
Optional Protocol to the Convention on the Elimination of Discrimination against Women	10 Dec 1999	Committee on the Elimination of Discrimination against Women (CEDAW)
Optional Protocol to the Convention on the Rights of the Child on the involvement    of    children   in    armed conflict	25 May 2000	Committee on the Rights of the Child (CRC)
Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography	25 May 2000	Committee on the Rights of the Child (CRC)
Optional Protocol to the Convention on the Rights of the Child on a communications procedure	18 Dec 2002	Committee on the Rights of the Child (CRC)
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	18 Dec 2002	Subcommittee     on     Prevention      of Torture (SPT)7
Optional Protocol to the Convention on         the    Rights    of    Persons     with Disabilities	12 Dec 2006	Committee on the Rights of Persons with Disabilities (CRPD)

Some of the most relevant treaties and optional protocols in your syllabus will be dealt with, in separate modules. We will now continue giving you a brief outline about the different sources of law listed out in Article 38 of the Statute of the International Court of Justice. Next in line is International Custom.

International Custom or Customary International Law

The second source of international law, and, therefore, also international human rights law, listed in Article 38 (1) of the Statute of the ICJ is ‘International Custom’ or ‘Customary International Law’ or simply ‘Custom.’ Now, defining custom is no easy task. However, generally understood it means a rule of conduct recognised by the community of nations as the right rule of conduct and having the force of law.

To better understand what exactly is customary international human rights law, let’s look at an example. In Filártiga v. Peña-Irala8, a US court had to decide whether ‘torture’ was contrary to customary international law. Be mindful that this case was being adjudicated in 1980, four years before the adoption of the United Nations Convention against Torture. The judges sought to find international consensus on the prohibition of torture and accordingly looked at multiple treaties concluded between states and their reiteration in domestic laws (including the Constitution of over 55 countries). In sum, it was held that freedom from torture was guaranteed under customary international human rights law. In essence, it was held that freedom from torture is a rule of conduct recognised by the community of nations as the right rule of conduct, which has the force of law.

Now, the Statute of the ICJ provides that the court shall apply “international custom, as evidence of a general practice accepted as law.” Thus, there are two vital elements which constitute custom as a source of international human rights law. They are:

(1) The general practice of states in their mutual relations with each other;

(2) A belief that this practice is rendered obligatory by way of law;

What is general practice, cannot be defined precisely. This practice is shown by the acts of States in their mutual relations with each other. The observance and acceptance of practice gives birth to a customary rule of international law. When more and more states endorse this practice, it acquires the status of universal custom.

Now, a custom might have been followed consistently, and even for a lengthy period, but without any suggestion that there was any obligation to do so by some law. In such a scenario, the necessary opinio juris (the belief that an action was carried out because it was a legal obligation) is lacking. Without such opinio juris, a state cannot one fine day insist that the custom be followed if another state chose to take a different course in a particular case.

Some of the most important aspects of customary international law will be dealt with, in separate modules. We will now continue giving you a brief outline about the different sources of law listed out in Article 38 of the Statute of the International Court of Justice. Next in line is general principles of law recognized by civilized nations.

General principles of law recognized by civilized nations

Article 38 (1) of the Statute of the ICJ directs the court to apply “the general principles of law recognized by civilized nations” in deciding such disputes as are submitted to it. A plain reading of the foregoing makes it clear that not every principle of law could be a source of international law. Only such principle of law that is recognized by civilized nations of this world will be considered appropriate. So, which nations are considered as civilized nations? Well, to answer this question, we need to dig deeper into the history of international law. The present statute of the International Court of Justice was borrowed from the statute of the Permanent Court of International Justice. The latter was established in the 1920’s when only the European States along with the United States was thought to have established solid legal systems (because of which they were considered as civilized nations). However, today, when almost 200 States are members of the United Nations, few states cannot claim the privilege of being civilized. Therefore, now in the 21st century, “general principles of law recognised by civilised nations” could reasonably be taken to mean general principles of law recognized by legal systems of different countries’.

Now, although there is no complete uniformity among the legal systems of different countries, but certain principles of these systems have in fact been drawn by the International Court of Justice. These aspects will be discussed in detail in later modules. We will now talk about the fourth source of international law listed under Article 38 (1) of the Statute of International Court of Justice.

Judicial Decisions

Article 38 (1)(d) of the ICJ Statute clearly establishes that judicial decisions can be referred to by the International Court of Justice. However, the said source will only be considered a subsidiary one. Why?Well, first of all, this article does not clarify which courts’ judicial decisions it is referring to or the weight that should be given to judicial decisions. It does, however, subject the recognition of judicial decisions as a source of law to Article 59 of the Statute of the International Court of Justice, which states that the decision of the Court has no binding force except between the parties and in respect of that particular case. Therefore, with respect to judicial decisions, the formal position is that international courts do not make law and it is because of this fact that their decisions are binding only on the parties to the particular case and no other. Hence, it is considered as a subsidiary source of law under Article 38 of the Statute of the International Court of Justice.

The foregoing conclusion ignores the fact that through interpretation and application of treaties, custom and general principles of law, judicial decisions fill the gap, elucidate and develop international law. In this regard, Judge Azevedo has said, “It should be remembered… that the decision in a particular case has deep repercussions, particularly in international law, because views which have been confirmed by that decision acquire quasi-legislative value, in spite of the legal principle to the effect that the decision has no binding force except between the parties and in respect of that particular case.”

Apart from the International Court of Justice, uniform decisions of national courts also assume significance. It is not the decision of every national court which is applied and followed. There have been judgments by the Court, where parties have relied on judgments delivered by the UK House of Lords or the US Supreme Court and have succeeded in their cause. We will study such cases, especially those dealing with human rights, in detail in a separate module. For now, we move on to teachings of the most highly qualified publicists.

Teachings of the most highly qualified publicists

Like judicial decisions, teachings of the most highly qualified publicists has also been recognized as a subsidiary source of law. The primary reason for the same is that writers do not make law. They usually talk about what the law should be. Nonetheless, in the 21st century, the role of writers of international human rights law has diminished considerably in view of various other forms.

Within the international and regional human rights systems, there are now a plethora of expert bodies and individuals who produce important reports and commentaries on a wide range of human rights issues. These include reports by Special Rapporteurs, working groups, NGO’s such as those of Human Rights Watch and Amnesty International, etc. Such works are often scholarly, well-researched and analytical. The result is that there is a wealth of literature that may be understood as a subsidiary means of determining the rules of international human rights law. Having said that, we need to trace the historical importance of this source and figure how exactly Courts took notice of what’s been written and how exactly the same was applied in their rulings.

Other Sources (Jus cogensand Soft Law)

In addition to the sources of law listed under Article 38 of the ICJ Statute, there are other sources that the courts adjudicating international law matters look up to. The said sources and a brief introduction to these are provided underneath.

Jus cogens – This is a sort of international law that is accepted and recognized by the international community of States as a whole, as a norm from which no derogation is permitted. The concept of jus cogens operates as a concept superior to all the sources of law listed above viz. treaty law, customary international law, general principles of law recognized by civilized nations, judicial decisions and teachings of the most highly qualified publicists.

Difference between jus cogens and customary international law – While jus cogens and customary international law are related, they differ in one important respect. Under customary international law, if a state persistently objects to a norm, it is considered not bound by that norm. This indicates that even customary international law is derived from the consent of states. On the other hand, jus cogens is derived from values taken to be fundamental by the international community and a State will be bound by such a norm irrespective of the State’s take on it.

Soft Law – Soft law refers to rules that are neither strictly binding in nature nor completely lacking legal significance. In the field of international human rights, there is no paucity of such soft laws.

To begin with, there are multiple treaty bodies that are tasked with the obligation of enforcing the provisions of their respective convention. In doing so, however, these expert bodies elucidate states’ obligations through the adoption of general comments and concluding observations in response to state reports. Some of these treaty bodies have set up an individual complaint mechanism, by way of which individuals who claim to be a victim can approach a treaty body and based on the evidence on record, the said body of experts gives a decision. It is not clear if these decisions will be considered as “judicial decisions” under Article 38 of the Statute of the International Court of Justice, but their opinions cannot be easily disregarded as well.

Other forms of soft law include Security Council Resolutions, General Assembly Resolutions, Human Rights Council Resolutions, Guidelines – Codes of Conduct – Standards of Behaviour issued by various human rights agencies, Drafts issued by the International Law Commission, etc.

Conclusion

Up till now we have learnt that a formal set of sources has been laid down under Article 38 of the Statute of the ICJ. The sources listed therein include Treaties, Custom, General Principles of Law recognized by Civilized nations, Judicial Decisions and Teachings of the most highly qualified publicists. At the same time, there is another set of rules that apply to international law matters – these include jus cogens and soft law. Let us now have a look at each of these sources through the lens of international human rights law and see what role each of these plays in its development.

Reference

1. Brownlie, Ian. Principles Of Public International Law, (7 Th Ed., 2008), Pages 3-29.
2. Christoph Scheruer,        Sources        Of        International        Law        And        Application Http://Www.Univie.Ac.At/Intlaw/Wordpress/Pdf/59_Sources.Pdf.
3. International Bill Of Human Rights.
4. International Human Rights Law And The Role Of The Legal Professions: A General Introduction; Http://Www.Ohchr.Org/Documents/Publications/Training9chapter1en.Pdf.