Sources of International Law
Unlike national law systems, the sources of international law are more diverse and less defined. Overall however, international law’s origins can be found in anyone of these traditional sources: (1) codified law as expressed in bilateral and multilateral treaties, (2) customary law as derived from the practice of a number of states and as seen in actions, government statements, and national courts decisions; (3) general principles as deduced from the comparative study of various legal systems, (4) International court decisions, and (5) opinions by legal scholars and NGOs findings.
The above summary is a reflection of the classical definition of the sources of international law as reaffirmed in article 38 of the Statute of the International Court of Justice: “the rules of international law are to be found in international treaties, international custom, general principles of law, and, as subsidiary sources. Judicial decisions and the teachings of the most qualified publicists. The law-creating process in international law is based on these sources, and the existence of a rule must be proved by reference to them.” Despite the well-defined boundaries of international law, it remains however very difficult to determine what falls under the protection of international law and humanitarian law and what is not. In my opinion, it is this frustration that led one of the leading human rights scholars, Richard Bilder, to contend that “[i]n practice a claim is an international human right if the United Nations General Assembly says it is.”
As I have mentioned earlier in this work, the origin of the human rights claims is rooted in the claims by individuals and groups who are frustrated by reasonable or unreasonable social controls that frustrate their drive to satisfy certain needs. These needs however can be found to be legal human rights claims if and only if they became formally recognized in the context of international law to be so. That formal recognition has been made simple by the declarations and covenants that were adopted by the international community as represented in the United Nations. The nature of human rights claims as stemming from the moral values of any given community on the other hand complicates the process of litigating and resolving such matters. Human rights laws reside in the gray area between what law as is and law as it ought to be, and for that reason we have reserved considerable space discussing the philosophical and moral arguments for and against human rights.