Chapter 2: Determine human rights

Digital journalists in Kenya operate within a complex legal and ethical environment that is shaped by international human rights standards. Understanding the general principles of international law, the human rights law built on them and the right to freedom of expression is essential for professionals who report on, advocate for, or interact with issues of human rights, media freedom and legal protections. Mastery of these principles enables journalists to navigate sensitive stories, protect vulnerable groups, and uphold the integrity of their reporting in both national and global contexts.

2.1 General principles of International Law

International law is the body of rules that governs relations between States and other international actors, such as the United Nations, the African Union and, in limited respects, individuals. A digital journalist meets it whenever a story crosses a border: a report on a foreign government's treatment of its citizens, a leaked document that originates abroad, a video of an armed conflict, or an online article that can be read, and sued on, in another country. International law also shapes Kenya's own law, because the Constitution of Kenya, 2010 makes the general rules of international law and ratified treaties part of the law of Kenya. This topic sets out what international law is, where its rules come from and the general principles that run through it. The rules that protect individuals are taught in the topic Human Rights Law.

Meaning and nature of international law

Public international law regulates the conduct of States, international organisations and, in some matters, individuals and groups. It is different from private international law, which decides which country's courts and which country's law apply to a dispute between private parties. International law has no world parliament and no single world court with compulsory powers over every State. Its rules are made by the consent of States through treaties and practice, and they are enforced by a mix of courts, diplomatic pressure, sanctions and the reputation of the State that breaks them.

Sources of international law

The Statute of the International Court of Justice lists the sources the Court applies, and it is widely accepted as a statement of the sources of international law.

• Treaties: written agreements between States that bind the parties to them. A treaty may be called a convention, covenant, charter or protocol.
• Customary international law: rules that arise from the consistent practice of States followed because they feel legally bound to do so. Two elements are needed, State practice and the belief that the practice is required by law.
• General principles of law: principles recognised by the legal systems of the world's nations, such as good faith and fair hearing.
• Judicial decisions and scholarly writing: these do not make law, but they are used as subsidiary means to find what the law is.

Treaties, ratification and reservations

A State expresses its consent to be bound by a treaty in stages. It signs the treaty, which shows its intention to proceed, and then ratifies it, which is the formal act by which the State accepts the commitment and agrees to apply it. A State that did not take part in negotiating a treaty may accede to it. A State may sometimes make a reservation, which excludes or changes the effect of a provision, unless the treaty forbids it or the reservation defeats the treaty's purpose. In Kenya, the Treaty Making and Ratification Act, 2012 sets out how treaties are negotiated and ratified.

Pacta sunt servanda and good faith

The rule that agreements must be kept, known in Latin as pacta sunt servanda, is the foundation of treaty law. Article 26 of the Vienna Convention on the Law of Treaties states that every treaty in force is binding on its parties and must be performed by them in good faith. A State cannot rely on its own domestic law as a reason for failing to carry out a treaty. For a journalist, this explains why a government that has ratified a human rights treaty can be held to its terms, and why reporting on its failure to do so is legitimate.

Sovereignty, equality of States and non-intervention

Every State has sovereignty over its territory and people and is equal in law to every other State. The Charter of the United Nations states the principle of the sovereign equality of its members, and it also requires its members to refrain from the threat or use of force against another State and to settle disputes by peaceful means. A State is generally not allowed to intervene in the internal affairs of another State. Sovereignty is not unlimited: a State must respect its international obligations, including those on human rights, and it can be held responsible for a breach.

Peremptory norms (jus cogens) and obligations to all

Some rules are so fundamental that no State may set them aside by agreement. These are peremptory norms, also called jus cogens, and Article 53 of the Vienna Convention on the Law of Treaties provides that a treaty that conflicts with one is void. The prohibitions of genocide, slavery and torture are commonly given as examples. Some obligations are owed to the international community as a whole, so that any State may complain of their breach. These ideas matter to journalists who report on grave abuses, because they explain why such conduct is of concern everywhere and cannot be defended on the ground that it is a State's internal matter.

International law and Kenyan law

Systems differ on how international law enters domestic law. Under a dualist system a treaty applies at home only after a domestic law is passed to adopt it. Under a monist system the treaty applies directly. Article 2 of the Constitution of Kenya, 2010 provides that the general rules of international law form part of the law of Kenya and that any treaty or convention ratified by Kenya forms part of the law of Kenya, always under the Constitution. Kenyan courts refer to ratified treaties when they interpret the rights in the Bill of Rights. A journalist who wants to rely on an international instrument checks that Kenya is a party to it, and that the provision has been applied by a Kenyan court or is consistent with the Constitution.

International organisations and the protection of journalists

The United Nations, the African Union and its organs, and bodies such as the International Court of Justice and the African Commission on Human and Peoples' Rights develop and apply international law. Two groups of instruments matter especially to media workers. The treaties that protect freedom of expression bind the States that have ratified them, and their terms are taught in the topic Freedom of expression. The Geneva Conventions and their Additional Protocol I protect journalists in armed conflict: a journalist on a dangerous professional mission is a civilian and is protected as such, as long as the journalist takes no action that harms that status.

Why these principles matter to digital journalists

• Cross-border reporting: an article published online may be read in several countries, so more than one legal system may be involved, and a journalist who covers an international story needs to know which rules apply.
• Using international standards in a story: a reporter can measure a State's conduct against the treaties it has ratified and cite the exact article.
• Safety: knowing the protection that international humanitarian law gives to journalists helps a reporter judge the risks of working in a conflict area.
• Accurate terms: distinguishing signing, ratification and accession, or a binding treaty from a non-binding declaration, avoids errors in reporting.
• Advocacy: treaty obligations give a factual basis for stories on a government's compliance with its international commitments.

A producer preparing an online explainer on a treaty that Kenya has signed but not yet ratified must say so exactly, because signature alone shows an intention to proceed, and only ratification commits the State to apply the treaty.

Chapter Summary

This chapter explored the general principles of international law: its sources, treaties and ratification, the rule that agreements must be kept, sovereignty and non-intervention, peremptory norms and the way international law becomes part of Kenyan law. It then examined the core concepts of human rights law, highlighting the inherent rights and protections that every individual is entitled to under various legal frameworks. The discussion outlined how these rights are codified, protected, and sometimes challenged within both international and national contexts. Special attention was given to the relationship between international human rights instruments and domestic legal systems, illustrating the dynamic interplay between global norms and local enforcement. The chapter also delved into the right to freedom of expression, analysing its legal basis and the critical role it plays in democratic societies. Key limitations and responsibilities associated with this freedom were discussed, including how legal systems balance expression with public interest and order. Overall, the chapter provided a comprehensive overview of how international law principles, human rights law, and freedom of expression intersect to shape media practice and individual liberties.