287 / 532
271
ARE INTERNATIONAL ORGANISATIONS BOUND BY INTERNATIONAL HUMAN RIGHTS…
on international law. This can be demonstrated
13
in their impact on the structure
of international obligations, which was strongly influenced by the revolutionary
conceptions of
erga omnes
obligations and
jus cogens
rules.
14
It was the character and the very nature of human rights accenting that there exist
certain obligations, generally described as
erga omnes
obligations,
15
which are owed
by a State to the international community as a whole and which are, contrary to the
originally bilateral character of international law, not based on reciprocity. Relying
on the words of the ICTY in the
Kupreskič
judgment,
erga omnes
obligations “
lay
down obligations towards the international community as a whole, with the consequence
that each and every member of the international community has a “legal interest” in their
observance and consequently a legal entitlement to demand respect for such obligations
”.
16
In the same decision, the ICTY stated that
“The absolute nature of most obligations
imposed by rules of international humanitarian law reflects the progressive trend towards
the so-called „humanisation“ of international legal obligations, which refers to the general
erosion of the role of reciprocity in the application of humanitarian law over the last
century“
17
and recalled the
Barcelona Traction
decision of the ICJ, which dealt
with
erga-omnes
obligations and in this context referred specifically to obligations
concerning fundamental human rights.
18
The Humanisation of international law relates beyond any doubt also to the
development of the
jus cogens
concept.
19
Human rights are common international
community values, which the traditional structure of international obligations could
hardly accommodate. In order to remedy this, the concept of peremptory norms,
which changed the traditional view of international law being based solely on
13
Besides in MERON’s
The Humanization of International Law
(
supra
note 4), an analysis of the
impact of human rights law on areas of general international law (areas, which seem to be hard to
reconcile with human rights law, such as law of treaties, their interpretation, structure of international
obligations, immunity of States, diplomatic protection or international responsibility) was undertaken,
for example, in the above mentioned study of the ILA’s Committee of International Human Rights and
Practice; see KAMMINGA, Menno T., SCHEININ, Martin.
The impact of human rights law on general
international law
.
Supra
note 4.
14
I admit that in practice the concept of
erga omnes
remained „largely rhetorical“ (MERON, Theodor.
The humanization of international law. Supra
note 4., p. 262); but in my opinion the question of practical
utility does not doubt the validity of the concept as such. Finally, the UN International Law Commission
also has supported the concept by including it in its Article 48 of the Articles on Responsibility of States
for Internationally Wrongful Acts (adopted 12 December 2001, UN GA Res. 56/83).
15
On the concept of obligations
erga omnes
, see for example RAGAZZI, Mauritio.
The concept of
international obligations
erga-omnes. Oxford: Clarendon, 1997.
16
ICTY, Prosecutor v. Zoran Kupreskič et al., judgment from 14 January 2000, para. 519.
17
Ibid
., para. 518.
18
As the ICJ stated in
Barcelona Traction
,
erga omnes
obligations derive
“in contemporary international law,
from… the principles and rules concerning the basic rights of the human person …Some of the corresponding
rights of protection have entered into the body of general international law … others are conferred by
international instruments of a universal or quasi-universal character”
(ICJ, Barcelona Traction, Light and
Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3, paras. 33-34).
19
MERON, Theodor.
The humanization of international law. Supra
note 4, p. 201-203, esp. p. 203.