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MARTIN FAIX
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consent, with all resulting obligations having the equal rank, was introduced by the
International Law Commission through insertion of Article 53 VCLT.
20
Nowadays,
human rights obligations are considered at least partially as peremptory,
21
imposing
on States the obligation to cooperate with the aim of bringing to an end serious
breaches of human rights.
22
On the other hand, the whole body of human rights
certainly cannot be considered as having the character of
jus cogens
.
23
To sum up, the influence of human rights (law) on the creation, application and
operation of international law, in both structural and material aspects, constitutes
a long term development trend with significant impact. However, it also constitutes
a challenge, mainly because of its dimension, because of its partial incompatibility
with the traditional understanding of basic concepts of international law such as
sovereignty and state centrism, but also because of the understanding of the human
rights concept as the most obvious expression of a moral ideal to be accommodated
in international legal normativity.
3.1 International organisations, their (qualitative) evolution
and human rights
As a preliminary issue, a brief consideration of what I understand as an
international organisation appears relevant, especially in the light of the absence
of a generally accepted definition. International law itself (unfortunately) does not
provide any clear answer to the question of what an international organisation is. On
the other hand, a significant number of attempts to clarify this and a corresponding
body of literature exist.
24
In this article the term “international organisation” shall be
20
KAMMINGA, Menno T., SCHEININ, Martin.
The impact of human rights law on general international
law. Supra
note 4, p. 6. Moreover, Article 60(5) VCLT bars States from invoking the material breach of
a treaty by another party as a ground for terminating or suspending “
provisions relating to the protection
of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting
any form or reprisal against persons protected by such treaties
”.
21
PELLET, Allain. Human Rightism and International law.
Supra
note 7, p. 8; CLAPHAM, Andrew.
Human rights obligations of non-state actors
. New York: Oxford University Press, 2006, pp. 87-91.
22
Article 41 of the Articles on Responsibility of States for Internationally Wrongful Acts (adopted
12 December 2001, UN GA Res. 56/83).
23
Higgins
names as examples of rights with status of
jus cogens
the right to life, the right to freedom from
slavery or torture, HIGGINS, Rosalyn. Derogation Under Human Rights Treaties.
British Yearbook of
International Law
(1976-77). Oxford: Clarendon Press, 1978, vol. 48, pp. 281- 312, at p. 282. See also
BIANCHI, Andrea. Human Rights and the Magic of Jus Cogens.
European Journal of International
Law
. 2008, vol. 19, no. 3, pp. 491-508.
24
Cf.
the definition by the
UN International Law Commission (ILC)
: „
International organization means
an organization established by a treaty or other instrument governed by international law and possessing its
own international legal personality. International organizations may include as members, in addition to
States, other entities
“ (Responsibility of International Organizations. Text and titles of draft articles 1 to
67 adopted by ILC the Drafting Committee on second reading in 2011, 30 May 2011, UN General
Assembly Doc. A/CN.4/L.778, Article 2). From Czech literature, see for example: MALENOVSKÝ,
Jiří.
Mezinárodní právo veřejné: jeho obecná část a poměr k jiným právním systémům, zvláště k právu
českému
. 5. vyd., Brno: Masarykova univerzita a nakladatelství Doplněk, 2007, p. 104; DAVID,
Vladislav et al.,
Mezinárodní právo veřejné s kazuistikou
. 2. vydání. Praha: Leges, 2011, p. 149. For