304 / 532
288
MARTIN FAIX
CYIL 5 ȍ2014Ȏ
context of Article 38(1) ICJ Statute to general international law.
95
Hence, what is the
reason to accord them a different status with regard to their effect on international
organisations?
96
The above argumentation appears convincing, especially in light of the bursting
range of human rights related activities of international organisations and correlated legal
questions, the clarification of which is necessitated, among other things, by the overall
humanisation of international law. Nevertheless, a certain doubt remains – namely
whether it is appropriate to blur the contours of the two notions, international custom
and general principles of international law.
Pellet,
in this regard, draws attention to the fact
that many human rights authors, by seeing the general principles as anchored in positive
international law, “profoundly modify” the nature of general principles in the meaning
of their creation process.
97
In contrast to customary rules, they must be recognised
in
domestic
legal systems, constitute their common denominator and be transposable
to international law.
98
By deriving general principles of human rights law from positive
international law, the direction of permeation would change entirely. Instead of deriving
general principles from national legal systems and elevating them to the international law
level, they would percolate from international law down into domestic fora.
99
The ICJ jurisprudence does not seem to be very helpful in addressing the
issue, as it refers to human rights (or considerations of humanity) alternatively as
general principles of international law to be derived from international treaties and
custom, or as to general principles of international law as a separate formal source
of international law in the sense of Article 38(1) ICJ Statute.
100
Despite such lack of
clarity I may recall the ICJ’s words in the
Corfu Channel Case
, in which the Court
mentioned obligations “
based … on certain general and well recognized principles
”,
among which it mentioned “
elementary considerations of humanity
”.
101
This statement
is in line with the considerations of the previous sections and especially with the fact
that the core of human rights law constitutes
jus cogens
, leading us to the more or
less accepted conclusion that human rights form a part of general international law,
which international organisations have to obey.
95
Some authors argue that it is difficult to differentiate between general principles and customary
international law,
cf.
SCHERMERS, Henry G. The Legal Basis of International Organization Action.
Supra
note 74, p. 401-402.
96
NAERT,
International Law Aspects of the EU’s Security and Defence Policy
.
Supra
note 37, p. 397.
97
PELLET, Allain. Human Rightism and International law.
Supra
note 7, p. 7.
98
Ibid
.
99
SIMMA, Bruno, ALSTON, Philip. The Sources of Human Rights Law: Custom, Jus Cogens, and
General Principles.
Supra
note 93, p. 102.
100
De SCHUTTER notes correctly that exactly for this reason the statements of the ICJ should be taken
with caution; but his conclusion appears equally confusing, as it is not clear which notion of „general
principles“ he applies to the UDHR (DE SCHUTTER, Olivier. Human Rights and the Rise of
International Organisations.
Supra
note 64, pp. 71-73).
101
ICJ,
Corfu Channel Case
, Judgment, I.C.J. Rep. 1949, pp. 4
et seq
. (at p. 22). For a brief overview
on Courts’ statements in this regard see DE SCHUTTER, Olivier. Human Rights and the Rise of
International Organisations.
Supra
note 64, p. 71-72.