1 Final Report on the Impact of International Human Rights Law on General International Law Menno T: Kamminga 1. Introduction ‘Arhelmermaional Law Assocation’ 2004 Confrence n Bern, the Executive Council entrusted the Commitee on lcernttonal Flume Rights Law and Practice with the raseof preparing a repo onthe lationship between general international lw apd interatona human rigs ln This the Commie final epore onthe nbjecs" An xin spor a pscte atthe Asotin’ 2006 Toronto Conferences That tcprs was prcpated at 2 Commitee work shop held in asc under the apices a the Mastich Cente fo Haman Righs. The present report was propa a2 worktop eld a he Certo di Peonignano near Sina, aly atthe kind imtsion of Commie member Profesor Ricardo Plo Marz Before starting its work the Ca speach othe stay ofthe elinshipheeween oe internacional human igh lw The ft apron cpa the speci, ena human rights land assumes tha the rales and Sorina aw; or atlas some of hem, sv ot apie Zbl it This way anvil with sxe general end of idenying elle ‘elEcontsined pines within public ier la and led the fragman tation approach he our approach to take asthe pin of departure tha invernconal umn vgs awe ate genta steroaonal aw and hat be two branches of sould be scone wih cach snr mich a possible ‘his wat labelled the reconciliation’ appvach. The Commitee unanimously vnittee considered evo broad, alternative international law and 1 This chaper onan alg si sn he Come ot tha mas adopted at she2008 LA Confrence in oe ania ar tha wil nasa be pled in apr he Ped Cnr ofte cman arto 808 "ipod Confrence he trail a ition 2006) 457,: a eee tes ih Pde lire ni we ea ai hs sig ey cay sala Sm eh ie mal tsa oe sav ores nity he te ela pe imal io Hemost eng wl ter ‘eee The Coir a het eer led and Eo nth sro the presen repo aclu noe genet eh rs el ferrng rights and duties dreedy on individuals regardless of nationality, include feng ie doin ai to csi imerl banana cn cen mn rece la hcp nai pe hh ua rp ee ae i of ele te pra yells Vn Conoco e eta eee ate cea TN ae Ge a errs chen neem emo hole le ee ee ea eres eel nie opr ‘is framed in terms of the increasing role played by non-stare actors. (Juestions: feline ecient ce, Cis eae eee eas Irani ter iganddeneraticx einer se iecning frac scm ean ng he crests sens tae eeu emer phen ere renee etn ce See eee ‘hey remain limited co the le pecalisof international human right as ine aS eetanat i eel torent ional human 2 The tz wa aed employed mor shan 50 an ail by Mors Bourn spied tain de depen amelie oopo sa homer de Georg State eal froadoke fare SO el inal Report on she Impact of ternational Human Rights Law 3 fouman Ce a og ae ns ead ns cig ln eg i Recta Se seme ti tn tay nat raga ans i ac 45, Simms ‘cna! Hun Rib and Genera semana Lae & Compare aati in Called Cours 9 the Aon of Exim La a2, 13-256 0 Dadi 93) A Casa, incrnational Law, 20 (Cor Usineniay Pen, Oxford 2009) 396, ©1 Meron the Hamann of Inurautonal Law (Martina Nit Puahe, Lede Bonn 206)A Menno T. Kammings ray Recto, Meno Kaige he pes of Iron a aw onthe a of Sate Susann Rage of Ties Rc Fale Matzeschi, The Impac of International Human Righes Law on the Lave of a ee Tat ep htc fom comnts ages ce tiring Commit mens Ann Baye, Anis Tyrey se action, Mahara Malena Hots, Rober Nee Mts Pu Se Nil Roky, Chae Segal Co ec sna We "he Cotes rc a heen i pn stoping td he pes of trae aman igh avon ge imeratea apd at hao tated. Moron ar lB en (Son gt or nea habe ben chalnges fon tcno ‘tea or red nscale pat om gral nae Paton! Tne Camias has neve Ince thon nan in ‘porters rare shou the proces The Comme snide tha the impact of inceaonal buna sighs lon gee ntl lavigne nade to volen he ne ‘Stan el orks pelosany succeed aurea os ne Se spi nemesnora tue of natal signs nse a of insight Howe the Cami ha amped oo engage nis fa hinting "hana igh” hanes oanponeap a ‘tng tach td vty anv nna Lr ate Ge ing by hanger The Commis hated aly nd so ‘that ar drdopaanna widens fea thn ben acl whe ewig coco dr lige la Tope ti repr: om being eda ‘Steering meh tow ve os pup nan ight xh emmiescanie ingot at ee seminar A Coniuencars ol, 2. The Structure of International Obligations ‘ecoregion seme pry arms ‘men, alle sone Foie ons ced mt pcm mel acl man igs bs havea ata ipacon the seen Of hwo conc: Ahough inraena minal tbs sooo Sy human righ ties hae oecaonly ade eee hc, ae ily ben shaped bythe mera Cures the rn {ew Commision epee Putco singh segs sss sg on ad ju cgeresarchamaa igs sry nal oe bong a A. “Huan Righion” ad Ineo Law (2000) 10 ein i ntl Final Report on the Impacto bnternational Human Rights Law 5 category. Finally although the two concepts have had an important symbolic ceffectand have generated much interest among scholae and human rights aciy- ints they have nor yer had! much eifect in practice. While che existence of the concepts is beyond doubt. rhe floodgates have not opened: states have remained feluceant co rely on them ia thei legal arguments 2.1 Obligations ergeomnes Under traditional incernatioal Iwasa can ony protect sown rights and those oft own atone This fis uncomforeably wihthe notion of eoremanity inert To help il the gap he International Cour of nice began using the concept of obligations erg ome. The concep was inrodced by the Cour sn obit dru inthe BerconeTrason cas, n an apparent sponge wide ‘prea com ft fuel o econ the usando Ehipiaand Liberia in the South Wos freezes? Ines ber dtm the Cour seed that the ob tion otto commirortlerate racial discrimination har am geome charcter {ha thereore maybe invoke by any sate” The finding repented significant recognition by the Cour of the existence of sucha thing athe imerationl community and the values nd interests with which tisimbued, Since that cme, the Court has appeared keen to make eernce 1a obligations ere ones ns Fndingsinlading the Ear Timor Ronin Genoa cans Inte advisory opinion on The Wal he Court wena sp further and proceed o draw egal bnscquenes from the concep I absered tha all states were under an ob fatton ne to recogni he conseuencs of the bresches commited by Tn [Bs point out by Judge Kooiimansn hs separate opinion t would have been tmore appropiate tobase his conclusion onthe at that the breaches committed {mounted eo violation of ules af js cee "he Inernational Law Commision has also embraced the concep of oli tatlons expe omnes. Arve 48 of Articles on Responsibly of States for Incermconally Wrongut Acs provides that any State the than anne Sate it emied to invoke the resposiliy of another Sate) the obligation breached ie owed roa group of Sate Inluding that Sat and t extabihed for * South Wat fice bop Sam Ai: aber South Ain Second Phase, Jnent oF ly 966 eC Repo 3 anaona Turon, ed Por Company Lime New Aplicton: 1962) (Beli s Sim 1 Vr Parga Asn Jane 195, 1999 1) Reports 90 para 29 1 Apicatonsf the oncom the Prsemoh and Punshment ofthe ine fGenaide Basie aud Heaponina Serb sn Stn ekinny Odes agent 911 Jy 1996, T8961) Reports 595 pu 3 1 apd Cosgnt! of Contracion of Wali the sep Plain Tit, Risory pinion a9 jay 2004, 4004) opr pre. 35- "Bde separ opinion fudge Reon par 905 Menno T Kamminga he protectin of clive ineest ofthe group of) the oligacion reached qpobed to the international community 3s whole 2.2 Juscogens “Faional international law x based on consent and thee is no hierarchy of Elgadon al obligations te of egal rank In such a system there 0 special sane ommaniy values tha tum other norms sich a ina domes son Picci oytem, In onder to Bl his gap the International Law Commision qetducad te concepe of peremptory norms (is eogen). Under Article 53 of {Bu Vienna Convention on the Law of Teas] teats oid fat theme of “onclsonconfcs with peremptory notm of general iceratioal law” ‘Bs he concep of juego also has increasing relevance ouside the il ofthe Inwof race the ILC ha lncladed the concep ints Articles on Responsibility (OF Seats for Internationally Wrongful Acs. The Ailes provide tha states shal Shoperteto bring foam end ay serious breach arising under peremptory oem SFipncraimematonal lw!” The prisons agains aggression, gcroce ‘Teer, ail discrimination, crimes against humanity and torture and the ight toileermiaton ae geclregeed a ptempory rvs “The concept of rege has, in eent yeas, een applied nor only by ier ational human ights courts AbAdaat» United Kingdom”) and iteration Sina buna Procatr» Frundiia, but aso by other iterationl Sours sch at rhe Court of Fit Insane of the European Communities, (ado Coun) and by domestic courts (Ex Pare Pinochet, and Ferri Germany". “Te International Court ofJusice, on th thet hand, for reasons tata not Sculeo gatas been reucantorelyon the nai of ju egerin its judges? Inthe Aret Ware cas the Court declined even discus the agua Ale At, Arties on Repay of Sates or Iratonsly Wrong cs iad 12 December 2001) UNCA Res Se Pde Arle 40and "Cade eration Law Commision’ rice om Ste Repo aed UnialeyPes, Camb 9900 188, S277, BOHR, aman of 31 tl Ades» Une Ringo pp. 200 aon 34 ER, ECHR ‘Poser Pande CTY 95:11 dnt of 0 December 198.198 Cie T3180 Kad Coun fhe Bupece Union snd Commun Wf Commas (C2i Spend! 203) pre, 226 Ath i wing Eas ot Jeger badaos er adpedtulgmen opp eyagt ork oo] 1 Way PA? Mattes Bx pre Pek 2 UK Feit Fedral Rp of Grey, lean Cor of Casation, Judgment of Mash ag age? eal meet Dap re tee rg lg a ang Sie Final Reporson he Impact of lternatonal Harman Rights Law 7 by Belgium, acconing to which immunicy could not be invoked if norm of Jus coges bad been violated The Court refereed tothe concept of jr cogens in (Congo, Rasonda, bur this occurred in a natrow context. The Court observed that the prohibition of genocide has the character a a peremptory norms but refused co accept that genocide could overide the requirement of consent 10 jurisdiction 2" In sum, the existence under general international lw of the notion Of ur cgens i beyond doubr, buts application infer sae cass sil ery rare 3. The Formation of Customary International Law international law is ‘The traditional approach co identifying a rule of custom to lyon opino juris confirm state practic, or even t infer opin juris From state practice. Accordingly, in the Nord Sea Continental Shelf ese, the Court ‘observed tha, inorder for sate practice vo qually as custom, the practice must "beearrid out in such a way lence of belef that this practice is ren- eof law requiring i Moreover, when ‘weighing dffert types of stae ets, the traditional approach is vo attach moee value ro what states do (physical act) than what they say (verbal ats). In his ise senting opinion in the Puherer cave Judge Reid wrote chat he only convincing ‘evidence of Sate practice is tobe found in sires where the coastal sate asserts ins sovereignty over the waters in question by aresting foreign ship 2° Tn azeasinepired by community values (tad brllam, armed conic, rights, the environment) this traditional approach is problematic. The sigaif- cance tbe attached ro omissions i dificult to asses in these areas because be demonstrated thatthe abstention occazed out ofa Sense of legal obligation2” For example, in a debate on the lawfulness of clister munitions, che eaditional approach emphasizes that theve weapons have een used by a least 23 states and that they ace being prodaced by at ast 342 The new approach steses the fact that ches weapons are unlawfil because they ae indiscriminate. Human ighsereaty bodes nd international criminal courtsand wibunalshave tended 10 follow an approach that i based on desuction fom fundamental pin pls, ther than on induction from state practice. Moreover, when idenefying dh Cone Bem Jdene 2 re Waren of 1 pe 200 (Demecra Reub of of 4 Reany 20.2000 Rape ae 3 2 Toda 2 Nil os Consul hl fer Repl of Ge Geran ent fie ot Fabry 190 sein (Unied Kons sora) pment. ng i STM, Hence. ‘Siudy a0 Casomary Ineratonl Law: A Consbution sche UUndetaunding an Respect rsh ues Law i Armed Cnt’ (200) 87 Rew of the InremaCmier e edCn y ay ids ee Rie 1 Dace SI 19 IC ReponesA Meno. Kamminge ene ee tet ye Ue inh itemise oh Ci i pate eat 7 rem ent ae cre her iy e a ic ea let deat eee ao sri pee ate i Se Cerf ae ie omen many ce due Pecan fleece errs tere Sa ed ee ee Gans se eee eene ge cin ee Som i CRC uly Ctr ree ee Se enue pero eas srotseey crira teem atas tetg menmene ser te eae ae ele my ln in can fb ee See le ee Sa en reef are pcre pie art nen Scribe eh tc Spice emilee pee ere eg ope nt agin foe fem st ng ei ra edn Se ee eee neng es ee ft oe eae are eee eerie 4. Treaty Law ‘The Intemational Law Commission’ Stady Group on Fragmentation of lnerational Law has concluded thatthe Vienna Convention or the {a of Treaties isthe appropriate instrument fr dealing wth problems of fragt sion sand ne ted re ge tl cla eee eee Me " 3 Ln neg Lap US ap of Sl [Sar Ger Cone Ore cg SL tg Pa {cee ie ei aan sory ends gana Final Reporson the Impact af buemational Harman Rights Law 9 {in international law. But even the Seudy Group recoizes tha the VCLT’s ui form cules for interpreting and applying different sypes of treaties are problem: atic Even a the time of ts conclusion in1969, the VCLT was eeticized for ies failure co distinguish between diferent types of treaties, in particular between, tylateral’ and non-bilaeral reais. The Convention also did not take account ‘of one of the special characteristics of mukilacral ercatis: chat they may have ther own monitoring bodies developing insttutionalied practices of imerpret ation under the treaty in question, The provisions ofthe VCLT are therfore not always easly reconcilable with che special requirements of human rights treaties ‘or other mukilateral weaties establishing independent monitoring bodies, The special nature of the European Convention on Homan Rights was famously ‘characterized by the European Court of Human Rightsin the following terms: Unlike international eats of she clas kind the Convention comprises more than mere reciprocal engagements between Contacting Stats, Ir iat aver and shove 4 eework of muta isteral undertakings, objective sbligatons which, the words oF the Preamble, benef rom cllcivecnfrcemen.*™ 41 Treaty interpretation Ids sometimes suggested thar the special nature of human rights treaties requires special rules of interpretation, which difer from che general rules of ereaty inter pretation. For example. the European Cour of Human Rightshas observed tha, In interpreting the Exropean Convention on Human Rights, regard mustbe had to ts special character aS. ety forthe collective enforcement of human rights and fundamental freedoms * ‘Such a claim for special ereatment finds no support in the rules om ereaty lnwerpretation contained in he VCLT, however. When deaFing general cules of ierprtaton the ILC specifically decided to omit from the VCLT a distinction berween ‘law-making’ an other treaties” This ws i spite ofthe fae hat the concept of eeates that pursic a crimon interes had already been recognized by the International Court of Justice. In advisory opinion on Reseroatons ro she Genocide Convention the Case mousy observe In such a convention the contracting Sates so not have any interest hee own: hey merely ave ome and al common ire namely. she accomplishment of thos high Purposes whicharethe zon dro the onnsnth, Cansoquntyin convention seein crea a one rt eta a Marta aN Sonan i) ESR ude SSiacaare rs an tea at. sein genee™ : SATS pn ”i Menno T Kamminga thisrype one canoe spakf indivi avanagesor dsavantage fess wf he are eer comcta balance between righ and dis ™ Ic would appear, however, tha the principles for the interpretation of human rights treaties that have been relied upon by the European and Ines American (Coure of Haman Rights do not differ substantially from the method of weary Jverpretation which are available under general international law, specially fit isantumed cha the VCLT is nota complete codification of the customary inter. ‘national law on treaties, inclading ts norms on teaty interpretation. Ic cherefore Cannot be said thar thee has been a significant impact fom international human Fights lw on general international lw inthis field. For example, mphasis on the object and purpose of treaty (he necessity ‘to seek the interpretation thats ‘mot appropiate inorder wo realise che alm and achieve the object ofthe teaty, ‘hot that which would restrict tothe greatest posible degree che obligations of the Paces” is reflected in Article 31() ofthe VCLT. The principle of dynamic Inerpreration (the Convention is 2 living instrument which...rmust be later preted in the light of presenr-day conditions)™ is refleced to a considerable fextent in Arile 313) ofthe VCLT. In one ofits previous reports, the ILA Committe on International Human [Rights Law and Practice suggested that human rights treaty body figs con stitute ‘subsequent practice inthe application ofthe treaty which establishes the agreement of the pares regarding ts interpretation’ within the sense of Avtcle 3103) of the VCLT, or, alternatively, that states’ acquiescence in such find- ings constisutes sch practice” Although the Intemational Court of Justice has ‘no formally endorsed such an approach, ic has implicitly adopted this course of action, for example in its advisory opinion on The Wal. in which it closely Tol lowed the findings of the UN humas eights reaty bodies. 4.2 Treaty reservations Under traditional intenational law, 4 state is bound by a treaty only eo the extent cha ithas consented robe bound. From the poin of view o inter stional hhuman rights law, this point of departure ie problematic Unlike ment thet ‘weatis, human rights treaties creae obligations of 2 non-reciproval ature which establish righs for individuals. Reservations eo hurman rights testis se mn nt bt FE dpe geo moras nas ct Ee nttunatpainnime nage cine ‘nur ou etn S00) a Re Coe Final Report on the Impact of laternationel Huan Rights Law 1 ests of individuals and nor those of other therefore primarily afecr she “The approach to reservations taken by the UN human rights teary bodies is reflected iter ali in guidelines adopted by the chaipersons of human rights treaty bodies and + General Comment by the Human Rights Committee. “The line taken in these documents is similar co the attitude adopred earlier by the European Court of Human Rights"? The Intemational Law Commission hhas worked on the issue of reaty reservations since 1994, Irs work is not yet fir ished bue it has already resulted in various deaf guidelines, In his teports, ILC Special Rapporteur Alain Pellet has male Frequent reference tothe work on res: ‘ervations carried out bythe human rights rety bodies. In 2007 there was even ‘meeting on the sue berween the ILC und representatives of human right reay bodies Because ofthis fequent interaction, the impact of international human rights law on general internacional law inthe area of treaty reservations is com paratively well documented. Taree questions may be distinguished inthis eld (0) What are the grounds for determining thats reservation is impermissible? (2) Who may determine whether a reservation is impermissible? and 3) What are the consequences ofan impermissible reservation? (1) In its advisory opinion on Reserntions tothe Genocide Convention, the International Court of Justice adopted the ‘object and purpose’ test to deter- mine the validity of a reservation. The tet was subsequently included in Article 193) of the Vienna Conveation on the Law of Treaties and is widel tegutded as reflecting customary international lav. ILC Special Rapport Alain Pelee has called i the pivoe hetwoen the nced to preserve the nature of the treaty and the desire to facilitate accession to multilateral weates by the er of Seates."* From the point of view of international human greats Fights lw thie texts nor controversial, although in practice it may not always be casly applicable (@) Under Article 20 of the VCLT, a reservation is presumed permissible unless its objected to by other states patie. This system was designed for treaties in which sates have reciprocal interests, but factions inadequately for human rights creates, State parties co human rights reais have litle incentive co ext- feally examine and object to reservations made by other states, since their own, exc example, Repro he mein the RUC S00 eee lr Souzeriand Vp. No WS28/85, ECHR Tadgnoot of 29 Apel 1986, 0988) Rep fami th aman ih, 116M 207 UND ENT frets nthe Cansntn othe Pron nd Pishment of the Crime of Cenc ‘Adan Opinion of 8 May 193119311) Repo. “Stet Repre on Reserv o Toate by Alaa Pele, Spec! Rapport, UN Doc. CN AISSetASS C005) ae 3.2 Menno T Kammings direct inerete ae noe affected. The Human Rights Committe, anon oxhers thas therfore taken the view that che task of determining the vlidty of reer tions necessarily falls to the Commitee*® ILC Special Rapporteur Alin Pele has acepted that makes sense for teaty bodies to perform this foe: One of hi dia guidelines provides a fllows: "Where a treaty establishes a bay to mont tor application ofthe treaty, that body shall be competent, forthe purpose of discharging the Functions entrusted 0, to assess the validity of reser sons for ‘mulated bya Stat or an imternatianal organization,” Alchough the ILC has not yetpronounced on this draft the impact om international human rights aw oa gener international lw appears wo have been straightforward inthis case () Under Arties 20-21 ofthe VCLT a sate objecting wo a reservation has the copon of either aking the vew thatthe reservation precdes the entry ino force ‘of che convention between it and the reserving sat, oF to take the view that the ‘convention wil ene ino force berween cand the reserving state minis the prov son burdened bythe contested reservation. Neher ofthese options i atraetve n spect of human tights tates. The European Courtof Human Rightshastheveloe decided that invalid reservaionsare severable * The Human Rights Committechss _adoped similar potion Ir hascbserved chat ifithas determined that a sctvation |sincompaible wih object and purpose ofthe IOCPR, the reservation is generally severable and the reays‘peratve forthe reserving party without the enh ofthe ‘reservation The TLC has not yet formulated drat guideline on this question and ictemainso be seen whether wil fllow the approach ofthe human igh testy bans. Cleat. howe, ofall che iste arising in cespec of tety reservations this ‘sche most contoveial The United Stats, the United Kingdom and France ave already aken the unusual sp ofrepering formal objections tothe seveabily octine adopted bythe Human Rights Cmittee2> 43 Stace succession in respect of treaties In accondance withthe ‘lean dae’ docteine, unde traditional internation lw ‘statis fee to become o noe ro become a party 0 treaties chat were bilingon the predecessor state. Although the Vienna Convention on Succession of Stites Respect of Treaties provides for the continuity of obligationsin respect of al cea es this postion isnot parc of customary international aw." The only cxcion ‘othe clean slate doctrine tha is acepted under traditional iteration low Hane Rigs Commie Gene Cmmert Na. 24,4 Novem 1994 cotsthtareaa emma Tes Sydnee eet wan Sood pg asa ne eitleee ECAH, Jayme of 29 Api 9, Haman Rig Commins Genel Comme No.2, pa 18 2 Repeat Hanae ha Conmice UN Doe 30 1.1 (996, Annex Vi cls 99th Via Cone om Susi Sater Reet Teas 978 SereampeL Bowne rapes acmetand ae hed eee i ha Final Report on the impact of International Human Rights Law 3 isthe rule of the continuity of eeatis relating to teritoral regimes (including boundary regimes) as provided for in the Vienna Convention on Succesion of Staesin Respect of Treaties» That rule on territorial regimes has been qualified asa rule of customary international la by the Intentional Court of Justice >> In contast, the UN human rights treaty bodies have taken the view thatthe special nature of human rights eaties ental hat thet protection devolves with territory and that provection is nor affected by state sicesson.™ Successor sates therfore remain bound by human rights teats from their date of independence land this isnot dependent on any confirmation made by them, Ths thetefore puts ‘human rights treaties in the same league as teatics on trstoril regimes “However, although no state appears to have formally objected to the rule of automatic succession in respect of human rights teas, 30 fr the rule has not been formally enshrined under general international lw. There is no reflected in the Vienna Convention on the Law of Treaties or che Vienna Convention ‘on Succession of States in Respect of Treaties Neither has i been endorsed by the International Coust of Justice or the International Law Commision. In the Bosnian Genocide case, the Court decided not to respond co an argument in favour of aucomatic secession in rexpect of human rights treaties made by Bosnia- Herzegovina. Among the sparate opinions co this judgment, only Judge ‘Weeramantry expressed the view that there wa indeed a rule of automatic sue- ‘cession with regard rothe Genocide Convention, President Higgins has expressed sympathy forthe idea in an academic article” 5. International Law and Domestic Law ‘Under traditional international aw, sates ae ee o determine their relationship bberween international law and domestic law, so long as they ensure compliance with thee international obligations. In accordance with this general principle, it hnaslong been assumed that human rights treaties eave states parties the chotce of scans for the performance oftheir bligtions>* snd 1998 663 A. Castration Lam 2 el Oko Unie Pes, Onl 2005) IN shew rata au, be smd Uae Pos Camb 2003) 873 Amides 11-12 the Vcnna Cansonan om Socom of Sexe Respect of Tees oe ine 2 abr Nagao Pris (Hany. Sai dynes oF 25 Seember 1997, 197 IcJpepor pore ea ch mecing of chars of hmm is eases, UN Dae cen shpia's Tuma tps Choma Cone! Comer No.3 Conny of ie ‘Sea Spee 19 A Tagine Incas Cot of onic a Haan Rn Welle, Imran La oan Pre Fay Prof ay ge Te Hague 199810 Bee ‘Mk alg (gp No. 68304, ECAR. Jaden of 8 an 179 93 58“ a ee sree reer rhea Se ett fei dee ce ec a Setanta ae gay et pee peerage peer bet ced Seaton an, sn eine et ee eecrmnieey a aeententtint nt cee error teammate wet coon re agen or krone er dr rrp ether eae oer fooler ele erate create error ea ar a rae ce ee eer ee eterno secede arcmin mens on Fesentet treeoereaereiat 6. Immunity Immunity af the sate ad it (nin oficial fom proceedings bei or «ign courts based onthe waditonal anim per n parm non lobe igen Ichllows from the sovereign equley of ates nd i cerefore oe ofthe cat examples ofthe att nature mtatona lw In sever recent cases his rule war challenged with human rights usd argument bu fe with ie success een Bele imeranonal hea ke oh and Othe » Gr ue Suiaction (App No. 45568, HCA. een ot 31 Kc 95: Braman. Romens at Sutra Ap Ne. F8505 05) ERIE lpm ny mrmaaans 2B dues Grae ip. Ne 15080, ECAR, udgmen 8 Apr 20, icc ea Seman Satsang INCA agent spt 98 2 a ie ane ra Et ier et SocNetV Sof Ara of 3 in Meany ree fr te US Aer General 28 Fury 2005 205 44 “** USSupreme Cour, Model: Tn 852US (208) Judgment 25 March 2008 Final Reporton she Impact of tternatonsl Human Rights Law 15 courts. In 2001, in Al-Adsoni the Punspean Court of Human Rights decided that, even when acts of torture are alleged. sat enjoys immunity fom civil suit inanother state In 2006, in Jones». Studs Arabia the House of Lords endorsed this inding * Decisions going the other way. such as Ferrin, cacy less weight?” In 2002, in the Arves Warzan ease, the International Court of Justice made a similar finding with regard to criminal procceding It held that incumbent heads of sate, heads of government, and foreign ministers were immune from criminal proceedings before foreign courts even if they were charged with crimes under Jnernational law. The Cour did not arempe to balance the need for stable inter state relations wth the need to fight impunity for srious human rights violations. “The Incemational Law Commision has ox pronounced onthe sue yer [No significant impact from international human rights lw on general inter. national aw has therefore occurted so far inthis area. Nevertheless, in view of the controversial nature ofthese decisions (A/- Advani was decided by nine votes teceight and the Arrest Warrant decision was accompanied by 11 individual opin- fons) the law should be eepsrded afar From sete 7. Diplomatic Protection Under traditional incenationa lave ciplomsaticprotetion ian instrument forthe protection of persons and companies against injury by foreign states. However, because of is firmly established ‘satis natuce, the cards ate stacked heavily against the individual. As pointed ou by the Permanent Court of International Jstice inthe Masrommatr case. state resorting to diplomatic ation is asert ing ts own right to ensure, in the person of it subject, respect fr the rules of international law The underying doctrine was repeatedly confirmed by the International Course of Justice, most recenly is no uncertain terms in the Barcelona Traction case. "The State must be viewed a the soe fdge to decide ‘whether is protection will be granted, co what extent is granted, and when it will cease It retainn inthis respect a dscrevionaty power, the exercise of which smay be determined by considerations of political de other nature, uaveated to the partcularcase.”" © Abdo Unita Kingdom App. No S767, ECAR det of 21 November © ein Federal Repu af rman aan ort aa ee ee Wann fH dei 2000 (Dame Mp: of Cane Ream. of fbr 2008 200 1) Ropar Mommie Palin Cocsiom arrion (Cre Cred Kingdom) 24 PCY SeqeraRe paalon Pcion, Ligh and Per Company, Limited New Nplcatin: 162 (Blam ‘Speed Second Pe figatencafs Feeuany 9, OIC) Rept ps. 7. ledges of 1 March6 Mame Kenming floss nde ceca apron ney orig steso ee je cen eat eee hee Hoesia aa ee ehciesw conse aa (este tin npr fy na ee re cine bale Foal he a celine ones ‘i et a se nae te gue ode proweion wc pens Ta tfac mvhuthroochra enone pls hres cel clone ad enclose icon nen ok iti spam recon geld tate an sin he wk of tan ai ay beh ge cad ied ns St ces eu clang fom ta ie change ees Wis thine! Law Commision he Sec Rappren Diplo eaten hts Dep hr emp een son fe yc he Poet taletheeflimtehacee Arak otic Datctecicoinicas Siiephnltnwomnennisttshcherwseentuns nina Fea etntucmapeoriasticnnnst stone Ret Tegel apperture nies ponson'nite Be Aces pig Sree © ance poneimtande cova coneences See Sheulnuy alata genebeckelcpoeaneaynon sine iruecns only hehe eke ace ie Dalckenl ey cn mn eases egoilyafcog dpa eget icp Injury has occured ake ito account, wherever feasible, the views of inured pron ih np so dona preted ste Eitmnlecedpome sp ocpeneimcieen es nists Sepik ae ew yee Ree Connon Si ep dat hace bets niin ea Shioel heat eeumenan neat ‘Attempts 1 convince the ILC ro dispense with the rule thar diplomatic pro- ston yoy sed by a ar eee Pl eeamlay esc Fc dedi Daboee eae Whom tng wanna Ae oe ey tame ence iphmaic psoas teehee eee ‘Soi wig vy aah son a ‘opment of the law. pew he progr 1 Do pte son fc va ee tn eet SW Wk At no amor arc om cree Ingenio Canainon UN De L/D pac MS Final Report one pct eration Haman Rigs Law V7 “thetntermationl Court oc smiay has nor shown much ncination co digpense with the nationality reemen In DRC. Ugundas Uganda lege byway of counterclaim, tht Congolese oops hal mated cen Ugaean ‘uonal at Ndi Incerottnal Apr, The Court died to vet ti clan dan atempe acre diplomat pruetion on behalf of these ptons ad dcr inadmbl bests eens ha ben preted ent them 4 Upandan atonal As point by dg sma is separate opinion the Cour failed vo abscrve that, instead chosing the ane of diptomatc on, Uganda cou aio hae nvoked she esponsbiy ofthe DRC under [Article 4809) ofthe Arce on Responsibly of Stats for Intemationaly ‘Wrongful Acts Acording to tha pron, ay ate ened to woke the responsiblity of another nate te slain beached ie owed fo» group oF Seae including tat Sate andi exalted forthe poeta of ellecve intrest ofthe group. Sich sbligaions were lena ake erence the abuses ffered by the injred nile amounted to vilaons of sions under inernaconal human rights nw and iernasnnal manera law tat have a tng omnecharace. Prom the poi of view ofthe clacton ofthe lw fle ‘cree cha Uw fed tae advange this portly and thatthe Coarse wo dene tet 8. The Right to Consular Notification Article 36(1(b) of the Vienna Convention on Consular Relations provides for the right of detained foreign national to he informed without delay that he smay communicate withthe consular ofcers of his awa county. In its advisory ‘pinion No.16, che Inter American Court held that ailue to observe this right ieprejudical eo the due process of aw and, in such circumstances, imposition of the death penalty i violation of the right no to be deprived of life "arbi as provided for in various human rights treaties Inthe La Grand cae, Germany, apparenely inspire by this advisory opinion, argued that the right of the derainee uo be informed had assumed the charac- tet of a human right. In response, the International Court of Justice observed thet Ari 36 cena igh oh deine nd and shat on sequently the reference uo ‘ights in paragraph 2 must be ead as applying not ‘only tothe rights ofthe sending state, br aso t0 the tights of the detained individual’ However, in Avene the Coutt took a more restrictive approach > don te ne Fray Co ama bebe Ua PS rman kn mn hc rate ft De rete har Opn So rake : Sera Garman Cd Sato mar jade of 27 ne 200, 200116 Repors 466, yar.8 Menno T. Kamminga ‘Whur fering wo the Inter Amrcan Court advisor opinion —of which Wiessswart dened ofllow Meso spgeston ali the spe ‘She eto of he igo consular cena human igh sae kes ‘Recpngy ca ote orn the Viena Convento igs at hanes age ESET thts Cour ned ee Te Curt wold hee ee thane thee no theebject and prpon ofthe Covent or any nde {aun nthe neous pipers mip the coclson that Msi oe iam concoct re”? Ince, the she impact om ntratonl human righsewo ge cel inerononal ew has farben very itd. 9. State Responsibility Although the Articles on Responsibility of States for Inetnationally Wiongfal ‘Aessare most fairy traditional nd state centred, they are nevertles generally ‘more human ighs-minded chan the provisions ofthe Vienna Cention on the Lawof Trates—another suk ofthe work ofthe International Law Commission Presumably thsi partly due tothe fact that hey were adopred more than 30 years later, when incernational human rights aw had developed strongest ae fet rate dd em Cain sce id ee ee nr elas dee orto ac tne nn gery Ol ‘tiicied this test and took the view thatthe exertve of overall coninl issu Sec gree en ic Scere iam 77 Mid apa 124 Bad ep 1 iy and Peamtn Actninesnand Asin carps (rs ed Ste) (ih gent 7 fan 6 repre tigs arene * Speer ac TVS A pe Ears 8 Aulpmes ef 3 pplication of te Concern he Prenton and Paso te ie of Cie en nd [he ond Monch Jaen of 26 Feary 2 0 Ch Final Report on te bypass of ucrnational Hunan Rights Law 19 (On this question, therefore, there has been si impact from intetnational hhuman rights law on general international law: Ie appears obvious that che dife- ence in approach is due 1 dffernce in starting point. While the ICTY takes the individual victim as its point of departure the World Court has the interests (of states uppermost in its mind. The ILC has saken the side of the IC} inthis lash beeween international courts, Actck # of the Articles on Responsiiley (of States for Internationally Wrongful Acts provides that “ihe conduct of-.-8 group of persons shall be considered an act of State under international law iF the. group of persons sin face actingon the insrructions of or under the direc tion of control of, that Staten carrying ou the conduct, 9.2 Positive obligations Incernational law's eadiional approach is to emphasize a state's negative obi {gations such as the prohibition of aggrestion reflected im Article 2) of che UN Charter and the prohibition of interference in internal faire refeced in Asticle 207). The duty 0 exercise due diligence and state responsibility arising from an omission exist hic they arc underdeveloped.” Tnterational humanitarian law and international human rights law, on the ‘other hand, hve lng recognized the importance of positive obligations, Por the ‘protection of human rights and fundamental values, positive obligations are afin more important than negative ones. Accordingly, under common Atile 1 ofthe Geneva Conventions, parties undertake not only eo respect but alo to ensure sespect forthe Conventions. Under Article 2 af the International Covenant of CGiviland Political Rights, partes underake not yt respect buralso ‘to ensure the rights recognized in the Covenant, Under Article 2 af the Imernational ‘Covenant on Economic, Social and Cultural Rights partes ine alia undertake to cake steps through inremational cooperation to achieve the ull realization of the rights contained inthe Covenant, he precise conten ofthe positive obliga- ‘ons hinted at in these provisions hasbeen applied in numerous cases by inter: national human rights courts iclading, most lamously. the Velsques Redrgues ‘tae decided by che Inter Arian Cour of Human Rights! ‘That the International Court of Justice hay also often applied che postive obligations derived from primary rules contained in nterational human eights instruments i hardly suprising in viw ofthe increasing number of cases in ‘which icisbeing calle upon tn terpet those instruments In its advisory opin- Jom on The Wall the Cove observed that it followed fiom commen Article 1 of However, acon so she communary to dhe Aner Responily of Sees for loreal Wong vs caer nic he spy often be ve om che EeSrtanombsonhtecborn asp so mancon sth bud npotie coda}. Caf Tefen La Commins som See Rens (cag Uniesty Pek Sica . "Selene dre case ACAI, Jdgen of 29 Jy 1988989) 281LM 29,2» Menno T: Kammings the Geneva Conventions that every Sate party to that Convention, whethee or pot its a party toa specific conflict, is under an obligation to ensure thatthe ‘equitement ofthe instruments in question are complied with™ In the Barman (Genocide cae the Court fund Serbia guilty not of having commited genocide bur of having violated is obligation to preven genocide and is obligation to ‘cooperate with the Iatenational Criminal Tribunal forthe Former Vsgoslvinby ‘tansferrng Ratko Mladiforeial** However, the concept of postive obligations as also made is way into second ary ruler ofpeneral international av. The concept was incorporated lor example into Article 41 of the Articles on Responsibiliy of States for Internationally ‘Wrongful Acts: ‘Stats shall cooperate wo bing an end through lawful meany any serious breach within the meaning of Article 40. Ths duty therefore aries, in response oa serious breach ofa peremprory norm of international law. The accompanying commentary expresses hesitation as to whether the positive diy ‘of cooperation se out in Article 4 is already part of general intcinaional law oF ‘whether reflects progresive development.” Ar the same time, she responsi ity to proce’ was recognized bythe UN General Astembly in the World Sumit ‘Outcome! and more recently the Security Council reafirmed stats’ ‘esponte bility to protect populations from genocide, war crimes, ethnic cleansing, snd crimes aguinst humanity.” 93 Crimes of tate ‘fem ta ene ei ey eee Seamer naner eon sharaigiemaramenare erent Shalt react geo eal in ae inpatients ‘wrongful acts into international crimes and international delicts. However. the © ta Walt Ope ene Tns, As pei BSF Re opener fan Re nd tno cs sa (Genin Hence Sri ond Morr Jab of Rasy 0° Ter rin Le oma ar tre mm etal Aten Rw 00, Wa 1 See el ei tse pt 18-1 Se ee ae tn Ll Ba 95-96 Ae setirygih cameon! taeda ee hs ‘Mame iain Ni ec By gS Fe Pens om Ste Repo age Fina Reporton the Impact of International Human Rights Law 24 proposal elcid considerable etic from sates. By way of compromise, the Inemational Law Commission therefore proposed a more restricted version of the same underlying idea ‘serous breaches of obligations under peremptory norms of fener inernaronal law Perempry norms it may be recalled, include the pro hibitionsofaggresion, genocide slavery racial diseimination torture and theright roselidetermination " According Article il ofthe Articles on Responsibly of States for Internationally Wrongfl Act, State shall bring to an end through lave Fulmeansany serous beach’ within the meaning this concept “This esul may therefore be regarded as an example of limited, but not isi pilfcan, impact of international human right law on general international la ‘While the term “state rims has heen consigned to the dustbin itis now gen- cally accepted that certain breaches of internavional law are more serious than ‘others and therefore entail more serious consequences 10. Conclusions “his report i not an exhaustive ist of nstances in which icerational human tights law ha ad an impact on gnc inerational lw orn which thas led {edo so Moreover the report hasbeen a mere tocKtakng: the proces of ner tial hams rights aw impacting the evolution of neal imernatonal lw is ‘ongoing and likely 0 conic (1) The proces is response deeply and widely el nec o make the inter teational legal onder move eapunane wo the necds ofa wider range of actors than uses ncluding the international comanity (understood seer fing o humankind ara woe and ot justthecommanity of tates) (2) The impact of international human sighs aw upon general fteravonal law is ot abways generated by human right but sometimes merely by human rights thinking by te Invrnational Court of Jase (obligations ngs omne) and the Inrntonal La Commision (us cme. (0) The receptivity ofthe lmermational Court Justice and the International Lae Comino othe rcs has en mind, Ts Cote anon en wcpared to incerpoate apa fom huss righ teat bodies and ier atonal criminal courts ts Bndngs (ant clearly is advisory opin iam om Phe Wall nd inthe Poona Craacdr case). Ba in ther cases the Gout has been quit nln bane raion satires guns theinerete af the dividual even when the later ae reflected opens (each a in its advisory opinion on Nuclear Weapons and in the Arvest Warrant case. 2 Arte 0 ofthe Aceon Repos of Satesfr Inertial Wrong Act a ee ea eta Eee Commision’ Arata on Sate onsb (Cai Unive Pan Cambie 2003 188n Menno T Kamminga cas been suggested thatthe Court’ general approach i 0 aknowled (0 (tens eae dated om conta tani ol they ‘cat’ ates, bur apply these concep cto nn tocauc backlash? If hiss inded the Courts or some othe fale deg strategy eisundertandable nd deserving of suppor Forth Internal Law Commision the question ofthe mp af inter atonal uran igh law on encralintracoal lew has particle in rcen yer inthe comet of ts codifeation exces st oun thle weary eacraons and diplomatic protection. The ILC has no ben fill pene tothe proce, bur the acres eps it has taken have bec ah ‘moder for example, byacknowllging that human ighs treaty montring Eerie the story oa the val of went} resretons (6) An ingsry iv the impacto inteoaioal human righ aw on genta incemavonal awit be diinguishe fom discussions about the seca © fragmentation of international law. The International Law Cov Seudy Group onthe Fragmentation of international Law rgatsthe VC Ist the answe to any difficulties arising From the Fragmentation of inceational law? This postion is debatable because the VCLT iso very han igh ‘oriented. Inthe end, human rights rather than the VCLT, may be the at unifying factor contributing tothe coherence of international Ln (@) The permeation of international human rights law through gescral {ncenational law constiutes quiet revolution which invariably targets Jnermatonal laws most tats features, 2 J Dugan, Th Pare of ert LA Human Righ Pepe Vl coe eater ste ee ea acinmarncnenn, Ligeti eyelets Coan i a Sar Kahne 1 p00 ONDE ARA eS