The same trend of counter-humanisation also characterises the other pathway international law makes available for the indirect, this time protection of the rights of the individual at the international level, namely diplomatic protection. The dynamic vision defended by the ILC, calling for a codification that would also embrace the progressive development of diplomatic protection, has crashed into the wall of international reality. One needs only to compare the suggestion made by the second Special Rapporteur, J.
Dugard, that states should be obliged to resort to diplomatic protection in case of jus cogens violations, 16 x First Report on Diplomatic Protection by Mr.
John R. Dugard, Special Rapporteur. ILC, Fifty-second Session, What these instances all have in common is that the humanisation of international law has proven to have limits. The perception of an order giving unconditional priority to human rights, which have, according to that view, led to the drastic erosion of the classical foundations of voluntarist sovereignism and have utterly displaced bilateralism to the benefit of community interests 18 x Referring to the homonymous course by B.
Simma before the Hague Academy: B. Humanisation is gradually revealing its real dimensions. At the same time, one can diagnose another symptom of legal shortsightedness, owed among other reasons to the uncritical acceptance of the narrative about the deep impact human rights — allegedly — have on international law. However, far from humanising international law, these by-products threaten to negatively affect the broader system, as well as human rights protection at the global level.
The example that may be given in that respect is the criterion of effective control as a condition for holding a state responsible for extraterritorial wrongfulness directly attributable to it. Moldova and Russia , 40 E. The reasons why this criterion is seen by the author of the article as groundless in terms of positive international law cannot be explained within the limited confines of this article.
SE5, para. In that particular context, effective control is nothing other than an artificial barrier in defence of regionalism. This is a barrier that has been created by a regional court of human rights as a means to territorially limit human rights protection on the basis of jurisdiction. However, we observe that this very standard has been uncritically adopted by fora that were never designed to be regional.
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The ICJ referred to the HRC to hold that, because Israel exercises effective control, its jurisdiction extends to the occupied territories as well para. The second path taken by the article aims to offer a more positive account of the theory of humanisation. The first is quite evident. Because of human rights, the individual is now included in all textbooks of international law as a — passive, 24 x See for instance J.
Admittedly, the normative framework is not equally developed with respect to all subjects if one wants to stick to the jargon of positivism of international law. The individual, or, more generally, the private actor, are offered more protection at the international level, than they have obligations and responsibility. Human Rights Council Seventeenth session. The road is still under construction and the idea of humanisation is an ongoing process. Yet, all of this is well known. It is the second dimension of the reality of the humanisation of international law that the article wishes to emphasise.
Both these tools extend well beyond human rights.
Yet, in human rights they found fertile ground for application. This is what links them to human rights as a reality of positive international law, as well as what makes them a basis, that is, an opportunity for further humanisation. As already explained in the introduction, as a reality, these two tools constitute an aqcuis , forming part of modern positive international law. However, as such, they only constitute a lex ferenda. They are open to evolution and they are susceptible to and depend on the practice and the ideology-stemming will of those including the international judge who have the power to shape and change international law.
Obligations erga omnes partes are transforming an otherwise bilateral isable international legal order, which has traditionally been based on reciprocity 29 x On reciprocity see the very pertinent contribution by A. They found their place in the law of international responsibility and, as a result, all states, even if not directly 31 x The ILC opts for the term not injured states.
The terms non-directly affected, indirectly affected and not injured state, are used in the paper interchangeably. See also the critical remarks by P. Dupuy on Art. This is how a system moves beyond reciprocity and merely synallagmatic relationships 33 x See the brief but apt comments by Judge Simma on the occasion of the exceptio non adimpleti contractus in his separate opinion in Application of the Interim Accord of 13 September The Former Yugoslav Republic of Macedonia v. A traditionally sovereignist legal order based upon the premises of reciprocity and self-protection 34 x On the concept of self-protection or self-help, V.
This is the reality of obligations erga omnes — or this is erga omnes as a reality of positive international law. However, it is the potential this special type of international obligations has that mainly interests this article.
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The argument here is that obligations erga omnes may have far-reaching implications, allowing for change in a number of areas of international law. They are opening the way to further objectivisation and do have the potential to fertilise the legal order with a series of innovative elements that affect the very essence of its systemic structure.
The derivatives of that change vary. To name but a few of them, these would concern several domains of general international law, such as the informal hierarchy of rules , jurisdiction, the obligation to execute and to comply with international judgments, etc.
Central Aspects of the Debate on the Complexity of International Law |
Once again, the limited scope of the article does not favour depth in the analysis. One would need a monograph to introduce in detail the idea of the erga-omnes isation of international law, but the bottom line of the argument could be summarised in the following way. The first step of the syllogism would be to recognise the link between the material importance of certain rules and the named class of obligations.
Although the formal hierarchy of sources is foreign to international law, 35 x D. Evans ed. International Law , 3rd ed. See also A. This leads to a first set of conclusions. First, ideology is indeed of pertinence. It may be that legal positivism prefers it to be hidden behind the veil of the formal method that generates the rule, but, indeed, what always feeds the rule is its underlying material. This refers to the commonplace distinction between formal and material sources in law making.
Thus, outside state interests and the will to protect them , 38 x Referring to the voluntarist view of international legal positivism. International law is decentralised. For it to maintain that very nature, but also be able to accommodate areas such as the protection of human rights, cultural heritage or the environment, it needed to create a special type of rules that would enable each and every member of the community to be if they wish involved in the protection of these, common to all, values and interests. The reason erga omnes rules are receiving that special treatment within international law is of course their material content.
However, the protection of their material content needed to be reconciled with the preservation of decentralisation. Thereby, all states within the decentralised order have their share in the protection. Third, erga omnes is contributing a communitarian tone in a society of individual sovereigns. Non-directly affected states are not re acting to the breach of an erga omnes obligation with an aim to protect individual interests that are exclusive to them, but interests and values that are common to their ensemble, that is, to the international community as a whole.
And this is how reciprocity cedes its place to collective enforcement. Questions such as what shapes trans-societal consensus, what is societal consensus, if this is universal or not, how can this be evidenced in a decentralised order and which are the philosophical foundations of the material content of these special rules escape the article, if not legal positivism as such. It is the systemic tool that has been designed to encapsulate what, in the eyes of the society of a given society, at a given time , is seen as important and worthy to be protected by each and every state acting in the name of all.
In essence, — let us admit it — erga omnes is a tool vesting with special legal effect rules of public order and, as such, it is acting, in Hartian terms as an implicit rule of recognition. As a society, we recognise that some values and interests are more important and, for that reason, we mark them as a distinctive category of rules. This is the reason why these rules are given special legal effects. The specialty, finally, of that effect depends on the characteristics of the system — which in the case of international law happens to be decentralised.
This has two main consequences i. The idea of a community of interests for the protection of public order rules gives all states the right to react to wrongfulness — through lawful means, of course, and within the limits set by the law. This is well established in the framework of secondary obligations, giving, for instance, the right to any state to resort to countermeasures against the state that breaks an erga omnes obligation, 41 x Art.
This is the lex lata of erga omnes ; as such, it provides a sufficient, albeit indirect, nexus between the state and international wrongfulness.enter
Inside or out: two types of international legal pluralism
However, that very same rationale may be also used to argue that the concept of obligations erga omnes and the indirect links they set between wrongfulness and third states i. International and Municipal Legal Perspectives In other words, it could be argued that the breach of an obligation erga omnes justifies the exercise of universal jurisdiction — even when that form of jurisdiction is not explicitly authorised by an international treaty.
Belgium v. In universal jurisdiction, the state exercises criminal or even civil 45 x Among others, see the interesting analysis by D. Donovan and A. The tools stem from the domestic legal system, but there is equally a strong international element. The exercise of jurisdiction in that context may be seen as a unilateral 46 x For the distinction between unilateral universal jurisdiction and multilateral, based on international agreements, see J. See also in the same pages the critical comments by that author on the constitutional bias that, in his view, characterises the debate about the exercise of jurisdiction at the international level.
Yet, this is exactly what erga omnes do as well. They authorise every state to unilaterally react against the breach of an obligation owed erga omnes. Thereby, states seek to unilaterally and in the name of the society protect interests and values translated into a special type of rules that are common to the society.
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Both counter-measures to give the most characteristic example of reaction against the breach of an erga omnes rule and universal jurisdiction constitute a form of unilateral reaction to wrongfulness. In both cases there is no direct link connecting wrongfulness with the reacting state. The analogy is noticeable.
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