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Human Rights Obligations of Non-State Actors$

Andrew Clapham

Print publication date: 2006

Print ISBN-13: 9780199288465

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199288465.001.0001

Characteristics of International Human Rights Law

Chapter:
(p.85) 3 Characteristics of International Human Rights Law
Source:
Human Rights Obligations of Non-State Actors
Author(s):

ANDREW CLAPHAM

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199288465.003.0004

Abstract and Keywords

This chapter introduces the concepts of customary international law, treaty obligations, international crimes, jus cogens, erga omnes obligations, universal standards, and types of hybrid obligation. In each case the question arises whether such obligations apply to non-state actors.

Keywords:   jus cogens, erga omnes, universal standards

This chapter invites the reader to take a fresh look at the way human rights are classified. Rather than seeing human rights as belonging to ‘generations’, I suggest a new typology which concentrates on the legal characteristics of the right rather than its historical or philosophical foundations. This categorization allows us to see what obligations might formally bind a non-state actor. I suggest that it makes sense to look at six overlapping types of human rights law and to allow for the evolution of certain hybrids which combine these types and their characteristics. I shall consider human rights under the following headings: customary/general international law, jus cogens, treaty law, international crimes, erga omnes, and inter-governmental standards.

3.1 CUSTOMARY INTERNATIONAL LAW

Although today less attention is given to the customary international law of human rights, due to the increasing ratification of the human rights treaties, it is suggested that renewed attention to the dynamics of customary international law is relevant for a number of reasons: first, not all states are parties to the relevant international treaties. Second, reservations to treaties may preclude international jurisdiction under treaty law. Third, customary international law is relevant to limit treaty derogations in situations of armed conflict, states of emergency, and other internal disturbances.1 Fourth, some human rights treaties may contain specific clauses which entitle the control body to have regard to customary international law.2 Fifth, customary international law may take effect as the law of the (p.86) land at the level of domestic law. (This means that, in contrast to treaty law, the national legal order may demand no specific implementing legislation and the rights and obligations may be enforceable in the national courts.) Sixth, customary international law may be more relevant than treaty law in terms of ensuring liability and accountability at the national level for non-state actors.3

Rules of customary law emerge when two essential criteria are met: first there must be some unambiguous and consistent practice by a state in a particular field (state practice), and second, the state must have followed that practice out of a sense of legal obligation (opinio juris).4 In the field of human rights law, customary rules have evolved primarily from those norms that are considered to be universal in character and that are proclaimed in various international instruments. For example, several of the principles proclaimed in the Universal Declaration of Human Rights have acquired the status of customary international law, and are therefore legally binding. Although an ongoing debate exists over the extent to which each of the provisions of the Declaration have achieved customary law status, the rules prohibiting arbitrary killing, slavery, torture, detention, and systematic racial discrimination—such as apartheid—are now recognized as rules of customary international law binding on all states. Other rights, including the right to self-determination, the right to basic sustenance, freedom of opinion, equality rights, and the right to fair trial have entered the realm of customary international law, but the scope of the protection offered by the right and the permissible restrictions mean that a more detailed examination is required in order to determine the parameters of the customary obligations. A recent detailed study of the customary law nature of the rights in the Universal Declaration highlights the fact that, even if social and economic rights often receive less attention, certain economic and social rights in the Declaration ‘enjoy sufficiently widespread support as to be at least potential candidates for rights recognized under customary international law: the right to free choice of employment; the right to form and join trade unions; and the right to free primary education, subject to a state's available resources’.5

(p.87) As will be discussed in the following chapters, it is customary international law (what is sometimes referred to as general international law, as opposed to treaty law) that is often employed to hold non-state actors accountable under international law. Some international organizations are considered to have the necessary capacities to enjoy international rights and bear international obligations under general international law. The adjective ‘general’ is employed here because it is misleading to suggest that international organizations have generated these rights and obligations through ‘custom’. It is not the sustained practice and sense of obligation that have generated the rights and duties of international organizations. The obligations arise because the international legal order considers these rights and obligations as generally applicable and binding on every entity that has the capacity to bear them. This process started with the 1946 Nuremberg Trial of the Major War Criminals (where individuals were held to have duties under international criminal law), was developed by the International Court of Justice through advisory opinions declaring the United Nations and its agencies as entities with international rights and obligations under general international law, and now finds its application in the litigation brought against corporations in the United States for violations of the ‘law of nations’.

3.2 JUS COGENS OR PEREMPTORY NORMS OF INTERNATIONAL LAW

While, on the one hand, customary international law rules usually take time to evolve due the requirement that there is evidence of states acting out of a sense of legal obligation, on the other hand, jus cogens rules on human rights need to be simply accepted by the international community of states as a whole. Courts have been willing to accept, for example, that the prohibition on torture is a rule of jus cogens without a painstaking search for evidence of states acting out of a sense of legal obligation. The International Tribunal for the former Yugoslavia has not only asserted the prohibition of torture as a rule of jus cogens,6 but also referred to the demands of humanity and the dictates of the public conscience, notions reflected in the judgments of the International Court of Justice and the Martens Clause,7 to (p.88) suggest that these imperatives drive the necessary mental element (opinio juris) which heralds ‘the emergence of a general rule or principle of humanitarian law’.8 In the Kupreskić judgment, the Tribunal suggested that ‘Due to the pressure exerted by the requirements of humanity and the dictates of public conscience, a customary rule of international law has emerged’ (on the prohibition of reprisals against civilians in combat zones).9 In short, our changing notions of what is considered humane can generate new binding rules in the field of international human rights and humanitarian law without recourse to the mysteries of evaluating state practice and opinio juris. But why single out some norms as jus cogens norms? And what norms are considered to fall within this variety of human rights law?

Chapter III of the International Law Commission's (ILC's) Articles on state responsibility is entitled ‘Serious breaches of obligations under peremptory norms of general international law’. The Commentary states: ‘Those peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination’.10 Other examples included in Commentary are ‘the slave trade… and apartheid… the prohibition against torture as defined in article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment… the basic rules of international humanitarian law applicable in armed conflict’.11 This list is carefully described as exemplary rather than definitive. For completeness one should note that the UN Human Rights Committee has referred to the following as acts which would violate jus cogens norms: arbitrary deprivations of life, torture and inhuman and degrading treatment, taking hostages, imposing collective punishments, arbitrary deprivations of liberty, or deviating from fundamental principles of fair trial, including the presumption of innocence.12

(p.89) To fall within this Chapter of the ILC's Articles (special obligations) the violations of the peremptory norms have to involve ‘a gross or systematic failure by the responsible State to fulfil the obligation’ (Article 40(2)). According to the Commentary: ‘To be regarded as systematic, a violation would have to be carried out in an organized and deliberate way. In contrast, the term “gross” refers to the intensity of the violation or its effects; it denotes violations of a flagrant nature, amounting to a direct and outright assault on the values protected by the rule.’13 The consequences of such a serious breach are set out in Article 41. States have to cooperate to bring the serious breach to an end and no state shall recognize as lawful such a breach nor render aid or assistance in maintaining that situation. This regime for serious breaches has obvious implications for holding all states accountable for allowing serious human rights violations to be perpetrated by any other state.

The ILC has also included a reference to jus cogens with regard to circumstances precluding wrongfulness and the lawfulness of counter-measures. Counter-measures may not affect jus cogens obligations (Article 50(1)(d)). In the words of the Commentary, ‘for example, a genocide cannot justify a counter-genocide’.14 With regard to a conflict with a pre-existing treaty obligation which is not by its terms contrary to jus cogens, the ILC seems to suggest that a state will be justified in refusing to comply with a treaty obligation where its observance is incompatible with a jus cogens prohibition.15 Antonio Cassese has highlighted the approach of the Swiss Tribunal Fédéral which prioritized the jus cogens norm concerning the prohibition of torture over a binding obligation contained in a bilateral extradition treaty.16 Nevertheless, this is not an area replete with state practice. The ILC's Commentary deals with the conflict of norms question in fairly terse terms: ‘Where there is an apparent conflict between primary obligations, one of which arises for a State directly under a peremptory norm of general international law, it is evident that such an obligation must prevail. The processes of interpretation and application should resolve such questions without any need to resort to the secondary rules of State responsibility.’17

In addition to these consequences, under the rules of state responsibility (and one can expect that similar rules will be codified or developed with regard to the responsibility of international organizations)18 a number of further consequences arise when human rights abuses fall into the category of jus cogens. First, under the (p.90) law of treaties developed through the two Vienna Conventions, a treaty may be held to be invalid if it conflicts with a norm of jus cogens.19 This should apply not only for inter-state treaties but also for treaties entered into by international organizations.20 This is, of course, further evidence that international organizations have obligations to respect certain human rights norms. But the implications for treaty law probably go beyond the drastic scenario of a treaty being held to be void as conflicting with jus cogens. Cassese has suggested that a court ‘will simply disregard or declare null and void a single treaty provision that is contrary to jus cogens, if the remaining provisions of the treaty are not tainted with the same invalidity’.21 He also suggests that ‘a court may be led to construe a treaty provision possessing a dubious scope in a sense consistent with a peremptory norm on the matter, rather than in any other sense.’22

Second, violations of jus cogens have been invoked outside the law of treaties, with regard to the accountability of state and non-state actors, particularly individuals. It is the non-state actor's violation of international law that is at issue; the responsibility of any state for the acts of that individual is not determinative of the individual responsibility under international law. In fact, even where the individual has no state function (or is operating as a non-state actor) the jus cogens norms may apply, with consequences not only for the individual (in this case individual criminal responsibility discussed below), but also for other actors. The International Criminal Tribunal for the former Yugoslavia, in the Furundžija case, explained some special consequences that arise in the context of a violation of the jus cogens norm of torture: first, the higher rank of the principle at issue means that it cannot be derogated from by states through treaties or customary international law;23 second, the principle serves to internationally de-legitimize any legislative, administrative, or judicial act authorizing torture;24 third, ‘the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act’;25 fourth, ‘at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction’.26 Lastly, the Tribunal mentions that ‘other consequences include the fact that torture may not be covered by a statute of (p.91) limitations, and must not be excluded from extradition under any political offence exemption’.27

As we shall see, the notion of jus cogens has also been commented on in national courts, not only with regard to issues of immunity and criminal jurisdiction over individuals, as highlighted in the Furundžija case, but also with regard to the obligations of corporations under violations of the customary/general international law, or as the US Alien Tort Claims Act terms it, the ‘law of nations’.28

3.3 HUMAN RIGHTS TREATIES

Human rights treaties codify and develop international human rights and obligations. A human rights treaty can give rise to a number of legal effects.

First, it creates a set of multilateral obligations between the parties to the treaty. For the moment, human rights treaties are confined to states parties, but the European Union may yet become a party to the European Convention on Human Rights, and Protocol 14 to that treaty has already been adopted by the states of the Council of Europe in order to make this possible.29 It therefore makes sense to talk about the parties to a human rights treaty rather than use the expression states parties, which suggests that states are the exclusive members of every human rights treaty regime.

Any party to a human rights treaty can complain about a violation by another party. The complaining party would not have to show that it was a direct victim or that it had an interest in the alleged violation. In some cases, such as the Conventions on the Elimination of All Forms of Racial Discrimination (CERD) and on the Elimination of All Forms of Discrimination against Women (CEDAW), as well as the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, the treaty includes a provision for the eventual settlement of unresolved disputes by the International Court of Justice.30 The International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provide for an optional procedure of state complaints to the relevant Committee, which can result in an ad hoc Conciliation Commission.31 The Covenant explicitly states that states parties may use other procedures for the settlement of disputes in accordance with the (p.92) agreements in force between them.32 This could include recourse to the International Court of Justice.33

Some treaties at the regional level currently provide for inter-state cases to be determined before the relevant regional body or court.34 For present purposes we simply highlight the point that human rights treaties create multilateral regimes in which any member can insist on compliance by any other member, even in the absence of actual damage to the complaining treaty party.35

Second, the human rights treaties also create rights for individuals and groups. In some cases, these rights can be directly vindicated at the international level through complaints to international courts; this is the case at the regional level under the European Convention on Human Rights. The African Court of Human and Peoples’ Rights has jurisdiction over such complaints under certain conditions.36 The Inter-American Commission hears complaints from persons under the American Convention on Human Rights and the Inter-American Court of Human Rights can hear these cases where the Commission submits them to the Court. These and other treaties often allow for complaints to be brought before international monitoring bodies37 which, even if they cannot issue a binding decision as such, adopt ‘views’ and decisions that given a degree of publicity can have some impact on the relevant governments. Two treaties provide for the treaty bodies to receive information which could lead to a confidential inquiry.38

Third, human rights treaties may create reporting obligations for the states parties. These reports are sent to the United Nations, or to the relevant international body at the regional level, they are examined by the treaty body concerned, and a (p.93) dialogue starts between the treaty body and the relevant government.39 This process is currently under strain.40 The human rights treaties have attracted a large number of ratifications, and the treaty bodies have too many reports to consider with too few resources. Governments are obliged to report every few years under seven possible treaties at the universal level and in many cases others at the regional level.

Fourth, treaty rights may give rise to rights which are effective at the national level. Of course, in many situations states will pass implementing legislation in order to give the rights effect in the domestic legal order. But it has also been suggested that it is possible that human rights treaties create rights that are clear and precise enough for individuals to rely on at the national level.41 Many states accept that some human rights contained in human rights treaties are clear and precise enough to be considered self-executing, and so take effect in national law. Some states, such as the United States, have been careful to state that their ratification of a certain human rights treaty, such as the racial discrimination Convention (CERD), does not mean that the rights contained should be considered self-executing in US law.42 A treaty therefore can create rights for individuals which may or may not be enforceable at the national or international level.

Fifth, a treaty can oblige or permit states to exercise criminal jurisdiction over international crimes such as torture or disappearances. It can even require states to submit cases of international crimes to their prosecutorial authorities where there is no jurisdictional link between the crime and the state with custody of the accused. So, for example, the United Kingdom was obliged under the Torture Convention (CAT) to submit the case of Pinochet to its prosecutorial authorities in the event of non-extradition to Spain or any other requesting state.43 In another (p.94) more recent case, the United Kingdom prosecuted an Afghan ‘warlord’, Faryadi Zardad, for torture and hostage-taking committed in Afghanistan against Afghanis. The subsequent conviction represents an unusual exercise of national jurisdiction to successfully prosecute human rights crimes which have no nationality or territorial connection with the human rights violation.44

Sixth, the treaty can, as in the case of Pinochet, be considered to have removed immunity from foreign jurisdiction that might be invoked under customary international law or even under prior treaty law.45 Finally, as we saw above in the section on erga omnes partes obligations, the treaty can form the basis of obligations owed to a group of states ‘for the protection of a collective interest’ and thus ground claims for violations of state responsibility by other states parties.46

3.4 INTERNATIONAL CRIMES

Some of the obligations described above can give rise to individual international criminal responsibility. This creates, in a way, another type of international human rights law. The criminalization of certain international human rights violations has a number of effects. First, the accused can be arrested outside the jurisdiction where the crime took place, and even tried abroad. Second, the accused may lose immunities which might otherwise be applicable. Third, the accused may be unable to claim refugee status or asylum. Fourth, statutes of limitations may not be applicable in some cases, and fifth, the crime may be automatically included in extradition treaties.

Some of these international crimes will fall into the category of crimes of universal jurisdiction. In this situation, even in the absence of an applicable international treaty, governments will be able to try individuals who committed an offence outside the jurisdiction even where there is no link to the commission of the offence through the nationality of the perpetrator or the victims. Moreover, once conduct can be categorized as an international crime, this may have the effect of ensuring that there is civil jurisdiction for a state's courts over the conduct, even when the events took place outside the territory of that state and none of the parties is normally resident in that state.47

(p.95) Some crimes are crimes of universal jurisdiction with an obligation to prosecute or extradite. Such crimes include grave breaches of the Geneva Conventions and their Additional Protocol I of 1977. Another category of crimes may simply be acts which states parties are obliged to criminalize at the national level, but which have not yet risen to the category of crimes under general international law, as there is no general prohibition on such conduct: see, for example, activity related to an organized criminal group in the context of the UN Convention Against Transnational Organized Crime (2000) and its three protocols on trafficking in persons, the smuggling of migrants, and the illicit manufacturing of and trafficking in firearms.48 Where tribunals exist to try individuals for international crimes, human rights crimes, such as the recruitment of child soldiers, can pass from being treaty crimes to crimes under general international law in a relatively short period of time. In fact, in such situations, it may be more accurate to see the adoption of treaties including human rights crimes as a reflection of the fact that the crime has already become a crime under general international law, with binding effects for the individual under international law.49

Even in the absence of an international jurisdiction, authors such as Cassese have suggested that terrorist crimes are now likely to be accepted more rapidly as international crimes. He argues that terrorism is already an individual crime under customary international law. The conditions for such a criminalization at the international level are, according to Cassese, as follows: first, the acts must constitute a criminal offence under most legal systems (assault, murder, kidnapping, hostage-taking, extortion, bombing, torture, arson, etc.); second, the act is aimed at the spreading of terror by violent means against a state or the public (or a section thereof); and third, the act is politically, religiously, or otherwise ideologically motivated (i.e. not done for private ends).50

(p.96) 3.5 ERGA OMNES OBLIGATIONS

The International Court of Justice asserted in the Barcelona Traction case that certain basic human rights give rise to international obligations owed by states to all other states which the Court characterized as erga omnes obligations.51 Literally translated, the expression erga omnes means ‘towards everyone’. The erga omnes concept explains which human rights violations are capable of giving rise to a separate right for a state to complain about the violating state's breach of its obligations concerning these basic rights. The Barcelona Traction case was concerned with whether one state had the right to complain about breaches of international law by another state. As such, it reveals little about the erga omnes obligations of actors other than states.52

More recently, the ILC has adopted the erga omnes notion as developed by the Court and confirmed, in the context of their articles on state responsibility, that every state can complain about a violation of international law where another state has breached an obligation ‘owed to the international community as a whole’.53 The ILC Articles are clear that a state other than an injured state is entitled to invoke the responsibility of another state if the obligation breached falls into either of two categories: first, where the obligation is owed to the international community as a whole (Article 48(1)(b)); or, second, if the obligation breached is owed to a group of states, including that state, and is established for the protection of the collective interest of the group (Article 48(1)(a)).

(p.97) The ILC Special Rapporteur, James Crawford, was clear that human rights obligations are either obligations in the first category (erga omnes) or the second category (erga omnes partes) ‘depending on their universality and significance’, and that ‘Human rights treaties are plainly (even if not always explicitly) designed to protect a general common interest’.54 The Articles suggest that the complaining state is entitled to ask for the violations to stop (cessation and assurances and guarantees of non-repetition) and can seek reparations in the interests of the injured state or of the beneficiaries of the obligation breached (Article 48(2)).55 In other words, international law entitles a state to obtain reparation for the victims of human rights violations, where the violations relate to obligations owed to the international community as a whole (and for present purposes one may assume that these obligations are the jus cogens obligations discussed above),56 or from a multilateral treaty to which both states are party.

The fact that states rarely, if ever, actually use a legal forum, such as the International Court of Justice, to enforce human rights law where they have no direct interest,57 should not blind us to the relevance of this wider recognition of (p.98) the scope of state responsibility. Already, the European Community links cooperation and the conclusion of other agreements to respect for human rights from its partners. The way in which a state or international organization treats those under its jurisdiction or control can trigger legitimate legal responses from other states or international organizations even where they have no nationals affected. Of course, the response cannot amount to a reprisal involving violations of fundamental human rights or humanitarian obligations prohibiting any form of reprisals against protected persons.58 But there is an expectation that human rights violations can lead to sanctions, cancellation of contracts, and other proportionate reprisals which can be justified in law. Even in the context of action short of reprisals, such as public condemnation, international law has evolved to a point where it is admitted that human rights violations are matters of ‘legitimate concern’ which may be discussed without this discussion being construed as interference in internal affairs.

The United Nations Organization may legally employ any and all measures appropriate under the UN Charter to deal with human rights violations.59 These measures may include: the discussion of the situation by the UN Secretary-General; discussion by the Security Council; and debates in other UN organs and bodies such as the General Assembly,60 the Economic and Social Council, or the Commission on Human Rights.61 Discussions may occur in the form of an open debate, or in the context of a procedure designed to deal with communications confidentially. Sometimes a commission of inquiry or a Special Rapporteur may be appointed to investigate a situation.

At the end of the second World Conference on Human Rights, held in Vienna in 1993, more than 170 states agreed to the adoption of the Vienna Declaration and Programme of Action, which includes the following paragraph:

The promotion and protection of all human rights and fundamental freedoms must be considered as a priority objective of the United Nations in accordance with its purposes and principles, in particular the purpose of international cooperation. In the framework of these purposes and principles, the promotion and protection of all human rights is a legitimate concern of the international community.62

(p.99) While a state which is the focus of a discussion on human rights may raise various objections to such a dialogue taking place, in the post-Vienna world, it is no longer legitimate for a state to argue that discussions related to its human rights record are not permitted under international law.

3.6 UNIVERSAL STANDARDS

A further and final type of human rights law includes universal standards, which may not necessarily be legally binding as such, but which have been developed and accepted at the international level and which make up the main corpus of human rights law. Of course, where these standards create clear rules, they may become rules of customary international law. Whether or not they evolve in this way is probably not as important as is often assumed. Few governments today denounce as ‘not-binding’ the human rights standards which are applied to them. Whether such standards are legally binding or not at the international level may in many cases simply turn out to be ‘academic’.

Declarations adopted by governmental representatives in bodies such as the General Assembly, or at a UN inter-governmental Crime Congress, are certainly worth more than the paper they are printed on. In the words of a memorandum by the UN Office of Legal Affairs to the UN Commission on Human Rights: ‘it may be said that in United Nations practice, a “declaration” is a solemn instrument resorted to only in very rare cases relating to matters of major and lasting importance where maximum compliance is expected’.63

The use of UN declarations, as well as documents containing principles, standards, minimum rules, and other non-binding instruments, is essential to the world of human rights law and provides the detail which gives meaning to the abstract binding obligations such as the right to life, or women's rights to equality with men. Again we can list some of the reasons why we consider these texts require special attention. First, these standards are used every day to train officials and ensure a rights-based approach in sectors such as policing, justice, development, violence against women, and the rights of minorities. Second, the instruments may contain ideas which are used to develop best practices and take the authorities beyond what has been agreed to at the level of binding treaty law. For example, with respect to human rights defenders the Declaration spells out a number of detailed guarantees.64 Third, these instruments often point the way for new binding treaties and monitoring procedures. Fourth, in some cases principles have been formulated in a flexible way, so they guide not only the behaviour of states (p.100) and state agents but they are also addressed to international agencies and even to parties engaged in an armed conflict. Declarations and principles often give guidance which is universally applicable for all relevant actors, including non-state actors.65

3.7 RECATEGORIZATION OF HUMAN RIGHTS VIOLATIONS AND HYBRID TYPES OF OBLIGATION

What has not yet been explored is the full scope of these international human rights obligations, or the ways in which one type of international human rights law can evolve into another type, or how there may be hybrid situations resulting from complex interaction among types of international human rights obligations.

For an example of such an evolution, consider the following situations: as a treaty attracts near universal ratification, it is often said that the principles contained therein can be assumed to have achieved customary international law status. Some resolutions adopted by near consensus at the international level will similarly contain concrete principles and rules which reflect the state of customary international law, and their constant invocation in international relations, together with arrangements for follow-up, may permit the conclusion that values, principles, and rules contained in these texts are transposed into concerns reflecting customary international law applicable to all.

The General Assembly's law-making activity has gone beyond the production of human rights treaties. Although the Assembly has drafted and adopted a number of Declarations as preludes to international treaties, in many cases the General Assembly's Resolutions contain Declarations which are of considerable legal significance in their own right. Scholarly debate still continues as to the legal status of certain Declarations contained in General Assembly Resolutions.66 In (p.101) some cases, the content of the Declaration and its manner of adoption have led to the conclusion that certain Declarations can provide evidence of the crystallization of norms of customary international law. In fact, the International Court of Justice has used some of these Declarations as a sort of short cut to determining the applicable law in its opinions and judgments.67 A number of resolutions include the word ‘declaration’ in the title or ‘declare’ a number of principles. Because the dynamic of the adoption of human rights Declarations suggests that they arise out of the breach of the rights concerned, it seems fair to distinguish them from General Assembly Resolutions, which have a programmatic or even codificatory function.68 This latter type of resolution may be framed as a recommendation or simply endorse standards elaborated elsewhere. Recommendatory resolutions rarely create controversial new duties—but rather recommend that states base their practices on certain existing principles.

The General Assembly Resolutions listed in the following footnote are all of importance in understanding the scope of international human rights law.69 This (p.102) book refers throughout to the key General Assembly Declarations in order to inform the reader of the full scope of the human rights obligations which have been agreed by states at the international level. As discussed above, Declarations may be adopted in circumstances where states expect ‘maximum compliance’. I have sought to go beyond the arguments over the normativity of these resolutions and advocate allowing their content to flesh out skeletal human rights and duties contained in the basic rules.

Perhaps the clearest example of a declaration that has been recognized as reflecting general international law is the ‘Friendly Relations’ Declaration of 1970. It is worth pausing to consider the qualities of this Declaration that have allowed it to achieve this status. First, it is often remarked that the Declaration was adopted after a decade of negotiations and without objections. Second, it represents an interpretation of the Charter—a legally binding treaty for all members of the United Nations. Third, the content suggests legally binding principles. The fact that the International Court of Justice has had occasion to pronounce on the legal status of the norms enumerated in the Resolution means that this is one of the few resolutions acknowledged as representing international law. However, most of the other Resolutions of the General Assembly mentioned in the previous footnote can also be said to add flesh to the bare bones of binding international law. Moreover, they were nearly all adopted by consensus70 and very often after a long drafting process.

(p.103) In the decision on jurisdiction by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in the Tadić case, the Chamber quoted extensively from two General Assembly Resolutions containing basic humanitarian principles in order to justify its conclusion that it had jurisdiction over ‘breaches of the laws and customs of war’ in an internal armed conflict. The Resolutions were building blocks in the argument that the relevant crimes could be considered to be international crimes for which individuals can be held responsible. The Chamber referred to General Assembly Resolution 2444 of 1968 and Resolution 2675 of 1970.71 The latter Resolution affirmed a number of ‘basic principles for the protection of civilian populations in armed conflicts’.72 The Chamber took note of the fact that one of the sponsors of the Resolution, Norway, had explained that in this Resolution ‘the term “armed conflicts” was meant to cover armed conflicts of all kinds—an important point, since the provisions of the Geneva Conventions and the Hague Regulations did not extend to all conflicts’.73 The Chamber explains the twofold nature of the role of these Resolutions: ‘they were declaratory of the principles of customary international law regarding the protection of civilian populations and property in armed conflicts of any kind and, at the same time, were intended to promote the adoption of treaties on the matter, designed to specify and elaborate upon such principles’.74

Both of the Resolutions used by the Chamber were adopted with no negative votes. General Assembly Resolutions adopted over the objections of the states most affected by their legal status provide weaker evidence of the opinio juris necessary for the formation of customary international law, and it is more difficult to argue that they contain general principles of international law. In the 1996 Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice noted that the relevant (p.104) General Assembly Resolutions were adopted with a ‘substantial number of negative votes and abstentions’ and ‘fell short of establishing opinio juris.75

The Court, however, noted that General Assembly Resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a norm or the emergence of opinio juris. To establish whether this is true of a given General Assembly Resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of the rule.76

Rather than attempting to determine whether declarations of principles by the General Assembly are legally binding as ‘black letter law’, it seems more pertinent to accept their increasing influence at both the international and the national level. Together with the Universal Declaration of Human Rights, these declarations are legitimately used to hold up the standards of achievement that the member states of the United Nations have set. This means that the texts are used as instruments for reform by national and international NGOs seeking changes in the laws and institutions of the countries around the world. But these standards are more than mere exhortations and, as already stated, they are nearly all expressed as principles.77 Sometimes dismissed as ‘soft law’, these declarations clearly harden when conceived of as explanatory to treaty law or as principles which persuade decision-makers when faced with ambiguity.78

Resolutions may also encapsulate or express the opinion of states with regard to the interpretation of existing international law. In human rights declarations, this could be by the fleshing out of international law obligations (either under treaty law or general international law) or by categorization of certain acts as human rights violations of one type or another. An example of the first situation is the Declaration on the Elimination of Violence against Women,79 which was adopted (p.105) by the General Assembly by consensus. It is an expression of states’ interpretation of their obligations under the Convention on the Elimination of All Forms of Discrimination against Women, as well as their international law obligations under the Charter and general international law. An example of the second type of resolution is the Declaration on the Protection of All Persons from Enforced Disappearance, adopted by consensus by the General Assembly.80 The wording is clearly intended to confirm that certain acts violate legal obligations contained in specific rules of international law:

2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the rights not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to life.

More subtly, the Declaration also nudges the systematic practice of enforced disappearances into the category of ‘crimes against humanity’.81 As noted in the (p.106) discussion on violation of jus cogens, categorizing a human rights violations as more than a simple violation of international law can have a number of legal consequences. Categorizing a human rights violation as a crime against humanity (in addition to the consequences resulting from a violation of a norm of jus cogens) entails the following consequences: the crime may be excluded from statutes of limitations which forbid prosecution after a certain period of time,82 the perpetrators can be denied refugee status83 or asylum,84 there will be added obligations on states to cooperate, and in some jurisdictions the crime may come within a state's national criminal jurisdiction whereas without the label ‘crime against humanity’ it might not. Moreover, crimes against humanity have been specifically held to generate obligations for non-state actors which may give rise to civil or criminal liability. In Kadic v Karadžić, the US Court of Appeals for the Second Circuit concluded that ‘subject matter jurisdiction exists, that Karadžić may be found liable for genocide, war crimes, and crimes against humanity in his private capacity’.85

Let us briefly look at what we called ‘hybrid’ types of human rights obligation. First, several key human rights treaties include the rule that one cannot be prosecuted for a crime which was not a crime at the time it was committed. This rule includes in the definition of triable criminal offences under international law, or in the European Convention on Human Rights, any act or omission which was ‘criminal according to the general principles of law recognised by civilised nations’.86 Evolving rules of international criminal law will change the scope of the protection under these human rights treaties. Similarly, derogations under human rights treaties may not involve measures that are inconsistent with a state's other obligations under international law. These will include customary international obligations. Where states find themselves in a state of emergency or armed conflict, the court or body that supervises compliance with the treaty will consider these other obligations and may have to decide whether there has been a violation of the other obligation in order to see if there has been a violation of the human (p.107) rights convention at issue. The African and American regional treaties go even further and graft on obligations under Declarations so that respect for the treaty may involve hybrid rights created from a combination of treaty rights and declaration rights.87 The African Charter on Human and Peoples’ Rights (1981) includes the following: Article 18(3): The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of the women and the child as stipulated in international declarations and conventions.’

International human rights law is therefore a complicated branch of international law. Although historically seen as neatly divided between different generations of civil and political rights on the one hand, and economic, social, and cultural rights on the other, it may be time to conceive of human rights law as a complex set of international legal obligations. The obligations are contained in a variety of types of international law; and human rights obligations can evolve so that simple declarations of principle can become strict rules or even the basis for an international crime. However one conceives human rights law, it is surely not static. Human rights law is driven, not by the steady accretion of precedents and practice, but rather by outrage and solidarity. (p.108)

Notes:

(1) Human rights treaties allow for certain derogations in situations of emergency but refer to other international obligations outside the treaty itself and demand that no state party may derogate from its treaty obligations in a way that violates its other international obligations. See, e.g. Art. 4 of the International Covenant on Civil and Political Rights 1966 and Human Rights Committee, General Comment 29 (states of emergency), 24 July 2001.

(2) See, e.g. Art. 61 of the African Charter of Human and Peoples’ Rights 1981: ‘The Commission shall also take into consideration, as subsidiary measures to determine the principles of law, other general or special international conventions, laying down rules expressly recognized by member states of the Organization of African Unity, African practices consistent with international norms on human and people's rights, customs generally accepted as law, general principles of law recognized by African states as well as legal precedents and doctrine.’

(3) For a discussion of the application of customary international law to corporations in the US domestic courts, see the Ch 6, at 6.7 and Ch 10, at 10.1.1 below.

(4) Described in the Statute of the International Court of Justice as ‘international custom, as evidence of a general practice accepted as law’, Art. 38(1)(b).

(5) H. Hannum,‘The Status of the Universal Declaration of Human Rights in National and International Law’ 25 Georgia Journal of International and Comparative Law (1995/6) 287–397, at 349 (footnotes omitted). Philip Alston has suggested that with regard to economic, social, and cultural rights, it is possible to consider the adoption of the Millennium Declaration and the Millennium Development Goals (MDGs) as significant and that ‘it can plausibly be claimed that at least some of the MDGs reflect norms of customary international law… it can be observed that the case would be most easily made in relation to the first six of the Goals. And parts at least of the seventh would also be strong candidates’. P. Alston, A Human Rights Perspective on the Millennium Development Goals: Paper prepared as a contribution to the work of the Millennium Project Task Force on Poverty and Economic Development (2004) at para. 42, on file with the author. The customary law status of certain economic, social, and cultural rights is considered in greater detail in Ch 4, at 4.2.2 below.

(6) Prosecutor v Furundžija Case IT–95–17/1–T, judgment of 10 December 1998, at paras 153ff.

(7) This clause is found in slightly different forms in the 1899 Hague Convention Concerning the Laws or Customs of War on Land, the 1907 Hague Convention IV, and Art. 1(2) of Protocol I of 1977. This last version reads: ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’ Note also the impossibility of avoiding these rules through denunciation of the Geneva Convention of 1949. Arts 63, 62, 142, and 158, of the four Geneva Conventions respectively, state that denunciation shall ‘in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience’. See A. Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ 11 EJIL (2000) 193–202; and V. Chetail, ‘The contribution of the International Court of Justice to international humanitarian law’ 85 (850) IRRC(2003) 235–269.

(8) Prosecutor v Kupreskić Case IT–95–16, judgment of 14 January 2000, at para. 527. ‘This is however an area where opinio iuris sive necessitatis may play a much greater role than usus, as a result of the aforementioned Martens Clause. In the light of the way States and courts have implemented it, this Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity or the dictates of public conscience, even where State practice is scant or inconsistent. The other element, in the form of opinio necessitatis, crystallising as a result of the imperatives of humanity or public conscience, may turn out to be the decisive element heralding the emergence of a general rule or principle of humanitarian law.’

(9) Ibid, at para. 531.

(10) Commentary to Art. 26, para. 5. Report of the ILC, GAOR, Supp. No 10 (A/56/10) p 208.

(11) Commentary to Art. 40, paras 3–5, Ibid, at pp 283–284.

(12) See General Comment 29, Art. 4: Derogations during a state of emergency, at para. 11, adopted 24 July 2001, UN Doc. HRI/GEN/1/Rev.6, 12 May 2003.

(13) Ibid, para. 8 at p 285.

(14) Commentary to Art. 26, at para. 4. Report of the ILC, GAOR, Supp. No. 10 (A/56/10) at p 208. We should add that Art. 50 also excludes counter-measures that affect ‘obligations for the protection of fundamental human rights’ and ‘obligations of a humanitarian character prohibiting reprisals’.

(15) Commentary to Art. 26, at para. 2, Ibid, at p 207, citing Fitzmaurice.

(16) International Law, (Oxford: Oxford University Press 2nd edn, 2005) at 210–211.

(17) Commentary to Art. 26 at para. 4. Report of the ILC, GAOR, Supp. No. 10 (A/56/10) at p 207.

(18) See the reports of the Special Rapporteur of the ILC on responsibility of international organizations, Giorgio Gaja, UN Docs A/CN.4/532, 26 March 2003; A/CN.4/541, 2 April 2004; and A/CN.4/553, 13 May 2005.

(19) See Vienna Convention on the Law of Treaties (1969) Arts 53, 64, 65, and 66(a) (this last provision establishes the jurisdiction of the ICJ with regard to disputes concerning jus cogens in this context). See also Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations (1986) (not yet in force) Arts 53, 64, 65, and 66 (the provisions regarding the ICJ provide for an advisory opinion where one or more parties to the dispute is an international organization).

(20) See the Vienna Convention of 1986 (n 19 above).

(21) Cassese (2005: 206).

(22) Ibid.

(23) IT–95–17/1–T, Judgment of 10 December 1998, at para. 153.

(24) Ibid, at para. 155.

(25) Ibid, at para. 155.

(26) Ibid, at para. 156.

(27) Ibid, at para. 157, footnotes omitted.

(28) See, e.g. The Presbyterian Church of Sudan et al v Talisman Energy Inc, Republic of the Sudan, Civil Action 01 CV 9882 (AGS), US District Court for the Southern District of New York, order of 19 March 2003, esp. p 47, discussed in Ch 10, at 10.1.1 below.

(29) See Protocol 14 to the European Convention on Human Rights (ECHR) (2004) Art. 17. Note also Art. I–9(2) of the Treaty Establishing a Constitution for Europe (2004) discussed in Ch 5, at 5.2.2.2 below.

(30) CERD, Art. 22; CEDAW, Art. 29; Migrant Workers Convention, Art. 92.

(31) ICCPR Arts 41–44; CAT, Arts 21–23.

(32) ICCPR, Art. 44.

(33) R. Higgins, ‘The International Court of Justice and Human Rights’ in K. Wellens (ed) International Law: Theory and Practice (The Hague: Martinus Nijhoff, 1998) 691–705, at 694.

(34) See, e.g. European Convention on Human Rights (ECHR), Art. 33. Note that Art. 55 precludes recourse to other forms of dispute settlement for disputes concerning the interpretation or application of the Convention; American Convention on Human Rights (ACHR), Arts 45, 61–62; African Charter on Human and Peoples’ Rights (ACHPR), Arts 47–49 and Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, Art. 5. Regulations on the Human Rights Commission of the Commonwealth of Independent States, Section II. Cf the Arab Charter of Human Rights (revised version 2004) (not yet in force).

(35) See on this point the draft Articles on State Responsibility, UN Doc. A/CN.4.600, 21 August 2000, Arts 43(b)(ii) and 49(1)(a) which define injured states and other states that are entitled to invoke the responsibility of another state.

(36) See Arts 5(3) and 34(6) of the Protocol (n 34 above).

(37) See, e.g. CERD, Art. 14; First Optional Protocol to the ICCPR; CAT, Art. 22; Optional Protocol to CEDAW, Art. 2; Convention on the Rights of Migrant Workers, Art. 76; ACHR, Art. 44, and Art. 19(6) of the Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights; ‘Protocol of San Salvador’ regarding trade union rights and the right to education, as defined by Arts 8 and 13 of the Protocol; ACHPR, Art. 55; Additional Protocol to the European Social Charter Providing for a System of Collective Complaints,Arts 1–2.

(38) See CAT, Art. 20 and the Optional Protocol to CEDAW, Arts 8–10. Each ensures that the respective Committee publishes a summary of its activities, therefore some details of the inquiry will enter the public domain.

(39) See CERD, Art. 9; International Covenant on Economic, Social and Cultural Rights (ICESCR), Arts 16–18 (includes reports by specialized agencies of the UN); International Covenant on Civil and Political Rights (ICCPR), Art. 41; CEDAW, Art. 18; CAT, Art. 19; Convention on the Rights of the Child, Art. 44; Convention on the Rights of Migrant Workers, Art. 73; ECHR, Art. 52; European Social Charter 1961, Art. 21; Revised European Social Charter, Part IV, Art. C; ACHR, Arts 42 and 43; ACHPR, Art. 62; African Charter on the Rights and Welfare of the Child, Art. XLIII.

(40) See J. Crawford and P. Alston (eds) The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000) 175–198.

(41) Recall the discussion, in Ch 2, at 2.4 above, of the advisory opinion of the Permanent Court of International Justice, Pecuniary Claims of Danzig Railway Officials who have passed into the Polish Service, against the Polish Railways Administration. Advisory Opinion No. 15, 3 March 1928, Series B, esp. at pp 17–18.

(42) On ratification, the US made the following declaration: ‘II. The Senate's advice and consent is subject to the following declaration: “That the United States declares that the provisions of the Convention are not self-executing.” ’

(43) The concluding observations of the Committee against Torture addressed this point on 17 November 1998, UN Doc. CAT/C/UK. E. Recommendations: ‘(f) The Committee finally recommends that in the case of Senator Pinochet of Chile, the matter be referred to the office of the public prosecutor, with a view to examining the feasibility of and if appropriate initiating criminal proceedings in England, in the event that the decision is made not to extradite him. This would satisfy the State party's obligations under articles 4 to 7 of the Convention and article 27 of the Vienna Convention on the Law of Treaties of 1969.’

(44) Discussed in Ch 8, at 8.7 below. ‘Afghan warlord guilty of torture’, 18 July 2005, http://news.bbc.co.uk/2/hi/uk_news/4693239.stm.

(45) R v Bow Street Metropolitan Stipendiary Magistrate and Others, ex p Pinochet Ugarte (No. 3) [1999] 2 W.L.R. 827.

(46) See Articles of the International Law Commission, Art. 48(1)(b) discussed below at 3.5.

(47) See the draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters; Art. 18 in its present form covers conduct which constitutes (1) ‘genocide, a crime against humanity or a war crime’ or (2) ‘a serious crime under international law, provided that this State has exercised its criminal jurisdiction over that crime in accordance with an international treaty to which it is a Party and that claim is for civil compensatory damages for death or serious bodily injuries arising from that crime’. Summary of the Outcome of the Discussion in Commission II of the First Part of the Diplomatic Conference 6–20 June 2001, Interim Text. See generally on civil actions for human rights crimes such as torture, C. Scott (ed) Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (Oxford: Hart Publishing, 2001).

(48) For a discussion of some of the human rights obligations arising in this context, see T. Obokata, ‘Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law’ 17 IJRL (2005) 394–415.

(49) See further Prosecutor v Sam Hinga Norman Case SCSL–2004–14–AR72(E), Decision on preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), Decision of 31 May 2004.

(50) A. Cassese, ‘Terrorism as an International Crime’ in A. Bianchi (ed) Enforcing International Law Norms Against Terrorism (Oxford: Hart Publishing, 2003) 213–225 at 219; see also A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) at 124. International treaties contain various crimes; see further: Convention on Offences and Certain other Acts Committed on Board Aircraft (1963); Convention for the Suppression of Unlawful Seizure of Aircraft (1970); Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973); International Convention against the Taking of Hostages (1979); Convention on the Physical Protection of Nuclear Material (1980); Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1988); Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988); Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf (1988); International Convention for the Suppression of Terrorist Bombings (1997); International Convention for the Suppression of the Financing of Terrorism (1999). At the regional level, see OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes against Persons and Related Extortion that are of International Significance (1971); European Convention on the Suppression of Terrorism (1977), and Protocol amending the European Convention on the Suppression of Terrorism (2003, not yet in force); States of the South Asian Association for Regional Cooperation Regional Convention on Suppression of Terrorism (1987); and Inter-American Convention Against Terrorism (2002).

(51) (1970) ICJ Reports 4 at para. 33: In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.’ See further at para. 34: ‘Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion (1951) ICJ Reports at 23); others are conferred by international instruments of a universal or quasi-universal character.’

(52) For this see the Advisory Opinion of the Inter-American Court of Human Rights OC–18/03 of 17 September 2003, Juridical Condition and Rights of the Undocumented Migrants, esp. para. 110, discussed in Ch 9, at 9.2.3. below.

(53) Art. 48 of the Articles adopted by the ILC on 31 May 2001, annexed to UN GA Res. 56/53, 12 December 2001.

(54) See Third Report, UN Doc. A/CN.4/507, at para. 92. The relevant Article is now Art. 48 ‘Invocation of responsibility by a State other than an injured state’. Note also para. 89, where Crawford points out the difference between human rights obligations and other obligations under international law: ‘What does seem to be special about human rights obligations (as compared with these other fields) is that they are specifically formulated in terms of the rights of individuals, whereas, for example, international environmental instruments speak of the obligations of States.’

(55) The right to take counter-measures (reprisals) seems to be limited by the Articles to an injured state (Arts 49 and 54) even if general international law may evolve to accept certain sanctions in this area. See Commentary to Art. 54, esp. paras 6 and 7. Report of the ILC, GAOR, Supp. No. 10 (A/56/10) at 355.

(56) According to the third report of the Special Rapporteur, James Crawford, the scope of these obligations can be divined from the Court's judgment. ‘From the Court's reference to the international community as a whole, and from the character of the examples it gave, one can infer that the core cases of obligations erga omnes are those non-derogable obligations of a general character which arise directly under general international law or under generally accepted multilateral treaties (e.g. in the field of human rights). They are thus virtually coextensive with peremptory obligations (arising under norms of jus cogens). For if a particular obligation can be set aside or displaced as between two States, it is hard to see how that obligation is owed to the international community as a whole.’ UN Doc. A/CN.4/507, at para. 96. See 3.2 above for the the scope of the jus cogens obligations.

(57) As explained by Christian Tomuschat (a former member of the ILC): ‘But for an individual third State to claim reparation to the benefit of the victims is something almost unknown in international practice. In venturing so far ahead a State not directly affected would certainly not feel at ease. Taking a stand to defend the rights and interests of the citizens of a third country is already a noble gesture which inevitably has its political costs. But no government can really feel motivated to go into the fine work of bringing redress to an afflicted foreign population. Here, the limits of what altruism can achieve are obviously reached. The situation is totally different if a State has been hurt in the person of its citizens. Then its general duty to protect the rights and interests of its national community is activated. Diplomatic protection in the international sense has its strong incentives in the account ability of any democratic government towards its electorate as well as in the interest to shield national assets from any harmful interference by other States. To espouse the cause of foreign citizens in a foreign country, however, is always a discretionary decision which even a strong State is normally extremely reluctant to take. In other words, the system for the reparation of human rights violations as conceived by the ILC is hardly workable.’ C. Tomuschat, ‘Individual Reparation Claims in Instances of Grave Human Rights Violations: The Position under General International Law’ in A. Randelzhofer and C. Tomuschat (eds) State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights (The Hague: Martinus Nijhoff, 1999) 1–25, at 5–6.

(58) See Art. 50 of the Articles (n 53 above).

(59) UN Charter, Arts 1(3), 14, 55(c), and 56. See also: The Competence of a Special Rapporteur. Views of the Special Rapporteur on the Situation of Human Rights in Chile, 1980 UN Doc. A/34/583, at paras 1–13. Extract reprinted in B. G. Ramcharan (ed) The Principle of Legality in International Human Rights Institutions (The Hague: Martinus Nijhoff, 1997) at para. 9.

(60) See, e.g. UN GA Res. 721(VIII), 8 December 1953.

(61) See the Economic and Social Council Resolution authorizing the Commission on Human Rights and the Sub-Commission on Prevention of Discrimination and Protection of Minorities to examine information relevant to gross violations of human rights and fundamental freedoms, E/RES/1235(XLII), 6 June 1967.

(62) Vienna Declaration, World Conference on Human Rights, 14–25 June 1993, UN Doc. A/CONF.157/24, Part 1, para. 4.

(63) ‘Use of the terms “Declarations” and “Recommendation” ’ UN Doc. E/CN.4/L.610, 2 April 1962.

(64) See GA Res. A/RES/53/144, Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 9 December 1998.

(65) Particularly interesting examples in this regard are the Guiding Principles on Internal Displacement, which even though they have not been adopted in the form of a General Assembly Declaration, have been developed in a way that reflects existing principles of human rights and humanitarian law. They have also been supported by the Inter-Agency Standing Committee which deals with humanitarian assistance, and they provide a framework for these humanitarian agencies, as well as guidance for governments. The Principles are included in UN Doc. E/CN.4/1998/53/Add.2, 11 February 1998. See further W. Kälin, Guiding Principles on Internal Displacement: Annotations (Washington, DC: ASIL and the Brookings Institution, 2000).

(66) See G. Abi-Saab, ‘Diplomatie multilatérale et développement du droit international: le rôle des résolutions de l'Assemblée générale’ in V.-Y. Ghebali and D. Kappeler (eds) Multiple Aspects of International Relations: études à la mémoire du professeur Jean Siotis (Brussels: Bruylant, 1995) 83–99; B. Sloan, United Nations General Assembly Resolutions in Our Changing World (New York: Transnational, 1991), O. Schachter, International Law in Theory and Practice (Dordrecht: Martinus Nijhoff, 1991) 84–94, A. Cassese, International Law in a Divided World (Oxford: Oxford University Press, 1986) 174–175, 192–195, A. Cassese and J. H. H. Weiler (eds) Change and Stability in International Law-Making (Berlin: Walter de Gruyter, 1988) 33–62, R. Higgins, The Development of International Law through the Political Organs of the United Nations (Oxford: Oxford University Press, 1963).

(67) E.g. the Advisory Opinion on Western Sahara (1975) ICJ Reports 12, relied, heavily on GA Res. 1514(XV), 1541(XV), and. 2625(XXV) to determine the content of the right to self-determination, see paras 55–59; in the Case Concerning Military and Paramilitary Activities in and against Nicaragua (1986) ICJ Reports 14, the Court construed the consent to the text of resolutions such as GA Res. 2625(XXV) as an acceptance of the rules declared in the resolution (para. 188), and determined that the ‘resolution demonstrates that the States represented in the General Assembly regard the exception to the prohibition on the use of force constituted by the right of individual or collective self-defence as already a matter of customary international law’ (para. 193). The Court also relied on GA Res. 3314(XXIX), which annexed the Definition of Aggression, and found that the description of an armed attack as including the sending of armed bands which carry out acts of armed force against another state ‘may be taken to reflect customary international law’ (para. 195).

(68) See O. Schachter: ‘Declarations that affirm the prohibitions against aggression, genocide, torture or systematic racial discrimination would not be deprived of their legal value because they are not uniformly observed. On the other hand, declarations asserting or affirming legal rules of a less peremptory character would not prevail over evidence that such rules were not generally observed by affected states.’ ‘The UN Legal Order: An Overview’ in O. Schachter and C. C. Joyner (eds) United Nations Legal Order (Cambridge: Cambridge University Press, 1995) 1–31, at 5.

(69) Resolutions affirming the principles of international law relating to war crimes and crimes against humanity (1946) GA Res. 95(I) and (1947) Res. 170(II); Declaration of the Rights of the Child (1959) GA Res. 1386(XIV); Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) GA Res. 1514(XV); Resolution on Permanent Sovereignty over Natural Resources (1962) GA Res. 1803(XVII); Declaration on the Elimination of All Forms of Racial Discrimination (1963) GA Res. 1904 (XVIII); Declaration on the Promotion among Youth of the Idea of Peace, Mutual Respect and Understanding Between Peoples (1965) GA Res. 2037(XX); Declaration on the Elimination of Discrimination against Women (1967) GA Res. 2263(XXII); Declaration on Social Progress and Development (1969) GA Res. 2542(XXIV); Declaration on Principles of International Law Concerning Friendly Relations and Cooperation of States in Accordance with the Charter of the United Nations (1970) GA Res. 2625(XXV); Basic Principles for the Protection of Civilian Populations in Armed Conflicts (1970) GA Res. 2675(XXV); Declaration on the Rights of Mentally Retarded Persons (1971) GA Res. 2856(XXVI); Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity (1973) GA Res. 3074(XXVIII); Declaration on the Protection of Women and Children in Emergency and Armed Conflict (1974) GA Res. 3318(XXIX); Declaration on the Use of Scientific and Technical Progress in the Interests of Peace and for the Benefit of Mankind (1974) GA Res. 3384(XXX); Declaration on the Protection of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975) GA Res. 3452(XXX); Declaration on the Rights of Disabled Persons (1975) GA Res. 3447; Code of Conduct for Law Enforcement Officials (1979) GA Res. 34/169; Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981) GA Res. 36/55; Principles of Medical Ethics Relevant to the Role of Health Personnel Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1982) GA Res. 37/194; Declaration on the Right of Peoples to Peace (1984) GA Res. 39/11; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) (1985) GA Res. 40/33; Declaration of Basic Principles of Justice for Victims of Crime and the Abuse of Power (1985) GA Res. 40/34; Declaration on the Human Rights of Individuals Who are not Nationals of the Country in Which They Live (1985) GA Res. 40/144; Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (1986) GA Res. 41/85; Declaration on the Right to Development (1986) GA Res. 41/128; Body of Principles for the Protection of All Form of Detention or Imprisonment (1988) GA Res. 43/173; Basic Principles for the Treatment of Prisoners (1990) GA Res. 45/111; United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) GA Res. 45/113; United Nations Standard Minimum Rules for Non-custodial Measures (‘The Tokyo Rules’) (1990) GA Res. 45/110translator;Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (1991) GA Res. 46/119; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992) GA Res. 47/135; Declaration on the Protection of All Persons from Enforced Disappearances (1992) GA Res. 47/133; D eclaration on the Elimination of Violence against Women (1993) GA Res. 48/104; Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (1998) GA Res. 53/144.

(70) Note the US voted against the Declaration on the Right to Development. However, more recently it joined the consensus in Vienna for the adoption of the Declaration and Programme of Action and did not dissent during the adoption by consensus of the resolution at the 50th Session of the GA on the Right to Development, which in its first preambular paragraph reaffirmed the Declaration on the Right to Development. GA Res. 50/184, adopted 22 December 1995.

(71) Res. 2444 relative to the respect for human rights in armed conflict affirmed Res. XXVIII of the XXth International Conference of the Red Cross held in Vienna, 1965. The resolution laid down, inter alia, the following principles: ‘a) That the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited; b) That it is prohibited to launch attacks against the civilian populations as such; c) That distinction must be made at all times between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible.’ This resolution, together with five resolutions adopted by the GA in 1970, were part of the basis for the draft protocols drawn up by the ICRC which eventually became the two 1977 Protocols additional to the Geneva Conventions of 1949. The five Resolutions are 2673, 2674, 2675, 2676, and 2677.

(72) These included: ‘ 1. Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply in situations of armed conflict. 2. In the conduct of military operations during armed conflicts, a distinction must be made at all times between persons actively taking part in the hostilities and civilian populations. 3. In the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations.’

(73) Quoted at para. 111 of the decision of 2 October 1995, the Chamber cites the reference for the quote as (UN GAOR, 3rd Comm, 25th Sess, 1785th Mtg., at 281, UN Doc. A/C.3/SR.1785 (1970). The Chamber's decision also refers to a statement by the Cuban delegate UN GAOR, 25th Sess, 1922nd Mtg., at 3 UN Doc. A/PV1922 (1970).

(74) Advisory Opinion, 8 July 1996, para. 112.

(75) At para. 71.

(76) At para. 70.

(77) On general principles, see B. Simma and P. Alston, ‘The Sources of Human Rights Law: custom, jus cogens, and general principles’ 12 AYBIL (1992) 82–108. It has been suggested in the context of a study of law-making at the UN that: ‘the general principles of law are those not easily or frequently legislated. Nevertheless, it is not to be excluded that certain principles emphasized repeat edly by the international community through organs such as the General Assembly for example the prohibition of torture, may through such repetition and sponsorship come to be generally accepted (at least in principle) by all states and thus become part of international law even before customary law has developed in the same sense’. P. Szasz, ‘General Law-Making Processes’ in Schachter and Joyner (1995) 35–108, at 44.

(78) On the use of General Assembly Resolutions containing human rights declarations by the International Court of Justice, see F. Francioni, ‘International soft law: a contemporary assessment’ in V. Lowe and M. Fitzmaurice (eds) Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge: Grotius/Cambridge University Press, 1996) 167–178, esp. at 170–174.

(79) GA Res. 48/104, adopted 20 December 1993. The Resolution ‘Solemnly proclaims a Declaration the content of which is such that it contains definitions and imperatives. Art. 4 contains a number of exhortations and suggestions but it also includes clear wording which suggests that states are entering into an obligation which ‘fleshes out’ or is parasitic on existing legal obligations. ‘States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.’ The Declaration was heavily influenced by the General Recommendation No. 19 (11th Session, 1992) adopted by the Committee on the Elimination of Discrimination Against Women. The importance of the General Assembly Declaration is that states themselves have adopted the text and therefore it is conclusive proof of the minimal scope of the obligations under the treaty. States cannot contest the text adopted by the General Assembly in the same way that they might argue about the obligations contained in a recommendation of the expert treaty body. In addition, the obligations in the Declaration are of course binding on states which are not yet parties to the Convention of the Elimination of All Forms of Discrimination against Women (CEDAW). Cf the Inter-American Convention on the Prevention and Eradication of Violence against Women. This should be seen as a demonstration of the legal nature of some of the obligations contained in the UN Declaration, rather than evidence of the necessity of drafting a convention before the obligations have any legal effect. A further role for the General Assembly Declaration has been to give a normative framework to various Special Rapporteurs, including the Special Rapporteur on traditional practices affecting the health of women and children, and the Special Rapporteur on violence against women. These Special Rapporteurs, appointed by the Sub-Commission and Commission on Human Rights respectively, do not confine their activities and reports to states parties to CEDAW, and so the Declaration provides an important catalogue of the obligations the states have freely entered into in this field. See UN Doc. E/CN.4/Sub.2/1995/6 for the preliminary report on traditional practices and UN Doc. E/CN.4/1996/53 for a relevant report of the Special Rapporteur on violence against women.

(80) GA Res. 47/133, adopted 18 December 1992.

(81) The fourth preambular paragraph reads: ‘ Considering that enforced disappearance undermines the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crime against humanity’ See also Arts 4, 14, and 15, which cover the criminalization of enforced disappearances. For a preliminary draft of an ‘international convention on the prevention and punishment of enforced disappearances’ see UN Doc. E/CN.4/Sub.2/1996/WG.1/CRP.2, 7 August 1996. Art. 2 of the draft reads: ‘The systematic or widespread practice of forced disappearance constitutes a crime against humanity’ Compare the Inter-American Convention on the Forced Disappearance of Persons, 9 June 1994, in force since 29 March 1996, which states in its sixth preambular paragraph: ‘Reaffirming that the systematic practice of the forced disappearance of persons constitutes a crime against humanity.’

(82) See the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968) in force since 11 November 1970, Compilation 678–681; see also GA Res. 3074(XXVIII), 3 December 1974, Principles of international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity

(83) Art. 1F(a) of the Convention Relating to the Status of Refugees (1951) states that: ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: he has committed… a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes.’

(84) GA Res. 2312(XXII), 14 December 1967 contains the Declaration on Territorial Asylum which, in Art. 1(2), states that: ‘The right to seek and enjoy asylum may not be invoked by any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity, as defined in international instruments drawn up to make provision in respect of such crimes.’

(85) 13 October 1995, 34 ILM (1995) 1592, at 1597.

(86) Art. 7(2), see also the International Covenant on Civil and Political Rights, Art. 15(1); Universal Declaration of Human Rights, Art. 11(2); American Convention on Human Rights, Art. 9; and African Charter on Human and Peoples’ Rights, Art. 7(2).

(87) See, e.g. the complaints concerning the incidents at La Tablada in Argentina: Report 55/97, case 11,137 v Argentina approved by the Inter-American Commission on Human Rights, 30 October 1997. The American Convention includes a number of references to other treaties and obligations and the Commission may even control the extent to which remedies are provided in national law for violations of these obligations where they have been incorporated into national law. See Arts 25, 27, and 29 for the complex interaction of Declarations, treaties, customary obligations, and national law.