ERGA OMNES OBLIGATIONS AND HUMAN RIGHTS

1. Introduction If we pay attention to the first Part of the draft articles of State responsibility adoptet by the International Law Commission on first reading from its twentyfifth to thirty-second sessions, we can find an essence that it seems to be represented by the following articles: Art. 1: "Every international wrongful act of a State entails the international responsibility of that State" There is an internationally wrongful act of a State when: a) conduct consisting of an action or omission is attributable to the State under international law b) conduct constitutes a breach of an international obligation of the State (Art. 3 ) An act of a State wich constitutes a a brech of international obligation is an internationally wrongful act regardless of the origin, whether customary, conventional or other, of that obligation (Art. 17.1) This structure of the draft articles is derived from the basic viewpoint of Roberto Ago, then Special Rapporteur on State Responsibility. According to him, rules of international law can be divided into two: - Rules wich one sector of inter-State relations or another, impose particular obligations on States, and wich may be termed "primary" rules, and the other is concerned with determining consequences of failure to fulfill obligations established by the primary rules, and wich may hence termed "secondary" rules, the field of responsibility being covered by the latter. Once he described the codification of the law of State responsibility from this standpoint as "the whole of resposibility and nothing but responsibility". This approach o the International Law Comissionto the codification of the law of State responsibility forms a marked contrast to the previous attempts in the same field undertaken by various official and private bodies, wich focused on "the responsibility of State for damage done in its territory to the person or property foreigners". Rather, thi approach was based on "the most valuable lesson to be drawn from a retrospective examination os the succesive efforts to codify this important and delicate sector of international

law". Therefore, it is quite natural thast thid approach has provoked many criticisms from the traditional standpoint. For example, R.R. Baxter, noting its abstract character, points out that "The circumstances under wich responsibility attaches and the remedies to be provided for violations of the rules of law cannot be divorced from the substantive rules of conduct themselves" . Also, Myres S. Mc Dougal comments that "the more recent work of the Comission has been at such a high level of abstraction as to shed but a dim light upon specific controversies", and Richard B. Lillich, citing thi words of Mc Dougal affirmatively, concludes that it offers "little or no guidance" in the field of treatment of aliens. But upon reflection, responsibility of a State did not occur exclusively from damages done in its territory to the person or propoerty of foreigners even under the tradictional international law. As it is well known, the Permanent Court of International Justice, in its famous judgment on the Chorzw Factory Case, declared that "it is a principle of international law the breach of an engagement involves an obligation to make reparation in an adequate form". Again, the same Court, in its judgment on the Phosphates in Morocco Case, called "the violation of international law" as a "definitive act wich would, by itself directly involve international responsibility". In fact, we can cite countless cases of diplomatic negotiations, intenrational arbitration or judicial settlement, in wich breaches of obligation in various fields of intenrational law, derived from every sources, were at issue. Then, why did the traditional law of State responsibility, as a distinctive field of international law, confine itself to responsibility of a State for damage caused to foreigners in its territory? The answer to this problem seems to provide us with a firm foundation to understand the substance of the transformation of the law of State responsibility. 2. A Doctrine of Basic Universal Rights and Supra- Positive Obligations The idea that there are obligations owed to the international community as a whole is well -developed in international law, as is juridical acceptance that there are, for example, fundamental rules to the respect of the human person, and to elementary considerations of humanity. As customary international law, the obligations corresponding to this principle to protect human rights triggers the "legal interest" of the international community, and how the "legal interest" of states is triggered to protect human rights by virtue of such obligations, is considerably neglected in the phere of socioeconomic rights. The expectation that there exists a collective interest in relation to securing globally a range of human rights has been shown recently with regard to the

rights enshrined in the International Covenant on Civil and Political Rights (ICCPR). These community requirements, pertaining to the legal interest of every state party in the performance by every other state party of its obligations regarding rights that are found in treaties with clauses limiting jurisdiction, only strengthens the claim for a rigorous application of collective obligations in treaties for wich the fulfillment of the rights are foreseen as requiring international cooperation, such as the International Covenant on Economic,Social and Cultural Rights (ICESCR). Socio-economic rights are entrenched in a range of treaties, with very high levels of ratifications, and they have been repeatedly endorsed by the international community of states as requiring urgent action, most recently in the form of the Millennium Development Goals (MDG). That no single person should be deprived of "essential foodstuffs, of essential primary health care, ofbasic shelter and housing, or of the most basic forms of education" constitutes a core obligaation, in the fisrt instance of states parties to the ICESCR. But we are not limited to state consent when considering sources of international law, and there can be said to exist a legal obligation to protect basic human rights, wich undoubtedly entails in the present day the responsibility to protect all people from starvation, and realted privations constituting the ravages of poverty. This doctrine of basic universal rights that includes socio-economic rights is borne of the UN Charter, and is consistent with the teory of human rights law premised on the essential requirement that each and every person is entitled to life in conditions of dignity.

3. The Universal Principle to Respect and Observe Human Rights. The InternationalCourt of Justice's jurisprudence of 1988 shows that "the Court has unambiguosly accepted that the obligation to respect fundamental human rights is an obligation under general international law". The Court has, on repeated occasions, spoken of international principles that create obligations meant to bind all states, and in so doing established that states are expected to observe basic human rights as a matter of custom. Contemporany international law for the protection of human rights is evolving to adress the scope of corresponding obligations within what has been referred to as an objective international legal order. In the Barcelona Traction, Light and Power Co Ltd Case (1970) the International Court of Justice addressed the matter of obligations owed "towards all". Tha case dealt with the protection of companies and shareholders, in respect of the injury to its nationals when the company went bankrupt. Althought the position of all stats in respect of a breach of an

obligation towards the international community as a whole was not actually at stake in this case (in contrast with the position of an injured state in the context of diplomatic protection), the Court took the opportunity "to clearly indicate that for the purposes of State responsibility certain obligations are owed to the international community as a whole , and that by reason of the importance of the rights involved, all States have a legal interest in theis protection". The underlies both global responsibility to protect human rights, and the duty in customary law for states to cooperate towards that end. The celebrated obiter dictum on obligations erga omnes can be found in two paragraphs in the Barcelona Traction judgment: "An essential distinction should be drawn between the obligations of a State owed towards the international community as a whole, and those arising vis-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. Such obligations derive, for example, in contemporany international law, from the outlawing of acts of agression, 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; others are conterred by international instruments of a universal or quasiuniversal character. While the Barcelona Traction Case was the first to refer obligations erga omnes, the idea of universal fundamental principles of well- being in peace time, from wich obligations would necessary flow, was pronounced in the 1949 Corfu Channel case in wich the ICJ referred to obligations based on "general and well-recognized principles", among "them elementary considerations of humanity". The Court cited its Corf Channel dictum in the Nicaragua decision of 1986 when it evaluated action taken by the United States in light of obligations resulting from "fundamental general principles of humanitarian law". In the Reservations to the Genocide Convention advisory opinion, the ICJ observed that "the principles underlying the Convention are principles wich are recognized by civilized nations as binding on States, even without any conventional obligation", a reference cited in its Bosnia case of 1996 to wich the Court affirmed "the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not

territorialy limied by the Convention. In repeated cases the ICJ affirmed that this objective is derived from a "common interest, namely the accomoplishment of those high purposes wich are the raison d'tre of the Convention". In the Nuclear Weapons case we see revisited thi notion that there are rules fundamental to respect of the human person and to elementary consideration of humanity, with the ICJ taking the view in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, that rules of international humanitarian law "incorporate obligations wich are essentially of an erga omnes character". In reaffirming the principles underlying the Genocide Convention, the Court in the DRC v Rwandaa judgment of 2006 noted that "...a consequence of that conception is the "universal character both of the condemnation of genocide and the cooperation required in order to liberate mandkind from such an odius scourge (Preamble to the Convention) (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion...) If follows that "the rights and obligations enshired by the Convention are rights and obligations Erga Omnes" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina & Yugoslavia), Preliminary Objections, Judgment...) In the Tehran Hostages case the Court referred more specifically to human rights principles as derived from de UN Charter and Universal Declaration of Human Rights when stating that "wrognfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the UN, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights. In the East Timor Case, the Court recognized the "irreprochable" erga omnes character of the principle of selfdetermination of peoples as envolved from the UN Charter, as it did in its 2004 advisory opinion on the Construction of a Wall in the Occupied Palestinian Territory, a position consistent with its view on the principle taken in previous cases. Thus, the notion that there are obligations owed to the international community as a whole is today incontestable. They attend to fundamental principles that require international cooperation, transcending bilateral or multilateral obligations of states in the area of human rights, addressing rather every state of the international community as a whole as the holder of basi rights. The non-conventional status in international law of a particular principle to respect and observe human rights in the main attracts consideraqble support from eminent legal scholars. Verdross and Simma assert that "nowadays certain obligations to respect and ensure human rights derive from "general" international law, and Beyani concludes that "the obligation to respect and

observe human rights in the Charter of the UN is a fundamental norm now accepted into the corpus of customery international law. Meron remarks that even non-state parties to the ICCPR may not derogate from basic Human Rights, and Bossuyt argued back in 1978 that "... no State could maintain that it had the right to violate Human Rights and fundamental freedoms, as long as the Covenant ICCPR was not in force or as long as it had not ratified the Covenant, once it has entered into force. The obligation to respect human rights is a general principle of law recognized by all civilized nations.Describing the aim of human rights convention, Bossuyt explains that it is not to constitute new rights, or to establish a previously non-existed obligation to respect those rights but rather to enumerate the definition of rights and freedoms. This norms will then be further refined by the interpretation, and aplication, provided by the implementing organ wich in turn will add precision to the obligations impossed on states parties to it. So, although the entry into force of such an international instrument is necessary to set in motion the new international monitoring machinery, and to create the obligation upon states parties to cooperat with it, " it is not necessary to establish the obligation of states parties to respect the rights recognized in it". This view echoes that taken earlier by Judge Tanaka provided that: "a State or States are not capable of creating human rights by law or by convention; they can only confirm their existence and give them protection. The role of the State is no more than declaratory. Human rights treaties, binding under international law for those states that have ratified or acceded to them, provide the most evidence basis for the responsibility to respect and observe the human rights articulated in those treaties. However, the widespread recognition within human rights treaties of states obligations to cooperate in ensuring the respect and observance of human rights generally, strengthens claims as to the non- conventional status of this principle. This principle is referred to in the universally ratified UN Charter and repeatedly endorsed within human rights instruments. The purposes of the UN include, as per Article 1 (3) of the UN Charter, "promoting and encouraging human rights", and Articles 55 and 56 entrench the obligations of the UN to cooperate internationally in the promotion of " universal respect for, and observance human rights ". This key point is reaffirmed in preambular paragraph 6 of the Universal Declaration of Human Rights, wich states: " Whereas Member States have pledged themselves to achieve, in cooperation with the UN, the promotion of universal respect for and observance of human rights and fundamental freedoms". Moreover, virtually every major international and regional human rights tretay restates the overarching need for states to cooperate internationally in the achievement of this broad objective. In conventions addressing economic ,

social and cultural rights - notably the International Covenant on Economic, Social and Cultural rights with 155 states parties, and the Convention on the Rights of the Child with near universal ratification - it forms part of the specific obligations undertaken by contracting states and is provided for in operative paragraphs. The consistent references to the obligation to respect and observe human rights found in human rights treaties, along with the very patterns of the standard-setting of human rights treaties wich reflect the progress of human rights in international law, strengthens the claims as to the non-conventional status of this universal principle. The existence of an objective international legal order recognized in the Barcelona Doctrine is an order in which legal positivism loses its influence, in wich law moves beyond the sum of rules to which states have consented to be bound. It is an order which exists in conformity with a contemporary appreciation of considerations of humanity and the dictates of public consience, and in turn, judges positive international law by these standards. While international cooperation in the respect for an observance of human rights find its legal foundations in the UN Charter's consecration of the principle, it has now taken on a "supra-positive character", crystallizing within a process of globlisation. The result today, as the ILC has noted, is that " every state by virtue of its membership in the international community, has a legal interest in the protection of certain basic rights and the fulfillment of certain essential obligations.