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Обязательство государств по сотрудничеству в соответствии с международно-правовыми обычаями
Научные статьи
13.01.14 13:38

Обязательство государств по сотрудничеству в соответствии с международно-правовыми обычаями

Judicial precedents under international law suggest recognition of some universal customary rules based on which all states have legal interests and are considered versus each other as parties to right and obligation. Although International Court of Justice (ICJ) declared in its 1949 Advisory opinion in case of «damages suffered to the UN» that «only obligee under an international obligation may bring action for violation of that obligation», it should be noted that lack of judicial relation does not mean loss of the right to bring legal action, and there is a difference between two concepts of legal interest and acceptability of action before an international court. Further, there are made attempts to analyze key obligations of states in this sphere.

   1.      Obligation of states to cooperate in observance of human rights regulation, judicial precedents under obligation to cooperation under customary international law. All states are considered as having legal interests with respect to observance of these regulations and obligations related to cooperation in observance of the said regulations, and no state is considered to be third party to these obligations. It is to be noted here that ICJ did not rendered any general decision on legal nature of human rights regulations in Barcelona Traction case (1970) involving some of fundamental human rights, and it seems that the Court was affected by some kind of analytical disturbance, as the ICJ despite accepting existence of some universal obligations under international law stated that «however, on international level, documents related to human rights has so far failed to recognize obligation to support victims of violation of human rights by their respective governments. Therefore, a regional solution must be still sought for such problem». This comes as the said issue is inconsistent with the approach adopted in paragraph 32 of the same decision. In this part of its decision, the Court stating existence of some universal obligations declares that such obligations, for example those under contemporary international law, arise from illegality of aggression and genocide, and are derived from principles related to fundamental human rights, such as protection of human against slavery or racial discrimination. It should be reminded that in judgments it rendered before Barcelona Traction, ICJ considered protection of human rights within the framework of universal rules, and raising the issue of general interest of state in observance of some of legal regulations including human rights regulations, ruled out specific interests of states in observance of this kind of international regulations. In his 1962 Separate opinion in South Africa case, Judge Jesoup stated with regard to existence of general interest of states in human rights matters that «international law has long accepted that states may have legal interest in issues that do not damage financial, economic or other concrete interests, or interests that may be called material or sensitive. This international obligation is a universal obligation according to the formula used by ICJ. This obligation is imposed on all states vis- a-vis international community, and every state is considered to enjoy legal interest in protection of human rights. In addition to this obligation, it indicates duty of all states to secure solidarity among them to ensure universal and effective support for human rights as soon as possible». International Law Commission (ILC) states when developing article 40 of Draft articles of International Responsibility of States (2001) that: 1. According to present articles, suffered state includes any state whose rights have been violated by the act of another state, provided that this act is an internationally illegitimate act by that state subject to regulations of section one. 2. In particular, the term «suffered state» includes any state whose rights arising from bilateral or multilateral convention or an international customary rule have been violated by another state that is a member of that convention or is bound to that international customary rule. 3. In particular, when the rights have been developed or recognized to protect human rights and fundamental freedoms. Stress on cooperation obligation of states in human rights conventions is meant to extend applicability of these conventions to include unpredictable items when developing the said conventions. In fact, the reason why international conventions attempt to contain this obligation in their regulation is the fact that considering fluidity of issues of international law, particularly, in such areas as environment, human rights and humanitarian rights and impossibility of provision of all obligations of states in international law, states concerned based on facts of international system that some countries withhold from fulfilling their obligation (particularly in the areas of human rights and humanitarian rights», they provide for obligation to cooperation so that full fulfilment of conventional obligations (even in unpredictable cases).

International Red Cross Committee (IRCC) and recognition of customary obligations related to cooperation between states; 26th International Red Cross Conference dated 1995, commissioning International Red Cross Committee, asked this committee to develop a comprehensive report of customary rules of humanitarian international law applicable to non-international and international armed conflicts. In fulfilment of its assignments, this committee used opinions of over 100 high rank authorities of international law to develop a comprehensive report on customary rules of humanitarian international law in 33 chapters and 161 customary rules. According to this report that reflected customary rules of humanitarian international law, states are bound to observe principles which are mostly related to war methods, and types of behaviour of parties of conflict during conflict, and which also cover 33 rules related to customary obligations of states to observe rules of humanitarian law. Since cooperation of states, including parties to conflict and others, in execution of the above mentioned rule is obligatory.

2.        Obligation to secure observance of regulations of humanitarian international law and obligation to cooperation of states. This obligation is the direct consequence of cooperation of states. In addition of the Four Geneva Conventions, numerous military instructions of states also reflect regulations governing securement of observance of humanitarian international law. Practice of international organisations (For example, resolutions 822 and 853 of the Security Council and resolutions 2674 (XXV dated December 9, 1970), 2677 (XXX, December 9, 1970) of the Security Council), international conferences and international judicial precedent also confirm this obligation. Existence of obligation to secure observation is of the features of humanitarian law, and is the distinction of these regulations and other regulations within the jurisdiction of criminal international law. Existence of dual obligations of responsibility of execution and responsibility of securement of execution under humanitarian international law is the result of necessity of observation of these regulations under any circumstances, and prevention of any excuse to ignore this category of international regulations. While obligation to execute humanitarian regulations comprises personal liability (whether governmental or private) to execute regulations, securement of observance of humanitarian regulation is an obligation according to which states have the responsibility to react to non-observance of such regulations by other states. Common article 1 of the four Geneva Conventions dated 1949 has extended the obligations of states to observe regulations of humanitarian law so much that it could include obligation to secure observance of humanitarian international law. In addition to common article 1 of Geneva Conventions, first supplemental protocol also reflects this obligation. First supplemental protocol also provides that in case of serious violation of this protocol, states involved undertake to cooperate with this organisation within charter of the UN severally or jointly. Also, similar regulations are included in second protocol of Hague convention concerning protection of cultural properties. In fact, obligation to secure observance of humanitarian law is a special kind of obligations of states under international law, according to which states are not only responsible for their acts, but also for their behaviour toward others. ICJ held in Barcelona Traction case that obligations arising from illegal acts of aggression and genocide as well as rules related to human rights, including ban of slavery and racial discrimination are among obligations to international community (Erga Omnes). In obligation to secure observance of humanitarian regulations, states are not only bound to observe these regulations, but also they have obligations to prepare ground for enforcement of the said regulations by others and also to deal with offending states. International practice shows that obligation of third party states to secure humanitarian international law is not limited to execution of conventional rules of common article one of Geneva Conventions and article one of first supplemental protocol. For example, requests of International Red Cross Committee concerning Rhodesia's conflict (Zimbabwe) in 1979 included request to secure observance of rules that were not contained in Geneva Conventions and were only mentioned in supplemental protocols (bombing civil regions and blind attacks). This came as states who committed these violations were not members of the protocols and at the same time, no state paid attention to this issue, and even member states of supplemental protocol failed to support this issue. In the light of obligation to secure observance of humanitarian international law, states have two positive and negative obligations. For positive obligation which is contained in topic of obligation to observe humanitarian international law, it has been agreed that all states have the right to ask states involved in any conflict to observe humanitarian international law. The deciding branch of international criminal tribunal for former Yugoslavia stated in its judgments on Furundzjia case dated 1998 and Kupresic dated 2000 that legal criteria of humanitarian international law are universal rules, and as a result they have the right to ask for observance thereof. In this regard, states show extensive use of diplomatic protest or collective measures through which states apply their influence to stop violation of humanitarian international law as much as possible. But the nagging question in this regard is related to the doctrine of humanitarian intervention and the governments' policy in response.

Government policy in response to the doctrine of humanitarian intervention; Government policy has proven to intervene unilaterally under any title, even in light of the doctrine of humanitarian intervention cannot be supported. Overview of the Indian intervention in East Pakistan and Vietnamese in Cambodia makes it clear that representatives of third countries did not support these actions, although governments intervention were trying to justify their actions in terms of humanity. About Indian intervention in East Pakistan, the international community not only rejected the action and claim of governments intervention who persistently claimed that (we have used purest motives and the purest intentions to save the people of East Bengal from what they were suffering from. But they had immediate request that India truce and withdraw from East Pakistan. In the twenty-fifth of December 1978, the Vietnamese proceeded military operations in Cambodia. As a result of this action of Khmer Rouge regime, the horrendous crimes committed against the people of Cambodia from 1975 to 1978, had been overthrown. Most of the governments deemed Vietnamese's action as an illegal intervention. In this regard, some MPs (members of parliament) openly expressed their protest against the use of force to protect human rights.

For example, Singapore's representative stated that: «No other country has the right to overthrow the democratic government of Cambodia, regardless of how the government has treated his people badly. The principle is that give freedom to a foreign state to intervene and overthrow the government of another country». The representative of France stated that: «It is extremely dangerous to think that a regime is odious and interventions of foreign governments are vindicated and overthrow of that state is legitimate. It can endanger international law seriously and make the continuous of various regimes dependent on the judgment of their neighbors». British MP's stated its government as: «Whatever is said about human rights in Cambodia, Vietnam, is not an excuse, that its records of human rights is pitiful itself, to violate the territorial integrity of democratic state of Cambodia that is an independent government and a member of the United Nations...». In summary, legitimacy and credibility of humanitarian intervention in international law is still controversial among jurists. Proponents of this doctrine claim that there is the doctrine even after approval of the UN Charter and charter does not undermine on it, so humanitarian action in response to the crisis in Kosovo in 1999 that happened for protection and promotion of human rights, was not contrary to article 4 of the Charter of the United Nations. Checking of this doctrine and claim of its supporters whether lawyers and politicians who are claimant of discrepancies and contradiction with charter in general and with article 4 particularly and its legitimacy in the current legal system, could not have legal legitimacy and be convincing.

3.     Obligation of states to withhold from encouragement and cooperation in violation of humanitarian regulations. States are banned from encouragement of violation of humanitarian international law by other parties involved in armed conflicts, and also, are bound to cooperate in requiring other states to observe regulations of humanitarian international law. On this basis, states are bound to use their influence to stop violation of humanitarian international law as much as possible. ICJ held in Nicaragua case (substantive decision) in 1986 stated that obligation of states to observe and secure observance of humanitarian international law is not limited to Geneva Convention, but this obligation arises from general principles of humanitarian international law just a specific commentary of which are provided by conventions, and on this basis, it declared that the US «has been bound to encourage individuals and parties involved conflict in Nicaragua not to violate common article 3 of the four Geneva conventions. It should be noted that 2001 Draft articles of International Responsibility of States (article 16) also stated that act of states to help and assist other states to commit internationally illegal acts raises international liability.

4.     Obligation of all states to prosecute and try international criminals; Introduction of Charter of International Criminal Court provides that «it is duty of every state to apply its criminal jurisdiction to those who are responsible for international crimes». In this regard, Geneva Conventions ask states to prosecute persons who have committed overt violations, or who have ordered commitment of overt violations. In additions to Geneva Conventions and first supplemental protocol, a number of other conventions also bound member states to apply universal jurisdiction to some crimes such as those that occur during armed conflicts. Customary rule of obligation of states to investigate overt violations and in relation to suspects of such violations have also been reflected in several military instructions. However, this issue is more extensively raised in case of war crimes. Most states have investigated war crimes and prosecuted suspects by giving jurisdiction to their national courts, and so they have conducted many national investigation and prosecution of war crime suspects and criminals. Human Rights Convention of the UN also has approved them in several resolutions by consensus, asking for prosecution and trial of suspects of violation of humanitarian international law during Brunei, Chechen, Rwanda, Sierra-Leone, Sudan, and former Yugoslavia. In 2002, in a resolution concerning amnesty, the commission recognized that suspects of war crimes must be either tried or extradited. For crimes committed during non­international armed conflict, despite may states declared general amnesty regarding war crimes, this measure has been declared as illegal by their national courts or regional courts, and has been criticized by international community. In addition to obligation of states to cooperate with world community, legislating required regulations to try international crimes, some other international regulations (without imposing obligation of cooperation on states) have enabled them to apply universal jurisdiction. Article 8 of statute of ICC has defined war crimes, among others, as «serious violation of law and custom governing international armed conflicts» and also «serious violation of law and custom applicable to non-international conflicts». Also, regulations of Charter of International Criminal Tribunal for former Yugoslavia, special Rwanda International Criminal Court, Sierra Leone Special Court as well as regulation 2000/15 of transition management of the UN in eastern Timor regarding criminalization and determination of international liability arising from over violation of humanitarian international law are enforceable. In De Lalich case, review branch of International Criminal Tribunal for Yugoslavia held in interpretation of article 3 of the Charter of this Court concerning violation of war law and custom that «the term war law and custom» includes all war laws and customs and also regulations of common article 3 of Geneva Convention.

Written and unwritten international rules each of which is created in a special area are most of the times able to be viewed through a unified opening. Governments as the primary and conventional subordinates of international law own extensive authorities for each other and the other subordinates; classical international law provided most of the governments' interests. The matter led powerful governments to violate the rights of weak governments and or other members of the international society. The situation led contemporary international law to enter the government into the international law era and expand it to make up for the losers. The principle of the integrity of right and task is a general principle and accepted by all legal systems, according to the principle, if someone has a right, consequently he will have a responsibility. So, the government has both right and responsibility.

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Ирина Анатольевна Умнова (Конюхова) Зав. отделом конституционно-правовых исследований Российского государственного университета правосудия

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