научная статья по теме ОБЯЗАТЕЛЬСТВО ГОСУДАРСТВ ПО СОТРУДНИЧЕСТВУ В СООТВЕТСТВИИ С МЕЖДУНАРОДНО-ПРАВОВЫМИ ОБЫЧАЯМИ Государство и право. Юридические науки

Текст научной статьи на тему «ОБЯЗАТЕЛЬСТВО ГОСУДАРСТВ ПО СОТРУДНИЧЕСТВУ В СООТВЕТСТВИИ С МЕЖДУНАРОДНО-ПРАВОВЫМИ ОБЫЧАЯМИ»

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Matour M.

OBLIGATION OF STATES' COOPERATION UNDER CUSTOMARY INTERNATIONAL LAW

The analysis of the following key questions dealing with obligation of states' cooperation under customary international law in this article is the main aim, such as: obligation of states to cooperate in observance of human rights regulation; obligation to secure observance of regulations of international humanitarian law and obligation to cooperation of states; obligation of states to withhold from encouragement and cooperation in violation of humanitarian regulations; obligation of states to contribute to facilitation of investigation into war crimes and prosecution of suspects.

Key words: Customary International Law, Human Rights, Humanitarian Regulations, International Obligation, International Cooperation

Матур М.

ОБЯЗАТЕЛЬСТВО ГОСУДАРСТВ ПО СОТРУДНИЧЕСТВУ В СООТВЕТСТВИИ С МЕЖДУНАРОДНО-ПРАВОВЫМИ ОБЫЧАЯМИ

Целью данной статьи является изучение следующих фундаментальных вопросов об обязательствах государств по сотрудничеству в соответствии с международно-правовыми MatoUT A4, обычаями, такими как: обязательство государств по сотрудничеству в области защиты прав человека; обязательства государств соблюдать правила международного гуманитарного права

(МГП); обязательства государств воздерживаться от нарушений правил МГП; обязательства государств по расследованию военных преступлений и преследованию виновных в их совершении.

Ключевые слова: международно-правовой обычай, права человека, международное гуманитарное право, обязательство по сотрудничеству.

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 court1. 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 obligations2. 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»3. 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

1 Sanjose Gil A. International responsibility of states for violation of human rights / translated by E. Beigzadeh // Legal research journal. -2000. - Vol. 3. - № 30. - P. 283.

2 Brownlie I. International law in last years of 20th century / translated by S. Rezaei Pishrabat, political and international studies office publication. - Tehran, 2004. - P. 5.

3 I.C.J. Special report of International Court of Justice. Ethiopia and Liberia v. South Africa. Separate opinion of Judge Jesoup.1962. Para.

452.

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 regulations4. 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-à-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

4 Henckarets J. M. Humanitarian international customary law / trans. by international affairs office of the Judiciary of I. R. of Iran, and Red Cross committee. - Vol. 1. - Tehran: Majd Publication, 2008. - P. 9.

Matour M.

said conventions1. 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)2.

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 rules3. 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 obligatory4.

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 rea

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