4
(1995), and of Bosnia-Herzegovina versus Yugoslavia (1996), and by the arguments
of the parties in the cases of the Northern Cameroons (1963) and of South West
África (1966), as well as by its Advisory Opinion on Namibia (1971) and the (written
and oral) arguments pertaining to the two Advisory Opinions on Nuclear Weapons
(1994-1995)17. Nevertheless, in spite of the distinct references to the obligations
erga omnes in the case-law of the International Court of Justice, this latter has not
yet extracted the consequences of the affirmation of the existence of such
obligations, nor of their violations, and has not defined either their legal regime18.
11.
But if, on the one hand, we have not yet succeeded to reach the opposability
of an obligation of protection to the international community as a whole, on the other
hand the International Law of Human Rights nowadays provides us with the
elements for the consolidation of the opposability of obligations of protection to all
the States Parties to human rights treaties (obligations erga omnes partes19 - cf.
infra). Thus, several treaties, of human rights20 as well as of International
Humanitarian Law21, provide for the general obligation of the States Parties to
guarantee the exercise of the rights set forth therein and their observance.
12.
As correctly pointed out by the Institut de Droit International, in a resolution
adopted at the session of Santiago of Compostela of 1989, such obligation is
applicable erga omnes, as each State has a legal interest in the safeguard of human
rights (Article 1)22. Thus, parallel to the obligation of all the States Parties to the
American Convention to protect the rights enshrined therein and to guarantee their
free and full exercise to all the individuals under their respective jurisdictions, there
exists the obligation of the States Parties inter se to secure the integrity and
effectiveness of the Convention: this general duty of protection (the collective
guarantee) is of direct interest of each State Party, and of all of them jointly
(obligation erga omnes partes). And this is valid in times of peace23 as well as of
armed conflict24.
12
Cf. M. Ragazzi, The Concept of International Obligations Erga Omnes, Oxford, Clarendon Press,
1997, pp. 12-13; C. Annacker, "The Legal Regime of Erga Omnes Obligations in International Law", 46
Austrian Journal of Public and International Law (1994) pp. 132-133, and cf. 131-166.
13.
The Hague Court had a unique occasion to do it in the East Timor case (1995), having regrettably
wasted such opportunity, in relating the erga omnes obligations to something antithetical to them: the
State consent as basis of the exercise of its jurisdiction in contentious matters. Nothing could be more
incompatible with the very existence of the erga omnes obligations than the positivist-voluntarist
conception of International Law and the emphasis on the State consent as basis of the exercise of
international jurisdiction.
14.
On the meaning of the obligations erga omnes partes, opposable to all States Parties in certaing
treaties or to a given community of States, cf. C. Annacker, op. cit. supra n. (12), p. 135; and cf. M.
Ragazzi, op. cit. supra n. (12), pp. 201-202.
15.
Cf., e.g., American Convention on Human Rights, Article 1(1); United Nations Covenant on Civil
and Political Righs, Article 2(1); United Nations Convention on the Rights of the Child, Article 2(1).
16.
Article 1 common to the four Geneva Conventions on International Humanitarian Law of 1949,
and Article 1 of the Additional Protocol I of 1977 to the Geneva Conventions of 1949.
17.
Cf. I.D.I., 63 Annuaire de l'Institut de Droit International (1989)-II, pp. 286 and 288-289.
18.
As to the general duty of guarantee of the exercise of the protected human rights, cf. the
arguments of Ireland before the European Court of Human Rights (ECtHR), in the Ireland versus United
Kingdom case, in: ECtHR, Ireland versus United Kingdom case (1976-1978), Pleadings, Oral Arguments
and Documents, Strasbourg, 1981, vol. 23-II, pp. 21-23 and 27, and vol. 23-III, pp. 17-19 and 21-26.
19.
Thus, a State Party to the Geneva Conventions of 1949 and its Additional Protocol I of 1977,
even if it is not involved in a given armed conflict, is entitled to demand from the other States Parties which are so involved - compliance with the conventional obligations of a humanitarian character; L.