عضو هیأت علمی دانشگاه آزاد اسلامی ـ واحد تهران مرکز
عنوان مقاله [English]
A little noted but notable thing in international law is the fact that states ever comply with its stipulations and strictures voluntarily, this denoting to the legitimacy of the international system and the existence of the international legal community.
International obligations erga omnes, including those deriving from the principles and rules concerning the basic rights of the human person are referred to as associative or community obligations, abiding by them is entailed not by the specific consent of a member in a strictly contractual sense, but by the mere fact of membership in the community, the former being identified as assumed. Hence, the ICJ in it’s advisory opinion on the Genocide convention has affirmed that the principles underlying the convention were binding on states “even without any conventional obligation”. So, as judge Tanaka in his dissenting opinion to the judgment in the south west Africa cases, second phase (1966) put it: Human rights derive from the concept of the human being as a person. States do not create human rights, but only confirm their existence. Thus, human rights exist independently of the will of states. As a result, states which do not recognize this principle [i.e. the protection of human rights] or even deny it’s existence are nevertheless subject to it’s rule.
The Second World War featured several states massive betrayal of the lives and liberties of persons, including even their own civilians, as such, it created better understanding of the inextricable connection between international protection of human rights and the maintaining of world peace. The subsequent canon of human rights laws, ratified voluntarily by a large number of states, conferred, as against the governments, the right to be let alone, to individuals. Of the various indicators of individual autonomy, freedom of conscience is probably the most fervently desired by individuals and certainly has been the most strenuously resisted by authorities. Reference made by the court in connection with international obligations erga omnes to the basic rights of the individual shows that the international community is, in the court’s view, an unorganized body distinct from the single states which constitute it; this community “as a whole” is founded on some fundamental principles. This is the conclusion which can be derived from this judgment.