CYIL 2014

MARTIN FAIX CYIL 5 ȍ2014Ȏ context of Article 38(1) ICJ Statute to general international law. 95 Hence, what is the reason to accord them a different status with regard to their effect on international organisations? 96 The above argumentation appears convincing, especially in light of the bursting range of human rights related activities of international organisations and correlated legal questions, the clarification of which is necessitated, among other things, by the overall humanisation of international law. Nevertheless, a certain doubt remains – namely whether it is appropriate to blur the contours of the two notions, international custom and general principles of international law. Pellet, in this regard, draws attention to the fact that many human rights authors, by seeing the general principles as anchored in positive international law, “profoundly modify” the nature of general principles in the meaning of their creation process. 97 In contrast to customary rules, they must be recognised in domestic legal systems, constitute their common denominator and be transposable to international law. 98 By deriving general principles of human rights law from positive international law, the direction of permeation would change entirely. Instead of deriving general principles from national legal systems and elevating them to the international law level, they would percolate from international law down into domestic fora. 99 The ICJ jurisprudence does not seem to be very helpful in addressing the issue, as it refers to human rights (or considerations of humanity) alternatively as general principles of international law to be derived from international treaties and custom, or as to general principles of international law as a separate formal source of international law in the sense of Article 38(1) ICJ Statute. 100 Despite such lack of clarity I may recall the ICJ’s words in the Corfu Channel Case , in which the Court mentioned obligations “ based … on certain general and well recognized principles ”, among which it mentioned “ elementary considerations of humanity ”. 101 This statement is in line with the considerations of the previous sections and especially with the fact that the core of human rights law constitutes jus cogens , leading us to the more or less accepted conclusion that human rights form a part of general international law, which international organisations have to obey. 95 Some authors argue that it is difficult to differentiate between general principles and customary international law, cf. SCHERMERS, Henry G. The Legal Basis of International Organization Action. Supra note 74, p. 401-402. 96 NAERT, International Law Aspects of the EU’s Security and Defence Policy . Supra note 37, p. 397. 97 PELLET, Allain. Human Rightism and International law. Supra note 7, p. 7. 98 Ibid . 99 SIMMA, Bruno, ALSTON, Philip. The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles. Supra note 93, p. 102. 100 De SCHUTTER notes correctly that exactly for this reason the statements of the ICJ should be taken with caution; but his conclusion appears equally confusing, as it is not clear which notion of „general principles“ he applies to the UDHR (DE SCHUTTER, Olivier. Human Rights and the Rise of International Organisations. Supra note 64, pp. 71-73). 101 ICJ, Corfu Channel Case , Judgment, I.C.J. Rep. 1949, pp. 4 et seq . (at p. 22). For a brief overview on Courts’ statements in this regard see DE SCHUTTER, Olivier. Human Rights and the Rise of International Organisations. Supra note 64, p. 71-72.

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