CYIL vol. 8 (2017)

TUOMAS HEIKKINEN – MARTIN FAIX CYIL 8 ȍ2017Ȏ pointing out the subsequent practice is in fact the primary source of interpretation, while preparatory works, on which most of the arguments of the original meaning of Common Article 1 is based, are merely a secondary source of interpretation, making it a stronger source of interpretation. 29 The subsequent practice would be confirmed by States, international organizations and decisions of international courts and tribunals. 30 Further important sources of information on States’ positions and subsequent practice are commentaries to the Geneva Conventions, but also, for example, the outcomes of the International Conference on Human Rights, which had taken place in Tehran and was attended by representatives of 88 states and numerous UN organs and regional human rights organizations. 31 The conference resolution stated that contracting parties “ sometimes fail to appreciate their responsibility to take steps to ensure the respect of these humanitarian rules in all circumstances by other States, even if they are not themselves involved in an armed conflict .” 32 Such a conclusion can be understood as proving the States’ acceptance of the extensive interpretation of Common Article 1. 33 It has to be noted, however, that the language in the Tehran conference resolution, with wordings such as “fail to appreciate”, “responsibility” and “take steps”, can be read as relatively wary language and is merely pointing out States’ right, not an obligation, to take action to remind belligerent parties of their obligations under IHL instead of imposing a legally binding obligation to ensure that the IHL is followed. 34 When examining the subsequent practice and positions of relevant actors, a starting trend among international organizations and judicial bodies to claim for the extensive interpretation of Common Article 1 became clearly visible. The UN General Assembly, Security Council and Human Rights Council have all preached for an extensive interpretation. 35 Even though there is no doubt about the relevance of such statements, their normative impact must be considered more carefully, as international organizations are argued to be using the “ensure respect” terminology merely as a political recommendation for States to take action to ensure respect, not as a legal obligation to do so. 36 Similarly, in the context of the United Nations military operations, the troop contributing States would be bound to ensure respect of IHL based on the binding effect of the resolutions, not on Common Article 1. 37 Security Council resolutions would be independent orders of enforcing humanitarian law and usually would include specific methods of enforcement. A similar statement from the European Union has been claimed by some authors to support the legal obligation to ensure respect, 38 although a closer look into the document would seemingly suggest that it deals with political ideas of promoting humanitarian law instead of stipulating actual legal obligations. 39 29 DÖRMANN, SERRALVO. op. cit., p. 711. 30 BOUTRUCHE, SASSÓLI. op. cit., p. 9. 31 AZZAM, Fateh, The Duty of Third States to Implement and Enforce International Humanitarian Law. Nordic Journal of International Law , 1997, Vol. 66, p. 62. 32 FOCARELLI. op. cit., p. 135. 33 AZZAM. op. cit., p. 62. 34 KALSHOVEN. op. cit., p. 43. 35 Especially regarding Israel and Palestine, see FOCARELLI. op. cit., pp. 154-156. 36 Ibidem p. 157. 37 Ibidem . 38 DÖRMANN, SERRALVO. op. cit., p. 720. 39 EUROPEAN UNION. Updated European Union Guidelines on Promoting Compliance with International

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