and crucial role: the ‘true’ mental state – true belief, true will – of the State making a statement is irrelevant – ‘if other States acquiesce, a new rule of customary law comes into being’. 81 (The important role of acquiescence had already been affirmed by many authors, 82 and recently also by the InternationalLawCommission, notably on the importance of ascertaining States’ reaction to the practice of international organisations. 83 )
Hence, in ascertaining opinio juris , this third approach de-emphasises the importance of the ‘true’ or ‘subjective
complaint out of the media, which is a major incentive for states.
International human rights and humanitarian lawyers advise and serve as IGO officials. They are important parts of IGO staff and act as special rapporteurs and serve on independent commissions of inquiry. They engage in a form of committee diplomacy when they participate in charter and treaty monitoring bodies. Recall that many of these bodies investigate complaints and formulate general comments and recommendations. Within the UN system, lawyers also comprise the InternationalLawCommission
sufficient resources. 4
However, the momentum towards the formation of a permanent ICC, created in the wake of the International Military Tribunals, was soon mired in Cold War politics. The InternationalLawCommission’s Draft Code of Offences was given priority over the creation of an international jurisdiction to deal with such crimes and the Draft Code could not be considered until aggression was defined, so the question of an international criminal court was postponed indefinitely. 5 The issue was lost in silence as the years went by and only
responsible when it commits an internationally wrongful act in breach of those obligations. The complexity arises in determining when an IGO has itself breached international law as opposed to states or other actors who may claim to be acting on behalf of the organisation. This chapter considers the development of secondary rules of international law to cover the wrongful acts and omissions of IGOs. It analyses the Articles on Responsibility of International Organisations (ARIO) developed by the InternationalLawCommission (ILC). The chapter focuses in particular on the
Taking the role of non-governmental organisations in customary international lawmaking seriously
them as informal arbiters of the international legality of State and other actors’ actions. 2 It is no overstatement that non-governmental organisations have acted as de facto adjudicators and enforcers of international norms in the international and domestic arenas, both instigating respect for the law and progressing its development. The role of non-governmental organisations in the making of customary international law is, according to the InternationalLawCommission, limited to their ability to ‘stimulate and record’ the acceptance by States and
The book explores the relationship between violence against women on one hand,
and the rights to health and reproductive health on the other. It argues that
violation of the right to health is a consequence of violence, and that (state)
health policies might be a cause of – or create the conditions for – violence
against women. It significantly contributes to feminist and international human
rights legal scholarship by conceptualising a new ground-breaking idea, violence
against women’s health (VAWH), using the Hippocratic paradigm as the backbone of
the analysis. The two dimensions of violence at the core of the book – the
horizontal, ‘interpersonal’ dimension and the vertical ‘state policies’
dimension – are investigated through around 70 decisions of domestic, regional
and international judicial or quasi-judicial bodies (the anamnesis). The concept
of VAWH, drawn from the anamnesis, enriches the traditional concept of violence
against women with a human rights-based approach to autonomy and a reflection on
the pervasiveness of patterns of discrimination (diagnosis). VAWH as theorised
in the book allows the reconceptualisation of states’ obligations in an
innovative way, by identifying for both dimensions obligations of result, due
diligence obligations, and obligations to progressively take steps (treatment).
The book eventually asks whether it is not international law itself that is the
ultimate cause of VAWH (prognosis).
by other human rights treaty bodies. The activity of codification of international law, undertaken by the
InternationalLawCommission, is also relevant; for instance, the draft
articles adopted by the Commission in 2007 on diplomatic protection
(recommended to the States by the resolution of the General Assembly
no. 62/67 of 6 December 2007), connecting diplomatic protection with
State responsibility, is clarifying some aspects concerning the protection of human rights; similarly, the Guide concerning reservations
to multilateral treaties, submitted to the
first session adopted a resolution 62 affirming ‘the principles
of international law recognised by the Charter of the Nuremberg Tribunal
and the judgment of the Tribunal’. This was followed by a further
instructing the InternationalLawCommission to ‘formulate’
these principles, which it did at its second session in 1950, 64 reaffirming that
crimes against peace are
) 138 affirming the Principles of International Law
recognised by the Charter of the Nuremberg Tribunal, but without
detailing what these Principles are. This lacuna was remedied in 1950
with the adoption by the InternationalLawCommission of Principles of
International Law recognised in the Charter of the Nuremberg Tribunal
and the Judgment of the Tribunal. 139 Principles III and IV confirm
1994) 104, 98–109.
87 For a summary of the work of the ILC in this area see J.G. Lammers, ‘Immunity of International Organizations: The Work of the InternationalLawCommission’ (2014) 10 ILOR 276.
88 Sands and Klein n. 67 at 494–504.
89 Crawford n. 50 at 177.
90 Ibid. 178–9.