Introduction
The international system, including the legal system, has been long described as governed by the rule of anarchy since there is no authority higher than the state. At the same time, history saw numerous attempts of states to create international bodies that would establish certain rules and principles in the field of international law to guarantee justice and consistency. The present paper examines three important decisions issued by the International Court of Justice and the European Court of Human Rights in the field of state responsibility, human rights, and rights and duties of international organizations.
Principle of State Responsibility
One of the cornerstone principles of public international law is the concept of state responsibility that posits that if one state commits an unlawful act against another state, the latter should be able to require reparations from the guilty party. In such cases, a breach of an obligation, which arise from international agreements signed by the states, constitutes an unlawful act (Shaw, 208, p. 778).
One important application of this principle was demonstrated in the Bosnia and Herzegovina v Serbia and Montenegro case that was heard by the International Court of Justice. The case referred to the harm inflicted on the population of Bosnia and Herzegovina during the Bosnian War in the early 1990s. In particular, Serbia was alleged to be responsible for the genocide of the Muslim Bosniaks during the Srebrenica massacre in 1995 (International Court of Justice, 2007).
In 2007, the Court issued its judgment on the case stating that Serbia bore no direct responsibility for the genocide. In other words, the Court did not believe that Serbia has committed the Srebrenica genocide, or has participated in its planning or instigated it in any other way. Nevertheless, the Court ruled that Serbia had an international obligation toward Bosnia under the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, which Serbia failed to fulfill by not preventing the genocide from occurring and by not participating in the punishment of its perpetrators. Moreover, Serbia was found responsible for not complying with the provisional measures issued by the Court in 1993 which could also help prevent the genocide. A dissenting opinion was issued by the Vice-President of the Court, who claimed that “massive and compelling evidence” indicate that Serbia was a “principal actor or accomplice” in the genocide (International Court of Justice, 2007).
The significance of this case lies in several of its dimensions. First of all, the concept of state responsibility was extended to include not only international agreements such as the Genocide Convention but also the orders issued by the International Court of Justice. According to the Court, the Federal Republic of Yugoslavia “should normally have been aware of the serious danger that acts of genocide would be committed” based on the orders and other information available at the time (International Court of Justice, 2007). Secondly, the case is significant as it identifies the agents who represent the state. The actions of any state organ give rise to the responsibility of the entire state if these actions breach the state’s obligations. Finally, the case established that a state does not have to participate in war crimes to be liable for them – rather, states have an indirect responsibility for ensuring such crimes do not happen.
Human Rights
Human rights are an international law concept designed to protect the life and liberties of individuals across the world. Even though there is general acceptance of the importance of protecting human rights, there is often disagreement regarding the definition of the concept. Depending on one’s ideology and beliefs as to what constitutes the source of individual rights (for instance, nature or religion), the concept may be interpreted more narrowly or widely (Shaw, 2008, pp. 265-270). Nevertheless, the European Court of Human Rights works to ensure the protection of individual rights in Europe.
Among one of the most significant cases heard at the European Court of Human rights is the Sejdić and Finci v. Bosnia and Herzegovina case, combining the complaints filed by two citizens of Bosnia and Herzegovina. Dervo Sejdić, the first plaintiff, was of Bosnian Roma origin, and the second plaintiff Jakob Finci had Bosnian Jewish roots. Their presidency and parliament bids were rejected on the basis of their ethnicity. According to the 1995 Constitution of Bosnia, put together at the end of the Bosnian War, some high political posts (namely, the presidency and the seats in the upper house of the parliament) were reserved for Bosniaks, Serbs, and Croats. Sejdić and Finci believed that these provisions discriminated against them and violated their rights (European Court of Human Rights, 2009).
The Court has ruled that these constitutional provisions violate the European Convention of Human Rights, particularly Article 14 which bans discrimination in any field of the rights outlined in the Convention. This case was the first time when the Court referred to Article 14 in conjunction with Article 3 (guaranteeing free elections) of the Convention to determine that the applicants’ ineligibility to run for the parliament violated their rights. Moreover, their inability to bid for the presidency breached Article 1 prohibiting discrimination in general (European Court of Human Rights, 2009). Thus, the Bosnian Constitution was found to violate the rights of its Roma and Jewish population.
The judgment had some important consequences for the country. Particularly, a constitutional reform was launched by the Bosnian Parliament in 2011, even though the Constitution has not been yet amended. Currently, Bosnia’s progress toward EU membership is partially hindered by its non-compliance with the Court’s ruling (Human Rights Watch, 2011). As far as the legal concept of human rights is concerned, the case is significant in the following ways. Firstly, it demonstrates that even the highest political institutions and laws can become subject to scrutiny by the European Court of Human Rights. Secondly, the judgment extended the scope of human rights to include more contentious political rights of a country’s citizens. Finally, the Court demonstrated its commitment to specifically protect the rights of minorities in Europe and to ensure non-discrimination on the principle of origin and ethnicity.
The Rights and Duties of International Organizations
International organizations have a rather long history, but they gained especial importance in the post-World War II world. International and regional institutions were being established at an unprecedented scale to promote peace and to achieve particular political and economic goals of their member states (Shaw, 2008, pp. 1282-1284). At the same time, the legal aspects of their functioning remained undefined until 1949 when the International Court of Justice issued a landmark opinion.
The basis of the Reparation for Injuries Suffered in the Service of the United Nations case was the United Nations’ request for an advisory opinion from the International Court of Justice. In 1948, a Swedish diplomat, a representative of the UN to Israel, was killed by terrorists in territory controlled by the provisional Israeli government. Consequently, the question arose whether the UN could make a claim against Israel for reparation of the damage suffered by the UN and its agents, in the same way that a state could make such a claim (International Court of Justice, 1949).
The advisory opinion unanimously issued by the Court stated that the UN, as an international organization, could, indeed, bring a reparation claim against a sovereign state. In coming to a decision, the Court considered the functions and purposes of the organization. According to the Court, the UN, given its goals and principles as outlined in the UN Charter, was considered to have an international legal personality. However, the UN’s rights and duties were not automatically equal to those rights and duties of other international actors, namely, the states. Rather, the Court held that the rights and duties of international organizations depend on their specific purposes and functions as per the agreements establishing the organization and per its practices (International Court of Justice, 1949).
This advisory opinion solidified the place of international institutions in the international legal system, which is essential given their growing presence and importance. However, there is one important limitation in that the Court only discussed these organizations that were formed by nation-states. In other words, the legal status of other non-state actors, for instance, non-governmental organizations, was not discussed in the present case. Nevertheless, it brought state-created international institutions under the jurisdiction of international laws by giving them a distinct legal personality. Moreover, these institutions were awarded certain rights and duties which would allow them to successfully maintain their functions and operations.
As evident from these cases, international institutions have been shaping the public international law through case law. While these decisions are not always legally binding, they do nevertheless represent a move toward a more organized and consistent international legal system.
References
European Court of Human Rights. (2009). Case of Sejdić and Finci v. Bosnia and Herzegovina. Web.
Human Rights Watch. (2011). Bosnia: A move to end discrimination. Web.
International Court of Justice. (2007). Case concerning application of the Convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro). Web.
International Court of Justice. (1949). Reparations for injuries suffered in the service of the United Nations. Web.
Shaw, M.N. (2008). International law (6th ed.). Cambridge, UK: Cambridge University Press.