Revisiting the Humanisation of International Law: Limits and Potential - Obligations Erga Omnes, Hierarchy of Rules and the Principle of Due Diligence as the Basis for Further Humanisation
2013; RELX Group (Netherlands); Linguagem: Inglês
ISSN
1556-5068
Autores Tópico(s)Global Peace and Security Dynamics
ResumoThe article critically evaluates the theory of the humanization of international law. First, it argues that despite human rights having impact on (other areas of) international law, this trend has in the past been somewhat inflated. A number of examples are given where human rights have been tested against other objectives pursued by international law, with humanization revealing its limits and actual dimensions. The second argument consists in identifying and highlighting obligations erga omnes (partes) and the principle of due diligence as two ‘systemic’ tools, that are central to the humanization of international law. Both these tools form part of modern positive law, but may also make a positive contribution towards the direction of deeper humanisation in international law, having the potential, inter alia, to limit state will, establish occasional material normative hierarchy consisting in conditional priority in the fulfillment of human rights, give a communitarian tone to international law and invite states to be pro-active in the collective protection of their common interests and values. In its conclusions, the article offers a plausible explanation about the paradox it identifies of the limits of the humanization on the one hand, and its potential for further development on the other. For, it is inherent in international law that the line separating the law from deontology is thin. The process of humanization needs to be balanced with the other objectives of international law as well as reconciled with the decentralized and sovereignist origins of the pluralistic international legal system.
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