Human rights and the modernization of international law

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Human Rights and the Modernization of International Law

RICCARDO PISILLO MAZZESCHI

I. INTRODUCTION

THE THEORY OF human rights has had a great impact on the whole system of international law, with the result of modernizing it. We may distinguish between the impact exercised: a) on the

structure itself of the international legal system; b) on the area of State responsibility; c) on other fields of international law.

II. IMPACT OF HUMAN RIGHTS ON THE TRADITIONAL STRUCTURE OF INTERNATIONAL LAW

The theory of human rights has gradually assumed great importance in international law and has had an extensive impact on the international legal system as a whole. One may therefore speak of a true process of structural change of this system. This depends on two main reasons. First, that theory is, by its own nature, ‘revolutionary’1 with regard to the tradi-tional structure of interstate relationships, because it conflicts with the principle of State sovereignty, which is at the foundation of ‘classic’ inter-national law and which has protected for centuries the domestic jurisdic-tion of the State on its own citizens. Secondly, the theory of human rights, tending to give the individual an increasing role within the international community, conflicts with the traditional and typical interstate nature of international law.

We shall now deal, in a more specific way, with the structural characters of international law, which have been changed.

1 See Cassese A, Diritto Internazionale: II. Problemi della Comunità Internazionale (Gaeta P, ed) (Bologna, 2004) 83.

90 Riccardo Pisillo Mazzeschi

A. Content and Scope of Application of International Law

The typical content of ‘traditional’ international law regulates only mat-ters concerning inter-State relationships; that is, legal questions substan-tially pertaining to the external relations of States. The theory of human rights has produced a considerable break with respect to that element, because it transfers at the international legal level the relationships between the State and its own citizens and gives the individual a central role. In this way, it has produced a dynamic trend towards an overall expansion of the content and scope of application of international law. In fact, contemporary international law regulates not only the traditional inter-State relationships, but also an increasing number of relationships which exist between States and individuals and of inter-individual rela-tionships; that is, it deals with legal questions which formally belonged only to the domestic jurisdiction of States. Suffice it to think of interna-tional criminal law, contemporary international humanitarian law, European Union law, internal administrative law of international organi-zations, international economic law concerning foreign investments, international environmental law, many bilateral or multilateral treaties which directly establish individual rights, etc. The International Court of Justice has confirmed this trend, by stating that the 1963 Vienna Convention on Consular Relations contains provisions which give inter-national rights to individuals.2 In short, one could say that contemporary international law, with regard to its substantive content, regulates not only State interests, but also individual interests. In other words, inter-national law has greatly expanded its scope of application and it has become a more complete and modern legal system. This important devel-opment originated from the theory of international human rights.

B. Function and Nature of International Law

Traditional international law, especially through its customary norms, had the typical function of governing coexistence among States, in the frame-work of an equalitarian and horizontal structure of the international com-munity. It was basically founded on the principles of reciprocity and bilateralism. Therefore it had the typical legal nature of private law, since it tended to regulate the individual and ‘egoistic’ interests of each single State.

2 See ICJ, LaGrand (Germany v USA), Merits, Judgment of 27 June 2001, ICJ Reports 2001, paras 77 and 89; Avena and Other Mexican Nationals (Mexico v USA), Judgment of 31 March 2004, ICJ Reports 2004, para 40. See also Inter-American Court of Human Rights (IACtHR), The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99 of 1 October 1999, Series A No 16 (1999) para 80.

Human Rights and the Modernization of Intl Law 91

This private law-oriented nature regarded two main aspects: a) the lack of concern for collective interests of States; b) the absence of fundamental values belonging to the international community as a whole. The first aspect is highlighted by the fact that traditional international norms, even when they were addressed to many States, worked in a bilateral and reciprocal way. The second aspect is shown by the fact that almost all the traditional norms of general international law could be derogated by States through an agreement. This is further confirmation that traditional international law did not recognize the existence of fundamental and per-emptory values of the international community as a whole.

With regard to these two aspects, the theory of human rights has pro-duced a radical change, which is well shown by the two concepts of obli-gations erga omnes and of ius cogens.

The first concept is linked to the development and establishment, in contemporary international law, of some collective or even community interests of States. It is clear that the initial impulse and the decisive incen-tive for the development of erga omnes obligations came from the field of human rights. In fact, customary norms and multilateral treaties on human rights are paradigmatic examples of norms respectively contain-ing erga omnes obligations and erga omnes partes obligations. It follows that their violation by a State affects a right, or better a legal interest, of the whole international community (in case of erga omnes obligations) or of any other State Party of a multilateral treaty (in case of erga omnes partes obligations). This depends on the fact that such obligations protect State interests of collective or community nature, rather than State individual interests. Therefore, in our view, it is clear that the new concept of solidar-istic obligations, even though it still coexists with the traditional concept of bilateral and reciprocal obligations, has introduced an important change in the typical function and nature of traditional international law. In fact the recognition of collective and community values constitutes a progressive trend towards the ‘public law-oriented’ nature of interna-tional law.

One can make similar remarks with regard to the concept of ius cogens, which also originates from the growth of collective interests of States; but more specifically from the development, in contemporary international law, of some fundamental and non-derogable values of the international com-munity as a whole. The legal notion of ius cogens, as is well known, finds a first international recognition in Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties and was later universally recognized. However, it should not be confused with the concept of erga omnes obliga-tions, since the former does not concern the particular structure of the obligation, but rather the value, the force of resistance, and perhaps even the hierarchic rank of the norm, which is peremptory (ie non-derogable) and prevails over other conflicting and non-peremptory customary


norms. Moreover, the notion of ius cogens is more limited than the notion of erga omnes obligations. However, there are also strong affinities between the two concepts. The idea at the basis of ius cogens is that some funda-mental and ‘constitutional’ values of the whole international community must be protected. A similar (but less strong) conception inspires the notion of erga omnes obligations: some ‘public’ interests of States should be recognized by contemporary international law. Having said that, it is clear that the theory of human rights has played an important role in cre-ating and developing the concept of ius cogens and that, in practice, many international peremptory norms correspond to customary norms on human rights, such as the prohibition of gross violations of these rights and the prohibition of single and serious violations of some fundamental rights (slavery, torture, racial discrimination, apartheid, war crimes, etc). Therefore the theory of human rights has contributed, also through the concept of ius cogens, to changing and modernizing the typical nature of traditional international law: beside the ‘private law-oriented’ dimension of that law, a ‘public-law oriented’ dimension has gradually materialized.

C. International Personality or Capacity of Individuals

As is well known, under ‘traditional’ international law only the States are formal addressees of international norms and considered as subjects of that law. The individual is only an ‘object’ or, at least, a mere ‘de facto bene-ficiary’ of international norms. More recently, the international personal-ity of international organizations has been recognized. The theory of human rights has given a fundamental contribution to a further change of this traditional conception. Nowadays one can maintain that international law regulates formally and directly (ie, without need to be incorporated in domestic law) also some relationships between States and individuals (and other non-state entities) and some inter-individual relationships. In other terms, the individual is now a direct addressee of some international (primary, secondary and tertiary) norms; and therefore he is also a holder of rights and a bearer of obligations at the international level. The interna-tional norms on human rights are the best, but not the only, examples of norms imposing on States’ obligations, to which rights of other States and of individuals correspond. Likewise, the norms of international criminal law are the main example of international norms directly imposing obli-gations on individuals.

International law scholars do not agree on the concept itself of inter-national personality. Therefore they still debate whether the above- mentioned change means that nowadays the individual is a ‘subject’ or a ‘partial subject’ of international law or merely an ‘actor’ in the interna-tional arena. In my view, this discussion is by now only a theoretical and


useless one, which does not resolve the real and concrete problem; that is, to establish which are the addressees of each single international norm and the holders or bearers of each single international right or obligation. This is a pragmatic solution to the problem.3 If one needs a more theoretical and systematic solution, I think that we could adopt the distinction, borrowed from domestic legal systems, between legal personality and legal capacity. That means that the individual is an international subject, but has each time different capacities (and sometimes no capacity at all) depending on each single norm of international law.

In any case, leaving aside any theoretical view, it is clear that the inter-national law of human rights, strengthening the international role of the individual, has radically changed a fundamental element, which had characterized for centuries the traditional structure of international law. Nowadays one may maintain, in my opinion, that the international com-munity should be understood within a wide meaning, as including not only States and international organizations, but also individuals and other non-State actors.

III. IMPACT OF HUMAN RIGHTS ON STATE RESPONSIBILITY FOR INTERNATIONALLY WRONGFUL ACTS

The theory of human rights, together with other factors, has also pro-duced important changes within the system of the secondary norms of international law, especially those concerning State responsibility for wrongful acts. In fact, it has affected the fundamental elements of that field, which were constituted by the principle of bilateralism and the prin-ciple of the strictly inter-State character of the responsibility. The theory of human rights has modernized these two aspects, because the above- mentioned structural changes have necessarily produced an impact also on the ‘pathological’ dimension of international law, represented by the internationally wrongful act and State responsibility.

In particular, those changes: a) have established, beside the traditional regime of State responsibility, another regime of so-called ‘aggravated’ responsibility; b) have expanded the range of States and other subjects which are entitled to invoke the responsibility of the offending State; c) have contributed to developing a modern theory of international obligations.

3 See HiGGinGs R, Problems and Process: International Law and How We Use It (Oxford, 1995) 48 ff; Pisillo MazzesCHi R, Esaurimento dei Ricorsi Interni e Diritti Umani (Torino, 2004) 24–32; BRownlie I, Principles of International Law, 7th edn (Oxford, 2008) 65.


A. ‘Aggravated’ State Responsibility for Serious Breaches of Obligations Deriving from Peremptory Norms

As we already said, an important aspect of the process of structural change of contemporary international law is the development and estab-lishment of the concept of ius cogens. From the perspective of State respon-sibility for internationally wrongful acts, the notion of ius cogens has contributed to creating, within the International Law Commission (ILC) Project of Draft Articles on that topic, the concept of international crimes of States, which was afterwards substituted by the notion of ‘serious breaches of obligations under peremptory norms of general international law’ (Art 40 of the Project). These serious breaches produce an ‘aggra-vated’ responsibility of the offending State. In fact, they give rise to some particular consequences, which are added to the usual consequences of the wrongful act, and which entail a common sharing in some specific obligations by all States: a) the obligation to cooperate to bring to an end through lawful means the breach; b) the obligation not to recognize as lawful a situation created by the breach; c) the obligation not to render aid or assistance in maintaining that situation (Art 41).

In our view, these particular consequences, even if they contribute to aggravating the responsibility of the offending State, are not very effective and fall short of expectations, taking into account that they should apply sanctions against serious breaches of fundamental values of the interna-tional community as a whole. However, one should consider that the ILC Project does not prejudice the norms on State responsibility established by general international law, which may be applied as lex specialis (Art 55) or as norms not regulated by the Project (Art 56) or as rules of the UN Charter (Art 59).

Moreover, in case of serious breaches of ius cogens obligations, we think that Article 54 of the ILC Project is also applicable. This provision specifi-cally regulates breaches of erga omnes obligations; but it can be interpreted as governing also serious breaches of ius cogens. It establishes the right of any State, entitled to invoke the responsibility of the offending State, to take ‘lawful measures’ against the latter, in order to ensure cessation of the breach and reparation in the interest of the injured State or of the bene-ficiaries of the obligation breached.

The ILC Project does not expressly clear the concept of ‘lawful measures’; but, in the light of the Commentary to Article 54 and of Articles 55, 56 and 59, one may maintain that, in order to define such a concept, it is possible to make a reference to general international law (even in its progressive devel-opment) and to the UN Charter. Therefore, we think that, in case of serious breaches of ius cogens (for instance, gross violations of human rights), the ‘lawful measures’ may include: a) lawful and pacific retaliations; b) pacific


countermeasures4; c) measures not involving the use of armed force recom-mended or decided by the Security Council under Article 41 of the UN Charter, when the serious breaches of ius cogens determine the existence of a threat to the peace or of the other conditions provided for by Article 39 of the Charter; d) measures involving the use of armed force, authorized by the Security Council, still in cases governed by Article 39.

In conclusion, the legal regime of aggravated responsibility for serious breaches of ius cogens is not very effective in the provisions of the ILC Project; but it can be strengthened through a dynamic interpretation of international law. In any case, this regime may give rise to an important modernization of the field of State responsibility.

However, we must admit with regret that the great potentialities of ius cogens in the field of State responsibility have not been, so far, fully uti-lized by international courts. In particular, the International Court of Justice has for some time avoided dealing with the breaches of ius cogens. More recently the Court has declared that genocide is a serious breach of ius cogens in two important judgments.5 But it has lost an important oppor-tunity to deepen the legal regime of serious breaches of ius cogens in its recent judgment on Jurisdictional Immunities of the State of 3 February 2012.6

B. Invocation of Responsibility for Breach of Erga Omnes Obligations

We have seen that another important aspect of the process of change of contemporary international law, owing to the theory of human rights, concerns the increasing role of collective and community interests of States. This development has materialized with the growth of many inter-national norms which establish erga omnes or erga omnes partes obligations. The solidarity of the obligation entails the consequence that its breach affects an interest of all States (or all States Parties of a multilateral treaty). In other words, it produces an expansion of the States which are entitled to invoke the responsibility of the offending State.

Having said that, the most important problem is to establish how the principle of solidarity actually works in case of breach of erga omnes obligations.

4 A part of the international practice supports pacific countermeasures: see, for example, the countermeasures adopted by some States in situations of gross violations of fundamental human rights (against Uganda in 1978, against Poland and USSR in 1981, against South Africa in 1986, against Yugoslavia in 1998).

5 ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (new Application: 2002), Judgment of 3 February 2006, ICJ Reports 2006; ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, ICJ Reports 2007.

6 ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening), Judgment of 3 February 2012, available at < www.icj-cij.org/homepage/index.php>.


In this regard, the ILC Draft Articles on State responsibility for interna-tionally wrongful acts make a general distinction between injured States (Art 42) and States other than an injured State which are entitled to invoke the responsibility of the offending State (Art 48). The former States can assert all the traditional consequences of the wrongful act. The latter States, instead, can assert only some of the typical consequences of the wrongful act. In particular, they may claim cessation of the wrongful act, guarantees of non-repetition, and reparation only in the interest of the injured State (if there is an injured State) or of the beneficiaries of the obli-gation breached (for instance, the individual victims of human rights’ vio-lations). Moreover, these States may adopt against the offending State those ‘lawful measures’ (Art 54) of which we have already spoken.

However, in our view, when the breach of an erga omnes obligation does not entail also a serious breach of ius cogens, the concept of ‘lawful meas-ures’ should be interpreted in a more restrictive way; that is, it should be limited to lawful and pacific retaliations. It seems quite logical that the legal consequences of a grave breach of ius cogens should be more serious than those of any simple breach of a solidaristic obligation. If we accept this view, we may maintain that, with regard to State responsibility for breach of erga omnes obligations, the ILC Draft Articles have reached a kind of compromise: they have widely expanded the number of States entitled to react to the breach, but, at the same time, they have greatly limited the measures of reaction which such States may take.

It should be added that, with regard to breaches of treaty norms estab-lishing erga omnes partes obligations, many treaties (especially the main conventions on human rights) provide for supervisory bodies and proce-dures in order to ascertain and punish the breaches. Then it is clear that, according to the principle of lex specialis, any State Party must use the supervisory mechanism provided for by the Treaty and must abstain from resorting to retaliations or countermeasures.

In conclusion, the expansion of the entitlement to invoke responsibility for breach of erga omnes obligations, in spite of its limits, constitutes another important modernization of the secondary norms of international law.

C. State Responsibility towards Individuals and Individual Right to Reparation

International human rights law, by contributing to the development and establishment of the concept that the individual may be a direct addressee of some international norms, has produced another change in the field of State responsibility, since it has affected and jeopardized the classic princi-ple of the inter-State character of international responsibility. In fact, in


our view, nowadays the individual may, in certain cases, be an addressee of international secondary norms7; and therefore he can claim and assert the responsibility of a State. In other terms, if a State breaches a primary obligation which is directed not only towards another State but also towards an individual, such State is internationally responsible not only towards the other State but also towards the individual. Unfortunately, the ILC Draft Articles on State responsibility for internationally wrongful acts do not tackle these innovative problems, because they deal only with the international responsibility of States towards other States.8 But the ILC has not excluded (rectius has implicitly admitted) that contemporary international law may contain norms on State responsibility towards an individual.9

The most important practical consequences of a legal regime on State responsibility towards individuals concern: a) the individual right to invoke State responsibility; b) the individual right to claim reparation.

The right of the individual to invoke State responsibility is clearly shown by the numerous cases in which an individual may bring a judicial or a quasi-judicial action against the offending State before international supervisory bodies on human rights. But similar individual actions are possible also in other fields of international law.

With regard to the right of the individual to claim reparation, its exist-ence in international law is demonstrated by numerous treaty norms on human rights, which establish that the responsible State has an obligation to redress the injury towards the individual victim. The judicial and quasi-judicial practice of the international supervisory courts and bodies on human rights shows, very clearly, that the decisions of these bodies often establish a reparation (restitution, compensation or satisfaction) which is directly in favour of the individual victim, even if the obligation of repara-tion is up to the State responsible for the breach.10 Moreover, in support of this argument, at least with regard to gross violations of human rights, one can cite the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory11; the General Assembly Resolution on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Flagrant Violations of Human Rights and Serious Breaches of Humanitarian Law12; the Report adopted by the

7 See the LaGrand and Avena judgments of the ICJ (n 2).8 See Pisillo MazzesCHi R, ‘The Marginal Role of the Individual in the ILC’s Articles on

State Responsibility’ (2004) Italian Yearbook of International Law 39 ff.9 See Articles 33(2) and 33 of the ILC Project and their Commentaries.

10 For an extensive examination of this practice see BaRtolini G, Riparazione per Violazione dei Diritti Umani e Ordinamento Internazionale (Naples, 2009).

11 ICJ, The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004.

12 UN Doc A/RES/60/147, 16 December 2005.


International Commission of Inquiry on Darfur13; and the Resolution of the Institute of International Law on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in Case of International Crimes.14 Therefore, one may conclude that the individual is a holder of a right to reparation for violations of human rights, and that such right is directly attributed by international law. Nowadays, one may also maintain that the individual has a right to reparation also for the breach of certain norms of international humanitarian law.

In short, one may speak, also with regard to this issue, of an important modernization of international law on State responsibility.

D. Different Categories of State Obligations and Different Forms of Responsibility for their Breach

It is well known that the so-called objective element of the internationally wrongful act is the breach of an international obligation. Therefore it is clear that the topic of State responsibility cannot leave aside a theory of interna-tional obligations, which should examine and systemize various categories of obligations and various consequences in case of their breach. The practice of the international supervisory bodies on human rights has given an import ant contribution to a better clarification of some categories of interna-tional obligations, whose breach produces different forms of responsibility.

International human rights lawyers often adopt the distinction between ‘obligations to respect’, ‘obligations to protect’ and ‘obligations to fulfil’ human rights. In our view, such distinction is not a convincing one.15 Instead, we think that the above-mentioned practice has confirmed and specified the distinction between negative and positive obligations and, especially within the latter, the distinction between ‘obligations of result’, ‘obligations of due diligence’ and ‘obligations of progressive realization’.16

There is an obligation of result when the international norm obliges the State to obtain, through an action, a result, whose realization does not entail a particular risk or uncertainty. One may speak of an obligation to succeed.

Instead, there is an obligation of due diligence when the international norm obliges the State to adopt a certain conduct in itself, aside from the result of that conduct; because the realization of the result is, by its own

13 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary General, Pursuant to Security Council Resolution 1564 of 18 September 2004, Geneva, 25 January 2005, paras 595–99.

14 Adopted on 10 September 2009, available at <www.idi-iil.org/idiE/resolutionsE/2009_naples_01-en.pdf>.

15 See Pisillo MazzesCHi R, Responsabilité de l’Etat pour Violation des Obligations Positives Relatives aux Droits de l’Homme, in Collected Courses of the Hague Academy of International Law (Recueil des Cours), vol 333 (2008) 242–49.

16 Ibid, 282–97 and 311–496.


nature, uncertain or subject to risk. Therefore one can ask of the State only a particular effort of diligence in order to reach the result. One may also speak of ‘best effort obligations’.

Lastly, there is an obligation of progressive realization when the inter-national norm obliges the State to act in order to ensure gradually, as time passes, the full realization of the result asked by the norm. Typical exam-ples are many norms on economic, social and cultural rights, whose full realization needs some time. However, it should be noted that the State is not free as to the time and the means, but it is obliged to proceed, as quickly and effectively as possible, and to use all appropriate means and all available resources, in order to reach the final result asked by the norm.

In the field of human rights, the distinction between these three catego-ries of obligations is applied by the judicial and quasi-judicial practice of the international supervisory bodies and it is very useful to identify with more accuracy the State conducts really required by each obligation and the forms of State responsibility in case of breach. In reality, such practice has better developed and clarified a distinction which already existed in the general theory of international obligations.

IV. IMPACT OF HUMAN RIGHTS ON OTHER FIELDS OF INTERNATIONAL LAW

International human rights law, as we have already said, has also had an impact on many other fields or single norms of the international legal sys-tem.17 We shall give only some examples.

International humanitarian law and international criminal law are the two fields which, being strictly linked with human rights law, have been mostly influenced by that law.

In fact, international humanitarian law has greatly mitigated its original interstate character, to such an extent that one should now recognize that the individual may be a direct addressee of some norms of that law. Moreover, a confluence has materialized between international humani-tarian law and international human rights law, and the International Court of Justice has established that some human rights are applicable even in times of armed conflict.18

International criminal law is very much linked with international human rights law and it is influenced by the latter, because its main object is to strengthen, through the instrument of individual criminal responsibility,

17 See especially KaMMinGa M and sCHeinin M (eds), The Impact of Human Rights Law on General International Law (Oxford, 2009).

18 See ICJ, The Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996 ICJ Reports 1996; The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (n 11); Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005, ICJ Reports 2005.


the protection of fundamental human rights in time of peace and in times of armed conflict.

But the theory of human rights has also had an impact on many other fields of international law. With regard to the sources of international law, that theory has contributed to creating a more dynamic and flexible sys-tem, by strengthening the role of opinio iuris with respect to diuturnitas in customary law, by increasing the importance of treaties and of soft law in the process of the creation of new customary norms, and finally by revalu-ating the importance of general principles of law recognized by civilized nations, especially in the new fields of international law, in which custom-ary norms have not yet materialized. It should also be recalled the above-mentioned impact of human rights on the development and establishment of the concept of ius cogens.

With regard to general and instrumental norms of international law, one may underline that the theory of human rights has influenced: a) the process of formation of treaties, because of the important role exercised by the United Nations, by other international organizations and by soft law in that process; b) the rules on reservations to treaties; c) the rules on inter-pretation of treaties; d) the rules on termination and suspension of treaties because of breach; e) the rules on States’ succession on treaties.

Coming to the fields of general and substantive norms of international law, one may think, for example, of: a) the norms on the treatment of aliens, which have been widely absorbed by the rules on human rights; b) the norms of international environmental law, where the individual human right to a healthy and safe environment has developed; c) the international norms on immunities, typical examples of State sovereignty, in which the protection of human rights and of workers’ rights are devel-oping; d) the norms of international economic law, in which some human rights of a collective nature and some mechanisms for dispute settlement open to individuals are emerging; e) some norms of the law of the sea and the law of common spaces, in which the theory of human rights has con-tributed to the development of the concepts of common heritage of man-kind and of protection of future generations.

Lastly, the theory of human rights has also influenced the secondary norms of international law. We have already spoken of the field of State responsibility. But also the norms on diplomatic protection, another typi-cal bulwark of the traditional State-centred international law, are under-going a partial process of modernization, based on a certain degree of protection for individual rights.19

19 See Flauss JF (ed), La Protection Diplomatique – Mutations Contemporaines et Pratiques Nationales (Brussels, 2003); VeRMeeR-Kunzli AMK, The Protection of Individuals by Means of Diplomatic Protection – Diplomatic Protection as a Human Rights Instrument (Leiden, 2007); Pisillo MazzesCHi R, Impact on the Law of Diplomatic Protection in KaMMinGa M and sCHeinin M (eds), The Impact (n 17) 211 ff.


V. CONCLUSION

In conclusion, one may maintain that nowadays it is difficult to find a field of international law, on which the theory of human rights has not produced or is not producing meaningful changes. The most important one are those affecting the structure itself of international law (see section II.). The broadening of the scope of application of international law; the trend towards an increasing protection of collective, solidaristic and com-munity interests; the development of fundamental and peremptory val-ues of the international community as a whole; the broadening of the subjects of international law and the increasing role of the individual in the international legal system, have produced a process of radical trans-formation and modernization of the traditional international law.

Contemporary international law may still be defined as the law of the international community; but, as we already said, such community should have, in our view, a new and wider meaning, because it now includes States, international organizations, individuals and other non-state actors. Moreover, the new international community does not confine itself to govern the coexistence and coordination of the individual and private interests of States; but, on the contrary, it expresses also its own values, which tend, although slowly and gradually, to overcome internationalism and move in the direction of universalism.

Human rights and the modernization of international law

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