국제법상 인권보호 의무의 대세적 성질

The erga omnes character of the obligations to protect human rights has been recognized not only in general international law but also by principal conventions in this field. It has been generally noted that Every State owes the obligations to protect human rights to the international community as a whole and the responsibility could be invoked by any member of the community for a violation of the obligation, in as much as all members of the community has an legal interest in the respect of fundamental rights and freedoms. Some conventions bring into relief the status of human rights obligations as erga omnes rules, recognizing the possibility for any State Party to bring to the ICJ the violations of the obligations in question. What highlights the erga omnes character of the obligations to protect human rights is the fact that any member of the community can invoke the responsibility for violation of those obligations. It is, however, true that such a possibility is very limited. In general international law, a violation of human right obligation by one State permits any other State to require the cessation of the violation, the non-repetition, the reparation for the victims etc. In fact, it is not possible for third States to invoke the responsibility by way of instituting of proceedings before international courts, such a possibility being blocked by the consent-based jurisdiction. In case one State files with the ICJ a complaint over a serious violation of human rights by another State, the Court couldn't judge the matter unless those two States have accepted its jurisdiction over the question. On the other hand, some of human rights conventions have compromissory clauses for the submission of the violation thereof by one State Party to the ICJ by any other State. Nevertheless, not a few States Parties have formulated reservations to the clauses, which reduces the effectiveness of the Third Party litigation. Both the consent-based jurisdiction and the reservation to conventions are based upon the principle of respect of State sovereignty. Today, the international community recognizes human rights as its fundamental interests and accepts as jus cogens the obligations to protect human rights, which shows the human rights have priority over the State sovereignty. Although the erga omnes character of the obligations to protect human rights have been recognized in general international law as well as on conventional dimension, such character has not been sufficiently reflected in the invocation of the responsibility for the violation of those obligations before international courts. In order for the implementation of the human rights obligations to be secured more effectively, there should be an institutional guarantee that enables any State to bring the violation of the obligations to competent international courts.