The Development of Human Rights Law by the Judges of the International Court of Justice Shiv R S Bedi H A R 7 OXFORD - PORTLAND OREGON 2007
CONTENTS 1. Introduction 1 Part I Perspective: Legislative Role of the Judge and Human Rights Law 2. Legislative Role of the Judge: A Vital Force in the Life of the Law. 12 I. The Core Truth: All Roads Lead to Rome 15 II. The Core Truth in Retrospect: An International Perspective 17 III. Legislative Role of the ECJ and the ECHR 19 IV. Legislative Role of the International Court of Justice 29 V. The Development of Law and Judicial Ideologies 32 VI. Appraisal 34 3. Relationship between Human Rights and International Law: 37 Principle of Human Dignity versus Prindple of State Sovereignty: I. Basis of International Law: The Principle of Sovereignty 39 II. Basis of Human Rights Law: The Principle of Human Dignity 49 III. Appraisal: Principle of Human Dignity in Retrospect and Prospect 72 Part II The Development of Human Rights Law by the International Court of Justice: Contentious Cases Introduction to the Contentious Procedure of the Court 87 4. Corfu Channel case (.UnitedKingdom valbania) (1947-1949) 105 I. The Principle of ElementaryConsiderationsofHumanity 105 II. Judge Alvarez: Manifest Misuse of a Right Not Protected by Law 107 5. South West Africa cases (Ethiopia v South Africa; Liberia v South 109 Africa): Violation of Human Rights Law Led to Formation of Human Rights Law (1960-1966) I. Prelude 109 II. Norm of Non-Discrimination and 1962 Judgment: Court Has 112 Jurisdiction to Adjudicate Upon the Merks
viii Contents III. Judges Jessup and Bustamante: Voting in Favour of 1962 115 Judgment with Human Rights Additions IV. Second Phase Judgment: Compositional Politics a Setback to 117 Human Rights V. Disproportionate Quorum: A Setback to Human Rights 120 VI. Second Phase Judgment: Legal Formalism Circumvents 122 Human Rights VII. Judge Tanaka and the Development of Human Rights Law 126 VIII. Judge Jessup: Principle of Equal Rights is Universal and Apartheid 142 is a Justiciable Issue IX. Judge Padüla Nervo: The Principle ofnon-discrimination and 144 Obligation to Promote Respect for Human Rights are Internationally Recognized in Most Solemn Form X. Judge Wellington Koo: A Nation is a Developed Nation only if all 146 its Citizens are Treated on the Basis of Equalitybefore the Law XI. Judge Koretsky: Racial Discrimination an Issue of Vital Importance 147 XII. Judge Mbanefo's Dynamic Interpretation: Mandate and Apartheid 148 XIII. Judge Forster's Bold Teleological-Sociological-Natural 149 Interpretation of Law Condemns Apartheid XIV. Postlude: Violation of Human Rights Law Led to Formation of 150 Human Rights Law 6. Barcelona Traction, Light and Power Company, Limited 157 (New Application: 1962) case (Belgium vspain)( 1962-70) I. Human Rights Run Erga Omnes 157 II. Enforcement of Human Rights 160 7. United States Diplomatie and Consular Staff in Tehran case 163 (USA v Iran) (1979-1981) I. Human Dignity and Diplomatie Immunity 163 II. 1948 Universal Declaration of Human Rights is Binding in Character 165 8. Military and Paramilitary Activities in and against Nicaragua 167 case {Nicaragua v USA) (1984-1991) I. The Use of Force not an Appropriate Method to Ensure Respect 167 for Human Rights II. The Principle of Seif Determination: adherence to a particular 170 doctrine Does Not Violate Customary International Law 9. East Timor case (Portugal vaustralia) (1991-1994): Human Rights 171 versus State Sovereignty (1991-1994) I. Some Preliminary Reflections 171
Contents ix II. Human Dignity through Self-Determination v the Power of 174 State Sovereignty III. Court Upholds the State Sovereignty in the face of Human Dignity 176 IV. Monetary Gold Principle v Human Rights 181 V. 'We the Peoples', Self-Determination and State Sovereignty 185 VI. Sacred Trust ofcivilizationv State Sovereignty 187 VII. Dissent: Internal and Public: 190 a) Judge Weeramantry: the principle of self-determination is the 190 very basis of nationhood b) Judge Weeramantry. practical Operation of different aspects of 191 right erga omnes c) Judge Weeramantry.'principle of self-dtermination can itself 192 be described as central to the Charter' d) Judge Skubiszewski: four elements concerning Law, Justice 194 and Human Dignity e) Judge Skubiszewski: three elementary assumptions about 195 Self-Determination f) Public Dissent 199 VIII. Nevertheless: The Court did Add Authority to the VariousAreas 202 IX. Conclusion 204 10. Application of the Convention on the Prevention and Punishment of 207 the Crime of Genocide Case (Bosnia and Herzegovia v Serbia Montenegro) (1993- ) Prohibition of Genocide as Jus Cogens 11. Legality ofuse of Force cases (Yugoslavia vbelgium; Yugoslaviav 213 Canada; Yugoslavia v France; Yugoslavia v Germant; Yugoslavia v Italy, Yugoslaviav Netherlands; Yugoslavia v Portugal; Yugoslavia v Spain; Yugoslavia v UK; Yugoslavia v USA) (1999- ) I. Yugoshima: Human Rights Issues of the Gravest Nature: Law 214 Remained Silent When the Bombs Spoke II. Grund Case, Grund Subject, Grund Law and Grund Obligation 216 III. Obiter Dicta and Ratio Decidendr. A Contradiction of Human Rights 218 IV. Prima Fariejurisdiction and Human Rights 221 V. The Development of Human Rights Law: Static Jurisdiction v 225 Dynamic Law 12. Arrest Warrant of 11 April 2000 (Democratk Republic ofthe Congo v 229 Belgium): An Analysis of Human Dignity ofthe People, for the People by the People (2000-2002) I. Some Preliminary Reflections 229
x Contents II. The Factual Background ofthe Yerodia case 232 III. Why Separate the issuesof Universal Jurisdiction and Immunity 235 IV. Doctrine of Immunity and Concept of Human Dignity 237 a) Judge Al-Khasawneh: the Concept of Combating of Grave Crimes Prevails Over the Rules of Immunity 241 V. The Principle of Universal Jurisdiction and the Concept of Human Dignity 243 a) Judge Guülaume: The Clarity ofthe Principle of Universal Jurisdiction 246 b) Judge Ranjeva: Territoriality as the Basis of Entitlement to Jurisdiction Remains at the Core of Contemporary Positive International Law 248 c) Judge Koroma: Concepts of Jurisdiction and Immunity are not the Same 249 d) Judges Higgins, Kooijmans and Buergenthal: Universal Jurisdiction in absentia for the most Heinous Crimes is Permitted under Certain Safeguards 251 e) Judge Rezek Judicial Restraint Going Hand in Hand with Political Restraint 252 f) Judge ad hoc Bula-Bula: Universal Jurisdiction in Absentia Runs Counter to the Dignity of People 254 g) Judge ad hoc Van Den Wyngaert: Universal Jurisdiction in absentia is Permissible 255 VI. Belgian Reaction After the Judgment 255 VII. Condusion 256 13. Vienna Convention on Consular Relations cases (1998-2004): 259 The Convention Does Create Individual Rights I. Some Preliminary Observations 259 II. Three Cases with One Common Fact: Vienna Convention on 261 Consular Relations Creates Human Rights III. Case Conceming the Vienna Convention on Consular Relations 262 (Paraguay v United States ofamerica): Individual Rights Remained Undecided IV. LaGrand Case (Germany v United States of America): Vienna 263 Convention Does Create Individual Rights V. The Case Conceming Avena and Other Mexican Nationais (Mexico 270 v United States ofamerica): Individual Rights Further Clarified V-A. United States Must Provide 'Review and Reconsideration of Convictions and Sentences' 270 V-B. Interdependence of the Rights of the State and Individual Rights 271
Contents xi V-C. RightofanArrested Person to Information and Time Factor 271 V-D. Judge Tomka: 'State authorities must show due diligence in the exercise of their powers' 272 V-E. Judge Tomka: Individual First Element Not the State 273 VI. General Conclusion 273 Part III The Development of Human Rights Law by the International Court of Justice: Advisory Cases Introduction to the Advisory Procedure ofthe Court 277 14. International Status of South West Africa case (1949-1950) 279 The Principle of Sacred Trust of Civilization 15. Reservations to the Convention on the Prevention and Punishment of 287 the Crime of Genocide case (1950-1951) Genocide is Supremely Unlawful and its Principles are Binding on All Parties Irrespective of being Party to a Convention 16. Legal Consequences for States of the Continued Presence of South 291 Africa in Namibia (South West Africa) Nothwithstanding Security Council Resolution 276 (1970) case (1970-1971) I. Introduction 291 II. Self-Determination in Retrospect and Prospect 292 III. Apartheid as a Policy Constitutes a Denial of Fundamental 294 Human Rights IV. People as Such CanBecome Holder of Rights 295 17. Western Sahara case (1974-75) The Principle of Self-Determination 297 18. Applicability of Article VI, Section 22, ofthe Convention on the 301 Privileges and Immunities ofthe United Nations case (1989) I. Special Rapporteur of UN Human RightsCommission Entitled to 301 Privileges and Immunities of a UN Expert on Mission II. Judge Evensen: Integrity of a Person's Family and Family Life is 302 Basic Human Right III. Judge Evensen: Rights of Family and Family Life are Integral Parts 303 of Privileges and Immunities 19. Legality ofthe Usebya State ofnuclearweapons in ArmedConflict 305 case (request by World Health Organization) (1993-1996)
xii Contents I. Human Right to Health v Use of Force: Separation of powers is 305 the Answer II. Judge Weeramantry to find law on nuclear weapons is not to 308 legislate on the subject III. Judge Koroma: right to health is a pillar of peace 308 20. Legality ofthe Threator Use of Nuclear Threat case (request by UN 331 General Assembly): May Use; May not Use; But Do not Use. Hence, Legislate: MAY NOT USE (1994-1996) I. Judge Oda: Judges do not Legislate 315 II. Right to Life and Human Rights Component ofthe Law of War 316 III. Judge Bedjaoui: Nuclear Weapons v Right to Life 318 IV. Judge Weeramantry Nuclear Weapons Totally Belie Human 320 Dignity V. Judge Koroma: Both Human Rights and International 321 Humanitarian Law Have as their raison d'etrethe Protection ofthe Individual as well as the Worth and Dignity ofthe Human Person VI. Genocide and Nuclear Weapons 322 VII. Judge Higgins: intent approximates to legal doctrine of 323 foreseeability VIII. Judge Weeramantry Nuclear Weapons are Instruments of 324 Genocide and their use is Plainly Genocide LX. Judge Koroma: Quantum ofthe People Killed by Nuclear 327 Weapons Could be Tantamount to Genocide X. Human Component ofthe Law of War 327 XI. Conclusion 329 21. Difference Relating to Immunity from Legal Processofa Special 331 Rapporteur ofthe Commission on Human Rights (1998-1999) 22. Legal Consequences of the Construction of a Wall in the Occupied 337 Palestinian Territory (2003-04): Belligerent Occupation and Human Rights I. Some Preliminary Observations: 337 II. Facts ofthe Case in a Nutshell 338 III. Historical Analysis ofthe Occupied Territory 339 IV. Human Rights Law Does Apply in the Occupied Territories 340 V. International Humanitarian Law Does Apply in the Occupied 345 Territory The Rules of International Humanitarian Law are Binding on All Nations and the Law is Erga Omnes VI. Terrorism v Self-defence: Grave Infringement of Human Rights 347 Cannot be Justified by Military Exigencies and National Security
Contents xiü VII. The Court's Advice to the General Assembly Human Rights are 349 Violated by Israel and They Must be Enforced by All States VIII. Conclusion 350 23. Summary and General Conclusion 353 Bibliography of Books and Articles 371 Bibliography of Works by Judges ofthe Court 379 Bibliographical Annexes 385 1 Judgments ofthe International Court of Justice 385 2 Advisory Opinions ofthe International Court of Justice 389 3 Orders on Provisional Measures ofthe International Court of Justice 390 4 Judges ofthe International Court of Justice 392 5 Judges ad hoc of the International Court of Justice 451 Index 467