International Law for Humankind (Mague Academy of International Law)

International Law for Humankind

THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS

Volume 6

The titles in this series are listed at the end of this volume.

THE HAGUE ACADEMY OF INTERNATIONAL LAW

International Law for Humankind Towards a New Jus Gentium by

Antônio Augusto Cançado Trindade

MARTINUS NIJHOFF PUBLISHERS LEIDEN • BOSTON

Printed on acid-free paper.

Library of Congress Cataloging-in-Publication Data Trindade, Antônio Augusto Cançado, 1947International law for humankind : towards a new jus gentium / by Antonio Augusto Cancado Trindade. p. cm. Includes bibliographical references and index. ISBN 978-90-04-18428-2 (hardback : alk. paper) 1. International law. 2. Natural law. I. Title. KZ3410.T78 2010 341--dc22 2010021678

isbn: 978 9004 18428 2 © 2010 The Hague Academy of International Law. Published by Martinus Nijhoff Publishers, an imprint of Koninklijke Brill nv. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfi lming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers ma 01923, usa. Fees are subject to change. printed and bound in the netherlands.

Table of Contents

Glossary of Abbreviations

xvii

Introduction: Preliminary Considerations

1

Part I

7

Prolegomena

Chapter I

The Evolution towards a New Jus Gentium: The International Law for Humankind I. The Historical Emergence of Jus Gentium II. The Legacy of the Evolving Jus Gentium: Recta Ratio and the Pursuit of the Common Good III. The Fragmentation of Jus Gentium into Jus inter Gentes IV. The Fallacy of Voluntarist Positivism V. International Law-Making and the Reconstruction of Jus Gentium VI. International Law, Pluralism and Universalism VII. The Identification of the Basic Feature of the New Jus Gentium VIII. The Universalist Conception of International Law Time and Law Revisited: International Law and the Temporal Dimension I. Introduction II. Time and Law: Some Precisions and Lessons III. The Incidence of the Temporal Dimension in International Law IV. Time and International Law in Face of New Needs of Protection V. The Presence of the Preventive Dimension in Domains of Protection VI. The Expansion of Provisional Measures of Protection VII. The Myopia of Political “Realism” VIII. Concluding Observations

9 9 11 14 16 20 22 24 27

Chapter II

31 31 31 34 36 39 41 47 50

vi

Table of Contents

Part II

Foundations of International Law

Foundations of International Law: The Role and Importance of Its Basic Principles I. Introduction II. The Position and Role of the General Principles of Law III. The Fundamental Principles as Substratum of the Legal Order Itself IV. The Acknowledgement of General Principles of Law by the Statute of the Hague Court (PCIJ and ICJ) 1. General Principles of Law and the Quest for Justice 2. Principles of International Law as Pillars of the International Legal System V. The 1970 U.N. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States Revisited 1. General Considerations in Historical Perspective 2. The Formulation of the Principles of International Law 3. The 1970 Declaration of Principles as a Contribution to the Identification of the Opinio Juris Communis VI. Concluding Observations 1. The Sustained Validity of the Principles of International Law 2. The Projection in Time of the Evolving Principle of SelfDetermination of Peoples 3. Principles of International Law, the Quest for Justice and the Universality of International Law

53

Chapter III

55 55 56 59 62 62 63 65 65 68 74 77 77 81 84

Chapter IV The Primacy of International Law over Force I. Introduction II. The Crystallization and Continuing Validity of the Principle of NonUse of Force III. The Primacy of Law over Force as a Cornerstone of Contemporary International Law IV. The Emerging Right to Humanitarian Assistance V. The Decivilizing Effects of Unwarranted Use of Force VI. Final Observations: The Primacy of Law over Force as an Imperative of Jus Cogens

106

Part III

111

Formation of International Law

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law I. Introduction II. General Considerations on the Formal “Sources” of International Law III. The Formal “Sources” Enumerated in Article 38 of the ICJ Statute 1. International Custom

87 87 87 93 97 101

Chapter V

113 113 114 116 116

Table of Contents

2. Treaties 3. General Principles of Law 4. Judicial and Arbitral Decisions 5. Doctrine 6. Equity IV. The Formal “Sources” Not Enumerated in Article 38 of the ICJ Statute 1. Unilateral Juridical Acts of States 2. Resolutions of International Organizations V. The Process of Formation of Contemporary International Law: From Consent to Consensus VI. Opinio Juris beyond Custom: Its Wide Scope and Role in the Formation of Contemporary International Law The Material Source of International Law: Manifestations of the Universal Juridical Conscience I. Introduction: Insufficiencies of the Formal “Sources” and the Relevance of the Material “Source” of International Law II. Human Conscience, Recta Ratio, and the Universality of International Law III. The Material Source of International Law Beyond State Legal Positivism IV. Invocation and Assertion of Juridical Conscience in International Treaties V. Universal Juridical Conscience: The Historical Significance of the Martens Clause VI. Invocation of Juridical Conscience in Judicial Proceedings and International Case-Law VII. Invocation and Assertion of Juridical Conscience in International Legal Doctrine VIII. Final Observations: The Achievements of International Law and the Universal Juridical Conscience

119 121 123 125 127 128 128 129 132 134

Chapter VI

Part IV

Subjects of International Law

States as Subjects of International Law and the Expansion of International Legal Personality I. Introduction: International Legal Personality Expanded II. Statehood and Recognition III. Rights and Duties of States IV. States and the Expansion of International Law V. The Erosion of the Domestic Jurisdiction of States VI. Final Observations: States and the New Horizons of International Legal Personality

139 139 141 145 147 150 152 153 156 163

Chapter VII

165 165 165 167 170 172 177

vii

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Table of Contents

Chapter VIII International Organizations as Subjects of International Law I. Introduction: International Organizations and the Modification of the Structure of the International Legal Order II. International Organizations and the Ideal of the Realization of Justice III. International Organizations and the Expansion of International Legal Personality and Responsibility IV. The Expansion of International Law Itself by the Law of International Organizations 1. International Organizations and the Ascertainment of Opinio Juris 2. International Organizations and Treaty-Making Capacity 3. Composition of International Organizations: Evolving Issues 4. The Growth of Multilateralism and International Cooperation V. The Projected Reforms of the International Organizations, Particularly of the United Nations VI. Concluding Observations: The Contribution of International Organizations to the Progressive Development of International Law 1. International Organizations: Contents and Legal Effects of Resolutions 2. Responses to New Needs and Aspirations of the International Community The Legal Personality of the Individual as Subject of International Law I. Introduction II. The Individual as Subject of the Emerging Law of Nations III. The Attempted Exclusion of the Individual from the International Legal Order IV. The Individual’s Presence and Participation in the International Legal Order V. The Rescue of the Individual as Subject of International Law VI. The Legal Personality of the Individual as a Response to a Need of the International Community VII. The Attribution of Duties to the Individual Directly by International Law VIII. Personality and Capacity: The Individual’s Access to Justice at International Level IX. Final Observations: The Historical Significance of the International Subjectivity of the Individual

181 181 182 185 190 191 193 194 196 200 206 206 208

Chapter IX

213 213 213 217 220 224 232 234 236 239

Table of Contents

Chapter X I. II.

III. IV.

V.

VI. VII.

The Legal Capacity of the Individual as Subject of International Law Introduction The International Legal Capacity of the Individual: Legal Foundations, Nature and Scope 1. Legal Foundations of the Access of the Human Being to International Tribunals 2. Juridical Nature and Scope of the Right of International Individual Petition The Emancipation of the Individual from His Own State The Locus Standi of Individuals in the Procedures before International Human Rights Tribunals 1. Developments in the European System of Protection 2. Developments in the Inter-American System of Protection The Individual Right of Direct Access (Jus Standi) to International Human Rights Tribunals 1. Antecedents of Domestic Law: The Subjective Right, and the Direct Access (Jus Standi) to National Tribunals 2. Developments in International Law: The Direct Access (Jus Standi) to International Human Rights Tribunals The Right of Access Lato Sensu of Individuals to International Justice Concluding Observations

Chapter XI Humankind as a Subject of International Law I. The Perception and Awareness of Common and Superior Interests of Humankind as Such II. The Fundamental Principle of Humanity III. Humankind and Considerations of Humanity: A Conceptual Precision IV. The Emergence of Humankind as a Subject of International Law V. Legal Consequences of the Acknowledgement of Humankind as Subject of International Law 1. The Relevance of the Human Rights Framework 2. The Question of the Capacity to Act and Legal Representation Part V

Construction of the International Law for Humankind

243 243 247 251 255 256 261 264 266 267 268 271 275 275 276 280 281 286 286 286 289

Chapter XII I. II.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes Introduction: Fundamental Values of the International Community International Jus Cogens (Peremptory Norms of General International Law) 1. Emergence and Content of Jus Cogens 2. Evolving Scope of Jus Cogens 3. The Gradual Expansion of the Material Content of Jus Cogens

243 243

291 291 292 292 295 299

ix

x

Table of Contents

4.

Jus Cogens as a Pillar of the New Jus Gentium, the International Law for Humankind III. Obligations Erga Omnes of Protection 1. Emergence and Scope of the Obligations 2. Horizontal and Vertical Dimensions of the Obligations IV. Obligations Erga Omnes and the Emergence of Actio Popularis V. Concluding Observations Chapter XIII Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind I. Introduction II. The Content and Significance of the Concept of Common Heritage of Mankind 1. In the Domain of the International Law of Outer Space 2. In the Domain of the Law of the Sea 3. In the Domain of the International Law of Bioethics 4. In the Domain of International Environmental Law III. The Content and Significance of the Concept of Common Concern of Mankind 1. The Emergence of the New Concept 2. The Contribution of the New Concept 3. The Co-existence between Common Heritage and Common Concern of Mankind, and Their Legacy to International Law IV. Concluding Observations Chapter XIV Conceptual Constructions: The Right to Peace and the Right to Development I. The Formulation of the Right to Peace in International Law 1. Elements of the Right to Peace in International Law 2. Recent Developments in the Formulation of the Right to Peace II. The Formulation of the Right to Development in International Law 1. Elements of the Right to Development in International Law 2. Crystallization of the Right to Development as a Human Right 3. The Conceptual Construction of Human Development 4. Lessons from the Crystallization of the Right to Development Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction I. Introduction II. The International Responsibility of the State and of the Individual: Recent Developments III. State Responsibility, the Criminalization of Grave Violations of Human Rights and the Realization of Justice IV. Complementarity between the International Responsibility of States

310 312 312 317 320 322

327 327 327 329 331 336 339 344 344 346 348 350

353 353 353 355 357 357 360 361 364

Chapter XV

367 367 367 369

Table of Contents

and the International Criminal Responsibility of Individuals Some Considerations on the Crime of State Revisited 1. Configuration of the Crime of State 2. The Crime of State in Relation to the Fundamental or Superior Interests of the International Community VI. Juridical Consequences of the Crime of State VII. The Principle of Universal Jurisdiction VIII. Concluding Observations

372

377 379 383 389

Part VI

391

V.

Humanization of International Law

Chapter XVI Basic Considerations of Humanity in the Corpus Juris of International Law I. Introduction: The Relevance of Basic Considerations of Humanity II. The Omnipresence of Basic Considerations of Humanity 1. Illustrations of International Case-Law 2. Illustrations of International Legal Doctrine III. Concluding Observations Chapter XVII Basic Considerations of Humanity in Relation to Disarmament I. Introduction II. The Search for Peace: The Creation of Zones of Peace 1. The Attainment of Peace and Human Security: A Permanent Goal 2. The Initiative of Zones of Peace III. The Establishment of Nuclear-Weapon-Free Zones IV. The Endeavours towards General and Complete Disarmament V. The Illegality of Nuclear Weapons VI. Final Observations Chapter XVIII Basic Considerations of Humanity in Relation to the Law of Treaties I. Introduction II. Considerations on the Interpretation of Treaties 1. General Remarks 2. Procedural Issues 3. Substantive Law III. Considerations on the Reservations to Treaties IV. Considerations on the Denunciation of Treaties V. Considerations on the Termination and Suspension of the Operation of Treaties VI. Concluding Observations

374

393 393 395 395 398 399

401 401 401 401 404 405 410 413 423

429 429 429 429 433 434 435 445 448 449

xi

xii

Table of Contents

Chapter XIX Basic Considerations of Humanity in Relation to State Responsibility I. State Responsibility and the General Interests of the International Community II. The Birth of the International Responsibility of States III. The Implementation of the International Responsibility of States IV. Serious Breaches of Obligations under Peremptory Norms of International Law V. Concluding Observations Basic Considerations of Humanity in Relation to State Succession I. Distinct Moments and Contexts of State Succession II. State Succession and the General Interests of the International Community III. State Succession and Continuity of Conventional Obligations Concerning Human Rights IV. Concluding Observations

453 453 456 462 464 467

Chapter XX

Chapter XXI Basic Considerations of Humanity in Relation to Territory I. Prerequisites of Statehood Revisited II. Non-Self-Governing Territories III. Non-Militarization and Peaceful Uses of Antarctica IV. Territory and Zonal Initiatives for Peace V. Transitional Administration of Territory on Behalf of the International Community 1. The Case of Kosovo 2. The Case of East Timor 3. The Centrality of Protection of the Populations Chapter XXII Basic Considerations of Humanity in Relation to Diplomatic and Consular Law I. Introduction: Diplomatic and Consular Law beyond the Inter-State Outlook II. Diplomatic and Consular Law and Universal International Law III. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law IV. The Humanization of Consular Law in Contemporary International Practice V. Concluding Observations

469 469 471 472 476 479 479 482 484 486 486 487 489 490

493 493 495 497 501 507

Table of Contents

Chapter XXIII Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person I. The Consolidated Convergences between the Regimes of Protection of the Human Person II. The Intensified Convergences between the Regimes of Protection of the Human Person III. The Contemporary Phenomenon of Uprootedness as a Problem Pertaining to the Rights of the Human Person IV. The Character of Jus Cogens of the Principle of Non-Refoulement V. Concluding Observations

518 520 525

Part VII

529

Settlement of Disputes

Chapter XXIV Peaceful Settlement of International Disputes: Current State and Perspectives I. Introduction: The Basic Problem of Compulsory Jurisdiction II. Interaction or Complementarity of Means of Peaceful Settlement III. Settlement of Disputes in Multilateral Treaties IV. Current Developments: Fact-Finding and the Search for Justice and the Prevalence of the Rule of Law V. The Search for ad hoc Solutions 1. The Experience of Contadora 2. The Experience of Guarantor States VI. Endeavours of Systematization VII. Peaceful Settlement and the Renunciation of the Use of Force in International Relations VIII. Peaceful Settlement beyond State Voluntarism: Some New Trends IX. Peaceful Settlement and the General Interests of the International Community X. Concluding Observations Chapter XXV International Rule of Law: The Need and Quest for International Compulsory Jurisdiction I. International Rule of Law Beyond Peaceful Settlement of Disputes II. International Rule of Law: The Saga of the Optional Clause of Compulsory Jurisdiction 1. From the Professed Ideal to a Distorted Practice 2. International Compulsory Jurisdiction: Reflections Lex Lata 3. International Compulsory Jurisdiction: Reflections De Lege Ferenda III. The Recurring Need and Quest for Compulsory Jurisdiction IV. International Rule of Law: The Growth of International Jurisdiction

511 511 514

531 531 533 541 544 547 549 550 552 555 556 559 562

567 567 568 568 572 579 582 586

xiii

xiv

Table of Contents

Part VIII

Perspectives

Chapter XXVI The Legacy of the Recent Cycle of World Conferences of the United Nations I. Preliminary Observations: The International Legal Order in a World of Profound Contradictions 1. A Transformation of Epoch 2. The Spirit of Our Epoch 3. Universalism and Cultural Diversity II. The Legacy of the Cycle of U.N. World Conferences: Conditions of Life as a Matter of International Concern 1. U.N. Conference on Environment and Development (Rio de Janeiro, 1992) 2. II World Conference on Human Rights (Vienna, 1993) 3. International Conference on Population and Development (Cairo, 1994) 4. World Summit for Social Development (Copenhagen, 1995) 5. IV World Conference on Women (Beijing, 1995) 6. U.N. Conference on Human Settlements (Habitat-II, Istanbul, 1996) 7. U.N. Conference on the Establishment of an International Criminal Court (Rome, 1998) 8. World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, 2001) 9. U.N. Millenium Summit (2000) and World Summit Outcome (2005) III. The United Nations and the Rule of Law at National and International Levels IV. Concluding Observations Chapter XXVII Codification and Progressive Development of a Universal International Law I. Introduction II. Codification and Progressive Development in Historical Perspective III. Codification and Progressive Development: Lessons and Projections IV. Concluding Observations: Codification and Progressive Development Moved by the Universal Juridical Conscience Chapter XXVIII Conclusions: International Law for Humankind – Towards a New Jus Gentium I. The Process of Gradual Humanization of Public International Law II. The New Jus Gentium: International Law for Humankind 1. Foundations 2. Subjects 3. Conceptual Constructions

593

595 595 596 597 598 599 600 601 602 603 605 606 607 609 610 614 619

623 623 623 626 628

635 635 637 637 639 640

Table of Contents

4. Basic Considerations of Humanity 5. International Rule of Law III. Epilogue: A Message of Confidence

642 644 645

Select Bibliography

647

Table of Cases

693

Index

707

xv

Glossary of Abbreviations*

AIDI:

Annuaire de l’Institut de Droit International

ASEAN:

Association of South-East Asian Nations

CEPAL:

U.N. Economic Commission for Latin America

COPUOS:

Committee on the Peaceful Uses of Outer Space

CTBT:

Comprehensive Nuclear-Test-Ban Treaty

EComHR:

[former] European Commission of Human Rights

ECOSOC:

U.N. Economic and Social Council

ECtHR:

European Court of Human Rights

EEC:

[former] European Economic Community

EJIL:

European Journal of International Law

FAO:

U.N. Food and Agriculture Organization

HRC:

U.N. Human Rights Committee

IAComHR:

Inter-American Commission on Human Rights

*

This is not meant to be an exhaustive glossary of abbreviations; it deliberately contains the abbreviations only of some of the expressions or sources more often referred to in the text; other abbreviations (such as those of national periodicals or yearbooks of International Law) can be found in the footnotes themselves. – Likewise, for editorial space limitations, the case-law referred to in the text can be found, rather than in an annex, in the footnotes themselves.

xviii

Glossary of Abbreviations

IACtHR:

Inter-American Court of Human Rights

ICRC:

International Committee of the Red Cross

IAEA:

International Atomic Energy Agency

ICC:

International Criminal Court

ICJ:

International Court of Justice

ICJ Reports: Reports of the International Court of Justice ICTFY:

ad hoc International Criminal Tribunal for the Former Yugoslavia

ICTR:

ad hoc International Criminal Tribunal for Rwanda

ILO:

International Labour Organization

ILC:

U.N. International Law Commission

IMO:

International Maritime Organization

ITLOS:

International Tribunal for the Law of the Sea

ITU:

International Telecommunication Union

KFOR:

Kosovo Protection Force

MRE:

Ministry of External Relations [various]

NATO:

North Atlantic Treaty Organization

NPT:

Non-Proliferation Treaty [Treaty on the Non-Proliferation of Nuclear Weapons]

OAS:

Organization of American States

OAU:

[former] Organization of African Unity [nowadays African Union]

OPANAL:

Organism for the Prohibition of Nuclear Weapons in Latin America

O.R.:

Official Records [various]

Glossary of Abbreviations

PCIJ:

Permanent Court of International Justice

PLO:

Palestine Liberation Organization

RCADI:

Recueil des Cours de l’Académie de Droit International de La Haye

RICR:

Revue internationale de la Croix-Rouge

SWAPO:

South West Africa People’s Organization

UNCED:

United Nations Conference on Environment and Development

U.N. Charter: Charter of the United Nations UNCLOS:

United Nations Conference on the Law of the Sea

UNCLT:

United Nations Conference on the Law of Treaties

UNCTAD:

United Nations Conference on Trade and Development

UNDP:

United Nations Development Programme

UNEP:

United Nations Environment Programme

UNESCO:

United Nations Educational, Scientific and Cultural Organization

UNHCR:

United Nations High Commissioner for Refugees

UNIDO:

United Nations Industrial Development Organization

UNMIK:

United Nations Interim Administration in Kosovo

UNMISET:

United Nations Support Mission in East Timor

UNTAET:

United Nations Transitional Administration in East Timor

UNU:

United Nations University

YILC:

Yearbook of the International Law Commission

WHO:

World Health Organization

WTO:

World Trade Organization

xix

Introduction: Preliminary Considerations

The present book derives from the General Course on Public International Law that I delivered at the Hague Academy of International Law, in July-August 2005.1 To deliver such a General Course constitutes indeed the greatest honour that can be given to a scholar of International Law, and represents the culmination of an academic life devoted to research and teaching on the discipline. The importance of the General Course is widely recognized,2 and has been duly stressed in the assessments of the Hague Academy’s contribution to International Law, undertaken on the occasion of both its jubilee celebration (1973)3 and its 75th anniversary (1998).4 Since I was in 1999 entrusted by the Curatorium of the Hague Academy5 to prepare the General Course for 2005, I proceeded to review my own writings and organize my personal recollections, parallel to the research work I promptly started to undertake.6 Having had the privilege to accompany closely the evolu1

2 3 4 5

6

A.A. Cançado Trindade, “International Law for Humankind: Towards a New Jus Gentium - General Course on Public International Law - Part I”, 316 Recueil des Cours de l’Académie de Droit International de la Haye [RCADI] (2005) pp. 31-439; A.A. Cançado Trindade, “International Law for Humankind: Towards a New Jus Gentium -General Course on Public International Law - Part II”, 317 RCADI (2005) pp. 19-312. Cf., e.g., R. Kolb, Les Cours généraux de Droit international public de l’Académie de La Haye, Bruxelles, Bruylant/Éd. Université de Bruxelles, 2003, pp. 3-1114. Hague Academy of International Law, Livre jubilaire / Jubilee Book - 1923-1973, Leyde, Sijthoff, 1973, pp. 1-179. Cf., as to Public International Law, op. cit. infra n. (7), pp. 67-100. Half a decade later, in early 2004, I had the great honour of having been elected as member of the Curatorium of the Academy, which I promptly started serving, after three decades of close contact and sustained cooperation with the Academy. I conducted the preparation of my General Course, in the period 1999-2005, between my pèlerinages to, and also in loco at, the Joint Library of the Inter-American Court of Human Rights and the Inter-American Institute of Human Rights in San José of Costa Rica (which I had the pleasure to inaugurate on 17.08.2000 as then President of the Court), the Human Rights Library of the Palais des Droits de l’Homme (European Court of Human Rights) in Strasbourg, the Peace Palace Library at The Hague,

2

Introduction

tion of the great themes of our times, and to work directly on some of them, for more than thirty years, I felt gratified to have been able to transmit, in my 2005 General Course, my accumulated reflections on the matter, and my basic message to the new generations of international lawyers. The delivery of my 2005 General Course, which I titled “International Law for Humankind: Towards a New Jus Gentium”, will remain in my memory as a most gratifying exercise of transmission of my own basic message or legacy to the new generations, marked by the remarkable and fruitful dialogue that took place at the Hague Academy for three weeks, in July-August 2005, with over 350 participants from all over the world. Almost half a decade later, I proceeded to an updating of my aforementioned General Course, which conforms now this new volume of this highly selective Monograph Series of the Hague Academy. Some preliminary remarks are here needed so as to confer precision to the presentation of the contents and object of the present book, just as I did, five years ago, in respect of my General Course. First of all, it is not my intention to present a treatise of International Law, nor an exhaustive account of the current state of all of its chapters in all details. Given the extraordinary expansion of the discipline throughout the last decades, it would be an impossible task for any individual scholar to attempt to provide an in-depth and detailed treatment of all its chapters. Thus, an element of selection has proven ineluctable, and indeed necessary. Secondly, like it has been done in General Courses at the Hague Academy in recent years, it is my intention to provide an over-all vision of the present state and perspectives of International Law on the basis of a Leitmotiv, which permeates the whole discipline as it stands today, as illustrated by selected areas in which this idée force is particularly manifested. On the basis on my own experience in the handling of the theory and practice of International Law throughout more than three decades, I have come to identify, as the Leitmotiv for this General Course, the basic outlook I have nourished of contemporary International Law as a corpus juris increasingly oriented to the fulfi llment of the needs and aspirations of human beings, of peoples and of humankind as a whole. It goes without saying that, in the pursuance of the consideration of this Leitmotiv, I see no reason whatsoever to limit myself to positive International Law. In fact, it seems to me all the more necessary nowadays to go beyond it, as I have endeavoured to do whenever called upon to pronounce on International Law issues in the last three decades. There is, in my view, a pressing need to do this nowadays in face of the deep crisis currently undergone by our discipline, given the recent and unfortunate attempts of its deconstruction in theory and as well as the Libraries of the Max-Planck Institute on International and Comparative Law in Heidelberg, of the Washington College of Law, of the United Nations University in Tokyo, and of Brazil’s Ministry of External Relations in Brasilia. I have prepared my own General Course entirely alone, as I am used to, and comme il faut, without any “research assistants”, since an enterprise of the kind is a far too personal adventure.

Introduction

practice, which reflect a deeper crisis of values in which the world seems engulfed in this first decade of the XXIst century. This distinguished Monograph Series of the Hague Academy of International Law is an adequate forum to develop a necessarily critical and universalist approach to the current state of affairs in the international legal order. The Hague Academy itself has always been characterized by the pluralism of ideas and the exercise of academic freedom, in pursuance, lex lata and de lege ferenda, of the fulfi lment of the “common interests of mankind”, so that these latter may prevail over the policies of individual States.7 It is, in fact, my basic contention, in the present work, that the purely interState dimension of International Law has surely been overcome and belongs to the past; that international legal personality has expanded, so as to encompass nowadays, besides States and international organizations, also individuals – the human person, – as true subjects (and not only “actors”) of International Law; that the conditions are met for us to move towards the construction of a new jus gentium, at this beginning of the XXIst century, to the extent that account is taken of the social needs and aspirations of the international community (civitas maxima gentium), of humankind as a whole, so as to provide responses to attempt to fulfi ll them. My basic message to the new generations is, thus, one of hope and confidence in the future of International Law, the law of nations, amidst the profound crisis in which we now live. It has been in moments of crisis that advances have been achieved in the past. To that end, it is of the utmost importance to rescue the fundamental principles of our discipline, which appear to have been somewhat neglected and largely forgotten nowadays. It is likewise relevant not to elude the basic question of the foundations of the law of nations, which also seems to have been rather circumvented in contemporary international legal thinking. The growth of International Law in the lines of the universalist conception which I have been sustaining for years would be well in keeping with the universal outlook proper of the historical origins of the discipline. What are the social needs of the international community of our days? They have been properly identified and described in the final documents of the recent cycle of World Conferences of the United Nations.8 International Law is to contribute to fulfi l those needs. There is nowadays a legitimate concern of the international community as a whole with the conditions of living of people everywhere, and contemporary International Law cannot remain indifferent to that. If one contrasts some topics overworked in the past (conditions of statehood, territory, recognition of States and governments, among others) with the new concerns of contemporary International Law (safeguard of human rights, self-determination of peoples, environmental protection, human development, 7

8

K. Skubiszewski, “The Contribution of the Academy to the Development of the Science and Practice of Public International Law”, 271 RCADI (1998) pp. 74, 78-79 and 100. Cf. chapter XXVI, infra.

3

4

Introduction

disarmament, among others), it may be argued that while the former pertained mainly to State interests, the latter disclose the prevalence of concerns with the legitimate needs and aspirations of humankind. This appears to me to be the main feature of the new jus gentium at this early stage of the XXIst century. International Law can no longer be regarded as an international legal order which exhausts itself in the domain of strictly inter-State relations. The growing consciousness of the need to bear in mind common values in pursuance of common interests has brought about a fundamental change in the outlook of International Law in the last decades. This development has taken place in different ways. First, by the growth of entire areas of International Law wholly devoted to the safeguard of human beings. Secondly, by the invocation of humankind in multiple international treaties and instruments in distinct areas of International Law. Thirdly, by the jurisprudential construction of contemporary international tribunals taking due account of the concerns of human beings and humankind. Fourthly, by the pratice of States and international organizations and other subjects of International Law bearing witness of the needs and aspirations of human beings, of peoples, and of humankind as a whole. On the basis of the international experience accumulated to date, the international community cannot prescind from universal values. There is an ineluctable feeling of injustice escaping from an international legal system which is unable to provide answers to the pressing needs of protection to whole segments of the world population and to millions of vulnerable and defenceless human beings. Such framework of destitution is incompatible with the very conception of an international community, which assumes the existence of common and superior interests, and of duties incumbent upon all, – States, international organizations, peoples, and human beings.9 I purport to portray this new jus gentium of our days as I perceive it, as the International Law for humankind, according to a plan of presentation of the present book which evolves – in its 28 chapters – around eight main areas, namely: the evolution towards a new jus gentium and the temporal dimension in International Law (part I); foundations of International Law (part II); contemporary international law-making, encompassing the formal as well as the material sources of International Law (part III); subjects of International Law, encompassing States, international organizations, the human person (individually or in groups), and humankind (part IV); conceptual constructions of the International Law for humankind (part V); basic considerations of humanity in the corpus juris of International Law, reflecting the humanization of this latter (part VI); the construction of the international rule of law, acknowledging the need and quest for international compulsory jurisdiction (part VII); the legacy of the U.N. World Conferences, the codification and progressive development linked to the universalization of International Law in the evolution towards a new jus gentium, the International Law for humankind (part VIII). 9

R.-J. Dupuy, “Communauté internationale et disparités de développement - Cours général de Droit international public”, 165 RCADI (1979) pp. 190 and 227.

Introduction

As to the sequence of the presentation itself of the General Course which follows, a word of warning is here called for. The text which features in the present book is but an abridged version of the original text of my General Course of 2005.10 Besides the element of ineluctable selection for its elaboration, already referred to, I further proceeded to condense the original text of my 15 lectures and 3 seminars, of the summer 2005, and have now also updated my work, in the present book, until mid-2009. I trust the new generations of international lawyers will endeavour to secure the evolution of our discipline in the lines of its continued universalization and humanization,11 faithful to the thinking of the founding fathers of the discipline and the more lucid doctrine of the law of nations, and attentive to the needs and aspirations of the international community, and of humankind as a whole, in our times.

10 11

Which was originally 997 pages long, prior to publication in the Recueil des Cours. As I have been pointing out and insisting on, in my own writings along the years, as well as in my Individual Opinions in the Inter-American Court of Human Rights from the mid-nineties onwards.

5

Part I Prolegomena

Chapter I

I.

The Evolution towards a New Jus Gentium: The International Law for Humankind

The Historical Emergence of Jus Gentium

Jus gentium (of Roman law) had its origins in private law,1 having subsequently entered also the realm of the conceptual universe of the law of nations.2 It originally consisted of common principles governing legal relations in general. Gradually the concept of jus gentium was enlarged, so as to encompass what came to be known as the general principles of law.3 In the XVIth century, Francisco de Vitoria conceived the new jus gentium of his days as governing the relations of all peoples (including the indians of the new world) and individuals, in conditions of independence and juridical equality, pursuant to a universalist outlook (totus orbis). In a world marked by diversification (of peoples and cultures) and pluralism (of ideas and cosmovisions), the new jus gentium secured the unity of the societas gentium.4 It could not possibly be derived from the “will” of its subjects, but rather based on a lex praeceptiva, apprehended by human reason. In Vitoria’s view, jus gentium was applicable to all peoples and human beings (even without the consent of its addressees); societas gentium was the expression of the fundamental unity of humankind, wherefrom jus gentium ensued, and provided the juridical basis (deriving from a lex praeceptiva of natural law) for the totus orbis, 1

2

3 4

On the concept of jus gentium in classic Roman law, cf., e.g., Gabrio Lombardi, Ricerche in Tema di “Ius Gentium”, Milano, Giuffrè, 1946, pp. 3-272; Gabrio Lombardi, Sul Concetto di “Ius Gentium”, Roma, Istituto di Diritto Romano, 1947, pp. 3-390. Having originally applied among citizens, and in their relations with foreigners, jus gentium was subsequently - with Cicero - identified as the law common to all peoples, ultimately as the law common to all mankind; H.F. Jolowicz, Historical Introduction to the Study of Roman Law, 2nd. ed., Cambridge, University Press, 1967 [reed.], pp. 102-105; and cf. also, e.g., W. Kunkel, Historia del Derecho Romano, 9th. ed., Barcelona, Ed. Ariel, 1999, pp. 85-87. H. Mosler, “The International Society as a Legal Community”, 140 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1974) p. 137. It was no longer a jus divinum, nor the jus civile (no longer the Pope, nor the Emperor, as the ultimate authority), but rather the jus gentium, defined by Francisco de Vitoria as quod naturalis ratio inter omnes gentes constituit, vocatur jus gentium.

10

Chapter I

susceptible of being discovered by the human reason, the recta ratio inherent to humanity.5 The way was thus paved for the apprehension of a true jus necessarium, transcending the limitations of the jus voluntarium. In fact, from Vitoria’s work – and in particular from his Relectio De Indis Prior – emerged the conception of a jus gentium, wholly emancipated from its private law origin, endowed with a humanist outlook, respectful of the freedoms of nations and individuals, and universal in scope. The universal jus gentium of Vitoria, remindful of the importance of human solidarity, regulated, on the basis of principles of natural law and right reason (recta ratio), the relations between all peoples, respectful of their rights, the territories wherein they lived, and their contacts and freedom of movement (jus communicationis). Deriving its strength from principles of universal value, the jus gentium in the conception of Vitoria applied equally to all, the governed and the governors. On the basis of such conception the emerging international legal order purported to ensure the primacy of law over force, as reflected in Vitoria’s famous warning “Imperator non est dominus totus orbis”.6 On his turn, Francisco Suárez, warning that no State sufficed to itself, started likewise from the fundamental unity of humankind (forming a societas ac communicatio), and began to move towards the autonomy of the law of nations;7 such autonomy was acknowledged by Hugo Grotius, who also admitted the unity of the humankind and emphasized above all the role of reason.8 In the work of A. Gentili, jus gentium was already regarded as the “common law of humankind”.9 Much later on, with the contribution of the works of Hugo Grotius and Christian Wolff, International Law was gradually to achieve its autonomy vis-à-vis the national legal orders; general principles of law conferred dynamism to the evolving

5 6

7

8

9

P. Guggenheim, “Contribution à l’histoire des sources du droit des gens”, 94 RCADI (1958) pp. 21-23 and 25. Francisco de Vitoria, Relecciones del Estado, de los Indios, y del Derecho de la Guerra (with an Introduction by A. Gómez Robledo), 2nd. ed., Mexico, Ed. Porrúa, 1985, pp. XXX, XLIII-XLV, LVI, LXXVII, 61 and 42, and cf. pp. LXII-LXIII. Both F. Vitoria and F. Suárez set up the foundations for a law of universal application (commune omnibus gentibus), of a law for humankind as a whole; A. García y García, “The Spanish School of the Sixteenth and Seventeenth Centuries: A Precursor of the Theory of Human Rights”, 10 Ratio Juris - University of Bologna (1997) pp. 27 and 29. Cf. P. Guggenheim, “Contribution à l’histoire des sources...”, op. cit. supra n. (5), pp. 22, 28-31 and 33-34. On such universality, present in Grotius’s thinking, cf. E. Jiménez de Aréchaga, “The Grotian Heritage and the Concept of a Just World Order”, in International Law and the Grotian Heritage (1983 Hague Colloquium), The Hague, T.M.C. Asser Instituut, 1985, pp. 5-24; R.Y. Jennings, “Universal International Law in a Multicultural World”, in ibid., pp. 187-197. J. Moreau-Reibel, op. cit. infra n. (11), p. 542.

The Evolution towards a New Jus Gentium: The International Law for Humankind

international legal order, and the XIXth century witnessed the emergence of the element of opinio juris communis.10 As jus gentium transcended its original private law sense, and began – in the late Middle-Ages – to be associated with the emerging law of nations, it came to be conceived as the law common to all peoples and human beings, and fostered the belief in the existence of a set of “common notions”; it became related to humankind (itself), pledged to secure its unity and the fulfi lment of its needs.11 Jus gentium, thus understood, became a universalist (and pluralist) conception,12 just as jus humanae societatis – coordinated with it – concerned all human relations, including the circulation of ideas and products.13 Thus, in the classic works of F. Vitoria, F. Suárez, A. Gentili and H. Grotius, the world composed of nations was kept together by the unity of human society, in an essentially universalist perspective. The jus communicationis of Vitoria was conceived as a law for all human beings. Thus, as early as in the XVIth and XVIIth centuries, to Vitoria and Suárez the State was not an exclusive subject of the law of nations, which encompassed also peoples and individuals; and Grotius took into account humanity firstly, and only secondly the States.14 The seeds of what appears as a true International Law for humankind can thus be found in this evolving jus gentium. II.

The Legacy of the Evolving Jus Gentium: Recta Ratio and the Pursuit of the Common Good

Although the recta ratio came to be identified with the writings of the founding fathers of International Law, in the XVIth and XVIIth centuries, the thinking of these latter found inspiration in the scholastic philosophy of natural law;15 it was M.T. Cicero who formulated (in his De Republica, circa 50-46 b.C.) a renowned characterization of recta ratio, the roots of which go back to the ancient Greeks (Plato and Aristotle), corresponding to their orthos logos,16 according to which the lex praeceptiva is in accordance with recta ratio. The principles of these latter 10 11

12 13 14 15

16

Ibid., pp. 80-81. J. Moreau-Reibel, “Le droit de société interhumaine et le ‘ jus gentium’: Essai sur les origines et le développement des notions jusqu’à Grotius”, 77 RCADI (1950) pp. 500501, 504 and 506-510. A. Miele, La Comunità Internazionale, vol. I, 3rd. ed., Torino, Giappichelli, 2000, pp. 75, 77-78, 80-81 and 89. J. Moreau-Reibel, op. cit. supra n. (11), pp. 510-511, 514-517, 522 and 576. S. Laghmani, Histoire du droit des gens - du jus gentium impérial au jus publicum europaeum, Paris, Pédone, 2003, pp. 90-94. Cf. A. Truyol y Serra, Histoire du Droit international public, Paris, Economica, 1995, pp. 15-16 and 50; and cf. G.E. Sherman, “Jus Gentium and International Law”, 12 American Journal of International Law (1918) pp. 56-63. Cf. D.P. Dryer, “Aristotle’s Conception of Orthos Logos”, 66 The Monist (1983) pp. 106-119, esp. pp. 117 and 119; cf. also J.M. Rist, “An Early Dispute about Right Reason”, 66 The Monist (1983) pp. 39-48.

11

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Chapter I

emanate from human conscience, affirming the ineluctable relationship between Law and ethics. In Cicero’s synthesis, true Law ensues from recta ratio, is of universal application, being valid for “all nations in all times”.17 Still before the founding fathers of International Law, Thomas Aquinas (1225-1274) did consider the concept of jus gentium in his Summa Theologica. In his view, jus gentium did not need the authority of the legislator, as it was apprehended by natural reason itself (being thus more perfect than positive law), disclosing awareness of the temporal dimension and being endowed with a universal validity.18 To him, Law should not favour a few, or benefit certain interests only, but should instead contribute to the realization of the common good, to the ultimate benefit of all human beings, – otherwise it would be unjust.19 The precepts of jus gentium, in Aquinas’s view, were universally valid and fulfi lled natural necessities of human life; they reflected a kind of human self-understanding fundamentally distinct from that of its successor, jus inter gentes.20 While natural law was discoverable by right reason (recta ratio), being a “higher” or superior law of universal application, positive law, on the other hand, was promulgated by distinct public authorities for distinct communities (all, presumably, in pursuance of the common good), rendering reason subservient to “will”; synderesis, for Aquinas, denoted a form of knowledge, or disposition of reason to adhere to principles generated in the pursuance of the common good.21 Jus gentium purported to regulate human relations on an ethical basis, forming a kind of “common reason of all nations” in search of the realization of the common good.22 Jus gentium was endowed with ethical foundations by the recta ratio, emanating, ultimately, from the universal juridical consciente (its material source par excellence); the founding fathers of International Law (F. Vitoria, F. Suárez, H. Grotius, among others) found inspiration in the legacy of the ancient

17 18

19

20 21

22

M.T. Cicero, De Republica, book III, ch. XXII, p. 33. J.-P. Rentto, “Jus Gentium: A Lesson from Aquinas”, 3 Finnish Yearbook of International Law (1992) pp. 103, 105, 110 and 112-113. To Aquinas, while natural law was identifiable by recta ratio, being thus a “higher” Law of universal application, positive law was promulgated by public authorities being distinct for different communities (being subservient to “will”); synderesis, for him, associated reason to the search for the common good; Th. Aquinas, Treatise on Law, Washington D.C., Gateway Ed., 2001 [reprint], pp. 44, 57 and 88. P. Groarke and J.L.A. West, “Reconciling Individual Rights and the Common Good: Aquinas and Contemporary Law”, in Philosophical Theory and the Universal Declaration of Human Rights (ed. W. Sweet), Ottawa, University of Ottawa Press, 2003, pp. 158-161; likewise, individual rights ought to be approached in a manner consonant with the common good (ibid., p. 165). J.-P. Rentto, op. cit. supra n. (18), p. 121, and cf. pp. 108-109. T. Murphy, “St. Thomas Aquinas and the Natural Law Tradition”, in Western Jurisprudence (ed. T. Murphy), Dublin/Ireland, Th. Round Hall, 2004, pp. 96, 103-105 and 114-115. J.P. Rentto, op. cit. supra n. (18), pp. 121-122.

The Evolution towards a New Jus Gentium: The International Law for Humankind

Greeks, followed by those of Cicero and Aquinas, in identifying recta ratio in the very foundations of jus gentium itself.23 As already indicated, in the conception of one of the founding fathers of International Law, Francisco de Vitoria, jus gentium pertained to the law of nations and peoples organized in political communities, as well as to a universal law for humankind.24 The moving towards universality, bearing in mind humankind, marked presence also in Francisco Suárez’s classic writings.25 At a time when States had become stronger than in Vitoria’s epoch, Grotius, likewise, devised a comunitas humani generis, overcoming the notion of an international society only of States and envisaging a general law of humankind, the droit des gens;26 the humanization of contemporary International Law, pursuant to a universalist outlook, is thus remindful of the thinking of the founding fathers of the law of nations. There is no point, in our times, for States to keep on by-passing the search of the common good in the pursuance of their own individual advantages (at the cost of others); there is no point for them to keep on replacing reason by their “will” for more political power and accumulation of wealth – to the satisfaction of the so-called political “realists” – amidst senseless competition. The legacy of Th. Aquinas and the founding fathers of International Law (Vitoria, Suárez, Grotius, to name a few) is highly relevant for our days: the formidable challenges currently faced by the international community disclose the need for prevalence of realization of justice and the common good, and indicates that Law emanates from right reason (recta ratio) and not from the will.27 To rescue, at this beginning of the XXIst century, the legacy of the evolving jus gentium, amounts to propound a reassertion of the universalist outlook of the law of nations. This seems crucial to me nowadays, in a world torn by disparities and conflicts, so that International Law may be able to respond to the needs and aspirations of humankind. The contemporary world is certainly different from that of the times of the “founding fathers” of International Law, but what remains remarkable is that, notwithstanding, human aspiration as to the harmonious unity of humankind remains the same. International Law cannot simply make abstraction of that aspiration, being called upon nowadays to provide answers to issues which no State in isolation can properly deal with, and which concern humankind as a whole. 23

24 25 26 27

A.A. Cançado Trindade, A Recta Ratio nos Fundamentos do Jus Gentium como Direito Internacional da Humanidade, Belo Horizonte/Brazil, Edit. Del Rey, 2005, pp. 28-43. J.A. Carrillo Salcedo, El Derecho Internacional en Perspectiva Histórica, Madrid, Tecnos, 1991 (reed.), p. 19. M. Lachs, “The Development and General Trends of International Law...”, op. cit. infra n. (93), pp. 239-251. H. Gros Espiell, “El Nacimiento del Derecho de Gentes y la Idea de Comunidad Internacional”, 2 Anuario Argentino de Derecho Internacional (1984-1986) pp. 28-34. J.-P. Rentto, op. cit. supra n. (18), pp. 123, 126, 128 and 130-134.

13

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Chapter I

Projections of the evolving jus gentium converge into an objective international law, giving expression to universal values. It seems all too proper to rescue the legacy of an impersonal law which is the same for all – despite inequalities of power, – which places solidarity above sovereignty, and which submits differences to the judgment of right reason (recta ratio). The revival in our times of those classical teachings, which moreover propound a wide conception of international legal personality (including human beings, and humankind as a whole), may well assist us to address more adequately the problems faced by contemporary International Law, moving towards a new jus gentium of the XXIst century, an International Law for humankind. III. The Fragmentation of Jus Gentium into Jus inter Gentes In historical perspective, the fragmentation of jus gentium, with its earlier universalist outlook (supra), into jus inter gentes, was to pave the way for the subsequent outlook of a law governing essentially the relations among independent States, and, to a lesser degree, other subjects of International Law. Yet, when the dichotomy jus gentium/jus inter gentes emerged, the international legal order had not yet displayed a strictly inter-State dimension. The roots of the distinction between jus gentium and jus inter gentes can be found as early as in the writings of the founding fathers of the discipline in the XVIth and XVIIth centuries, but by then the two notions referred to an emerging law of nations comprising also peoples and individuals. In any case, jus inter gentes did not originally appear as a synonym of interState law; this latter was only to prevail much later on, and for some decades only, in the XIXth century. Moreover, the term gens/gentes was much wider than “States”, surely encompassing other subjects of law (peoples, individuals). In the days of Grotius, the jus humanae societatis, conceived as a universal one, comprised States and peoples and individuals. States were to mark their presence particularly as from the treaties of Westphalia, – i.e., the reorganization of Europe as from 1648, – but linked to the jus gentium was the conception of a society of the human kind. Shortly after the Peace of Westphalia, it was clear from S. Pufendorf’s work (e.g., De Officio Hominis et Civis, 1673) that the justification of natural law derived from the “common character” and the irreducible features of the natural condition of humankind, which was prior to the establishment of States.28 In book I of his On the Duty of Man and Citizen, Pufendorf, expressly referring to the “dictate of right reason” (recta ratio), sustained that “law can be explored by the light of reason” and “the common and important precepts of natural law are so plain and clear” that they can never be wiped out from the conscience of human beings.29 The then prevailing universalist vision was never to disappear (finding expres28 29

J. Tully (ed.), “Introduction”, in S. Pufendorf, On the Duty of Man and Citizen, Cambridge, University Press, 2003 (reed.), pp. XXV and XXIX. S. Pufendorf, On the Duty..., op. cit. supra n. (28), p. 37.

The Evolution towards a New Jus Gentium: The International Law for Humankind

sion also in the XVIIIth century, e.g., in the proclamations, of that epoch, of the rights of man). The historical transformation of jus gentium into jus inter gentes – this latter primarily concerned with ensuring the co-existence and co-ordination of its subjects – was also prompted by the absence or lack of an international legislature and an international judiciary, which only in recent decades began to take shape. Yet, that fragmentation keeps on defying the historical treatment of International Law. In the expression of regret of C. Parry, such treatment, as undertaken to date, “is very unsatisfactory. It leaves many things unexplained – such as exactly how the jus gentium, which was in effect a universal municipal law, could have become the jus inter gentes, a law having upon any hypothesis little directly to do with the individual and in essence a law presupposing and existing to regulate differing municipal systems”.30

Already in the mid-XVIIth century, R. Zouche preferred the expression jus inter gentes to jus gentium, heralding the inter-State dimension of International Law; there was thus a process of “personification” of the States, which, by analogy with the individuals (and not the other way round), – disclosing attributes similar to those of individuals, – became subjects of the jus gentium, – and Christian Wolff was to point out the need for specific rules to apply to States, given their distinct nature.31 This evolution led to the assumption – which was later to prevail, in the XIXth century, – of an alleged exclusively inter-State basis or dimension of International Law. Such was the assumption of classic International Law (particularly as from the 1815 Congress of Vienna).32 Such strictly inter-State outlook of International Law, in turn, paved the way to the excesses of State voluntarism (reducing International Law to a sort of “external” State law) and to successive abuses committed by States to the detriment of persons under their respective jurisdictions, amidst flagrant impunity. International Law could not remain indifferent to that; in recent decades the need became manifest of rescuing the original universal outlook of the discipline, by means of a reconstruction of jus gentium. The accelerated growth of contemporary International Law has contributed to that end. Such recent and reassuring developments were preceded by an acknowledgment of the fallacy of the shortlived voluntarist conception of International Law, which should not pass here unnoticed. 30 31 32

C. Parry, The Sources and Evidences of International Law, Manchester, University Press, 1965, p. 38. S. Laghmani, op. cit. supra n. (14), pp. 93-95. For an account of this latter, cf. C.K. Webster, The Congress of Vienna 1814-1815, London/Edinburgh, H. Milford/Oxford University Press, 1919, pp. 1-148; and cf. also F.P. Walters, A History of the League of Nations, Oxford, University Press, 1969 (reprint), pp. 9-11.

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Chapter I

IV. The Fallacy of Voluntarist Positivism Although by the beginning of the XIXth century positivist tendencies were already noticeable, it was the late XIXth century that witnessed the spread of the voluntarist conception of International Law, whereby relations governed by this latter were determined by the “sovereign” and “arbitrary will” of States.33 It was then believed that, when the observance of International Law clashed with the existence of the State, “la norme juridique passe à l’arrière-plan parce que l’État est supérieur à tout principe juridique; (...) le droit international existe pour les États, et non les États pour le droit international”.34 The inevitable conclusion was that “the community of States” was thus “of a purely anarchical nature”.35 But even this hopeless outlook of international life did not pass without difficulty, as “the community of States” was soon to appear not as a voluntary, but rather as a necessary one.36 Shortly after the original appearance of G. Jellinek’s theory of auto-limitation of the State, it was objected that a self-limitation, attempting to reconcile the irreconcilable, could not possibly be a true limitation, as the State could hardly be “à la fois commandant et commandé”, and one could hardly understand that “l’acte émané du souverain, la loi, puisse être parfois une violation du droit”;37 the theory of self-limitation proved thus incapable of setting limits to the absolutism of State sovereignty.38 At doctrinal level, the voluntarist conception tried to survive39 with yet a new formulation. Recognizing the logical impossibility of founding a legal order upon the individual wills or its subjects, H. Triepel elaborated the theory of the volonté commune (Vereinbarung, unions de volontés) of States as the source or basis of International Law,40 – a view which was likewise promptly discarded.41 33 34 35 36 37 38 39

40 41

Cf. G.W.F. Hegel, Philosophy of Right (transl. T. M. Knox), Oxford, Clarendon Press, 1949, pp. 212-214, pars. 330, 332 and 334. G. Jellinek, L’État moderne et son droit (transl. G. Fardis), part I, Paris, V. Giard & E. Brière, 1911, p. 562, and cf. pp. 559-563. Ibid., p. 564. The Collected Papers of J. Westlake on Public International Law (ed. L. Oppenheim), Cambridge, University Press, 1914, p. 79. L. Duguit, L’État, le Droit objectif et la loi positive, vol. I, Paris, A. Fontemoing ed., 1901, pp. 122-131. Ibid., p. 614, and cf. pp. 613-618; and cf. also n. (4), supra. For a criticism of the voluntarist conception of international law as derived from Hegelian thinking, cf., inter alia, A. Truyol y Serra, Noções Fundamentais de Direito Internacional Público, Coimbra, A. Amado Ed., 1962, pp. 67-68, and cf. pp. 91-121; and cf. H. Lauterpacht, Private Law Sources and Analogies of International Law, London, Longmans, 1927, pp. 43-71. Cf. H. Triepel, “Les rapports entre le droit interne et le droit international”, 1 RCADI (1923) pp. 82-88. For criticisms of the theory of Vereinbarung, cf. H. Kelsen, “Les rapports de système entre le droit interne et le droit international public”, 14 RCADI (1926) pp. 283-286;

The Evolution towards a New Jus Gentium: The International Law for Humankind

The “will” of States, individual or collective, proved unable to provide the foundations of International Law, as these latter were often threatened by the same will, – individual or collective, – of States. The voluntarist conception was, however, to leave its mark at a given time and even to infi ltrate into the jurisprudence of the Permanent Court of International Justice [PCIJ]; thus, in the S.S. “Lotus” case (1927), e.g., the Court stated that “international law governs relations between independent States”, and its rules “emanate from their own free will”, and “restrictions upon the independence of States cannot therefore be presumed”.42 The PCIJ thus endorsed, in the words of one of the Judges, “the contention that under international law everything which is not prohibited is permitted”, – a contention which did not pass unchallenged, as argued in a Dissenting Opinion.43 Thus, it was furthermore argued, in relation to the PCIJ’s dictum, that if restrictions to the sovereignty or independence of States could not be presumed, nor could “the absence of restrictions”, as one was “not entitled to deduce the law applicable to a specific state of facts from the mere fact of sovereignty or independence”.44 International Law could not simply be reduced to “a set of formulated propositions” such as the one that it ultimately derived from the consenting will of its subjects; “the attempt to build the State out of a social contract”, argued J.L. Brierly, “has been abandoned by political philosophy for at least a century, and the attempt to base international law on the consenting wills of individual States alone is merely a survival in the international field of this discredited doctrine. It contains no unifying principle to bind the members of the society together”.45

42 43 44 45

A. Verdross, “Le fondement du Droit international”, 16 RCADI (1927) pp. 262-267 and 275-279; G. Scelle, Précis de droit des gens - Principes et systématique, part I, Paris, Rec. Sirey, 1931, pp. 35-37 and 298; M. Sorensen, Les sources du Droit international, Copenhague, E. Munksgaard, 1946, pp. 15-16; R. Ago, “Science juridique et droit international”, 90 RCADI (1956) pp. 875-881; E. Suy, Les actes juridiques unilatéraux en Droit international public, Genève, Université de Genève (thesis n. 134), 1962, pp. 6-9. Cf. PCIJ, S.S. Lotus case, Series A, n. 10, Judgment of 07 September 1927, p. 18, and cf. pp. 4-33. In his Dissenting Opinion on the case, Judge Loder added that that contention was “at variance with the spirit of international law”; ibid., p. 34. J.L. Brierly, The Basis of Obligation in International Law and Other Papers, Oxford, Clarendon Press, 1958, p. 144. Ibid., p. 16, and cf. p. 18. - In this connection, G. Jellinek’s theory of self-limitation, e.g., treated the rules of International Law not as a matter of legal obligation but rather as a result of mere calculation of the compatibility of the observance of obligation with State interest; H. Lauterpacht, The Function of Law in the International Community, Oxford, Clarendon Press, 1933, pp. 409-412, and cf. pp. 94-96.

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Chapter I

The profound transformations undergone by International Law since that pronouncement by the PCIJ are well-known. To the accumulated lessons of two world wars followed the historical process of decolonization, the rise and growth of international organisations, and the emergence of international civil society. The complexities of contemporary International Law leave no room for inferring that it would derive solely from the free will of States; the fallacy of voluntarist positivism was to become clear, as it simply failed to demonstrate its own assumptions, being moreover unable to understand or explain the evolution of general International Law. Moreover, it attempted to reduce international custom to a simple repetition of acts or precedents, against what the “objectivist” thinking manifested itself, admitting the existence of a “collective juridical conscience” and purporting to provide an objective explanation of the customary phenomenon.46 In this connection, it was cogently remarked that consent could never constitute the ultimate formal source of international law, for it would become necessary to find an antecedent rule giving such effect to consent; furthermore, consent could not account “for its own validity or law-making effect”, nor could it account for some of the most fundamental principles of law essential to any legal system.47 Once the validity of International Law itself was acknowledged by the opinio juris communis, it could not be contended that the consent of each individual State would be required to every legal relationship within the framework of International Law. Reliance on such individualistic consent would amount to challenging the very existence and validity of most rules of contemporary international law. To attempt to base customary international law on the consent of each individual State would “allow each State to accept only those rules which suit it and reject others, eventually leading to the very dissolution of the international legal order”.48 It could not be contended that each individual State would have

46

47

48

Ch. Rousseau, Principes généraux du Droit international public, vol. I, Paris, Pédone, 1944, pp. 831, 845 and 827. On the anti-voluntarist tendency of the “school of objective law” and the German “historical school”, cf. P. Haggenmacher, “La doctrine des deux éléments du Droit coutumier dans la pratique de la Cour internationale”, 90 Revue générale de Droit international public (1986) pp. 15, 19 and 110. G.G. Fitzmaurice, “Some Problems Regarding the Formal Sources of International Law”, in Symbolae Verzijl présentées au Professeur J.H.W. Verzijl à l’occasion de son LXXème. anniversaire, The Hague, M. Nijhoff, 1958, pp. 162-165, 167 and 175-176; there are rules of law (e.g., rule of pacta sunt servanda, rule that a State cannot plead deficiencies of its own constitutional or domestic law as an excuse for non-compliance with its international obligations) which are themselves underived from, and independent of, any voluntarist element, and which have a necessary and inherent validity (ibid., pp. 153-176). L.R. Penna, “Customary International Law and Protocol I: An Analysis of Some Provisions”, in Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (ed. C. Swinarski), Geneva, ICRC/Nijhoff, 1984, p. 206.

The Evolution towards a New Jus Gentium: The International Law for Humankind

the free will and ultimate power to decide whether or not to be bound by rules of International Law. The tacit consent theory, in its turn, appeared based on a fiction (H. Kelsen); the States’ obligation to conform to rules of international law lies rather in the societal context itself.49 Present-day transformations of International Law have been taking place to a large extent independently of, and sometimes even contrary to, the individual State’s “will”. The State’s inability to undermine the validity of International Law by means of municipal legislation,50 added to the gradual reduction or erosion of the plea of domestic jurisdiction or reserved domain of States,51 entailed further significant limitations upon, and reflected the overcoming of, the voluntarist conception of International Law. In sum, the State as an absolute institutional value lost much of its persuasive force when viewed in historical perspective.52 A survey of contemporary trends of International Law – in such distinct areas as territory, jurisdiction, recognition, the law of treaties, State responsibility, human rights protection, environmental protection, the law of the sea, international conflicts, and international organizations – calls for a reconsideration of certain assumptions about the international legal system. Current developments in distinct fields of International Law reveal that the age of the assumed exclusive inter-State basis of International Law is definitively long past.53 The theory of selflimitation of the State, e.g., has not withstood the onslaught of time, in view of its logical impossibility. If it was the “free will” of States which ultimately “created” International Law, it was also by their “free will” that States violated it, and voluntarist theories revolved in vicious circles and acrobaties intellectuelles which could hardly provide any sound or coherent interpretation of social facts.54 As I wrote, to this effect, a quarter of a century ago, 49 50 51

52 53

54

J.I. Charney, “The Persistent Objector Rule and the Development of Customary International Law”, 56 British Year Book of International Law (1985) pp. 16-18. K. Marek, Identity and Continuity of States in Public International Law, 2nd. ed., Geneva, Droz, 1968, p. 73. A.A. Cançado Trindade, “The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organizations”, 25 International and Comparative Law Quarterly (1976) pp.715-765; A.A. Cançado Trindade, “Co-Existence and Coordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels)”, 202 RCADI (1987) pp. 34-42. A.A. Cançado Trindade, “The Voluntarist Conception of International Law...”, op. cit. infra n. (55), p. 224. The view of the PCIJ that International Law governs inter-State relations on the basis of legal rules emanating form the free will of the States themselves (PCIJ, S.S. Lotus case, Series A, n. 10, 1927, p. 18), even if arguably sustainable in 1927 when it was expressed, no longer corresponds entirely to the reality of present-day International Law. For criticism of the voluntarist conception to this effect, cf. Ch. de Visscher, Théories et réalités en Droit international public, 4th rev. ed., Paris, Pédone, 1970, p. 67, and cf. pp. 66-68; A.Ch. Kiss, “Le droit international peut-il encore être considéré

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Chapter I “The voluntarist conception of International Law viewed this latter only through the formal process of its elaboration, retaining as juridically relevant only the manifestations of will of the State. Hence its original and basic weakness, for once it was found that in the process of elaboration of the law there were elements independent of the free will of States – and the indications are that these elements do exist today in virtually all areas of international law – the whole dogmatic construction was then strongly challenged”.55

The voluntarist conception of International Law assumed that the State was an absolute institutional value, a totally independent and self-sufficient entity. This conception was hardly consonant with an objective scientific analysis of social facts, and could only have flourished in the “world-politically secure age” 56 of the late XIXth century.57 Such age is, however, long past: important limitations on the voluntarist dogma are today prominent not only in the evolving fields of contemporary International Law, but also in new transformations or developments in some of its more traditional areas.58 In fact, voluntarist positivism is clearly incapable of solving, or even addressing, the issue of the foundations and validity of international law, which could only find a response in the juridical conscience itself. As contended by H. Accioly, it is “impossible to eliminate from the law” the idea of an objective justice; the idea of a justice “superior to the facts” disengages itself from the very observation of the facts.59 V.

International Law-Making and the Reconstruction of Jus Gentium

The expansion of subjects of International Law, displaying wide cultural differences, has in the last decades influenced the transformations of International Law and affected the formal process of its elaboration. The considerable growth of the corpus juris gentium has brought about its sophistication at both normative and implementation levels. The accelerated process of decision-making by States

55

56 57 58 59

comme volontariste?”, 33-36 Temis - Revista de Ciencia y Técnica Jurídicas (Fac. Derecho Univ. Saragoza) (1973-1974) p. 75, and cf. pp. 75-84. A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A ReAssessment”, 59 Revue de Droit international de sciences diplomatiques et politiques (1981) p. 225, and cf. pp. 201-240. M. Bos’s expression in: M. Bos, “Dominant Interests in International Law”, 21 Revista Española de Derecho Internacional (1968) p. 234. In which the intimacy between International Law and power struggle was reflected in such prevailing notions as that of equilibrium of forces or balance of power. Such as territory, jurisdiction, treaties, State responsibility, settlement of international disputes. Cf. H. Accioly, Tratado de Direito Internacional Público, 2nd. ed., vol. I, Rio de Janeiro, 1956, pp. 18, 24, 26 and 30.

The Evolution towards a New Jus Gentium: The International Law for Humankind

and international organizations60 in the contemporary world is prompted to a large extent by the intensification of international contacts and communications, further reflecting the impact of science and technology upon the conduction of international affairs. Nowadays, even the notion of the practice of International Law has become much more complex, no longer limited to State practice, as in the past. In the World Conferences of our times, States as well as international organizations and entities of the civil society have been contributing to the accelerated development and universalization of International Law,61 as illustrated by the recent cycle of the World Conferences of the United Nations.62 The intensification of multilateralism was to attach an increasingly greater weight to consensus63 in the formation and crystallization of rules of general International Law. International conventions and general international law have been duly taken into account simultaneously by international case-law.64 All this has drawn greater attention to the formation and the relevant role of opinio juris.65 As to the systematization of the practice of international law, it could not be appropriately undertaken for the sake of detecting or identifying practice only: it is also relevant to attempt to disclose what is beyond practice, and to identify above all the opinio juris sive necessitatis,66 thereby paving the way for the reduction of the fragmentation of jus inter gentes and the reapproximation of the ideals

60

61

62 63 64

65

66

Already in the North Sea Continental Shelf cases (1969), the ICJ admitted that the uniform practice of States might, even in a rather short lapse of time, lead to the formation of new rules of customary international law (ICJ Reports (1979) p. 43) in accordance with “the rhythm of contemporary life”; E. Jiménez de Aréchaga, “International Law in the Past Third of a Century”, 159 RCADI (1978) p. 11, and cf. pp. 29-30. This development was heralded by the diplomatic conferences of the sixties and seventies; cf. M. Lachs, “Le rôle des organisations internationales dans la formation du droit international”, in Mélanges offerts à H. Rolin - Problèmes de droit des gens, Paris, Pédone, 1964, pp. 168-169; H. Bokor-Szego, The Role of the United Nations in International Legislation, Amsterdam, North-Holland Publ. Co., 1978, pp. 35-87. Cf. chapter XXVI, infra. As counterbalanced to the consent of individual States. Cf. recently, e.g., L. Caflisch and A.A. Cançado Trindade, “Les Conventions Américaine et Européenne des Droits de l’Homme et le droit international général”, 108 Revue générale de Droit international public (2004) pp. 5-62. It may be recalled that some codification conventions resulting from U.N. diplomatic conferences contain express references to customary or general international law, paving the way for the reshaping of the international legal order. M.E. Villiger, Customary International Law and Treaties, Dordrecht, Nijhoff, 1985, pp. 289-290. International practice (beyond merely State practice) appears, in fact, conformed by opinio juris, and customary law appears less vulnerable than conventional law to the temptations of voluntarism.

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Chapter I

of classic jus gentium.67 Contemporary international legal order appears ineluctably impregnated with an acknowledgment of common and superior values, in its pursuit of the realization of justice. A neglect of general International Law would hinder the evolution of a universalist International Law, and would lead to an almost lack of hope in the reconstruction of a true jus gentium,68 pursuant to a universalist outlook, capable of providing responses to the needs and aspirations of humankind. VI. International Law, Pluralism and Universalism In a moment of world crisis such as the one we live, of recrudescence of the use of force, the future of International Law relies, to a large extent, on the dialogue and interaction – rather than “clash” – among civilizations, as displayed in the universal concertation undertaken in the recent cycle of U.N. World Conferences, throughout the nineties and by the turn of the century.69 U.N. General Assembly resolutions have, in recent years, reiteratedly acknowledged the superior values shared by civilizations and common to humankind as a whole.70 In fact, International Law in particular, and humankind in general, much owe to the creativity of, and achievements by, distinct civilizations throughout history. Pluralism marked its presence in the origins of the international community, and one of the challenges of International Law nowadays is to meet the 67

68 69

70

A.A. Cançado Trindade, “Reflections on International Law-Making: Customary International Law and Reconstruction of Jus Gentium”, in International Law and Development / Le droit international et le développement (Proceedings of the 1986 Conference of the Canadian Council on International Law / Travaux du Congrès de 1986 du Conseil canadien de Droit international), Ottawa, Canadian Council on International Law, 1986, pp. 63-81; and cf. A.A. Cançado Trindade, “Introduction”, in Repertório da Prática Brasileira do Direito Internacional Público, vol. IV (Period 1899-1918), Brasilia, MRE/FUNAG, 1986, p. 22; ibid, vol. III (Period 1919-1940), 1984, p. 27; ibid., vol. II (Period 1941-1960), pp. 18-10; ibid., vol. I (Period 1961-1981), pp. 4849 and 35. Cf., e.g., K. Marek, “Thoughts on Codification”, 31 Zeitschrift fur ausländisches öffentliches Recht und Volkerrecht (1971) pp. 497-498 and 520. For example, the proceedings of the 1994 U.N. International Conference on Population and Development, held in Cairo, disclose that countries with “two of the world’s great religions - Islam and Catholicism - made common cause to oppose tendencies and texts which they disliked or distrusted”, in particular regarding reproductive rights in their distinct aspects; S. Johnson, The Politics of Population - The International Conference on Population and Development, Cairo 1994, London, Earthscan, 1995, p. 29. E.g., G.A. resolutions AG/RES/53/22, of 16.11.1998; AG/RES/55/23, of 13.11.2000; AG/ RES/58/128, of 19.12.2003. In addition, G.A. resolution 56/6, of 09.11.2001, expressly stated that “all civilizations celebrate the unity and diversity of humankind” and stressed that “a common humanity unites all civilizations” (preamble, 5th and 6th consideranda).

The Evolution towards a New Jus Gentium: The International Law for Humankind

needs and aspirations of an international community which, in R. Ago’s words, is “all the more markedly pluralistic”.71 Cultural pluralism has, in fact, marked presence in the historical roots of international legal thinking.72 The universality of the rights inherent to the human person, – to evoke an eloquent illustration, – has been asserted and erected on the basis of due regard for cultural pluralism.73 In the origins of the discipline of International Law (jus gentium), the writings of, e.g., F. Vitoria and B. de Las Casas were based on the doctrine of equality – of essence rather than existence – among human beings, while – as recently pointed out – there is no reason for that equality to limit itself to essence and not to extend itself also to existence: the principle of humanity became a central one in distinct trends of thinking of the school of natural law.74 As time went on, jus gentium, emanated from human conscience, came to be regarded as regulating relations between human collectivities (and their members) of distinct cultures, encompassing humankind itself.75 In our days, UNESCO has fostered the dialogue among civilizations, endorsing the “harmony in difference” propounded in U.N. General Assembly resolutions.76 Moreover, UNESCO has further paved the way for the expression of the concept of “world

71 72 73

74

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R. Ago, “Pluralism and the Origins of the International Community”, 3 Italian Yearbook of International Law (1977) pp. 3-30, esp. p. 30. C.G. Weeramantry, Universalising International Law, Leiden, Nijhoff, 2004, pp. 131. Cf., e.g., [Various Authors,] Los Derechos del Hombre – Estudios y Comentarios en torno a la Nueva Declaración, Reunidos por la UNESCO, Mexico/Buenos Aires, 1949, pp. 15-246; A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, ch. XIX, pp. 301403. Y. Ben Achour, Le rôle des civilisations dans le système international (Droit et relations internationales), Bruxelles, Bruylant/Éd. Univ. de Bruxelles, 2003, pp. 85 and 141-142, and cf. pp. 43-44. S. Sucharitkul, “L’humanité en tant qu’élément contribuant au développement progressif du Droit international contemporain”, in L’avenir du droit international dans un monde multiculturel (Workshop of The Hague Academy of International Law, The Hague, November 1983), The Hague, Nijhoff, 1984, pp. 418-419; R.-J. Dupuy, “Conclusions of the Workshop”, in ibid., pp. 469 and 481. In the same line as the General Assembly’s proclamation of the year 2001 as the U.N. Year of Dialogue among Civilizations, the U.N. and UNESCO cosponsored a Round Table on the Eve of the United Nations Millenium Summit, held at the U.N. in New York on 05.09.2000. The Round Table was particularly critical of the idea of the socalled “clash” of civilizations, rejected the alleged “inevitability” of that “clash”, and stressed the needed continuing dialogue and mutual learning and understanding among civilizations so as to ensure world peace. [Various Authors,] Dialogue among Civilizations - The Round Table on the Eve of the United Nations Millenium Summit (N.Y., 2000), Paris, UNESCO, 2001, esp. pp. 89, 104, 112 and 122.

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cultural patrimony of humankind”.77 All this has been taking place parallely to the co-existence between the concepts of “common heritage” and “common concern” of mankind;78 in UNESCO’s outlook, the harmony and unity of civilizations in the diversity of their cultures is a common patrimony or heritage of mankind, and civilizations tend to embody the universal, in their religions and languages.79 Emphasis is thus to be placed on the joint endeavours of all civilizations to sustain a fruitful dialogue and mutual understanding, conducive to setting up the ground for a new jus gentium, the International Law for humankind. VII. The Identification of the Basic Feature of the New Jus Gentium One could hardly deny that there persists in contemporary International Law the predominance of States in pursuance of the goals they set for themselves; but nor could one deny that contemporary International Law has developed particularly when, amidst glimpses of lucidity, States and other subjects of International Law have given priority to the pursuance of common, superior interests, to fulfil the needs and aspirations of humankind. This evolution has been accelerated by the formation and growth, along the second half of the XXth century, of domains such as those of the International Law of Human Rights and International Environmental Law. These developments have disclosed an international legal order which nowadays surely and clearly transcends the old and outmoded strictly inter-State dimension. Non-governmental organizations and other entities of civil society, together with States and international organizations, have shown themselves more open to the demands of the international community as a whole, well above those of individual States, in the common search of responses to the needs of humankind, to the ultimate benefit of all. This appears as the basic feature of the new jus gentium, flourishing in this start of the XXIst century. Since its historical beginnings, classic jus gentium, in starting off as applicable in the relations among individuals (supra), was to envisage, in its historical evolution, humankind as a whole, rather than only individual States; State power could not ensure a universal legal order, nor could it remove the belief in

77

78 79

From whose outlook an attempt against “works of the spirit” becomes a crime against the “world cultural patrimony”, and, as such, a crime against mankind; Y. Ben Achour, op. cit. supra n. (74), pp. 47 and 49, and cf. pp. 43 and 45. Cf. chapter XIII, infra. Ibid., pp. 145 and 187, and cf. pp. 234-235. Civilizations are not immutable, and appear open to changes, some of which on the basis of the evolution of law itself; the fact that they remain open reassessments of some of their dogmas stresses the relevance of respectful dialogue among them, for the very evolution of international legal personality itself. Here, again, the alleged “clash” of civilizations, emphasizing antagonisms and hostilities, appears harmful and unfounded; cf. ibid., pp. 305-306 and 313-314, and cf. p. 145.

The Evolution towards a New Jus Gentium: The International Law for Humankind

an objective law.80 It was this latter, standing well above the individual State’s “will”, and being applied in the pursuance of the realization of justice, that could care for the unity of humankind. Jus gentium today comes to rescue the ideal of universality, present in the enlightened thinking of the founding fathers of the law of nations.81 Its universalist approach to International Law is thus in keeping with that thinking. After all, States were not originally conceived as the exclusive subjects of International law, as this latter addressed also individuals, groups of individuals and peoples (supra). The inter-State dimension of International Law, nowadays wholly surpassed, corresponds to the prevailing view in only a brief period in the history of International Law (essentially the XIXth century). But already in the period of the gradual formation of the discipline (XVIth century onwards), jus gentium took also into account, besides individuals and States (composed of individuals), humankind. The current trend, as I perceive it, towards a new jus gentium as an International Law for humankind, has deep historical roots in the thinking of the founding fathers of the droit des gens. In our days, it comes as a response to the current needs and aspirations of the international community, and, ultimately, of humankind as a whole. By means mainly of a succession of treaties conforming a true corpus juris gentium, classic International Law experienced a considerable expansion on an essentially inter-State basis. It was not until the mid-XXth century that the international legal order displayed its preparedness to open and move gradually towards universalism, and away from a strict inter-State dimension; but even in the heyday of the traditional outlook, the universalist conception had never disappeared from the more lucid doctrine, faithful to the vision of the founding fathers of the discipline. From the mid-XXth century onwards, the concern for humankind as a whole began to find expression in the doctrine and practice of International Law. New terms,82 to this effect, began to be incorporated into the vocabulary or lexicon of International Law, terms which “intermingle with the idea of a civitas maxima (...), and beyond that, to some extent, with the idea of jus gentium in its traditional sense, prior to the jus inter gentes (...)”.83

80 81

82

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A. du Preez Louw, The Concept “Jus Gentium”, Leiden, Rijksuniversiteit te Leiden, 1991, pp. 39, 56, 87, 89 and 134, 186-188 and 190-191. A.A. Cançado Trindade, “La Humanización del Derecho Internacional y los Límites de la Razón de Estado”, 40 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais - Belo Horizonte (2001) pp. 11-23. Such as world or universal law, transnational law, law of the international community, common law of mankind, common heritage of mankind, common concern of mankind, among others. Cf. A. Truyol y Serra, La Sociedad Internacional, 2nd. ed., Madrid, Alianza Edit., 1998, p. 98, and cf. pp. 35, 76-80 and 83.

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Chapter I

In the XXth century, as early as in 1925, there was expression, in a collective doctrinal survey, for the relevance of an objective International Law, encompassing States, peoples and individuals, overcoming the insufficiencies of the positivist conception (which risked to hinder the development of the law of nations), and bearing in mind the superior interests of the international community.84 Attention was drawn to the “humanizing factors” of international life, rooted in the “international juridical conscience”.85 This objective International Law – conducive, by means of the application of basic principles, to the “common law of mankind”86 – pre-existed the “will” of States; after all, States have not always existed, and objective International Law operated in pursuance of the common good of the international community as a whole, and in response to the social needs and demands of justice and humanity everywhere.87 It was further argued that, to try to base the law of nations on the will of States would amount to the denial of, or renunciation to, International Law; in fact, “L’idée de justice est si profondément ancrée en nous que ceux-là même qui prétendent la subordonner à la volonté de l’État y recourent sans cesse inconsciemment”.88

The “will” of the individual State was inevitably attached to its subjective interests, and could not determine the legal rules applicable to it; International Law was formed and evolved not only for the regulation of the relations of States among themselves, but for the international community itself, and it was its common good that one had to bear in mind. Objective International Law, based on “principles of justice”, did not derive from the will of the State, and opted in favour of humanity.89 Four decades later, new endeavours towards the identification of the basic feature of a new jus gentium were undertaken by U. Scheuner and D. Evrigenis. Jus gentium, as propounded by the founding fathers of International Law, is common to all individuals and all peoples, calling for a universally valid international legal system. Its foundations are independent of the “will” of individual members of the international community, and it goes well beyond purely inter-State rela84

85 86

87 88 89

[Various Authors,] Jus Naturae et Gentium – Eine Umfrage zum Gedächtnis des Hugo Grotius, Kiel, Universität Kiel/Instituts für internationales Recht, 1925, pp. 55, 57-58 and 79 (interventions by N.S. Politis, M.Rostworowski and A. Weiss, respectively). Ibid., pp. 64-65 (intervention by M. de Taube). An expression which, more than three decades later, formed the title of the book by C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 57-61, 66-99 and 169-172. [Various Authors,] Jus Naturae et Gentium..., op. cit. supra n. (84), pp. 13, 17-20 and 26 (intervention by L.-E. Le Fur). Ibid., pp. 27 and 20. Ibid., pp. 27-30.

The Evolution towards a New Jus Gentium: The International Law for Humankind

tions (jus inter gentes). Stemming from human conscience and the sentiment of justice enshrined therein, jus gentium is erected upon ethical foundations, incorporates basic human values, common to the whole of humankind, thus paving the way for the future evolution of the international legal order.90 In the ambit of this new jus gentium, there has been occurring the institutionalization of the corpus juris (rendered truly universal) pertaining to the protection of human rights, which has become a cornerstone of this universal legal order.91 The considerable expansion of this corpus juris gentium at this beginning of the XXIst century indicates that such new jus gentium is seeing the light of the day. It goes certainly well beyond the strictly inter-State dimension of the past. It rescues the human person, final addressee of its norms, as subject of law, endowed with juridical capacity. This new jus gentium, as foreseen and propounded by the founding fathers of the discipline, can be clearly characterized in our times as the International Law for humankind. VIII. The Universalist Conception of International Law In fact, already by the mid-XXth century it had became apparent to the more lucid doctrine that International Law no longer disclosed an entirely and strictly inter-State dimension, gradually leaning towards an universalist outlook.92 Collective conscience was already beholding the existence of a true international community (civitas maxima gentium), in a historical perspective.93 This process is still ongoing, with a growing awareness of the coexistence of States with other subjects of International Law (international organizations as well as peoples and individuals) in the international community. This has, in turn, drawn increasing attention to the needs of humankind, which International Law cannot be indifferent to. The role of values has been stressed in securing the continuing evolution of the norms of International Law and the current historical process of its humanization.94 90

91

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U. Scheuner, “Jus Gentium and the Present Development of International Law”, in Volkenrechtelijke Opstellen aangeboden aan Prof. Dr. G.H.J. van der Molen, Kampen, J.H. Kok N.V., 1962, pp. 125, 128, 130 and 133-136. D. Evrigenis, “Institutionnalisation des droits de l’homme et droit universel”, in Internationales Colloquium über Menschenrechte (Berlin, Oktober 1966), Berlin, Deutsche Gesellschaft für die Vereinten Nationen, 1966, pp. 28-33. R.J. Dupuy, La Communauté internationale entre le mythe et l’histoire, Paris, Economica/UNESCO, 1986, pp. 21, 160 and pp. 173-174. Cf. M. Lachs, “The Development and General Trends of International Law in Our Time – General Course in Public International Law”, 169 RCADI (1980) pp. 239251. Cf., in this sense, H. Th ierry, “L’évolution du Droit international - Cours général de Droit international public”, 222 RCADI (1990) pp. 17-18, 23 and 184-185; J.A. Carrillo Salcedo, “Droit international et souveraineté des États – Cours général de Droit international public”, 257 RCADI (1996) pp. 211-213 and 217-221; J.A. Pastor Ridruejo,

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The new jus gentium has a much broader spatial and temporal dimensions. As to the former, it no longer portrays International Law as conditioned by the consent of territorial States, but rather as emanated from the recta ratio and not from the will.95 The new jus gentium of our days is not reduced to what States are prepared to concede. Such an approach led to the fragmentation of jus gentium into jus inter gentes. The general theory of law founded upon the State and its will was unable to avoid the disaggregation of the humankind and the successive atrocities of the XXth century. No State is to consider itself as standing above International Law. With the increasing participation, in international law-making and application, of peoples and individuals as subjects of International Law, along with States and international organizations, International Law nowadays concerns everyone.96 In the domain of the new jus gentium, no longer insensitive to growing poverty and social marginalization and exclusion, among other problems which affect humankind as a whole, the international rule of law, imbued with a sense of justice, prevails over the anachronistic raison d’État.97 Neither the old Westphalian inter-State outlook, nor the present-day capitulation to the laisser-faire of markets, leave much room for the realization of justice.98 So-called “free” markets are contractual, rather than communitarian, in nature. They pursue quick capital flows in search of rapid profits, rather than universal goals. They have a codified language of their own, accessible to a few, and despise the pluralism of values. The pursuance of the common and superior interests of humankind cannot simply be left to the vicissitudes of market negotiations and transactions. Markets live the present, the moment, they lack the intertemporal dimension. The new jus gentium, in turn, has a much broader dimension, not only spatial, but also temporal. It bears in mind humankind, as encompassing both present and future generations, who do not fail to acknowledge the achievements of their predecessors, in the consolidation of rights and duties conforming the new jus gentium, and emanating from this latter. The temporal dimension has been singled out by the domains of International Law which have experienced a remarkable expansion in recent decades, notably human rights protection and

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96 97 98

“Le Droit international à la veille du vingt et unième siècle: normes, faits et valeurs”, 274 RCADI (1998) pp. 294-296. Already in 1961, it appeared to P. Reuter that “les intérêts communs dans les relations internationales apparaissent de bonne heure. La répartition territoriale des compétences est incapable de résoudre certains problèmes”, he well remarked; P. Reuter, “Principes de Droit international public”, 103 RCADI (1961) p. 445. It can, moreover, be relied upon before the multiple contemporary international tribunals (as well as before national courts applying it). M. Chemillier-Gendreau, Humanité et souverainetés, 1995, pp. 285, 308-309 and 327; and cf. M. Delmas-Marty, Vers un droit commun de l’humanité, 1996, pp. 39 and 63; R.A. Falk, Human Rights Horizons - The Pursuit of Justice in a Globalizing World, London/N.Y., Routledge, 2000, p. 21.

The Evolution towards a New Jus Gentium: The International Law for Humankind

environmental protection.99 Such temporal dimension deserves special attention today in respect of the whole of International Law.

99

In this respect, the notion of potential victim, for example, for the object of a vast case-law of international human rights tribunals; cf. A.A. Cançado Trindade, “Coexistence and Co-ordination of Mechanisms of International Protection...”, op. cit. supra n. (51), ch. XI, pp. 243-299.

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I.

Time and Law Revisited: International Law and the Temporal Dimension

Introduction

The relationship between International Law and time is an ineluctable one, which requires much more attention than the one dispensed to it thus far. The formation and development of International Law, as well as its interpretation and application, could hardly be dissociated from the temporal dimension, wherefrom precisions and lessons can be extracted, as reflections introductory to the chapters that follow. The incidence of the temporal dimension on International Law is acknowledged in face of new needs of protection of human beings, also in a preventive way, as illustrated in particular by the current expansion of provisional measures of protection. Awareness of such temporal dimension bears witness of the myopia of political “realism” and draws attention to the human quest for justice throughout history. II.

Time and Law: Some Precisions and Lessons

The temporal dimension underlies the whole domain of Law in general, and of Public International Law in particular. Classical International Law departed from an essentially static outlook of the task of regulation. The very conception of a “definitive” categorization of “sources” of International Law, e.g., corresponded to the positivist longing, so much en vogue in the XIXth century, with its emphasis on an inescapable legal formalism. Only in a more recent epoch, closer to our days, one was to recognize the possibility of new manifestations of International Law and to reckon the evolution undergone by rules regarded as “immutable” in the past; “classical” International Law accepted, however, one sole doctrinal category turned to the presence of the temporal element it contained,1 namely, that

1

E. McWhinney, United Nations Law Making, N.Y./London/Paris, Holmes & Meier/ UNESCO, 1984, pp. 42, 37 and 24.

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of the so-called “intertemporal law”, as illustrated by the contribution of the celebrated arbitral award of Max Huber in the case of the Island of Palmas (1928).2 The Institut de Droit International covered this specific topic, that of the socalled “intertemporal law”, in the Sessions of Rome (1973) and Wiesbaden (1975). There was general acceptance as to the basic proposition that the solution of the intertemporal problem consisted in the determination of the applicable norm, among those which succeeded each other in time on the same matter, having every act and situation to be appreciated in the light of legal rules contemporary to them.3 The work and debates of the Institut displayed an awareness of the ambivalence, antinomy or tension between the forces in favour of the evolution or transformation of the legal order and those in favour of the stability or legal security, – and this was to be reflected in the cautious resolution adopted by the Institut in Wiesbaden in 1975.4 The impact or influence of the passage of time in the formation and evolution of the rules of International Law is not a phenomenon external to law.5 One was, thus, to go beyond the treatment somewhat circumscribed or restrictive of the so-called “intertemporal law” stricto sensu, so as to consider the process of the very formation and evolution of norms in the course of time, or, to use a wellknown expression, of the “progressive development of International Law”.6 The conscious search for new juridical solutions is to presuppose the solid knowledge of the solutions of the past, and of the historical evolution of International Law as an open and dynamic system, capable of responding to the changing needs of the international community.7

2

3

4 5

6

7

Cf. n. (27) infra, and cf. discussion in P. Tavernier, Recherches sur l’application dans le temps des actes et des règles en droit international public, Paris, LGDJ, 1970, pp. 254-277 and 128-129. Cf. 55 Annuaire de l’Institut de Droit International [AIDI] (1973) pp. 33, 27, 37, 48, 50 and 86; 56 AIDI (1975) p. 536 (par. 1 of the resolution of the Institut). - And cf. M. Sorensen, “Le problème dit du droit intertemporel dans l’ordre international – Rapport provisoire”, 55 AIDI (1973) pp. 35-36. Cf. 56 AIDI (1975) pp. 536-541 (cf., particularly, the second considerandum of the preambular part of the resolution). In the aforementioned work of the Institut, attention was in fact turned to the impact of the passage of time (sometimes a rather short lapse of time) on the development of International Law; cf. 55 AIDI (1973) pp. 108 and 114-115 (interventions by M. Lachs, P. Reuter and S. Rosenne). E. McWhinney, op. cit. supra n. (1), p. 41. – On the influence of the passage of time in the continuation of the rules of International Law, cf. K. Doehring, “Die Wirkung des Zeitablaufs auf den Bestand völkerrechtlicher Regeln”, Jahrbuch 1964 der MaxPlanck-Gesellschaft, Heidelberg, 1964, pp. 70-89. A.A. Cançado Trindade, “Reflections on International Law-Making: Customary International Law and the Reconstruction of Jus Gentium”, in International Law and Development/Le droit international et le développement (Proceedings of the 1986 Conference of the Canadian Council on International Law/Travaux du Congrès de

Time and Law Revisited: International Law and the Temporal Dimension

Such knowledge is to guide or found positions or decisions to be taken in the future, and to assist subjects of International Law in the search for a certain degree of foreseeability in the conduction of their behaviour,8 always in the light of the principle of good faith. Evolving International Law is thus permeated by the major enigma which permeates the existence of all subjects of law: the passage of time. In this respect, in one of the most lucid pleadings before an international tribunal that I know of, that of Paul Reuter (of 03-04 March 1962) as one of legal counsel to Cambodia in the case of the Temple of Preah Vihear (ICJ, 1962), he stated, with a certain literary flair: “Le temps exerce en effet une influence puissante sur l’établissement et la consolidation des situations juridiques (...). D’abord la longueur du temps dépend des matières. (...) Un deuxième élément doit être pris en considération, nous serions tentés de l’appeler ‘la densité’ du temps. Le temps des hommes n’est pas le temps des astres. Ce qui fait le temps des hommes, c’est la densité des événements réels ou des événements éventuels qui auraient pu y trouver place. Et ce qui fait la densité du temps humain aprécié sur le plan juridique, c’est la densité, la multitude des actes juridiques qui y ont trouvé ou qui y auraient pu trouver place”.9

The time of human beings is certainly not the time of the stars, in more than one sense.10 The time of the stars, – I would venture to add, – besides being an unfathomable mystery which has always accompanied human existence from the beginning until its end, is indifferent to legal solutions devised by the human mind; but the time of human beings, applied to their legal solutions as an element which integrates them, in one specific aspect, however, appears to suggest a sole point of contact, or common denominator, between chronological and cosmic time: the time of the stars is inexorable; the time of human beings, albeit only conventional, is, like that of the stars, implacable. In this way, time comes as a key element not only to secure the evolution of law, but also to ascribe to this latter foreseeability and juridical security. The study of International Law, bearing in mind the ineluctable relation between time and law, discloses the shortcomings of the positivist-voluntarist conception of International Law, which proved incapable of explaining the historical formation and evolution of customary rules of general International Law. That conception nourished the pretension of trying – in vain – to establish the independence of law in relation to time; it privileged the method of observation in its undue minimization of the principles of International Law; and it naïvely

8 9 10

1986 du Conseil canadien de droit international), Ottawa, 1986, pp. 78-81, and cf. pp. 63-81. J.L. Brierly, The Law of Nations, 6th ed., Oxford, Clarendon Press, 1963, pp. 77-78. ICJ, Temple of Preah Vihear case (Cambodia versus Thailand), ICJ Reports (1962), Pleadings, Oral Arguments, Documents, vol. II, pp. 203 and 205. Not only to establish the aquiescence of the State and its legal effects, as P. Reuter intended in that case.

33

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assumed that legal science could prescind from developments in other domains of human knowledge. It is not surprising to find that it proved unable to withstand the onslaught of time. III. The Incidence of the Temporal Dimension in International Law In fact, the element of foreseeability is inherent to legal science itself,11 and especially to law-making activity. An emphatic illustration is provided by the recognized incidence of the temporal factor in the domains of both international environmental law and of international human rights law, wherein consideration has been given to “potential” victims, and attention has been turned to the possibility of harm which may appear in the future.12 In fact, the protection of potential or prospective victims (comprising complainants with a valid potential personal interest), as I pointed out in my Hague Academy lectures in 1987,13 has nowadays become a reality (in response to a human necessity), rather than a purely theoretical-academic speculation. In fact, it has been in the ambit of the International Law of Human Rights, that in recent years the temporal dimension seems to be considered in greater depth.14 Manifestations of the temporal dimension in International Law, so neglected in the past, multiply in distinct contexts of this branch of law. If in the past the principles and rules of the law on the international responsibility of States evolved in an essentially inter-spatial dimension, revealing accentuated territorial ingredients, they are nowadays reconsidered in a new temporal dimension. 11

12

13

14

The establishment of the extinction of legal situations, e.g., may require to distinguish those which are formed in a given moment (as a result of one sole fact) from those which presuppose a certain lapse of time of the continued presence of successive elements. Cf. the substantial plaidoiries before the International Court of Justice in the Nuclear Tests case (Australia and New Zealand versus France), ICJ Reports (1974), Pleadings, Oral Arguments, Documents, vol. I, pp. 11-12, 46, 89, 100-101, 118-119, 122-131, 139-141, 181-182, 331, 337, 341-343, 409-411, 478-479, 481, 504, 520-521, 521; ibid., vol. II, pp. 49, 52, 264-267, 299 and 430. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels)”, 202 Recueil des Cours de l’Académic de Droit International de La Haye [RCADI] (1987), chapter XI, pp. 243-299. The U.N. Compilation of International Instruments of human rights, for example, lists in fact not less than 13 international instruments turned to the prevention of discrimination of distinct types (cf. U.N. doc. ST/HR/1/Rev.3, of 1988, pp. 52-142). Prevention is of the essence of the three Conventions against Torture (the InterAmerican of 1985, Articles 1 and 6; the European of 1987, Article 1; that of the United Nations of 1984, Articles 2(1) and 16), as well as of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 (Article 8). And cf., to the same effect, U.N. Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, N.Y., U.N., 1991, pp. 1-71.

Time and Law Revisited: International Law and the Temporal Dimension

This latter is, in fact, underlying almost all the basic elements of the law of treaties; it permeates not only the process of elaboration of treaties but also the very terms or conditions established for their implementation (e.g., if by stages, gradually and progressively).15 Also in the domain of peaceful settlement of international disputes one has devised distinct methods of settlement of disputes which may occur in the future. In the field of regulation of spaces in International Law (e.g., law of the sea, law of outer space) the temporal dimension stands out likewise. One of the space law treaties refers not only to the concept of “common heritage of mankind” but also to the “interests of present and future generations”.16 In fact, in order to explain the concept of common heritage of mankind (e.g., in the law of the sea)17, one has resorted to the notions of “future interest” and “future beneficiaries”.18 The temporal dimension is of the very essence, e.g., of international environmental law (as heralded by the basic precautionary principle), and is also present in the chapter of peaceful settlement of international disputes,19 and in the law of international organizations.20 15

16

17 18

19

20

Cf. G.E. do Nascimento e Silva, “Le facteur temps et les traités”, 154 RCADI (1977) p. 221, and cf. pp. 221-295; T. Georgopoulos, “Le droit intertemporel et les dispositions conventionnelles évolutives - quelle thérapie contre la vieillesse des traités?”, 108 Revue générale de Droit international public (2004) p. 142, and cf. pp. 123-147; D. Greig, “The Time of Conclusion and the Time of Application of Treaties as Points of Reference in the Interpretative Process”, in Time, History and International Law (eds. M. Craven, M. Fitzmaurice and M. Vogiatzi), Leiden, Nijhoff, 2007, pp. 164-165 and 217, and cf. pp. 163-217. The 1979 Treaty Governing the Activities of States in the Moon and Other Celestial Bodies, Articles 11 and 4. Cf. also Article 1 of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. As inserted, e.g., in the 1982 U.N. Convention on the Law of the Sea, Article 136. Cf. A.-Ch. Kiss, “La notion de patrimoine commun de l’humanité”, 175 RCADI (1982) pp. 129-131, 224, 230-231 and 240-241, and cf. pp. 113, 123, 185 and 243; and cf. chapter XIII, infra. Cf., as to (compulsory) arbitration, e.g., J.H. Ralston, International Arbitration from Athens to Locarno, Stanford, Stanford University Press, 1929, p. 45, and cf. pp. 5051; Ph. Chapal, L’arbitrabilité des différends internationaux, Paris, Pédone, 1967, pp. 34-35. And cf., as to judicial settlement, e.g., S. Rosenne, The Time Factor in the Jurisdiction of the International Court of Justice, Leyden, Sijthoff, 1960, pp. 11-75; and cf. A.A. Cançado Trindade, “The Time Factor in the Application of the Rule of Exhaustion of Local Remedies in International Law”, 61 Rivista di Diritto Internazionale (1978) pp. 232-257; E. McWhinney, “The Time Dimension in International Law, Historical Relativism and Intertemporal Law”, in Essays in International Law in Honour of Judge M. Lachs (ed. J. Makarczyk), The Hague, Nijhoff, 1984, pp. 184199. Cf. e.g., G. Malinverni, Le règlement des différends dans les organisations internationales économiques, Leiden/Genève, Sijthoff/IUHEI, 1974, pp. 46-49, 77-78 and 8586, and cf. p. 80. - One may, furthermore, recall that the 1974 U.N. Charter of Eco-

35

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Chapter II

The incidence of the temporal dimension has become more visible and remarkable in contemporary International Law than in that of the past. It ensues to a large extent from the universalization of International Law; the ICJ has taken it into account, and has at times acknowledged and applied it in extenso, even without any express mention of it (as in, e.g., the Aegean Sea Continental Shelf case, Greece versus Turkey, 1978).21 In an international legal order in constant evolution, the solutions crystallized in a given epoch are always submitted to new value judgments; with the passage of time, the meaning itself of words evolves, the legal vocabulary expands and enriches. The accelerated development of contemporary International Law bears eloquent witness of the purpose of reshaping the international legal order in fulfilment of the changing needs and aspirations of the international community as a whole. IV. Time and International Law in Face of New Needs of Protection The central issue of the relation between time and law is, in fact, inherent to the very birth and exercise of individual rights. All the international case-law pertaining to human rights has developed, in a converging way, throughout the last decades, a dynamic or evolutive interpretation of the treaties of protection.22 This would not have been possible if contemporary legal science had not liberated itself from the constraints of legal positivism. This latter, in its hermetical outlook, revealed itself indifferent not only to other areas of human knowledge, but also to the existential time, of human beings. To legal positivism, imprisonned in its own formalism, time reduced itself to an external factor (the dead-lines, with their juridical consequences) in the framework of which one had to apply the law, positive law. The positivist-voluntarist trend, with its obsession with the autonomy of the “will” of the States, in seeking to crystallize the norms emanating therefrom in a given historical moment, came to the extreme of conceiving (positive) law independently of time: hence its manifest incapacity to accompany the constant changes of social structures (at domestic as well as international levels), for not having foreseen the new factual assumptions, remaining thereby unable to respond to them; hence its incapacity to explain the historical formation of cus-

21

22

nomic Rights and Duties of States, e.g., contains express references to the temporal dimension (Articles 29-30). T.O. Elias, “The Doctrine of Intertemporal Law”, 74 American Journal of International Law (1980) pp. 285 and 296, and cf. pp. 285-307; and cf. D. Greig, op. cit. supra n. (15), p. 174. Such evolutive interpretation does not conflict in any way with the generally accepted methods of interpretation of treaties; cf., on this point, e.g., A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 185-194.

Time and Law Revisited: International Law and the Temporal Dimension

tomary rules of International Law.23 The very emergence and consolidation of the corpus juris of the International Law of Human Rights are due to the reaction of the universal juridical conscience to the recurrent abuses committed against human beings, often warranted by positive law: with that, Law came to the encounter and rescue of the human person, the ultimate addressee of its norms of protection. In the framework of this new corpus juris, we cannot remain indifferent to the contribution of other areas of human knowledge, nor to the existential time, as juridical solutions cannot fail to take into account the time of human beings.24 Endeavours undertaken to this effect seem to recommend, in face of this fundamental element conditioning human existence, a posture entirely distinct from the indifference and self-sufficiency of legal positivism. Contemporary legal science came to admit, as it could not have been otherwise, that the contents and effectiveness of juridical norms accompany the evolution of time, not being independent of this latter. At the level of domestic law, one even spoke, already in the middle of the XXth century, of a true revolt of Law against the codes25 (positive law): “To the insurrection of the facts against the Code, to the lack of harmony beween positive law and economic and social needs, the revolt of Law against the [Civil] Code has succeeded (...). The concepts that one considers as hieratic formulas are a

23

24

25

A. Verdross, Derecho Internacional Público, 5th. ed. (transl. from the 4th. German ed. of Völkerrecht), Madrid, Aguilar, 1969 (1st. reprint), p. 58; M. Chemillier-Gendreau, “Le rôle du temps dans la formation du droit international”, in Droit international - III (ed. P. Weil), Paris, Pédone, 1987, pp. 25-28; E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Tecnos, 1980, pp. 15-16 and 37. And, for the criticism that the evolution of legal science itself, contrary to what legal positivism sustained, cannot be explained by means of an idea adopted in a “purely aprioristic” manner, cf. R. Ago, Scienza Giuridica e Diritto Internazionale, Milano, Giuff rè, 1950, pp. 29-30. Time has been examined not only in International Law (cf., e.g., [Various Authors,] Le Droit international et le temps (Colloque de Paris de 2000), Paris, SFDI/Pédone, 2001, pp. 9-279), but in different areas of knowledge (the sciences, philosophy, sociology and social sciences) in general, besides law; cf. F. Greenaway (ed.), Time and the Sciences, Paris, UNESCO, 1979, 1-173; S.W. Hawking, A Brief History of Time, London, Bantam Press, 1988, pp. 1-182; H. Aguessy et alii, Time and the Philosophies, Paris, UNESCO, 1977, pp. 13-256; P. Ricoeur et alii, Las Culturas y el Tiempo, Salamanca/Paris, Ed. Sígueme/UNESCO, 1979, pp. 11-281. Domestic law (the French Civil Code) could no longer keep on being applied mechanically, ignoring the dynamics of social transformations, and in particular the emergence and assertion of the rights of the human person; G. Morin, La Révolte du Droit contre le Code - La révision nécessaire des concepts juridiques, Paris, Libr. Rec. Sirey, 1945, pp. 109-115, and cf. p. 7, on the need of value judgments.

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Chapter II great obstacle to the freedom of the spirit and end up by becoming a sort of prisms through which one does not see more than a deformed reality”.26

At the level of International Law – in which the distinct aspects of intertemporal law came to be studied27 – likewise, the relationship between the contents and the effectiveness of its norms and the social transformations which took place in the new times became evident.28 A locus classicus in this respect lies in the wellknown obiter dictum of the International Court of Justice [ICJ], in its Advisory Opinion on Namibia of 1971, in which it affirmed that the system of mandates (territories under mandate)29 was “not static”, but “by definition evolutionary”. And it added that its interpretation of the matter could not fail to take into account the transformations occurred along the following fifty years, and the considerable evolution of the corpus juris gentium in time: “an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation”.30

In the same sense the case-law of the two international tribunals of human rights in operation to date has oriented itself, as human rights treaties are, in fact, living instruments, which accompany the evolution of times and of the social milieu in which the protected rights are exercised.31 The European Court of Human Rights 26 27

28

29 30 31

Ibid., pp. 2 and 6 (my translation from the original French). In fact, the impact of the dimension of the rights of the human person was felt in institutions of private law. To evoke the classic formulation of arbiter Max Huber in the Palmas Island case (United States versus The Netherlands, 1928), in: U.N., Reports of International Arbitral Awards, vol. 2, p. 845: “A juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time such a dispute in regard to it arises or falls to be settled”. For a study of the matter, cf.: Institut de Droit International, “[Résolution I:] Le problème intertemporel en Droit international public”, 56 AIDI (Session de Wiesbaden, 1975) pp. 536-541; M. Sorensen, “Le problème intertemporel dans l’application de la Convention Européenne des Droits de l’Homme”, in Mélanges offerts à P. Modinos, Paris, Pédone, 1968, pp. 304-319. For example, the whole historical process of decolonization, brought about by the emergence and consolidation of the right of self-determination of peoples, was decisively fostered by the evolution itself to this effect of contemporary international law. And in particular the concepts incorporated in Article 22 of the Covenant of the League of Nations. ICJ, Advisory Opinion on Namibia, ICJ Reports (1971) pp. 31-32, par. 53. Cf., e.g., the Judgments of the European Court in the cases of Marckx versus Belgium case (1979), Airey versus Ireland (1979) and Dudgeon versus United Kingdom (1981). Cf. comments in, e.g., F. Ost, “Les directives d’interprétation adoptées par la Cour Européenne des Droits de l’Homme - L’esprit plutôt que la lettre?”, in F. Ost and M. van de Kerchove, Entre la lettre et l’esprit - Les directives d’interprétation en Droit, Bruxelles, Bruylant, 1989, pp. 295-300.

Time and Law Revisited: International Law and the Temporal Dimension

[ECtHR] has reiterated that the European Convention on Human Rights “is a living instrument” to be “interpreted in the light of present-day conditions”.32 It has clarified that its evolutive interpretation is not limited to the substantive norms of the Convention, but is extended likewise to operative provisions.33 The same evolutive interpretation, of the American Convention on Human Rights, has been pursued by the Inter-American Court of Human Rights [IACtHR].34 Thus, in its pioneering Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999), it singled out the evolution in time of the concept itself of due process of law.35 In my Concurring Opinion therein, I saw it fit to ponder that – “It is in the context of the evolution of the Law in time, in function of new needs of protection of the human being, that, in my understanding, ought to be appreciated the insertion of the right to information on consular notification (under Article 36(1)(b) of the aforementioned 1963 Vienna Convention [on Consular Relations] into the conceptual universe of human rights. Such provision, despite having preceeded in time the general treaties of protection – as the two Covenants on Human Rights of the United Nations (of 1966) and the American Convention on Human Rights (of 1969), – nowadays can no longer be dissociated from the international norms on human rights concerning the guarantees of the due process of law. The evolution of the international norms of protection has been, in its turn, fostered by new and constant valuations which emerge and flourish from the basis of human society, and which are naturally reflected in the process of the evolutive interpretation of human rights treaties”.36

V.

The Presence of the Preventive Dimension in Domains of Protection

Rules of International Law crystallized in the past (pursuant to an essentially inter-spatial dimension) and propitiated a static outlook of the international legal order, nourished by the pretension or illusion of its perennial nature. The world felt safe in global terms. In our days, amidst an acute consciousness of vulnerability, one begins to rethink those rules bearing in mind the temporal dimension, the incidence – perhaps less tangible, but real – and influence of which on juridical solutions begins to be felt with increasing intensity, as a feature of our 32 33 34 35

36

Cf. ECtHR, Tyrer versus United Kingdom case, Judgment of 25.04.1978, Series A, n. 26, pp. 15-16, par. 31. Including the right of individual petition; cf. ECtHR, Case of Loizidou versus Turkey (Preliminary Objections), Strasbourg, C.E., Judgment of 23.03.1995, p. 23, par. 71. Cf. IACtHR, Advisory Opinion OC-10/89, Interpretation of the American Declaration of the Rights and Duties of Man, of 14.07.1989, Series A, n. 10, p. 45, par. 37. IACtHR, Advisory Opinion OC-16/99, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, of 01.10.1999, Series A, n. 16, pp. 257-258, par. 117. Ibid., Concurring Opinion of Judge A.A. Cançado Trindade, paragraph 15.

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times. There is, in this connection, a much greater awareness of the relevance of the preventive dimension in the role of law. International Law in a way endeavours to be anticipatory in the regulation of the social facts, so as to avoid disorder and chaos, as well as irreparable harm. In recent developments concerning, in particular, environmental protection and human rights protection, the preventive dimension becomes manifest. It appears essential in the whole field of environmental protection, as exemplified by the key role played by the precautionary principle in the process of formation and growth of its corpus juris.37 The predominantly preventive character of the normative corpus on environmental protection has been stressed time and time again.38 Moreover, the preventive dimension of international human rights protection is nowadays generally acknowledged, at distinct stages or levels, both normative,39 or conceptual,40 as well as operative.41 In fact, the incidence of the temporal dimension can be detected not only in the interpretation and application of norms pertaining to guaranteed rights but also in the conditions of their exercise (as in, e.g., public emergencies). Significantly, it can further be detected, in particular, in the prevention of irreparable harm. Herein lies one of the areas in which International Law has considerably evolved in recent years, the one concerning the application of interim or provisional measures of protection. 37

38

39 40

41

Be it in a general formulation, such as that of the 1992 Rio Declaration on Environment and Development (Principle 15), or else in a concrete invocation, such as that of the 1992 Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Article 2(5)(a)), to recall but a couple of illustrations. - For a general study of that principle, cf. A. Trouwborst, Evolution and Status of the Precautionary Principle in International Law, The Hague, Kluwer, 2002, pp. 1-286; and cf. [Various Authors,] Reinterpreting the Precautionary Principle (eds. T. O’Riordan, J. Cameron and A. Jordan), London, Cameron May, 2002 [reprint], pp. 9-272; A. Trouwborst, Precautionary Rights and Duties of States, Leiden, Nijhoff, 2006, pp. 3-298. In the recent cycle of U.N. World Conferences, the principle at issue was invoked; thus, the 1996 Istanbul Declaration on Human Settlements, adopted by the II U.N. Conference on Human Settlements, proposes a series of actions to be taken “in a manner consistent with the precautionary principle approach, which shall be widely applied according to the capabilities of countries”; U.N., Habitat Agenda and Istanbul Declaration (II U.N. Conference on Human Settlements, Istanbul, 03-14 June 1996), N.Y., U.N., 1996, p. 8. Cf. n. (14) supra, in addition to international instruments turned to the prevention of discrimination of distinct kinds. E.g., the elements for the very defi nition of “refugee” under the 1951 Convention and the 1967 Protocol on the Status of Refugees, namely, the well-founded fear of persecution, the threats or risks of persecutions. E.g., the U.N. practice of “early warning” as to prevention of refugee massive flows; cf., e.g., B.G. Ramcharan, “Early-Warning at the United Nations: The First Experiment”, 1 International Journal of Refugee Law (1989) pp. 379-386; and cf., in general, B.G. Ramcharan, The International Law and Practice of Early-Warning and Preventive Diplomacy: The Emerging Global Watch, Dordrecht, Nijhoff, 1991, pp. 1-174.

Time and Law Revisited: International Law and the Temporal Dimension

VI. The Expansion of Provisional Measures of Protection Such measures, which have lately been gaining increasing importance in the case-law of international tribunals, represent nowadays, in my view, a true international jurisdictional guarantee of a preventive character. Th is has been rendered possible by the historical transposition of provisional measures, from the domestic legal systems to the international legal order, as well as their transposition from this latter – in the framework of Public International Law – to the International Law of Human Rights.42 At the level of the domestic legal order, the precautionary legal action (acción cautelar) evolved in order to safeguard not directly the subjective right per se, but rather the effectiveness of the jurisdictional activity itself.43 However, this whole doctrinal construction did not achieve to free itself from a certain juridical formalism, leaving at times the impression of taking the process as an end in itself, rather than as a means for the realization of justice. Precautionary measures reached the international level (in the international arbitral and judicial practice),44 in spite of the different structure of this latter, when compared with the domestic law level. Their transposition from the domestic to the international legal order had the effect of expanding the domain of international jurisdiction.45 This innovative transposition faced difficulties,46 but, throughout the years, the erosion of the concept of “reserved domain” of the State (or “exclusive national competence”) became evident, – an evolution to which the international judicial practice itself contributed.47 Article 41 of the Statute of the ICJ – and of its predecessor, the Permanent Court of International Justice [PCIJ] – in fact set forth the power of the Hague 42

43

44 45

46

47

In fact, the precautionary measures, of internal procedural law, inspired the provisional measures which developed subsequently in the ambit of international procedural law. It was above all the Italian procedural law doctrine of the first half of the XXth century (especially the well-known works by G. Chiovenda, Istituzioni di Diritto Processuale Civile, Naples, 1936; P. Calamandrei, Introduzione allo Studio Sistematico dei Provvedimenti Cautelare, Padova, 1936; and F. Carnelutti, Diritto e Processo, Naples, 1958), which gave a decisive contribution to affirm the autonomy of the precautionary legal action (acción cautelar), as a tertium genus, parallel to the legal actions as to the merits and of execution. P. Gugggenheim, “Les mesures conservatoires dans la procédure arbitrale et judiciaire”, 40 RCADI (1932) pp. 649-761. P. Guggenheim, Les mesures provisoires de procédure internationale et leur influence sur le développement du droit des gens, Paris, Libr. Rec. Sirey, 1931, pp. 174, 186, 188 and 14-15, and cf. pp. 6-7 and 61-62; and cf. P. Guggenheim, “Les mesures conservatoires...”, op. cit. supra n. (44), pp. 758-759. As illustrated, e.g., by the Iranian reaction to provisional measures indicated by the ICJ in the case of the Anglo-Iranian Oil Company (United Kingdom versus Iran), on 05.07.1951. Cf. chapter VII, infra.

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Court to “indicate” provisional measures. The verb utilized generated a wide doctrinal debate as to its binding character, which did not hinder the development of a vast case-law (of the PCIJ and the ICJ) on the matter.48 Yet, for not having the ICJ, for more than five decades, given precision to the legal effects of the indication of its own provisional measures, such indefinition generated uncertainties in theory and practice on the matter, leading to non-compliance, by the respondent States, with provisional measures it indicated in recent years.49 It was necessary to wait for more than half a century, until in the judgment of 27.06.2001 the ICJ came at last to the conclusion that its provisional measures were binding!50 However, in spite of the uncertainties which have surrounded the matter, international case-law sought to clarify the juridical nature of provisional measures, of an essentially preventive character, indicated or granted without prejudice to the final decision as to the merits of the respective cases. Such measures came to be indicated or ordered by contemporary international, as well as national, tribunals,51 seeking to secure that the parties abstain themselves, pendente lite, from any action which might increase or aggravate the controversy and have a prejudicial effect in the execution of the future judgement as to the merits. The aforementioned transposition of such measures from the domestic to the international order – specifically, to inter-State litigation, – does not seem 48

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Cf. J. Sztucki, Interim Measures in the Hague Court – An Attempt at a Scrutiny, Deventer, Kluwer, 1983, pp. 35-60 and 270-280; J.B. Elkind, Interim Protection – A Functional Approach, The Hague, Nijhoff, 1981, pp. 88-152. E.g., the provisional measures indicated (on 08.04.1993) in the case of the Application of the Convention against Genocide (Bosnia-Herzegovina versus Yugoslavia [Serbia and Montenegro]) were not complied with by the respondent State and did not improve the situation in the region; K. Oellers-Frahm, “Anmerkungen zur einstweiligen Anordnung des Internationalen Gerichtshofs im Fall Bosnien-Herzegowina gegen Jugoslawien (Serbien und Montenegro) vom 8 April 1993”, 53 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1993) pp. 638-656. Moreover, the provisional measures indicated by the ICJ in the cases Breard (Paraguay versus United States, on 09.04.1998) and LaGrand (Germany versus United States, on 03.03.1999) were not complied with by the respondent State either, affecting the reputation of this latter as well as the authority of the ICJ; Ch. Tomuschat, “International Law: Ensuring the Survival of Mankind on the Eve of a New Century”, 281 RCADI (1999) pp. 415-416. Cf. ICJ, LaGrand case, Press Release 2001/16-bis, of 27.06.2001, pp. 1, 4-6 and 9-10. Their generalized use at both national and international levels has led a contemporary doctrinal trend to consider such measures as giving expression to a true general principle of Law, common to virtually all national legal systems, and endorsed by the practice of national, arbitral, and international tribunals; cf. L. Collins, “Provisional and Protective Measures in International Litigation”, 234 RCADI (1992) pp. 23-24, 191, 214-215, 217, 232 and 234. And cf. also R. Bernhardt (ed.), Interim Measures Indicated by International Courts, Berlin/Heidelberg, Springer-Verlag, 1994, pp. 1-152; E. García de Enterria, La Batalla por las Medidas Cautelares, 2nd. [enlarged] ed., Madrid, Civitas, 1995, pp. 25-385.

Time and Law Revisited: International Law and the Temporal Dimension

to have generated, in this particular, a fundamental change in the object of such measures (maintenance of the equilibrium between the parties, as far as possible). This change only came to occur with the more recent transposition of the provisional measures from the international legal order – the traditional contentieux between States – to the International Law of Human Rights. It is in the ambit of this latter that the provisional measures at last free themselves from the juridical formalism of the legal science of the past, disclosing that Law does not operate in the vacuum. In the International Law of Human Rights, provisional measures go much further in the matter of protection, revealing an unprecedented scope, and determining – by reason of their compulsory character – the effectiveness of the right of individual petition itself at international level:52 in fact, in the present domain, such measures, besides their essentially preventive character, effectively protect fundamental rights, in so far as they seek to avoid irreparable harm to the human person as subject of the International Law of Human Rights. In the ambit of this latter, which is essentially a law of protection of the human being, provisional measures reach effectively their plenitude, being endowed with a character, more than precautionary, truly tutelary.53 In the inter-State contentieux, the power of a tribunal like the ICJ to indicate provisional measures of protection in a case pending of decision aims at preserving the equilibrium between the respective rights of the contending parties,54 avoiding an irreparable damage to the rights in litigation in a judicial process,55

52

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R.St.J. MacDonald, “Interim Measures in International Law, with Special Reference to the European System for the Protection of Human Rights”, 52 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1993) pp. 703-740. A.A. Cançado Trindade, “Les Mesures provisoires de protection dans la jurisprudence de la Cour Interaméricaine des Droits de l’Homme”, 4 Revista do Instituto Brasileiro de Direitos Humanos (2003) pp. 13-25. Disclosing the importance traditionally attributed to the role of reciprocity in International Law in general, so as not to incur into “contempt of court”; cf. E. Hambro, “The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice”, in Rechtsfragen der Internationalen Organisation Festschrift für Hans Wehberg (eds. W. Schätzel y H.-J. Schlochauer), Frankfurt a/M, 1956, pp. 152-171. This has been pointed out by the ICJ, for example, in the case of Fisheries Jurisdiction (United Kingdom versus Iceland, ICJ Reports [1972] p. 16, par. 21, and p. 34, par. 22), in the case of the Hostages (United States Diplomatic and Consular Staff ) in Teheran (United States versus Iran, ICJ Reports [1979] p. 19, par. 36), and, more recently, in the case of Nicaragua versus United States (ICJ Reports (1984) pp. 179 and 182, pars. 24 and 32), and in the case of the Application of the Convention against Genocide (Bosnia and Herzegovina versus Yugoslavia [Serbia and Montenegro], ICJ Reports [1993] p. 19, par. 34, and p. 342, par. 35). And cf., e.g., the cases of the Frontier Dispute (Burkina Faso versus Republic of Mali, 1986); of the Aegean Sea Continental Shelf (Greece versus Turkey, 1976); of the Nuclear Tests (New Zealand and Australia

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and bearing in mind the urgency of the situation at issue.56 Distinctly, in the international contentieux of human rights, the power of a tribunal such as the IACtHR to order provisional measures of protection, as already pointed out, has as its central object to safeguard the human rights, in cases of extreme gravity and urgency and to avoid irreparable harm to persons. Those measures thus become a true jurisdictional guarantee of a preventive character, effectively protecting not only fundamental rights,57 but also other human rights.58 Over the last five years, provisional measures ordered by the IACtHR have significantly extended protection to members of whole communities. Thus, in the case of the Community of Peace of San José of Apartadó, e.g., the full Court ratified the urgent measures ordered (in the resolution of 09.10.2000) by its President in favour of the members of a “Community of Peace” in Colombia; the Court extended protection (by means of the resolution of 24.11.2000) to all the members of the Community (not named but identifiable), and requested the State, inter alia, to secure the necessary conditions for the persons of the aforementioned Community “who had been forced to displace themselves to other zones of the country, to return to their homes”.59 The IACtHR has kept on enlarging

56

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versus France, 1973); of the Trial of Pakistani Prisoners of War (Pakistan versus India, 1973); among others. Examples are provided by provisional measures indicated by the ICJ also in cases concerning armed conflicts, such as those of the Frontier Dispute (Burkina Faso versus Mali, Order of 10.01.1986), the Application of the Convention against Genocide (Bosnia-Herzegovina versus Yugoslavia, Order of 08.04.1993), the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon versus Nigeria, Order of 15.03.1996), the Armed Activities on the Territory of the Congo (Congo versus Uganda, Order of 01.07.2000), the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia versus Russia, Order of 15.10.2008). Essentially the right to life and the right to personal – physical, mental and moral – integrity. Whenever are met the pre-conditions of the extreme gravity and urgency, and of the prevention of irreparable damages to persons, set forth in Article 63(2) of the American Convention. -This was precisely what has occurred in the last years. The resolutions adopted in the cases of the Haitians and Dominicans of Haitian Origin in the Dominican Republic and of the Community of Peace of San José of Apartadó, e.g., have brought about a new development on the matter of major significance. In the fi rst of those two cases, the Court adopted provisional measures of protection (by means of its resolution of 18.08.2000), whereby it extended for the fi rst time protection to new rights (such as the right of trans-frontier freedom of movement, in addition to the fundamental rights to life and personal integrity) under the American Convention; this provisional measure may be seen as representing the embryo of an international habeas corpus. Resolutory point n. 6.

Time and Law Revisited: International Law and the Temporal Dimension

considerably the circles of protected persons, in cases pertaining to whole communities.60 The successive provisional measures of protection ordered by the IACtHR in the cases of the Haitians and Dominicans of Haitian Origin in the Dominican Republic (2000-2001)61 and of the Community of Peace of San José of Apartadó (2003-2005)62 are endowed with particular importance, as in both cases they considerably enlarged the groups of protected persons.63 And only in the case of the Indigenous People Kankuamo versus Colombia (2004), the beneficiaries of the measures of protection are about 6000 people.64 Thus, by the end of 2005, more than 11000 persons (including members of entire communities), residing in countries of Latin American and the Caribbean, were under protection of the provisional measures ordered by the IACtHR. These data suffice to disclose the extraordinary potential of protection, from an essentially preventive approach, of such measures, and the notable dimension and the transcendence which they have acquired in the last decade in the case-law of the IACtHR. The ECtHR, on its part had the occasion to order65 a provisional measure of protection (on 30.11.1999), in the case Ocalan versus Turkey (stay of execution 60

61 62 63

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Such as, e.g., those of the Communities of the Jiguamiandó and of the Curbaradó versus Colombia (Resolutions of 06.03.2003 and 17.11.2004), of the Kankuamo Indigenous People concerning Colombia (Resolution of 05.07.2004), of the Sarayaku Indigenous People concerning Equador (Resolution of 06.07.2004), among others. Court’s resolutions of 07.08.2000, 18.08.2000, 12.11.2000 and 26.05.2001; and President’s resolutions of 16.06.2000 and 14.09.2000. Court’s resolutions of 24.11.2000, 18.06.2002, 17.11.2004 and 15.03.2005; and President’s resolutions of 09.10.2000 and 26.04.2002. Only in the aforementioned case of the Community of San José of Apartadó versus Colombia, the beneficiaries of the measures of protection are more than 1200 persons. The total of about 1500 protected persons attained until mid-2001 (supra) has raised, in the following two years, up to about 4500 protected persons (until mid-2003). Only in the case of the Communities of Jiguamiandó and Curbaradó (2003-2005), of special interest for the study of the obligations erga omnes of protection, the provisional measures ordered by the Court protect currently a total of 2125 persons; Court’s resolutions 06.03.2003, 17.11.2004 and 15.03.2005. Inter-American Court’s resolution of 05.07.2004. And in the case of the Indigenous People Sarayaku versus Ecuador, the beneficiaries of the measures total about 1200 persons; among several other cases. On the basis of the provision of Article 36 its Rules of Procedure, rather than a conventional norm. It is somewhat surprising that the draftsmen of Protocol n. 11 to the European Convention on Human Rights (in force as from 01.11.1998) have lost a unique opportunity to erect the provision of Article 36 of the Rules of Procedure A of the Court (which corresponded to Article 38 of its Rules of Procedure B, prior to Protocol n. 11 to the European Convention), into a provision of the European Convention itself (amended by such Protocol). Th is could definitively have put an end to the uncertainties on the matter, raised as from the decision of the European Court in the case Cruz Varas and Others versus Sweden (of 20.03.1991); cf. A. Spielmann and D. Spielmann, “La Cour unique et permanente et les mesures provisoires (La

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of death penalty), and the measure has so far been complied with by the respondent State. In any case, in the European system of protection of human rights, in its turn, the provisional measures of protection have taken place, in their great majority, in cases of probability or risk of extradition or expulsion (allowing the petitioner to stay in the country where he is, until the European Court decides the merits of the cases), in circumstances which could, if consummated the extradition or expulsion, subject the individual, in the receiving country, to torture or to inhuman or degrading punishment or treatment.66 Provisional measures of protection have also acquired particular importance in the recent case-law of the International Tribunal for the Law of the Sea [ITLS]. As it occurs with the IACtHR, the prerrogative of the ITLS to “prescribe” provisional measures of protection also has a conventional basis, their binding character being thus, likewise, undisputed. The ITLS has issued successive orders of provisional measures.67 Its case-law on the matter has been regarded as “innovatory”;68 the preventive dimension of the measures ordered is quite clear, as stressed by the Tribunal’s order in the Southern Bluefin Tuna cases (1999), wherein it stated that the provisional measures at issue were to be taken so as “to preserve the rights of the parties and to avert further deterioration of the

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nécessité d’une réforme)”, in Protection des droits de l’homme: la perspective européenne - Mélanges à la mémoire de Rolv Ryssdal (eds. P. Mahoney, F. Matscher, H. Petzold and L. Wildhaber), Köln/Berlin, C. Heymanns Verlag, 2000, pp. 1347-1358. And cf. also, in this respect, A. Drzemczewski, “A Major Overhaul of the European Human Rights Convention Control Mechanism: Protocol n. 11”, 6 Collected Courses of the Academy of European Law (1995) pp. 190 and 170; and cf. M. Scalabrino, Il Controllo sull’Applicazione della CEDU alla Vigilia dell’Entrata in Vigore dell’XI Protocollo, Urbino/Italia, Università degli di Urbino, 1998, pp. 68-70. In the terms of Article 3 of the European Convention of Human Rights. Cf. C.A. Norgaard and H. Krüger, “Interim and Conservatory Measures under the European System of Protection of Human Rights”, Progress in the Spirit of Human Rights Festschrift für Felix Ermacora (eds. M. Nowak, D. Steurer and H. Tretter), Kehl am Rhein, N.P. Engel, 1988, pp. 109-117; P. van Dijk and G.J.H. van Hoof et alii, Theory and Practice of the European Convention on Human Rights, 3rd. ed., The Hague, SIM/Kluwer, 1998, pp. 103-107 and 215; G. Cohen-Jonathan, La Convention européenne des droits de l’homme, Paris/Aix-en-Provence, Economica/Presses Universitaires d’Aix-Marseille, 1989, pp. 36-37 and 307. E.g., in the M/V Saiga case (Saint Vincent and the Grenadines versus Guinea, 1998, - under Article 290(1) of the 1982 U.N. Convention on the Law of the Sea), as well as in the Southern Bluefin Tuna cases (New Zealand and Australia versus Japan, 1999), in the MOX Plant case (Ireland versus United Kingdom, 2001, - in these latter, under Article 290(5) of the Law of the Sea Convention; for an account, cf. C. Rao, “ITLOS: The First Six Years”, 6 Max Planck Yearbook of United Nations Law (2002) pp. 236270.), and, more recently, in the case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia versus Singapore, 2003). B. Kwiatkowska, “The Saint Vincent and the Grenadines v. Guinea M/V Saiga Cases”, 11 Leiden Journal of International Law (1998) p. 562.

Time and Law Revisited: International Law and the Temporal Dimension

southern bluefin tuna stock”.69 In sum, provisional measures of protection have enabled international tribunals to secure gradually, besides the protection of a preventive character (supra), a continuous monitoring of the compliance, on the part of the States at issue, with the aforementioned measures ordered by them, thus fostering the strengthening of this procedural remedy of crucial importance to the protection of the fundamental rights of the human person.70 VII. The Myopia of Political “Realism” Despite the current and remarkable developments aforementioned disclosing a greater awareness of the incidence of the temporal dimension of International Law, both legal positivism and political “realism”, which appear to remain en vogue in several legal circles in our days, seem oblivious of that temporal dimension in their static outlook of International Law and relations. They concentrate on what they perceive as the “reality” of the moment, ascribing an element of permanency to what is historically a point in the evolution of International Law and relations. They envisage the State as a perennial actor and relations of power as ineluctable, oblivious of the historical facts which gave birth to the State. They insist on focusing current needs and aspirations of humankind from the strictly inter-State perspective of International Law. In so doing, they bow to what they regard as the primacy of relations of dominance over law, and the primacy of the established order over the imperatives of justice. Legal positivism and political “realism” have, thus, not surprisingly, been invariably subservient to power. The former Nobel prize in literature (1946), Hermann Hesse, once recalled a scene, in the spring of 1919, when, in a small international meeting of intellectual “idealists” in Berne, the proposition was formulated that “in the future no one could compel any man to kill other men, ‘not even at the service of the country [patria]’. Until here we have arrived”, – pondered Hesse; “the law formulated by Moses in the Sinai [-”Thou shall not kill”] comes to be raised again, many thousands of years later, by a small society of persons with good intentions, with limitations and a cautiously timid drafting”.71 No positivist could anticipate, in the mid-forties, the emergence and consolidation of the International Law of Human Rights. No realist could foresee, in the mid-fi fties, the advent of the phenomenon 69

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Paragraph 80. The urgency of the situation was properly acknowledged, and the time factor has played a key role in the development of this specific case-law; cf. Ph. Gautier, “Interim Measures of Protection before the International Tribunal for the Law of the Sea”, in Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (eds. M.H. Nordquist and J.N. Moore), The Hague, Nijhoff, 2001, pp. 243-253. A.A. Cançado Trindade, “The Evolution of Provisional Measures of Protection under the Case-Law of the Inter-American Court of Human Rights (1987-2002)”, 24 Human Rights Law Journal - Strasbourg/Kehl (2003) pp. 162-168. H. Hesse, Sobre la Guerra y la Paz (transl. of Krieg und Frieden), 5th ed., Barcelona, Ed. Noguer, 1986, p. 119.

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of decolonization. The emancipation of the human person vis-à-vis his own State and the emancipation of peoples in International Law took place much to the amazement of legal positivists and political “realists”. No realist could forecast the fall of the Berlin wall, in the late eighties. Neither legal positivists, nor political “realists”, can understand – and have difficulties to accept – the profound transformations of contemporary International Law in pursuance of the imperatives of justice. Legal positivists and political “realists” pretended that the reality they worked upon was permanent and inevitable, but what has actually happened is that, perplexed by change, they have had to move from one historical moment to another, an entirely different one. Trying to readjust themselves to the new empirical “reality”, they again attempt to apply to it the static scheme they are used to. Resistant to change, they overlook the deep changes which led to the new “reality” they have started working upon, and again project their illusion of “inevitability” into the future and sometimes – out of despair – also into the past. Their basic blunder is their minimization of the principles, which lie in the foundations of every legal system, national and international, and which inform and conform the norms72 and the action pursuant to them, in the search of realization of justice. Whenever such minimization prevailed the results have been disastrous. They have not resisted disclosing at times their pride for what they regard as their sense of “pragmatism”. But apart from pragmatism as a philosophical posture (in realizing that the truth we can attain is not always infallible), when put into practice, without guiding principles and proper orientation, pragmatism has a “more sinister side”.73 It can easily lead, and has often led, to exaggerations, to fabrication of “public opinion”, to persecution of people for their personal opinions (other than the prevailing one), to acts of abhorrent violence in different parts of the world. The damages of unprincipled pragmatism prolong indefinitely in time, and its praxis is deprived of the temporal dimension: pragmatism is practiced in the heat of the moment. In a small and precious booklet published in 1940 (enshrining an outburst against the horrours of the ongoing II world war, which threatened to turn into ashes the values of civilization), a distinguished European thinker launched one of the most vehement critiques of the posture of so-called political “realists”. To Jacques Maritain, the international legal order could not emerge from the devastation of the war without a deep moral renovation, which, in turn, required the flourishing and presence in the “collective conscience” of a sense of “human community”; this latter seemed to have been forgotten by the “damnée malfaisance des politiques soi-disant réalistes séparées des lois inflexibles de la justice”.74 He 72 73 74

Cf. chapter III, infra. As warned by Bertrand Russell, Sceptical Essays, London, Routledge, 1993 [reprint], p. 49. J. Maritain, De la justice politique - Notes sur la présente guerre, Paris, Libr. Plon, 1940, pp. 36-37, 40-41 and 44-45.

Time and Law Revisited: International Law and the Temporal Dimension

added that all those who were proud of their own “realism”, failed to understand such a “clear lesson”, namely, that human relations become less and less capable of providing welfare to the extent that they become more and more divorced from justice. By entirely ignoring ethics and justice, political “realism” presented as its results the “permanent war”, the “forced transfers of populations”, the “concentration camps” and other atrocities, the “ruin and slavery of peoples”. And the French humanist pondered lucidly: “L’illusion fondamentale du machiavélisme et du pseudo-réalisme politique provient du décalage chronologique entre la durée que les actes politiques demandent pour porter leur fruit historique, et qui s’étend normalement sur plusieurs générations, et la durée dont dispose notre observation, et qui ne dépasse pas la vie d’un homme (...). On peut toutefois se demander si à un époque où toutes choses s’accélèrent prodigieusement, la durée demandée par cette fructification ne devient pas plus courte, en même temps que la culture de l’injustice devient elle-même plus intensive”.75

And he concluded that, in face of the “deep spiritual crisis” that the world was undergoing, for the existence of harmonious and fruitful relations among peoples to persist in a durable way, it was necessary that “les peuples reconnaîssent et observent les principes de droit naturel international” governing and developing those relations; only natural law could provide a solid foundation for that.76 Thirteen years later, the sharp criticism of “realism” was retaken by Hersch Lauterpacht; in a paper delivered in 1953, he detected as features of “realist” thinking, from the writings of Machiavelli and Hobbes to their modern successors, the “facile and complacent thinking” and the political “opportunism or worse” in stressing only conflicts of interests and advantages among States, and the tendency to see only “the obvious and the conspicuous”, only what hits one’s eyes, devoid of any historical perspective and insights. Furthermore, “realists” are regrettably contemptuous of long-range fundamental principles guiding human action, and accept and take for granted “the immorality of the conduct of States” as a “permanent factor inherent in their existence as collective units”.77 In their shortsightedness, – he added, – they have plunged into “moral relativism”, failing to condemn aggression and ignoring “binding rules of conduct”. They are pessimistic about the capacity of human beings to learn from historical experience and their capacity to improve.78 He concluded that “realists”, being “super75 76 77

78

Ibid., pp. 106-107, and cf. pp. 88 and 90-91. Ibid., pp. 112-114. H. Lauterpacht, “On Realism, Especially in International Relations”, in International Law Being the Collected Papers of Hersch Lauterpacht, vol. 2, part I, Cambridge, University Press, 1975, pp. 53 and 57-62. The opportunism of political “realists” explain, e.g., why they have viewed “with disapproval” the idea of collective security; ibid., p. 63. By their attitude, “realists” fail even to realise that “national power and interest conceived as the exclusive aim, ‘realistically pursued’, must lead, if they become a gen-

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ficially attractive” in their invariable attitude, have copied one from the other throughout time, denying the value of principles and of reason, and in their lack of faith in the capacity of human beings “to act intelligently and to learn from experience”.79 Further sweeping criticisms of “realism” were undertaken by Isaiah Berlin, invoking objective universal values,80 and R. Falk, for its being unduly State-centred and oriented towards conflict.81 Not surprisingly, political “realists” remain numerous, despite those lucid criticisms. After all, to be a realist, or a legal positivist, does not require much learning. “Realists” are too easy to follow, and they regrettably keep on being followed nowadays, in a world engulfed into violence ensuing from intolerance and persistent and aggravating injustice within and among nations. In fact, at this beginning of the XXIst century, the world is again plunged into another deep spiritual crisis, which appears ultimately as a crisis of values. The world we live in stands in great need nowadays of an international legal order capable of regulating effectively the relations between all its subjects, and of fulfilling the needs and aspirations of the international community as a whole, among which the realization of justice. VIII. Concluding Observations In sum and conclusion, the temporal dimension is inherent to legal science and underlies the whole domain of Law. International Law makes no exception to that, being interpreted and applied in time. This does not necessarily imply some sort of historical “relativism”; it is in the nature of Law to accompany the evolution of the regulatory function in society, giving expression to certain values. One cannot rewrite International Law – as great powers at times seem to assume – by one’s own “will”. International Law emerges ultimately from human conscience, it has a protective function, and, in the exercise of such a function, it discloses a preventive dimension.82 Contrary to what some “realists” argue today, what is preventive and anticipatory is Law, and not the use of force. The needs and aspirations of humankind can be fulfi lled by Law, rather than discretionary use of force, in the pursuit of the realization of justice. The temporal dimension has marked its presence throughout the whole cycle of the recent World Conferences of the United Na-

79 80 81 82

eral pattern of behaviour, to war and anarchy with all their implications destructive of most things that matter”; ibid., pp. 58, 62 and 64. Cf. ibid., pp. 61, 63 and 65. I. Berlin, The Crooked Timber of Humanity, Princeton, University Press, 1997 [reprint], pp. 11, 200 and 204. R. Falk, La Globalización Depredadora - Una Crítica, Madrid, Ed. Siglo Veintiuno, 2002, pp. 84-86, and cf. pp. 54 and 63. As illustrated nowadays, e.g., by the impressive expansion of provisional measures of protection.

Time and Law Revisited: International Law and the Temporal Dimension

tions;83 attention was constantly drawn, e.g., to common responsibilities towards present and future generations.84 Awareness of this temporal dimension in International Law guards us against the hermetism of legal positivism and the shortsightedness of so-called “realists”. Nowadays, more than ever, attention needs to be drawn to the fundamental principles of International Law, crystallized in time, and to its foundations, given the current attempts at its deconstruction by the irresponsible heralds of the use of force. The international legal order needs to move forward as a truly new jus gentium of our times, an International Law for humankind, and not backwards in time, to an outdated paradigm of relations based on dominance and unwarranted use of force. Rather than a return to the classic natural law, it is a matter of affirmation or restoration of a standard of justice, heralded by the general principles of law, whereby positive law is evaluated. The experiences of our times, with their “repellent cruelties and injustice under cover of positive law”, have come to confirm that certain fundamental principles ought to be “objectively valid” for “every human community at any time”. International Law is to move forward towards “greater justice” and a “higher level of humanity”.85 And, throughout time, humanitas has been associated with values of ancient cultures, and, ultimately, with the very “spiritual and moral formation” of human beings.86 Contemporary International Law is expected to reflect the fundamental values shared by the international community and to respond to the needs and aspirations of humankind as a whole.

83 84

85 86

Cf. chapter XXVI, infra. To recall but one eloquent example of the awareness of that dimension, the 2001 Durban Declaration and Programme of Action, adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, e.g., stressed the projection of injustices and human suffering in time (however prolonged that projection might be or have been) and the need for legal responses to honour the memory and restore the dignity of the victims, to redress the wrongs, and to prevent recurrence (pars. 98-101, 106 and 158). The Durban final document made a point of leaving on the records, inter alia, the consciousness of the fact that “the history of humanity is replete with major atrocities as a result of gross violations of human rights and (...) lessons can be learned through remembering history to avert future tragedies” (par. 57). F. Castberg, “Natural Law and Human Rights”, 1 Revue des droits de l’homme / Human Rights Journal (1968) p. 37, and cf. pp. 21-22. G. Radbruch, Introducción a la Filosofía del Derecho, 3rd. ed., Mexico/Buenos Aires, Fondo de Cultura Económica, 1965, pp. 153-154.

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Part II Foundations of International Law

Chapter III

I.

Foundations of International Law: The Role and Importance of Its Basic Principles

Introduction

One cannot study International Law making abstraction of its foundations, otherwise it would be reduced to an instrumental of the establishment of international order. International Law goes much further than that, in the quest of humankind for the realization of justice at both national and international levels. Nor can one study the foundations of International Law making abstraction of its basic principles, which form the substratum of the legal order itself. It is indeed the principles of International Law which, permeating the corpus juris of the discipline, render it a truly normative system. Without those principles, the norms and rules of International Law would not have evolved, by their implementation, into a legal system.1 Those principles inspire the evolving jus gentium, in which basic considerations of humanity have an important role to play.2 Those principles are a manifestation of the international juridical conscience, they reflect the status conscientiae of the subjects of International Law.3 Although such principles (as those listed in Article 2 of the U.N. Charter) may be open, given their generality, to distinct interpretations,4 they retain their importance for the proper application of the norms and rules, and for guiding the evolution of the entire legal system,5 so that this latter may readjust to the chang1

2 3

4

5

P.G. Vallindas, “General Principles of Law and the Hierarchy of the Sources of International Law”, in Grundprobleme für internationalen Rechts – Festschrift für Jean Spiropoulos, Bonn, Schimmelbusch & Co., 1957, pp. 426 and 430-431. Cf. chapters XVI to XXIII, infra. A. Verdross, “Les principes généraux de Droit dans le système des sources du Droit international public”, in Recueil d’études de Droit international en hommage à Paul Guggenheim, Genève, IUHEI, 1968, p. 525. Cf., e.g., G. Tunkin, “‘General Principles of Law’ in International Law”, in Internationale Festschrift für A. Verdross (eds. R. Marcic et alii), München/Salzburg, W. Fink Verlag, 1971, pp. 525-532. M. Virally, “Le rôle des ‘principes’ dans le développement du Droit international”, in Recueil d’études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968, pp. 543, 546-547 and 553-554.

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ing circumstances of international life, respond to the changing needs of the international community, and contribute to fulfi l the aspirations of humankind. II.

The Position and Role of the General Principles of Law

Every legal system has fundamental principles, which inspire, inform and conform their norms. It is the principles (derived ethmologically from the Latin principium) that, evoking the first causes, sources or origins of the norms and rules, confer cohesion, coherence and legitimacy upon the legal norms and the legal system as a whole. It is the general principles of law (prima principia) which confer to the legal order (both national and international) its ineluctable axiological dimension; it is they that reveal the values which inspire the whole legal order and which, ultimately, provide its foundations themselves.6 This is how I conceive the presence and the position of the principles in any legal order, and their role in the conceptual universe of Law. The general principles of law entered into the legal culture, with historical roots which go back, e.g., to Roman law, and came to be linked to the very conception of the democratic State under the rule of law, mainly as from the influence of the enlightenment thinking (pensée illuministe). Despite the apparent indifference with which they were treated by legal positivism (always seeking to demonstrate a “recognition” of such principles in positive legal order), and despite the lesser attention dispensed to them by the reductionist legal doctrine of our days, yet one will never be able to prescind from them. From the prima principia the norms and rules emanate, which in them find their meaning. The principles are thus present in the origins of Law itself, and disclose the legitimate ends to seek: the common good (of all human beings, and not of an abstract collectivity), the realization of justice (at both national and international levels), the necessary primacy of law over force, the preservation of peace. Contrary to those who attempt – in my view in vain – to minimize them, I understand that, if there are no principles, nor is there truly a legal system. The identification of the basic principles has accompanied pari passu the emergence and consolidation of all the domains of Law, and all its branches (constitutional, civil, civil procedural, criminal, criminal procedural, administrative, and so forth). This is so with Public International Law (cf. infra), with the International Law of Human Rights,7 with International Humanitarian Law,8 with 6

7 8

Cf., to this effect, Inter-American Court of Human Rights [IACtHR], Advisory Opinion n. 18, on The Juridical Condition and the Rights of the Undocumented Migrants, of 17.09.2003, Concurring Opinion of Judge A.A. Cançado Trindade, pars. 44-58. Principles of the dignity of the human person, of the universality and indivisibility of human rights, of the inalienability of human rights. Principles of humanity, of proportionality, of distinction (between combatants and the civil population), principle whereby the election of methods or means of combat is not unlimited.

Foundations of International Law: The Role and Importance of Its Basic Principles

International Refugee Law,9 with International Criminal Law.10 However circumscribed or specialized a legal regime may be, its basic principles can there be found, as, e.g., in International Environmental Law,11 in the Law of the Sea,12 in the Law of Outer Space,13 among others.14 The International Labour Organization [ILO] itself, e.g., has sought to identify the fundamental principles and rights in work, by means of a Declaration adopted in June 1998. Some of the basic principles are proper to certain areas of Law, others permeate all areas. The corpus of legal norms (national or international) operates moved by the principles, some of them ruling the relations themselves between human beings and the public power.15 The principles enlighten the path of legality as well as legitimacy. Hence the constant reaffirmation or restoration, pursuant to the evolving natural law thinking, of a standard of justice, heralded by the general principles of law, whereby positive law has come to be evaluated. In sustaining that opinio juris is above the “will” of the State, F. Castberg has correctly pondered that “the experiences of our own age, with its repellent cruelties and injustice under cover of positive law, have in fact confi rmed the conviction that something – even though it is only certain fundamental norms – must be objectively valid. This may consist of principles which appear to be valid for every human community at any time (...). The law can and should itself move forward in the direction of (...) a higher level of humanity”.16

9 10

11 12

13 14

15

16

Principles of non-refoulement, and of humanity. Principles of legality (nullum crimen sine lege, nulla poena sine lege), of individual penal responsibility, of presumption of innocence, of non-retroactivity, of a fair trial. E.g., principles of precaution or due dilligence, of prevention, of common but differentiated responsibility, of intergenerational equity, polluter-pay principle. E.g., principles of common heritage of mankind (ocean floors), of peaceful uses of the sea, of equality of rights (in the high seas), of peaceful settlement of disputes, of freedom of navigation and of inocent passage, of equidistance and of special circumstances (delimitation of maritime spaces). E.g., principles of non-appropriation, of peaceful uses and ends, of sharing of benefits in space exploration. E.g., in the legal regime applicable to foreigners, principles of the unity of the family, and of prohibition of extradition whenever this latter presents risks of violations of human rights. As the principles of natural justice, of the rule of law, of the rights of the defence, of the right to the natural judge, of the independence of justice, of the equality of all before the law, of the separation of powers, among others. F. Castberg, “Natural Law and Human Rights”, 1 Revue des droits de l’homme / Human Rights Journal (1968) p. 37, and cf. pp. 21-22.

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This perennial resurgence of the natural law outlook17 has been much contributing to the affi rmation and consolidation of the primacy, in the order of values, of the obligations pertaining to human rights, vis-à-vis the international community as a whole.18 General principles of law have contributed to the formation of normative systems of protection of the human person. A true legal system ought to operate on the basis of its fundamental principles.19 Recourse to such principles, endowed with continuing validity, has taken place, at the substantive level, as a response to the new necessities of protection of the human being. In the case, e.g., of the armed conflicts in Central America, which broke out in the late seventies and aggravated in the region in the early eighties, generating hundreds of thousands of refugees and displaced persons, one of the major concerns of the U.N. High Commissioner for Refugees (UNHCR) was to establish its grounds of action for providing protection and assistance to those in need of it, on the basis of the principles and criteria which should guide its action. On two occasions the UNHCR dwelt upon the examination of such principles and criteria to guide the application of the norms and rules of International Refugee Law in the aforementioned case of the armed conflicts in Central America. In a document adopted in 1989 resulting from consultations of a group of experts,20 reference was made to the principles contained in the 1984 Cartagena Declaration on Refugees,21 complemented by the practice of the affected States and of international organizations. Half a decade later, in a new document, adopted in 1994, also resulting from consultations of another group of experts,22 an assessment was undertaken of the application of those principles. In both documents the UNHCR stressed the fundamental importance of the principle of nonrefoulement, cornerstone of refugee protection, applicable irrespectively of any formal determination of the condition of refugee by a State or an international organization, and largely regarded as belonging to the domain of jus cogens.23 The 17

18 19 20 21

22 23

Cf., e.g., L. Le Fur, “La théorie du droit naturel depuis le XVIIe. siècle et la doctrine moderne”, 18 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1927) pp. 297-399; A. Truyol y Serra, “Théorie du Droit international public – Cours général”, 183 RCADI (1981) pp. 142-143; A. Truyol y Serra, Fundamentos de Derecho Internacional Público, 4th. rev. ed., Madrid, Tecnos, 1977, pp. 69 and 105. J.A. Carrillo Salcedo, “Derechos Humanos y Derecho Internacional”, 22 Isegoría – Revista de Filosofía Moral y Política – Madrid (2000) p. 75. G. Abi-Saab, “Cours général de Droit international public”, 207 RCADI (1987) p. 378. Formed by H. Gros Espiell, S. Picado and L. Valladares Lanza. Restated in the 1994 San José Declaration on Refugees and Displaced Persons; cf. Diez Años de la Declaración de Cartagena sobre Refugiados (Memoria del Coloquio Internacional, San José of Costa Rica, 1994), San José of Costa Rica, UNHCR/IIHR, 1995, pp. 11-470. Formed by A.A. Cançado Trindade, R. Galindo-Pohl and C. Sepúlveda. UNHCR, I. Principios y Criterios para la Protección y Asistencia a los Refugiados, Repatriados y Desplazados Centroamericanos en América Latina / II. Evaluación

Foundations of International Law: The Role and Importance of Its Basic Principles

perennial search for the guiding principles and the care and attention to the need of compliance with them, and with the norms and rules ensuing therefom, are revealing of the belief in their continuing validity. In International Humanitarian Law, e.g., the 1949 Geneva Conventions and their Protocols of 1977, essentially victim-oriented, are inspired above all by the overriding principle of humanity, which calls for respect to the human person in any circumstances and at all times. As well pointed out by J. Pictet, the general principles in this domain permeate the whole corpus juris of International Humanitarian Law, which discloses a “caractère impératif (jus cogens) et non dispositif”;24 those principles are, ultimately, identified with the very foundations of International Humanitarian Law. In this connection, it has been persuasively argued25 that, rather than attempting to identify provisions of the 1949 Geneva Conventions, or of the 1977 Additional Protocols, that might be regarded as expressing general principles, one ought to consider the whole of those Conventions and other humanitarian law treaties as being the expression – and the development – of those general principles, applicable in any circumstances, so as to secure a more effective protection of the victimized.26 III. The Fundamental Principles as Substratum of the Legal Order Itself The general principles of law have thus inspired not only the interpretation and the application of the legal norms, but also the law-making process itself of their elaboration. They reflect the opinio juris, which, in its turn, lies on the basis of the formation of Law.27 Such principles mark presence at both national and international levels. There are fundamental principles of law which identify themselves with the very foundations of the legal system, revealing the values and ultimate ends of the international legal order, guiding it, protecting it against the incongruencies of the practice of States, and fulfilling the necessities of the international community.28 Such principles, as expression of an objective “idea of

24 25 26

27 28

de la Puesta en Práctica de las Disposiciones de Dicho Documento, San José of Costa Rica, UNHCR, 1994, pp. 2 and 7-9 (1st. doc.), and pp. 5-8 (2nd. doc.). J. Pictet, Développement et principes du Droit international humanitaire, Genève/ Paris, Inst. H.-Dunant/Pédone, 1983, pp. 104-105, and cf. pp. 8, 53, 68-69 and 73-74. On the basis of obiter dicta of the International Court of Justice [ICJ] in the Nicaragua versus United States case (1986). R. Abi-Saab, “Les ‘principes généraux’ du Droit humanitaire selon la Cour Internationale de Justice”, 766 Revue internationale de la Croix-Rouge (1987) pp. 386 and 389. On the wide scope of the opinio juris in the formation of contemporary International Law, cf. chapters V-VI, infra. G. Cohen-Jonathan, “Le rôle des principes généraux dans l’interprétation et l’application de la Convention Européenne des Droits de l’Homme”, in Mélanges en hommage à L.E. Pettiti, Bruxelles, Bruylant, 1998, pp. 192-193; M. Koskenniemi, “General Principles: Reflexions on Constructivist Thinking in International Law”, in

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justice”, have a universal scope, requiring the observance of all States, and securing, – as lucidly pointed out by A. Favre in 1968, – the unity of Law, as from the idea of justice, to the benefit of the whole humankind.29 It is evident that these principles of law do not depend on the “will”, nor on the “agreement”, nor on the consent, of the subjects of law; the fundamental rights of the human person are the “necessary foundation of every legal order”.30 As vehemently proclaimed by the 1948 Universal Declaration of Human Rights, in a rare moment of enlightenment, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.

The safeguard and prevalence of the principle of respect of the dignity of the human person are identified with the end itself of Law, of the legal order, both national and international. By virtue of this fundamental principle, every person ought to be respected by the simple fact of belonging to the human kind, independently of her condition, of her statute of citizenship or her migratory status,31 or any other circumstance.32 The principle of the inalienability of the rights inherent to the hu-

29

30 31

32

Sources of International Law (ed. M. Koskenniemi), Aldershot, Ashgate/Dartmouth, 2000, pp. 360-365, 377, 381, 387, 390 and 395-398. A. Favre, “Les principes généraux du droit, fonds commun du Droit des gens”, in Recueil d’études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968, pp. 374-376, and cf. pp. 369 and 379. Ibid., pp. 376-380, 383, 386 and 389-390. And it could not be otherwise, as human rights are universal and inherent to all human beings, while the rights of citizenship vary from country to country and encompass only those which the positive law of the State considers citizens. – In its memorable Advisory Opinion n. 18 on The Juridical Condition and the Rights of the Undocumented Migrants (of 17.09.2003), the Inter-American Court of Human Rights [IACtHR] has expressly referred to the principles of the dignity of the human person and of the inalienability of the rights inherent to her (par. 157). Moreover, in its jurisprudence constante, the IACtHR, in interpreting and applying the American Convention, has also always resorted to the general principles of law; cf., e.g., IACtHR, case of the Five Pensioners versus Peru (Judgment of 28.02.2003), par. 156; and cf. also IACtHR, Advisory Opinion n. 17, on The Juridical Condition and Human Rights of the Child (of 28.08.2002), pars. 66 and 87; IACtHR, Advisory Opinion n. 16, on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of 01.10.1999), pars. 58, 113 and 128. Among these principles, those which are endowed with a truly fundamental character, referred to herein, form in reality the substratum of the legal order itself, revealing the right to the Law of which are titulaires all human beings; A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 524-525. B. Maurer, Le principe de respect de la dignité humaine et la Convention Européenne des Droits de l’Homme, Paris, CERIC/Univ. d’Aix-Marseille, 1999, p. 18.

Foundations of International Law: The Role and Importance of Its Basic Principles

man being, in turn, is identified with a basic premise of the construction of the whole corpus juris of the International Law of Human Rights. If, by chance, any doubts are raised as to the extent of application of the fundamental principles which permeate the whole international legal order, it is the function of the jurist to clarify such doubts and not to perpetuate them, so that Law may accomplish its fundamental function of providing justice.33 It is certain that the norms are the ones juridically binding, but when they move away from the principles, their application leads to breaches of individual rights and to serious injustices (e.g., discrimination de jure), and one incurs into distortions, and grave violations of the legal order at issue itself. In reality, when one recognizes the fundamental principles which conform the substratum of the legal order itself, we enter into the domain of jus cogens, of peremptory law;34 such principles are indispensable (the jus necessarium), are prior and superior to the will; they express the idea of an “objective justice” (proper of natural law), and are consubstantial to the international legal order itself.35 Already in 1935, in his lectures delivered at the Hague Academy of International Law, A. Verdross invoked the “general principle of jus cogens”.36 In dismissing the voluntarist conception of International Law, he sustained that “(...) il faut reconnaître que l’idée du droit ne peut entrer dans la vie humaine que par l’intermédiaire d’une conscience humaine qui la formule (...). Le droit des gens ne peut avoir d’autre base que tout droit, à savoir, l’idée du droit et les principes qui en découlent”.37

Those principles are “recognized by the juridical conscience”, and it is in the light of those principles that “tout le droit des gens doit être interprété et appliqué”.38

33

34 35 36

37 38

M. Chemillier-Gendreau, “Principe d’égalité et libertés fondamentales en Droit international”, in Liber Amicorum Judge M. Bedjaoui (eds. E. Yakpo and T. Boumedra), The Hague, Kluwer, 1999, pp. 659-669. Cf. chapter XII, infra. R. Kolb, Théorie du jus cogens international, Paris, PUF, 2001, pp. 98, 104-105 and 110-112. And referred, in this connection, to the Separate Opinion of Judge Schücking in the Oscar Chinn case (1934) before the Permanent Court of International Justice [PCIJ]; cf. A. Verdross, “Les principes généraux du droit dans la jurisprudence internationale”, 52 RCADI (1935) pp. 206 and 243. A. Verdross, “Les principes généraux du droit...”, op. cit. supra n. (36), pp. 202-203, and cf. p. 222. Ibid., pp. 224 and 227; he added that one is to be led by such “idée fondamentale du droit” (ibid., p. 235).

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IV. The Acknowledgement of General Principles of Law by the Statute of the Hague Court (PCIJ and ICJ) 1.

General Principles of Law and the Quest for Justice

In the course of the drafting of the Statute of the Permanent Court of International Justice [PCIJ], in June-July 1920, the Advisory Committee of Jurists entrusted with that task, throughout the memorable debates pertaining to the “sources” of International Law (Article 38 of the Statute), dwelt upon the role of principles in any legal system (whether at domestic or at international level). From the start, E. Root argued that the Committee should limit itself to “rules contained in conventions and positive international law”, otherwise the States, in his view, would not accept its draft.39 In opposition to this view, M. Loder remarked that there were recognised rules which were “not yet of the nature of positive law”, but were respected all over the world, and it was the duty of the Court (PCIJ) to develop the law, to “ripen (...) principles universally recognised”, so as to “crystallise them into positive rules”.40 The Committee’s President, Baron Descamps, pondered that the law of nations was formed not only by recognized rules, “but also by the demands of public conscience”; and as to E. Root’s statement that “the principles of justice varied from country to country”, Baron Descamps replied significantly that “that might be partly true as to certain rules of secondary importance. But it is no longer true when it concerns the fundamental law of justice and injustice deeply engraved on the heart of every human being and which is given its highest and most authoritative expression in the legal conscience of civilized nations”.41

That, in Descamps’s view, was the law which could not be disregarded by judges, and “it would be incumbent on them to consider whether the dictates of their conscience” were in agreement with the prevailing conception of justice. To him, judges should render their decisions in conformity with the dictates of “the legal conscience of civilised nations”.42 To Lord Phillimore, in turn, the general principles of law (referred to in the proposed draft) were those “which were accepted by all nations in foro domestico”.43 Seeking a conciliation of the views expressed, on the one hand, by Baron Descamps, and, on the other hand, by E. Root, Raul 39

40

41 42 43

PCIJ/Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Committee (16 June/24 July 1920) with Annexes, The Hague, Van Langenhuysen Brothers, 1920, p. 294. Ibid., p. 294. E. Root retorted that the world was not yet prepared to accept the compulsory jurisdiction of a Court which would apply “universally recognized rules” and “principles, differently understood in different countries”; ibid., pp. 308-309. Ibid., pp. 310-311. Ibid., pp. 311 and 318-319. Ibid., p. 335.

Foundations of International Law: The Role and Importance of Its Basic Principles

Fernandes argued that if the judges were confined to apply only treaties and positive international law (as suggested by E. Root), in many cases the “possibility of administering justice” in legal relations between States would be “taken away from them”; more often than not judges would find it necessary to resort to guiding general principles, because “the principles are always based on justice, while strict law often departs from it”.44

In international affairs, – added R. Fernandes, – where “legislation is lacking” and customary law is of a rather slow formation, “the practical necessity of recognizing the application of such principles is much greater”; in any case, – he concluded, – the Court (PCIJ) could not become a “registry” for the “acts of the strong against the weak”.45 At the end of the Committee’s work, the general principles of law were acknowledged as integrating the formal “sources” of International Law listed in Article 38 of the Statute of the Hague Court (the PCIJ, and, later, the ICJ). In this understanding, they were taken to mean, basically, those principles of law found in foro domestico, in the national legal systems.46 Parallel to them, the international legal system itself has evolved in the light of certain fundamental principles, distinct from the general meaning attributed to general principles of law (supra), although some of these latter have been transposed to international procedural law as well. While admitting channels of communication between the two sets of principles, principles of international law can be appropriately approached in a distinct way, not only strictly as one of the formal “sources” of International Law, but, beyond that, as further pertaining to the substratum of all international legal norms, and, accordingly, to the very foundations of the international legal system. 2.

Principles of International Law as Pillars of the International Legal System

Notwithstanding, considerably more attention was devoted to the principles of International Law half a century ago than in our days. Yet, those principles retain their utmost importance, as they inform and conform the legal norms of any legal system. Successive doctrinal works were dedicated particularly to the study of the principles of International Law, already in the first half of the XXth century,47 in the framework of the foundations of the discipline and the consid44 45 46 47

Ibid., pp. 345-346. Ibid., p. 346. E.g., bona fides, res judicata, equality before the law, presumption of innocence, prohibition of abuse of rights, among others. An exposé de motifs of a declaration of principles of International Law, published on the eve of the outbreak of the II world war, called for a reconstruction of International Law bearing in mind not only positive law, but also the principles, which ori-

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eration of the validity of its norms. In the fifties48 and the sixties49 some courses delivered at the Hague Academy of International Law addressed the theme of the principles of International Law, which was retaken in monographs in the sixties50 and the seventies.51 Subsequently, except for a few works,52 there appeared to occur, rather surprisingly, a decline in the interest in the study of the matter, paral-

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51 52

ented legal norms and rules, and which, in the view of Alejandro Álvarez, prevailed in the whole of International Law, and appeared as “manifestations of the juridical conscience of the peoples”; A. Álvarez, Exposé de motifs et Déclaration des grands principes du Droit international moderne, 2nd. ed., Paris, Éds. Internationales, 1938, pp. 8-9 and 16-23, and cf. pp. 27 and 51. And cf., generally, e.g., L. Rodrigues Pereyra, Princípios de Direito Internacional, vols. I and II, Rio de Janeiro, J. Ribeiro dos Santos Ed., 1902 and 1903; C. Bevilaqua, Direito Público Internacional (A Synthese dos Princípios e a Contribuição do Brasil), Rio de Janeiro, Livr. Fr. Alves, 1911; T.J. Lawrence, Les principes de droit international, 5th. ed. (transl. J. Dumas and A. de La Pradelle), Oxford, University Press, 1920, pp. 99-120; P. Derevitzky, Les principes du Droit international, Paris, Pédone, 1932; Ch. Rousseau, Principes généraux du Droit international public, vol. I, Paris, Pédone, 1944; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, London, Stevens, 1953; G. Scelle, Précis de droit des gens – principes et systématique, Paris, Rec. Sirey, 1934. Cf. H. Rolin, “Les principes de Droit international public”, 77 RCADI (1950) pp. 309479; G. Schwarzenberger, “The Fundamental Principles of International Law”, 87 RCADI (1955) pp. 195-385; P. Guggenheim, “Les principes de Droit international public”, 80 RCADI (1952) pp. 5-189; Ch. Rousseau, “Principes de Droit international public”, 93 RCADI (1958) pp. 369-549; G. Fitzmaurice, “The General Principles of International Law, Considered from the Standpoint of the Rule of Law”, 92 RCADI (1957) pp. 1-223. Cf. M. Sorensen, “Principes de Droit international public”, 101 RCADI (1960) pp. 1-251; P. Reuter, “Principes de Droit international public”, 103 RCADI (1961) pp. 429656; R.Y. Jennings, “General Course on Principles of International Law”, 121 RCADI (1967) pp. 327-600. Cf. M. Miele, Principi di Diritto Internazionale, 2nd. ed., Padova, Cedam, 1960; L. Delbez, Les principes généraux du contentieux international, Paris, LGDJ, 1962; L. Delbez, Les principes généraux du Droit international public, 3rd. ed., Paris, LGDJ, 1964; H. Kelsen, Principles of International Law, 2nd. ed., N.Y., Holt Rinehart & Winston, 1966; W. Friedmann, “The Uses of ‘General Principles’ in the Development of International Law”, 57 American Journal of International Law (1963) pp. 279-299; M. Virally, “Le rôle des ‘principes’ dans le développement du Droit international”, Recueil d’études de Droit international en hommage à Paul Guggenheim, Genève, IUHEI, 1968, pp. 531-554; M. Bartos, “Transformations des principes généraux en règles positives du Droit international”, Mélanges offerts à Juraj Andrassy, La Haye, Nijhoff, 1968, pp. 1-12. Cf., e.g., B. Vitanyi, “La signification de la ‘généralité’ des principes de droit”, 80 Revue générale de Droit international public (1976) pp. 536-545. Cf., e.g., I. Brownlie, Principles of Public International Law, 6th. ed., Oxford, Clarendon Press, 2003; A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, Brasília, Edit. University of Brasília, 1981.

Foundations of International Law: The Role and Importance of Its Basic Principles

lel to the dissemination of a seemingly – and regrettable – pragmatic approach to the study of International Law. Although concern with the need to consider the principles of International Law appears to have declined in the last quarter of century, those principles have, nevertheless, always marked their presence in the doctrine of International Law, including the contemporary one.53 Principles of International Law permeate the entire international legal system, playing an important role in international lawmaking as well as in the application of international law.54 In some cases, such as, e.g., in the Law of Outer Space, they have paved the way for the construction of a new corpus juris, in a new domain of International Law which required regulation, and the principles originally proclaimed have fully retained their value to date.55 Principles of International Law are guiding principles of general content, and in that they differ from the norms or rules of positive international law, and transcend them. As basic pillars of the international legal system (as of any legal system), those principles give expression to the idée de droit, and furthermore to the idée de justice, reflecting the conscience of humankind.56 Irrespective of the distinct approaches to them, those principles stand ineluctably at a superior level than the norms or rules of positive international law. Such rules and norms are binding, but it is the principles which guide them.57 Without these latter, rules or techniques could serve whatever purposes. This would be wholly untenable. V.

The 1970 U.N. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States Revisited

1.

General Considerations in Historical Perspective

A quarter of a century after the adoption of the U.N. Charter, the principles set forth therein were restated in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the United Nations Charter, adopted by the U.N. General Assembly on 24 October 1970. State representatives undertook the task of restating those principles, pursuant to consultations and proposals made by the U.N. General 53

54 55

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Cf., e.g., inter alia, H. Thierry, “L’évolution du Droit international – Cours général de Droit international public”, 222 RCADI (1990) pp. 123-185; G. Abi-Saab, “Cours général de Droit international public”, op. cit. supra n. (19), pp. 328-416. G. Herczegh, General Principles of Law and the International Legal Order, Budapest, Akadémiai Kiadó, 1969, pp. 90, 122 and 126. Cf. M. Lachs, “Le vingt-cinquième anniversaire du traité régissant les principes du droit de l’espace extra-atmosphérique, 1967-1992”, 184 Revue française de droit aérien et spatial (1992) n. 4, pp. 365-373, esp. pp. 370 and 372. G.M. Danilenko, Law-Making in the International Community, Dordrecht, Nijhoff, 1993, pp. 7, 17 175 and 186-187, and cf. p. 215. Bin Cheng, General Principles of Law..., op. cit. supra n. (47), p. 393.

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Assembly (1960-1962). The travaux préparatoires were entrusted to the Special Committee on Principles of International Law Concerning Friendly Relations and Cooperation among States, established in 1963.58 The Special Committee held six sessions in the period between 1964 and 1970, which led to the adoption of the Declaration, that purported to reflect the prevailing opinio juris communis on the principles of International Law embodied therein.59 The Declaration was formulated and adopted in an international scenario marked by the historical phenomenon of decolonization, the articulation of the non-aligned movement, the nuclear stalemate, and the endeavours to secure the peaceful coexistence of all States.60 Its preparatory work, which started in Mexico City in 1964, and ended in 1970, benefitted from other historically important Declarations adopted by the U.N. General Assembly.61 The debates on the matter disclosed the prevailing view whereby the 1970 Declaration was to constitute an “authentic interpretation” of the U.N. Charter and a restatement of its principles,62 which were to have a bearing on subsequent custom as well as treatymaking,63 being thus regarded also as an exercise of “progressive development” of International Law.64 The seven paragraphs of Article 2 of the U.N. Charter listed respectively seven basic principles, namely: equality of all the member States of the United 58

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The Committee was set up on 16.12.1963 as a subsidiary organ of the VI Committee of the General Assembly, and composed of representatives of States; initially, in 1964, 27 Delegations, and in the following year having arisen to 31, with geographical distribution, namely: Western Europe and North America, 8; Africa, 7; Asia, 6; Latin America, 5; and Eastern Europe, 5. Cf. M. Sahovic, “Codification des principes du Droit international des relations amicales et de la coopération entre les États”, 137 RCADI (1972) pp. 262-263, 272 and 274; R. Rosenstock, “The Declaration of Principles of International Law Concerning Friendly Relations: A Survey”, 65 American Journal of International Law [AJIL] (1971) p. 735. M. Sahovic, “Codification des principes...”, op. cit. supra n. (59) pp. 255-261; and cf. J. Castañeda, “The Underdeveloped Nations and the Development of International Law”, 15 International Organization (1961) pp. 38 and 44-48. E.g., 1960 Declaration on the Granting of Independence to Colonial Coutries and Peoples, 1962 Declaration on Permanent Sovereignty of States over Their Natural Resources, and 1965 Declaration on the Inadmissibility of Intervention in the Internal Affairs of States and the Protection of Their Independence and Sovereignty; cf. G. Arangio-Ruiz, “The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations”, 137 RCADI (1972) pp. 431-432. Although its formulation of the principles (1970 Declaration) was not identical to that of the principles set forth in Article 2 of the U.N. Charter. H. Blix, “The Helsinki Declaration on Principles Guiding Relations Between States in Europe”, 31 Revue egyptienne de droit international (1975) p. 4, and cf. pp. pp. 115. U.N., document A/6547, pars. 24-25.

Foundations of International Law: The Role and Importance of Its Basic Principles

Nations; compliance in good faith with the obligations undertaken in accordance with the Charter; peaceful settlement of international disputes; prohibition of the use or threat of force against the territorial integrity or political independence of any State; assistance to the United Nations in an operation which it may resort to; guarantee that non-member States act in accordance with such principles; non-intervention by the United Nations in matters which fall under the domestic jurisdiction of any State (except for enforcement measures under chapter VII of the Charter). On its turn, the 1970 Declaration set forth the following seven fundamental principles: prohibition of, or renunciation to, the use or threat of force in international relations; peaceful settlement of international disputes; non-intervention; duty of international cooperation; equality of rights and self-determination of peoples; sovereign equality of States; good-faith in the compliance with international obligations. Already in its first session (Mexico City, 1964), the Special Committee was clearly aware of the hard task before it,65 amidst the threat of destruction of humankind by the arms race, the need of peaceful coexistence among States with different socio-economic systems, the decolonization process, and initiatives of the epoch to foster development,66 – added to other changes that had occurred at international level in the previous two decades. In the session of New York of 1966, it was recommended to bear constantly in mind the interrelationship between the principles to be formulated.67 In the Special Committee’s third session (Geneva, 1967), the Draft Declaration was related to the chapter of the “sources” of “universal international law”.68 The fact that the Special Committee and the VI Committee of the General Assembly succeeded in concluding their work, under the pressure of events, in such a turmoiled environment, should not pass unnoticed: looking back in time, in historical perspective, it appears much to their credit to have restated in 1970, on the basis of consensus,69 the needed principles concerning friendly relations and cooperation among States in accordance with the U.N. Charter. 65

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Cf. L.T. Lee, “The Mexico City Conference of the U.N. Special Committee on Principles of International Law Concerning Friendly Relations and Cooperation Among States”, 14 International and Comparative Law Quarterly (1965) pp. 1296 et seq. It need only be recalled that the decade had been particularly disturbed, by episodes such as the war of Vietnam, the Arab-Israeli conflict, the Cuban missile crisis, added to those of the Dominican Republic and of Tchecoslovakia, among others. U.N., document A/6547, par. 34; and cf. U.N., document A/6955, par. 32. U.N., document A/6955, pars. 31 and 123. – In fact, in the Special Committee’s debates of 1967 one of the delegates saw it fit to warn, in 1967, as if in anticipation to what was actually to occur three years later, that only if the Draft Declaration of Principles was ultimately adopted by the General Assembly with unanimous or quasi-unanimous approval, could it be said that it expressed a “universal juridical conviction” to be thus related to the “sources” of International Law set forth in Article 38(1)(c) of the ICJ Statute. U.N., document A/6955, par. 109. Cf. U.N., document A/6955, par. 30.

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Today, 35 years having lapsed since the adoption of that memorable Declaration of Principles, the question may be raised whether, and to what extent, the principles set forth therein are still recognized as such. In order to address this question, and for a better appreciation of the principles enshrined into the 1970 Declaration, it would be adequate to recall, albeit succintly,70 the main points of the long preparatory work of the U.N. Special Committee on the Principles of International Law concerning Friendly Relations and Cooperation among States, with special attention to the process of formulation of those principles. 2.

The Formulation of the Principles of International Law

Throughout the whole work of the Special Committee, one of the most widely debated of the seven principles enunciated was that of the prohibition of the use or threat of force in international relations.71 The principle at issue, set forth in Article 2(4) of the U.N. Charter, was regarded as “the foundation of the international juridical order”,72 integrating “the very essence of International Law, in a world of interdependent States (...) in which the arms race continued”.73 The Special Committee debates kept in mind, besides Article 2(4) of the U.N. Charter, further express references to the principle of non-use or threat of force found in some inter-American instruments,74 in the 1964 Cairo Declaration of the NonAligned Countries, and in the 1949 Draft Declaration on the Rights and Duties of States prepared by the U.N. International Law Commission [ILC].75 Other references were further made, e.g., to the condemnation, by both the U.N. General Assembly and the Security Council, of the use or threat of force by certain States on some occasions.76 70 71

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For a fuller account, cf., e.g., A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, Brasília, Edit. University of Brasília, 1981, pp. 51-94. Within the Committee, there were those who considered that principle, together with that of equality of rights and self-determination of peoples, and that of non-intervention in the domestic affairs of States, as “the three most important principles for the maintenance of international peace and security”; U.N., document A/6955, par. 23. Ibid., par. 37. U.N., document A/7809, par. 14. Including the provision of Article 17 of the OAS Charter, which categorically affirmed the principle of the territorial inviolability of the State and condemned measures of force. Cf., on the matter, e.g.: OAS, document OEA/Ser.I/VI.2 – CIJ-58, Inter-American Juridical Committee, “Opinion on the Legal Aspects of the Draft Declaration on Non-Intervention Presented by the Mexican Delegation”, of 22.09.1960, pp. 1-12; Comité Jurídico Interamericano, “Diferencias entre Intervención y Acción Colectiva”, in Recomendaciones e Informes, Documentos Oficiales – vol. IX, Opinion of 23.09.1965, pp. 111-127. U.N., document A/6955, par. 44. Resolution 2160(XXI) of 1966 of the U.N. General Assembly was recalled, more than once; cf. ibid., pars. 37, 41, 44 and 48.

Foundations of International Law: The Role and Importance of Its Basic Principles

Despite all these elements, the debates of the Special Committee did not pass without difficulty, particularly when tackling the use of force in “colonial situations”, raised by the [then] recently emancipated States.77 To some representatives (particularly from Afro-Asian States) “self-defence against colonial domination should be regarded as an exception to the general rule, since (...) colonialism was an act of force and constituted indeed an aggression”.78 On this specific point, at the end of four years of debates, the view prevailed among the participating Delegations that, in the world of that time, the expression “international relations” could no longer be limited to purely inter-State relations, since, e.g., relations between a non-self-governing territory and an authority entrusted with its administration had an “international character”, in the light of the “international responsibilities” set forth in chapter XI of the U.N. Charter.79 The condemnation of the “war of aggression” was peremptory, and a proposal by [then] Tchecoslovaquia to this effect80 found no difficulty to be approved, given the precedents in international practice.81 One participant, in dwelling upon the historical evolution of the principle proclaimed in Article 2(4) of the U.N. Charter, affirmed that “in contemporary international law the prohibition of the use of force had become a norm of jus cogens”.82 Other points were considered:83 as to the meaning and scope to be attributed to the term “force”, for example, in the long debates that took place84 most representatives of Afro-Asian States, and of Eastern European States, and of some Latin American States, favoured such 77 78

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Cf. U.N., documents A/7809, par. 15; A/6547, pars. 41 and 43; A/6165, par. 31; A/6955, par. 49. U.N., document A/6955, par. 49. – In this respect, cf. comments, on resolutions 1514(XV) and 2621(XXV) of the U.N. General Assembly, of A. Rigo Sureda, The Evolution of the Right of Self-Determination, Leiden, Sijthoff, 1973, pp. 261-264; and cf. also S. Calogeropoulos-Stratis, Le droit des peuples à disposer d’eux-mêmes, Bruxelles, Bruylant, 1973, pp. 120-133; U.O. Umozurike, Self-Determination in International Law, Hamden/Conn., Archon Books, 1972, pp. 3-299. R. Rosenstock, op. cit. supra n. (59), p. 720. Cf. U.N., document A/AC.125/L.16, par. 2. On the Czech initiative, cf. also P.-H. Houben, “Principles of International Law Concerning Friendly Relations and Cooperation Among States”, 61 AJIL (1967) pp. 705-706. International instruments going back to the 1928 Briand-Kellogg Pact. Several representatives stressed the need to invoke, in the formulation of the principle, the “responsibility of States which waged wars of aggression or committed other crimes against peace”; U.N., document A/6955, par. 42. Ibid., par. 38. E.g., it was pointed out that the prohibition of threat or use of force should refer “not only to (national) frontiers but also to other international lines of demarcation”; U.N., documents A/6547, par. 41, and A/6165, par. 22; as exemplified by what was occurring, in those days, e.g., in Vietnam, Corea, Germany, and the Middle East. Cf. U.N., document A/6547, par. 37 (“armed force”); cf. further, U.N., documents A/6165, par. 25; A/7809, par. 20; A/6547, par. 38 (“political or economic pressure”). And cf. U.N., documents A/6955, par. 41; A/6547, par. 38.

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a wide interpretion of the prohibition of “force”, while a more restrictive interpretation was supported by the delegates of Western States, some other Latin American States and other individual States. The 1970 Declaration did not manage to provide a clear answer to the problem, – in the view of some deliberately, – in opting for a rather more abstract drafting of the principle at issue so as to overcome the difficulty.85 In the debates on the formulation of the second principle, that of peaceful settlement of international disputes, the old maxim was reiterated that the acceptance by States of a given procedure of peaceful settlement of existing or future disputes, which they were parties to, should not be regarded as incompatible with the “sovereign equality of States”.86 Some Delegations argued that “negotiation, mediation and conciliation were methods which could be used to alter an existing juridical situation, while the methods of arbitration and judicial settlement applied the law as it existed”.87 Different views were expressed on the effectiveness of negotiations,88 and references were made to the functions of political organs of international organizations – both the United Nations (Security Council and General Assembly) and regional organizations – in the settlement of disputes.89 The third principle considered by the Special Committee, that of the duty of non-intervention, was strongly supported, e.g., by the representatives mainly of Latin American and also of Eastern European States.90 In the debates of the Special Committee, it was contended that the principle of non-intervention amounted in fact to a principle of International Law of Latin American origin.91 85

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The same uncertainties were to be found also in expert writing, disclosing either a wider interpretation of the prohibition of force (G. Arangio-Ruiz, “The Normative Role...”, op. cit. supra n. (61), pp. 529-530), or a rather stricter one (R. Rosenstock, “The Declaration of Principles...”, op. cit. supra n. (59), pp. 724-725). For the insistence on this last point, cf., e.g., U.N., documents A/6547, par. 47; and A/6165, par. 34. And cf., generally, e.g., U.N., documents A/6230, pars. 157-272; and A/5746, pars. 128-201. U.N., document A/6165, par. 33. U.N., document A/6547, par. 49; on the element of good faith in the peaceful settlement of disputes, cf. ibid., par. 50. U.N., documents A/6165, pars. 36-37; and A/6547, par. 51. And cf. chapter XXIV, infra. Cf. U.N., document A/6955, par. 89. In this respect, it was recalled that the principle at issue, already contained in the Drago doctrine, was considered in the Inter-American Conference of Havana of 1928, and for the first time formally affi rmed in the 1933 Montevideo Convention on the Rights and Duties of States, and subsequently set forth by the Inter-American Conference of Buenos Aires of 1936 in the Additional Protocol on Non-Intervention. That principle, reiterated in the Conferences of Lima of 1938 and of Chapultepec of 1945, received its wider and more rigorous formulation in the Pact of Bogotá of 1948 and in the provisions of Articles 15 and 16 of the OAS Charter; U.N., document A/AC.119/SR.30, pp. 4-5, and cf. also p. 7. Thus, – in the view of the Mexican delegate

Foundations of International Law: The Role and Importance of Its Basic Principles

It was further pondered that, given the difficulties of defining intervention in all its forms, it should be incumbent upon the “international competent organs” to determine in each concrete case whether intervention had occurred or not.92 It was further agreed that the U.N. General Assembly resolution 2131(XX) of 1965, containing the Declaration on the Inadmissibility of Intervention in the Internal Affairs of States and the Protection of Their Independence and Sovereignty,93 should serve as basis for the work of the Committee, for expressing a “universal juridical conviction” in the principle of non-intervention and for having been adopted without any votes against it.94 The outcome of the work of the Special Committee on the duty of non-intervention was significant. The principle, as formulated by the Committee, was unequivocal is providing that “armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of International Law”; it further stipulated that “no State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to extract from it advantages of any kind”. The text added that “every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State”.95 The formulation by the Special Com-

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(J. Castañeda), – “the inter-American concept of non-intervention was universally applicable”; U.N., document A/AC.119/SR.30, p. 11. – On the principle of non-intervention in the inter-American system, cf., e.g., C. Sepúlveda, Las Fuentes del Derecho Internacional Americano, Mexico, Ed. Porrúa, 1975, pp. 77-84 and 95-103; C. Sepúlveda, “The Reform of the Charter of the Organization of American States”, 137 RCADI (1972) pp. 96-98 and 102-108; anc cf. also I. Fabela, Intervention, Paris, Pédone, 1961, pp. 67-212. – Subsequently, in an Opinion published in January 1962 on the “Contribution of the American Continent to the Principles of International Law Concerning the Responsibility of the State”, the OAS Inter-American Juridical Committee inter alia considered the principle of non-intervention as the most fundamental one of the inter-American system, for being at the time “contractually binding for 21 American Republics”; OAS, doc. OEA/Ser.I/VI.2 – CIJ-61, ch. IV, pp. 9-12. U.N., document A/AC.119/SR.30, p. 21. And cf. also U.N., docs. A/AC.119/SR.26, pp. 5-6; and doc. A/AC.119/SR.28, pp. 7-9. – As to prior endeavours of the States to codify the principle of non-intervention, cf. U.N., document A/5671, p. 23. Cf. U.N., documents A/6955, pars. 80-82, and A/6547, par. 54. And, on that resolution, cf., generally, e.g., N. Ouchakov, “La compétence interne des États et la nonintervention dans le droit international contemporain”, 141 RCADI (1974) pp. 65-80. Cf. U.N., document A/6955, pars. 83 and 53; and cf. U.N., documents A/6230, p. 134; A/6547, par. 52; A/8018, suppl. 18, p. 14, and cf. pp. 36-37. Text in: U.N. General Assembly, Resolutions Adopted on the Report of the Sixth Committee – 25th Session, 1970, p. 213 (A.G. res. 2625(XXV) of 1970): cf. also U.N., document A/8028, suppl. 28, p. 123, and cf. pp. 121-124.

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mittee of the duty of non-intervention was categorical in condemning intervention in all its forms. At the very start of the debates of the Special Committee on the fourth principle, that of the duty of international cooperation, it was pondered that such cooperation should always take place “on the basis of the absolute equality of States”.96 References were then made to regional endeavours of cooperation in the area of development and technical assistance.97 In the Geneva session of 1967 of the Special Committee, there was support for the inclusion, in the formulation of the principle, of a clause providing for the duty of cooperation of the States in the promotion of respect for, and observance of, human rights and the elimination of all forms of racial discrimination and religious intolerance.98 If, on the one hand, there were areas which continued, more than ever, to require urgently the cooperation of States, such as, inter alia, those of disarmarment, exploration of outer space, protection of the environment, exploration of ocean resources, erradication of hunger, peaceful uses of Antarctica, – on the other hand one should acknowledge the intense activity of international cooperation developed in recent years within the United Nations and regional organizations, which appeared as an expression of the opinio juris sive necessitatis of States.99 The consideration of principles of international law by the Special Committee did not limit itself to a simple reassessment of the basic principles already found in Article 2 of the U.N. Charter, but extended itself also to principles the contents of which were, at that time, still in evolution, such as that of the equality of rights and self-determination of peoples.100 References were made to relevant resolutions of the U.N. General Assembly on decolonization.101 In the prolonged 96 97 98

U.N., document A/6165, par. 52; and cf. also U.N., document A/6955, par. 56. Cf., U.N., documents A/6230, pars. 414-445; and A/6799, pars. 114-170. U.N., document A/6955, par. 58, and cf. pars. 51, 53 and 55. – In recalling Article 23 of the Covenant of the League of Nations and Articles 13, 55 and 56 of the U.N. Charter, one representative remarked that the principle of cooperation among States encompassed also their duty to cooperate in the juridical field as well, and “particularly in the progressive development of International Law and its codification”; E. Ustor, “The Principle of Co-operation Among States and the Development of International Law”, in Questions of International Law (Hungarian Branch of the International Law Association), Budapest, Progresprint, 1971, pp. 245-246; and cf. also, on the principle at issue, E. McWhinney, “Friendly Relations and Co-operation Among States: Debate at the Twentieth General Assembly, United Nations”, 60 AJIL (1966) p. 360. 99 E. Ustor, op. cit. supra n. (98), pp. 244-245. 100 U.N., documents A/6955, pars. 62-63 and 71; A/7831, pars. 22-24 and 27; A/6547, par. 69. 101 Such as, e.g., resolutions 1514(XV) of 1960 (the contents of which were particularly significant for the conceptualization of self-determination in the context of decolonization), 2105(XX) of 1965 (of support to movements of national liberation), as well as resolutions 2160(XXI) of 1966, 1541(XV) of 1960, and 2131(XX) of 1965; U.N., documents A/7831, par. 22, A/6547, par. 71, A/6955, pars. 62 and 65. – It is to be noted, however, that the definitive formulation of the principle in the Declaration of 1970

Foundations of International Law: The Role and Importance of Its Basic Principles

debates on the principle at issue,102 there was support for the view that States had to abstain themselves from any action contrary to the exercise of self-determination, and that colonial peoples struggling for emancipation were entitled to search for and receive all kinds of assistance in accordance with the principles and purposes of the U.N. Charter.103 This was one of the rare and exceptional situations in which the use of force, thus understood, was contemplated, on behalf of colonial peoples and in the light of the U.N. Charter.104 An attempt was made to draw a distinction between the typical cases of selfdetermination (in the immediately colonial context) and those of secession (in an already independent country).105 In any case, the formulation of the principle of self-determination ranked among the significant achievements of the Special Committee, particularly for the contribution to the progressive development of International Law (cf. infra), bearing in mind that until then some States had not yet accepted self-determination as a right of peoples. The consideration by the Special Committee of the principle of sovereign equality of States may at first sight have appeared as conducive to a simple reassertion of Article 2(1) of the U.N. Charter. Yet, its continuing importance was stressed, and a new element emerged in relation to Article 2(1), namely, the recognition in the debates by the Committee members of the right of the State to free choice and development of its political, social, economic and cultural systems.106 Throughout the work on the formulation of that principle, there was a constant concern with de facto inequalities among States, which, – it was believed, – should not be “legalized”.107 One of the points most often debated was surely the right of States to dispose freely of their wealth and their natural resources, which was considered an essential aspect of the principle at issue in

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did not quote expressly any of those resolutions of the U.N. General Assembly. G.A. Resolution 2621(XXV) of 1970 contained the Plan of Action for the Full Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. Cf., e.g., U.N., documents A/6799, pars. 171-235; and A/6230, pars. 456-521. U.N., documents A/6165, par. 61; and A/7831, par. 28. U.N., document A/7831, pars. 29-30; and cf., on the matter, J. Zourek, L’interdiction de l’emploi de la force en droit international, Leiden/Genève, Sijthoff/Institut H.Dunant, 1974, ch. XI, pp. 93-112; D. Touret, “La Déclaration universelle des droits des peuples”, 55 Revue de droit international de sciences diplomatiques et politiques (1977) pp. 296-297; and cf., generally, I. Brownlie, International Law and the Use of Force by States, Oxford, Clarendon Press, 1963, pp. 1-436. Cf. U.N., documents A/7831, par. 26; and A/6955, par. 68. Cf., e.g., U.N., documents A/5746, pars. 293-352; A/6799, pars. 409-437; and A/6230, pars. 356-413. Cf., U.N., documents A/6547, par. 59; and A/6955, par. 99.

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the economic domain; in this respect, references were made to successive U.N. General Assembly resolutions on the matter.108 As to the debates on the seventh principle, that of good faith in compliance with international obligations,109 it was argued by several representatives that the only obligations encompassed by that principle were those “compatible with the [U.N.] Charter and general international law”.110 Other aspects were also considered of the principle at issue, namely, some representatives regretted that the Drafting Committee of the Special Committee had not expressly recognized, in the formulation of that principle, the primacy of international legal obligations over those derived from domestic law.111 But the formulation of the last principle set forth in the 1970 Declaration was, however, careful enough to provide, inter alia, that, when obligations derived from international agreements entered into conflict with the obligations of the member States of the United Nations in accordance with its Charter, these latter would prevail.112 3.

The 1970 Declaration of Principles as a Contribution to the Identification of the Opinio Juris Communis

The 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, as at last adopted,113 pointed out that the principles enshrined therein were interrelated and constituted “basic principles of International Law”. Despite the difficulties it met, it contributed to the identification of the opinio juris communis 114 on the fundamental issue of the principles of International Law. Taken as a whole, the 1970 Declaration appeared more comprehensive than earlier attempts of systematization of the matter, and more 108 E.g., General Assembly resolutions 1803(XVII) of 1962, 2158(XXI) of 1966, and 2200 A(XXI) of 1966, on the matter at issue; cf. U.N., documents A/6955, par. 100; and A/6547, par. 61; and cf. also A/6165, par. 45. The Declaration, however, did not expressly quote any of those resolutions of the U.N. General Assembly in the formulation of the principle at issue. 109 Cf. U.N, documents A/6799, pars. 236-300; and A/6230, pars. 522-566. 110 U.N., document A/6165, par. 64; and cf. also U.N., documents A/6547, par. 74; A/6955, par. 77. 111 Cf. ibid., par. 79. 112 Text in: U.N. General Assembly, Resolutions Adopted on the Report of the Sixth Committee, 25th session, 1970, p. 124 (G.A. res. 2625(XXV) of 1970). 113 By unanimity by the XXV General Assembly shortly after the last session of the Special Committee (Geneva, 1970), and composed of a preamble, seven principles and a general part. 114 For the view that the 1970 Declaration on Principles, as an interpretation and elaboration of the U.N. Charter principles, is binding on States Parties, and, as its principles are also general international law, it is likewise binding on States non-members of the U.N. as well, cf. B. Sloan, “General Assembly Resolutions Revisited (Forty Years Later)”, 58 British Year Book of International Law (1987) pp. 88 and 57.

Foundations of International Law: The Role and Importance of Its Basic Principles

adequate to the exigencies and needs of the epoch, and represented a sensible advance when compared with the Draft Declaration on the Rights and Duties of States prepared by the ILC in 1949.115 As already seen, at a stage of the preparatory work the hope was expressed that the Declaration was to amount to an expression of a “universal juridical conviction” on the matter (cf. supra). The impact of the Declaration was to be promptly felt throughout the seventies. It was referred to by the ICJ in its Advisory Opinion on the Western Sahara (1975), and invoked in the course of its advisory proceedings.116 Shortly afterwards, personalities and representatives of movements of national liberation signed in Argel the 1976 Universal Declaration on the Rights of Peoples,117 the drafting of which was recognizedly influenced by the contents of the 1970 Declaration of Principles.118 In the debates of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law (Geneva, four sessions, 19741977), conducive to the adoption of Additional Protocols I and II of 1977 to the Geneva Conventions of 1949 on International Humanitarian Law,119 references were made to the 1970 Declaration of Principles, in particular in relation to the right of self-determination of peoples.120 The 1970 Declaration had then already come to be widely invoked, also at doctrinal level, in the context of the right of States to dispose freely of their natural resources.121 In particular, the principle 115 E. Ustor, “The Principle of Co-operation Among States...”, op. cit. supra n. (98), pp. 238-239. 116 The Declaration was referred to in the assertion of one of its principles, that of selfdetermination of peoples, reiterating the basic need of taking into account the aspirations of the people at issue; ICJ, Advisory Opinion on the Western Sahara, ICJ Reports (1975) p. 33, par. 58. 117 Proclaiming inter alia self-determination already as a right and no longer as but a principle. 118 Cf. D. Touret, “La Déclaration universelle des droits des peuples”, op. cit. supra n. (104), pp. 288-298, esp. pp. 293 and 296-297. 119 Cf. “Conférence Diplomatique sur la Reaffi rmation et le Développement du Droit International Humanitaire applicable dans les confl its armés – Résumé des travaux de la quatrième session”, 703 Revue internationale de la Croix Rouge (July 1977) pp. 381-418. 120 In connection with the debates of the epoch on the status of movements of national liberation in International Law; cf. G. Abi-Saab, “Wars of National Liberation and the Development of Humanitarian Law”, in Declarations on Principles, A Quest for Universal Peace – Liber Amicorum Discipulorumque B.V.A. Röling, Leyden, Sijthoff, 1977, pp. 145-148, 150, 153-158, 164 and 167. 121 Cf., e.g., A.J. Lleonart y Amselem, Derecho de los Estados a Disponer Libremente de Sus Recursos Naturales, Madrid, Consejo Superior de Investigaciones Científicas/ Instituto Francisco de Vitoria, 1976, pp. 225, 328-346 and 412-413; and cf. also, e.g., K.N. Gess, “Permanent Sovereignty over Natural Resources”, 13 International and Comparative Law Quarterly (1964) pp. 398-449; E. Atimomo, “Natural Resources and the United Nations”, 10 Journal of World Trade Law (1976) pp. 280-289.

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of sovereign equality of States, set forth in the 1970 Declaration, became object of a systematic reassessment in the light of developments of International Law at that time.122 In subsequent years, the issue of equality among nations came to be approached by reference to the formulation enshrined into the 1970 Declaration of Principles.123 The 1974 U.N. Definition of Aggression was influenced by the 1970 Declaration of Principles;124 the former contained two express references to this latter.125 Both Declarations were based on the law of the United Nations, comprising not only the U.N. Charter but also the practice thereunder.126 The adoption itself of the 1970 Declaration of Principles was a very positive development, not only for the conclusion of the work in a difficult time (marked, inter alia, by the Vietnam war and the conflicts in the Middle East), – a factor which prompted its draftsmen to conduct their work bearing in mind the relationship between the formulation of basic principles of international law and the imperative of securing peaceful coexistence of States belonging to different ideological blocs at that time.127 Likewise significant was the fact that the Declaration succeeded in intermingling the principles set forth therein.

122 Cf., earlier on, B. Boutros-Ghali, “Le principe d’égalité des États et les organisations internationales”, 100 RCADI (1960) pp. 11 and 14-15; J. Castañeda, “The Underdeveloped Nations and the Development of International Law”, 15 International Organization (1961) pp. 38-48; K. Wolfke, “The Privileged Position of the Great Powers in the International Court of Justice”, 56 Die Friedens-Warte (1961-1966) pp. 156-167; C.A. Colliard, “Égalité ou spécificité des États dans le droit international public actuel”, in Mélanges offerts à M. Le Doyen L. Trotabas, Paris, LGDJ, 1970, pp. 529-558. 123 Cf., e.g., F.A.-M. Riad, “Equality Among Nations”, 31 Revue egyptienne de droit international (1975) pp. 157-178; E. David, “Quelques réflexions sur l’égalité économique des États”, 10 Revue belge de droit international (1974) pp. 399-424, esp. pp. 404-418 and 423. 124 B. Broms, “The Definition of Aggression”, 154 RCADI (1977) pp. 330, 339-340, 357361, 367, 386-387 and 392. 125 Preamble, eighth considerandum; and Article 7, reaffi rming the right of self-determination of peoples. Cf. text in U.N., document A/9890, of 06.12.1974, pp. 4 and 7, respectively. 126 Cf. J. Zourek, “Enfin une définition de l’aggression”, 20 Annuaire français de droit international (1974) pp. 9-30; V. Blanco Gaspar, La Agresión Internacional: Intentos de Definición, Madrid, Consejo Superior de Investigaciones Científicas/Instituto Francisco de Vitoria, 1973, pp. 25-31. – However, the issue of the defi nition of aggression did not appear to have been entirely resolved in a definitive and wholly satisfactory way (as subsequent developments were to demonstrate). 127 Cf., on the theme, e.g., G.I. Tunkin, “Co-existence and International Law”, 95 RCADI (1958) pp. 5-78; L. Focsanéanu, “Les ‘cinq principes’ de la coexistence et le droit international”, 2 Annuaire français de droit international (1956) pp. 150-180.

Foundations of International Law: The Role and Importance of Its Basic Principles

VI. Concluding Observations In the light of the considerations developed in the present chapter, it may be concluded that the principles of international law shed light into the interpretation and application of International Law as a whole, pertain to the very substratum of this latter, and are identified with the very foundations of the international legal system. They permeate every legal system. Their continuing validity is beyond question. Principles of international law are essential to humankind’s quest for justice, and of key importance to the endeavours of construction of a truly universal International Law. 1.

The Sustained Validity of the Principles of International Law

As proclaimed in the U.N. Charter in 1945, and restated in the 1970 U.N. Friendly Relations Declaration, the principles of International Law retain their full validity in our days. A violation of a norm or rule of international law does not mean that such norm or rule ceased to exist; it means that International Law has been violated, engaging the international responsibility of the wrongdoers. This is bound to occur in any domain of law. A violation of a norm or rule of International Law does not affect the validity of its corpus juris and its guiding principles. There is a constant recourse to such principles, bearing witness of their continuing validity. Given the overriding importance of those principles, not surprisingly they found expression in the U.N. Charter, adopted in 1945. A quarter of a century afterwards, the 1970 Declaration of Principles was meant to be a law-declaring resolution as to those basic principles, so as to serve as a guide for all States in their behaviour. The U.N. Declaration of Principles, though not exhaustive in its content, proved to be, in the following years, a source for other exercises of the kind, such as the declaration of principles enshrined into the Helsinki Final Act (1975) which formed the basis for the subsequent creation of the [then] CSCE (Conference on Security and Cooperation in Europe) process.128 One of the final clauses of the 1970 Declaration further asserted that each of the principles contained therein was to be interpreted and applied in the context of the other principles, interrelated as they all were. Thus, while the traditional general principles of law (found in foro domestico) disclosed a rather procedural character, the general principles of international law – such as the ones proclaimed in the 1970 Declaration – revealed instead a substantive content (so as to guide State conduct),129 proper of the very foundations of International Law. Such general principles of International Law 128 I. Sinclair, “The Significance of the Friendly Relations Declaration”, in The United Nations and the Principles of International Law – Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London/N.Y., Routledge, 1994, pp. 5-10 and 26-29. 129 Cf. debates on “The Role of General Principles of Law and General Assembly Resolutions”, in Change and Stability in International Law-Making (eds. A. Cassese and

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(as set forth in the 1970 Declaration of Principles) are thus vested with universal importance for the international community itself.130 The interrelationship between the principles at issue is evident, e.g., with regard to the principle of the prohibition of the use or threat of force, and the principle of peaceful settlement of international disputes. The same can be said of the principle of the duty of international cooperation, with regard to the principle of good faith in the compliance with international obligations. This latter is generally regarded as providing the foundation of the international legal order, in the sense that it asserts the basic need of compliance with binding international obligations (pacta sunt servanda), arising from conventional as well as customary international law.131 The principle of pacta sunt servanda, enshrined into the Vienna Convention on the Law of Treaties of 1969 (Article 26 and preamble), gives concrete expression to norms also of customary international law. The principle pacta sunt servanda, – asserted by that of good faith (bona fides),132 – effectively transcends the law of treaties,133 being characterized by doctrine as either a norm of customary law134 or a general principle of international law.135 Its insertion into the aforementioned Vienna Convention was endowed with a clearly axiomatic character: it came to appear in a convention of codification, which asserted in an incontrovertible way its wide scope. But, already well before its acknowledgement in the Vienna Convention of 1969 referred to,136 the princi-

130 131

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135 136

J.H.H. Weiler), Berlin, W. de Gruyter, 1988, pp. 47-48 (interventions of J.H.H. Weiler and E. Jiménez de Aréchaga). Cf. ibid., pp. 54-55 (intervention of A. Cassese). G. White, “The Principle of Good Faith”, in The United Nations and the Principles of International Law – Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London/N.Y., Routledge, 1994, pp. 231 and 236. M. Lachs, “Some Thoughts on the Role of Good Faith in International Law”, in Declarations on Principles, a Quest for Universal Peace – Liber Amicorum Discipulorumque B.V.A. Roling, Leyden, Sijthoff, 1977, pp. 47-55; M.K. Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur le Droit des Traités”, 151 RCADI (1976) p. 20; Clive Parry, “Derecho de los Tratados”, in Manual de Derecho Internacional Público (ed. M. Sorensen), 5th. reimpr., Mexico, Fondo de Cultura Económica, 1994, pp. 229 and 200-201. The law of treaties, like the law on the international responsibility of the States, are closely linked to the very foundations of International Law; P. Reuter, Introduction au droit des traités, 2nd. ed., Paris, PUF, 1985, p. 32. E.g., B. Conforti, Derecho Internacional, Buenos Aires, Zavalía Ed., 1995, p. 67; and cf. H. Mosler, “The International Society as a Legal Community”, 140 RCADI (1974) pp. 115-116; R.R. Baxter, “Treaties and Custom”, 129 RCADI (1970) pp. 31, 43, 57 and 102-103. Ian Brownlie, Principles of Public International Law, 5th. ed., Oxford, University Press, 1998, p. 620. Cf. Lord McNair, The Law of Treaties, Oxford, Clarendon Press, 1961, pp. 493 and 505; and, for the historical and doctrinal evolution of the principle pacta sunt servanda, cf., e.g., M. Sibert, “The Rule Pacta Sunt Servanda: From the Middle Ages to

Foundations of International Law: The Role and Importance of Its Basic Principles

ple pacta sunt servanda effectively appeared, as already indicated, as, more than a general rule of interpretation of treaties, a precept of customary International Law or a true general principle of International Law, endowed with widespread jurisprudential recognition.137 The extent of the principle pacta sunt servanda, as well as the ultimate question of the validity of the norms of International Law, transcend the particular ambit of the law of treaties;138 the principle pacta sunt servanda is, in any case, deeply rooted in the international legal system as a whole. Good faith is, in turn, inherent to any legal order, guiding the behaviour of the subjects of law. Four years after the adoption of the 1970 U.N. Declaration of Principles of International Law, the ICJ, in the Nuclear Tests case (1974), stressed the fundamental character of the principle of good faith, in pondering that “one of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith”.139

The principle of good faith has a key position in International Law and all legal systems, providing them with an ethical basis, and surely standing above positive law; it is metajuridical, and constitutes “the starting point of a progressive moralization of international law”.140 The principle of the duty of international cooperation has gained ground in the last decades, if one bears in mind, e.g., the relevance of international cooperation in various areas, such as, e.g., peacekeeping and peacebuilding within the ambit of the law of the United Nations.141 Intensified international cooperation accounts for the impressive developments in recent decades in certain domains of International Law, such as, e.g., the international protection of human rights and of the human environment. The principle of the duty of international cooperation is indeed related to that of bona fides: one can in fact find express support in international case-law for the principle of the duty of international coopera-

137 138

139 140 141

the Beginning of Modern Times”, 5 Indian Yearboook of International Affairs (1956) pp. 219-226; J.B. Whitton, “La règle pacta sunt servanda”, 49 RCADI (1934) pp. 151268. E. de la Guardia and M. Delpech, El Derecho de los Tratados y la Convención de Viena, Buenos Aires, La Ley, 1970, p. 276. Cf. J.L. Brierly, The Basis of Obligation in International Law, Oxford, Clarendon Press, 1958, p. 65; J.L. Brierly, The Law of Nations, 6th. ed., Oxford, Clarendon Press, 1963, p. 54. ICJ, Nuclear Tests case (Australia versus France), ICJ Reports (1974) p. 268, par. 46. E. Zoller, La bonne foi en Droit international public, Paris, Pédone, 1977, pp. 354 and 339-340, and cf. pp. 12-13, 346 and 352. Cf., e.g., A. James, “The Principle of Co-operation: United Nations Peacekeeping”, in The United Nations and the Principles of International Law – Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London/N.Y., Routledge, 1994, pp. 160-174.

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tion in good faith.142 Principles of international law constitute altogether the pillars of the international legal system itself. As the clause of domestic jurisdiction (Article 2(7)) of the U.N. Charter had in mind the relations between the Organization and member States and did not expressly address intervention in inter-State relations, it was much to the credit of the 1970 Declaration of Principles to have formulated the principle of nonintervention by a State or group of States in the internal or external affairs of another State.143 One and a half decades later, the ICJ, in the Nicaragua versus United States case (1986), in expressly invoking inter alia the 1970 Declaration of Principles, stated that the principle at issue “forbids all States or groups of States to intervene directly or indirectly in the internal or external affairs of other States. (...) Intervention is wrongful when it uses methods of coercion (...). The element of coercion, which defines, and indeed forms the essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in indirect form of support for subversive or terrorist armed activities within another State. (...) These forms of action are therefore wrongful in the light of both the principle of non-use of force, and that of non-intervention”.144

To the Special Committee which drafted the 1970 Declaration of Principles the formulation of the principle of non-intervention expressed a “universal legal conviction”; the principle had its basis in customary law, and was reasserted in successive international treaties.145 And as for judicial practice, it may be recalled that, already in 1949, in the Corfu Channel case, the ICJ warned that intervention was but a “manifestation of a policy of force (...) reserved for the most powerful States”, which “might easily lead to perverting the administration of international justice itself”.146 Half a century later, the United Nations Millenium Declaration, adopted by the U.N. General Assembly (Resolution 55/2) on 18.09.2000, has stated that the principles of the U.N. Charter “have proved timeless and universal” (par. 3). Half a decade later, in its recent 2005 World Summit Outcome 142 Cf. Ph. Cahier, “Changements et continuité du Droit international – Cours général de Droit international public”, 195 RCADI (1985) pp. 85-86 and 89. 143 G. Abi-Saab, “Some Thoughts on the Principle of Non-Intervention”, in International Law: Theory and Practice – Essays in Honour of Eric Suy (ed. K. Wellens), The Hague, Nijhoff, 1998, pp. 227-234. 144 ICJ, Nicaragua versus United States case, Judgment of 27 June 1986 (Merits), ICJ Reports (1986) p. 108, par. 205. 145 T. Mitrovic, “Non-Intervention in the Internal Affairs of States”, in Principles of International Law Concerning Friendly Relations and Cooperation (ed. M. Sahovic), Belgrade/N.Y., Institute of International Politics and Economics/Oceana, 1972, pp. 221, 256-257 and 248. 146 ICJ, Corfu Channel case (United Kingdom versus Albania), Judgment of 09 April 1949 (Merits), ICJ Reports (1949) p. 35.

Foundations of International Law: The Role and Importance of Its Basic Principles

(of 15.09.2005), the U.N. General Assembly has again evoked the principles of the U.N. Charter, expressly referring to the aforementioned 1970 Declaration of Principles (par. 73). 2.

The Projection in Time of the Evolving Principle of Self-Determination of Peoples

Principles of International Law, as formulated in the U.N. Charter and restated in the 1970 U.N. Declaration of Principles, besides retaining their full validity in our days (supra), have had significant projections in time, accompanying pari passu, and guiding, the evolution of International Law itself. This applies to all aforementioned principles, but one striking illustration of those projections may here be singled out, pertaining to the principle of equality of rights and self-determination of peoples, pointing towards the overcoming of the traditional inter-State dimension of International Law. The case of East Timor is illustrative of the relevance of the principle of self-determination. Prior to independence, East Timor was a non-self-governing territory, the international status of which was governed by the law of the United Nations (chapter XI of the U.N. Charter). Shortly after Indonesia’s military occupation of East Timor on 07 December 1975 (followed by its annexation by a law of 15 July 1976), the U.N. Security Council147 deplored the armed intervention of Indonesia in East Timor; in its turn, the U.N. General Assembly,148 in addition to likewise deploring the Indonesian military intervention, came to refer to Portugal as the “administering power” of East Timor, in the ambit of the law of the United Nations, – a condition which Portugal was to maintain for years, in the light of successive General Assembly resolutions on the international legal status of the then Territory of East Timor.149 In its resolutions, the U.N. General Assembly stressed the right of self-determination of the people of East Timor, in the understanding that that right had not been exercised. It was precisely in the condition of “administering power” that Portugal lodged a complaint against Australia before the ICJ for alleged breach of the right to self-determination of the Timorese people, for having Australia celebrated a treaty (known as that of the Timor Gap) with Indonesia relating to the exploration of oil resources in the continental shelf of East Timor.150 This episode contributed to place the case of East Timor again in a position of

147 Resolutions 384(1975), of 22.12.1975, and 389(1976), of 22.04.1976. 148 Resolution 3485(XXX), of 12.12.1975, besides seven other resolutions. 149 There were eight such resolutions of the U.N. General Assembly, added to two others of the Security Council. 150 On the increased foreign interest in oil resources in the region (continental shelf of East Timor), cf. R.S. Clark, “The ‘Decolonisation’ of East Timor and the United Nations Norms on Self-Determination and Aggression”, International Law and the Question of East Timor, London, CIIR/IPJET, 1995, pp. 90-91.

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relevance in the political agenda of the United Nations;151 with the complaint of Portugal – as “administering power” – before the ICJ, the case of the East Timor again gained momentum.152 Earlier on, the assertion of the right of self-determination by the 1960 U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples153 and subsequent resolutions of the U.N. General Assembly on the matter, came to count on judicial recognition, mainly by means of the Advisory Opinions of the ICJ on Namibia (of 21.06.1971) and on the Western Sahara (of 16.10.1975). In the first Advisory Opinion, the Hague Court pondered, in relation to the mandates system, that the developments in the last fi fty years – disclosing the expansion of the corpus juris gentium in the present domain – left little margin for doubt that “the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned”.154 And, in the second Advisory Opinion, the ICJ concluded in favour of the application of resolution 1514 (XV) of the U.N. General Assembly “in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory”.155 In the restatement of the principle of equality of rights and self-determination of peoples by the 1970 U.N. Declaration of Principles of International Law (cf. supra), a clause was inserted explaining that a non-self-governing territory – under the U.N. Charter – has a separate and distinct status from the territory of the State which administers it, which persists until the people living in it exert their right of self-determination in accordance with the principles and purposes of the U.N. Charter.156 In sum, a non-self-governing territory in the sense of chapter XI of the U.N. Charter has an international legal status which generates 151

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154 155 156

For a general historical account of the case of East Timor, cf., e.g., J. Ramos Horta, Funu – The Unfinished Saga of East Timor, Trenton/New Jersey, Red Sea Press, 1987, pp. 1-207; S. Inbaraj, East Timor – Blood and Tears in ASEAN, Chiang Mai/Thailand, Silkworm Books, 1995, pp. 1-183; C.O. Quaye, Liberation Struggles in International Law, Philadelphia, Temple University Press, 1991, pp. 177-182; L. Hannikainen, “The Case of East Timor from the Perspective of Jus Cogens”, in International Law and the Question of East Timor, London, CIIR/IPJET, 1995, pp. 108-111. Cf. A.A. Cançado Trindade, “Parecer: O Caso do Timor-Leste (1999): O Direito de Autodeterminação do Povo Timorense”, 1 Revista de Derecho de la Universidad Católica del Uruguay (2000) pp. 63-83. The well-known 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (U.N. General Assembly resolution 1514 (XV), of 14.12.1960) came to strengthen the international status of non-self-governing territories and of territories under the trusteeship system (paragraph 5) and to affirm in a categorical way the right of self-determination of their peoples. ICJ, Avisory Opinion on Namibia, ICJ Reports (1971) p. 31, par. 53 (emphasis added). ICJ, Advisory Opinion on the Western Sahara, ICJ Reports (1975) p. 68, par. 162 (emphasis added). A.A. Cançado Trindade, Princípios do Direito Internacional..., op. cit. supra n. (70), pp. 61 and 72.

Foundations of International Law: The Role and Importance of Its Basic Principles

obligations of respect to the right of self-determination of the people living in it, of the safeguard of the human rights of its inhabitants, and of non-exploration of their natural resources.157 Such obligations are opposable erga omnes, both visà-vis the State which administers the territory at issue and vis-à-vis all the other States: they are obligations owed to the international community as a whole. Recent developments in contemporary International Law disclose the dimensions both external and internal of the right of self-determination of peoples: the former means the right of every people to be free from any form of foreign domination, and the latter refers to the right of every people to choose their destiny and to affirm their own will, if necessary against their own government. This distinction, endorsed by contemporary doctrine,158 challenges the purely interState paradigm of classic International Law: the emergence of the International Law of Human Rights came to concentrate attention in the treatment dispensed by the State to all human beings under its jurisdiction, in the conditions of living of the population, in sum, in the function of the State as promoter of the common good. The theory and practice of contemporary International Law effectively acknowledge the vindication of the rights of peoples. An international instrument such as the 1981 African Charter of Human and Peoples’ Rights, for example, sets forth not only civil and political rights (Articles 3-14), and economic, social and cultural rights (Articles 15-18), but also the rights of peoples (Articles 19-24), with a mechanism of implementation common to all (Articles 46-59 and 62). The rights of peoples have, moreover, counted on arbitral and judicial recognition, as acknowledged, e.g., by the Maritime Delimitation between Guinea and Guinea-Bissau.159 Furthermore, in the international contentieux, cases of initia157 Cf., in this respect, e.g., Ian Brownlie, “The Rights of Peoples in Modern International Law”, The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon Press, 1988, pp. 1-16; [Various authors,] Les résolutions dans la formation du droit international du développement (Colloque de 1970), Genève, IUHEI, 1971, pp. 63-67 (permanent sovereignty over natural resources); A.J. Lleonart y Amselem, op. cit. supra n. (121), pp. 15-478. 158 Cf. A. Cassese, Self-Determination of Peoples – A Legal Reappraisal, Cambridge, University Press, 1995, pp. 1-365; P. Thornberry, “The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism”, Modern Law of Self-Determination (ed. Ch. Tomuschat), Dordrecht, Nijhoff, 1993, pp. 101-138; Ch. Tomuschat, “Self-Determination in a Post-Colonial World”, in ibid., pp. 1-20; A. Rosas, “Internal Self-Determination”, in ibid., pp. 225-251; J. Salmon, “Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?”, in ibid., pp. 253-282. 159 In this case, in its award of 18.02.1983, the Arbitral Tribunal which decided the case referred to the “legitimate claims” of the parties as developing States and to the right of the peoples concerned to achieve the level of economic and social development which preserves fully their dignity; cit. in Ian Brownlie, The Human Right to Development, London, Commonwealth Secretariat (Occasional Paper Series), 1989, pp. 1-2, and cf. p. 13 n. 1.

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tives of States on behalf of peoples, so as to protect them, may be recalled: clear indications to this effect are found, e.g., in two unilateral applications instituting proceedings before the ICJ, namely, that of New Zealand (against France) in the case of the Nuclear Tests (1973-1974), and that of Nauru (against Australia) in the case of the Phosphate Lands (1989-1992).160 The well-known aforementioned obiter dicta of the ICJ affirming the applicability of self-determination to all non-self-governing territories (Advisory Opinion on Namibia, 1971) and recognizing the right of self-determination through the “free and genuine expression of the will of the peoples of the Territory” (Advisory Opinion on the Western Sahara, 1975), came to foster the definitive consolidation of the justiciability of the right of self-determination of peoples.161 In the fortunate expression of the Separate Opinion of Judge Dillard in the Advisory Opinion on the Western Sahara, “it is for the people to determine the destiny of the territory and not the territory the destiny of the people”.162 There is, thus, a whole doctrinal and jurisprudential development, corroborated by the practice of States and of international organizations, in support of the right of self-determination of peoples.163 3.

Principles of International Law, the Quest for Justice and the Universality of International Law

On successive occasions the principles of International Law have proved to be of fundamental importance to humankind’s quest for justice. This is clearly illustrated by the role played, inter alia, by the principle of juridical equality of States.164 This fundamental principle, – the historical roots of which go back to the II Hague Peace Conference of 1907, – proclaimed in the U.N. Charter and enunciated also in the 1970 Declaration of Principles, means ultimately that all States, – factually strong and weak, great and small, – are equal before International Law, are entitled to the same protection under the law and before the 160 A.A. Cançado Trindade, Direitos Humanos e Meio-Ambiente – Paralelo dos Sistemas de Proteção Internacional, Porto Alegre, S.A. Fabris Ed., 1993, pp. 186-187. 161 M.C. Maffei, “The Case of East Timor before the International Court of Justice – Some Tentative Comments”, 4 European Journal of International Law (1993) pp. 223-238; C.M. Chinkin, “East Timor Moves into the World Court”, in ibid., pp. 206222. – On the position of the so-called Organization of Unrepresented Nations and Peoples (UNPO), cf. M.C. van Walt van Praag, “The Position of UNPO in the International Legal Order”, Peoples and Minorities in International Law (eds. C. Brölmann, R. Lefeber and M. Zieck), Dordrecht, Nijhoff, 1993, pp. 313-325. 162 ICJ Reports (1975) p. 122. 163 Cf., on the matter, e.g., United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. doc. HRI/ GEN/1/Rev.3, of 15.08.1997, p. 13 (pars. 1-2 and 6). 164 R. Fernandes, Le principe de l’égalité juridique des États dans l’activité internationale de l’après-guerre, Genève, Impr. A. Kundig, 1921, pp. 18-19 and 21-22.

Foundations of International Law: The Role and Importance of Its Basic Principles

organs of international justice, and to equality in the exercise of international rights and duties.165 Despite successive attempts to undermine it, the principle of juridical equality of States has remained, from the II Hague Peace Conference of 1907 to date,166 one of the basic pillars of International Law. It has withstood the onslaught of time, and shown itself salutary for the peaceful conduction of international relations, being ineluctably associated – as it stands – with the foundations of International Law. It has been very important for the international legal system itself,167 and has proven to be a cornerstone of International Law in the United Nations era. In fact, the U.N. Charter gave it a new dimension, and the principle of juridical equality of States, in turn, paved the way for, and contributed to, new developments such as that of the system of collective security, within the ambit of the law of the United Nations.168 It has been rightly remarked that respect for the principle of juridical equality of States facilitates the work of the United Nations, whose voice represents “the authentic voice of mankind”, and gives expression to the “juridical conscience of nations”.169 In its turn, the emergence and consolidation of the principle of equality of rights and self-determination of peoples came to herald the overcoming in our times of the old inter-State dimension of International Law; self-determination, in particular, takes into account subjects of International Law other than States, and could simply not exist or operate in a merely or exclusively inter-State context.170 Its remarkable projection in the last decades, as already pointed out, was to enable the discernment of the external and internal dimensions of self-determination (cf. supra), and the definitive incorporation of the rights of peoples into the conceptual universe of contemporary International Law.

165 A. Magarasevic, “The Sovereign Equality of States”, in Principles of International Law Concerning Friendly Relations and Cooperation (ed. M. Sahovic), Belgrade/ N.Y., Institute of International Politics and Economics/Oceana, 1972, pp. 176-178, 197 and 212. 166 Cf. R.P. Anand, “Sovereign Equality of States in International Law”, 197 RCADI (1986) pp. 54-58, 63-66, 77-79, 91-100, 117-126, 157-159 and 189-195. 167 A. Miele, La Comunità Internazionale, Torino, G. Giappichelli Ed., 2000, pp. 8 and 24. 168 On the basis of the understanding that the preservation of international peace and security is a matter of international concern, is a common concern of all States and of the international community; C. Warbrick, “The Principle of Sovereign Equality”, in The United Nations and the Principles of International Law – Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London/N.Y., Routledge, 1994, pp. 210 and 213-214. 169 R.P. Anand, op. cit. supra n. (166), pp. 125-126. 170 G. Abi-Saab, “La reformulation des principes de la Charte et la transformation des structures juridiques de la communauté internationale”, in Le droit international au service de la paix, de la justice et du développement – Mélanges M. Virally, Paris, Pédone, 1991, pp. 4 and 6-7.

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Last but not least, it is not surprising to find that voluntarist-positivists, who have always attempted to minimize the role of general principles of law, have always met the opposition of those who sustain the relevance of those principles, as ensuing from the idea of an objective justice,171 and guiding the interpretation and application of legal norms and rules. The international legal system is supported not only by the observance by States (and other subjects of International Law) of international norms and rules, but also – and above all – by their commitment to preserve and promote that system as a whole;172 and it is the principles of this latter that can best ensure the cohesion and integrity of the international legal system as a whole.173 Those principles are intertwined with the very foundations of International Law, pointing the way to the universality of this latter. Writing in 1935, A. Verdross propounded the “universal idea of law”, emanating from human conscience, conforming the existence of a “fonds juridique commun”, source of the general principles of law.174 Over three decades later, A. Favre sustained, in 1968, that general principles of law are “the expression of the idea of justice” having a universal scope and expressing the “juridical conscience of humankind”; rather than deriving from the “will” of States, they have an “objective character” and constitute a “fonds juridique commun pour l’ensemble des États”, thus securing the unity of law and enhancing the idea of justice to the benefit of humankind as a whole.175 One cannot prescind from the general principles of law, which emanate, in my understanding, ultimately from the universal juridical conscience, as the material “source” of all Law. The international legal order owes its effectiveness, its universality and its very existence to those principles. General principles of law encompass the principles of International Law, and express the opinio juris communis of the international community, in the construction of a new jus gentium, the International Law for humankind. 171 172 173

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Ch. Rousseau, Principes généraux du Droit international public, vol. I, Paris, Pédone, 1944, pp. 926-927. J.I. Charney, “Universal International Law”, 87 AJIL (1993) p. 532. C. Wilfred Jenks believed that an inquiry into the general principles of law (found in distinct legal systems, and further encompassing the principles of International Law itself) could much contribute to provide the “basic foundations of a universal system of international law”; C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 106 and 120-121, and cf. p. 172. A. Verdross, “Les principes généraux du droit...”, op. cit. supra n. (36), p. 202. – On his part, H. Lauterpacht sustained that the universality of a “substantial body of International Law” is to a large extent based on the general principles of law, which “by definition” have a universal character and application, “independently of any express or implied manifestation of the will” of the members of the international community; furthermore, the universality of some provisions of conventional international law stems from “compelling considerations of humanity”; International Law Being the Collected Papers of Hersch Lauterpacht (ed. E. Lauterpacht), vol. I (General Works), Cambridge, University Press, 1970, pp. 114-117. A. Favre, “Les principes généraux du droit, fonds commun du Droit des gens”, op. cit. supra n. (29), pp. 369, 374-375, 379, 383 and 390.

Chapter IV

I.

The Primacy of International Law over Force

Introduction

The sustained and continuing validity of the general principles of International Law provides the foundations for the application of its norms. In this turmoiled beginning of the XXIst century, there is growing need to reaffirm, in particular, the primacy of International Law over force. Such reassertion is, in my view, an ineluctable duty of every jurist, who cannot contribute with his silence to the apparent attempts at deconstruction of International Law in our days. It is a duty to be performed even more vigorously at a difficult moment of world crisis such as the present one, – reflecting a deep crisis of values, – in which the international system itself is threatened with rupture by the unwarranted use of force, outside the framework of the U.N. Charter. II.

The Crystallization and Continuing Validity of the Principle of Non-Use of Force

May I begin by recalling a recent episode. In the evening of 25 February 2003, in face of the announcement of a forthcoming armed attack against Iraq by a self-designated “coalition of States”, I convened a public ceremony at the headquarters of the Inter-American Court of Human Rights [IACtHR] in San José of Costa Rica, to reaffi rm a long-standing and deeply-rooted belief in the primacy of International Law over force. The Court’s room of public hearings was overcrowded.1 In my address that evening, I saw it fit to point out that “In this same room, yesterday, we witnessed a historical public hearing before the Inter-American Court. Amidst news of the imminence of a new war (...), the Delegations of twelve Latin American countries appeared before this Court, as intervening States (Mexico, Honduras, Nicaragua, El Salvador, Costa Rica) or as observers (Uruguay, Paraguay, Dominican Republic, Brazil, Panama, Argentina and Peru), in 1

With the presence of Ambassadors and other representatives of States, international organizations and non-governmental organizations. The proceedings of that memorable ceremony have been published by the IACtHR (cf. n. (2), infra).

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Chapter IV advisory proceedings [on The Juridical Condition and Rights of Undocumented Migrants], thereby renewing their faith in Law. While in other latitudes there was and there is talk of the use of force, we here renew our faithfulness in Law (in the headquarters of our Court in a country which has opted for not having an army)”.2

In other parts of the world, international lawyers likewise expressed their hope that International Law would prevail, and the armed attack would not take place,3 with all its negative consequences for the international legal order. Most regrettably it did, in breach of Article 2(4) of the U.N. Charter, commonly regarded, in historical perspective, as one of the most important provisions of the U.N. Charter.4 The long history behind the fundamental principle of the prohibition of threat or use of force, may here be briefly recalled, in a moment of outburst of generalized violence all over the world, of unilateralisms and indiscriminate use of force, presenting a considerable challenge to all those who deposit their confidence in the law of nations. In fact, over a century ago, the two Hague Peace Conferences, of 1899 and 1907, respectively, contributed to awaken the conscience of all nations to put an end to such indiscriminate use of force. In fact, the I Hague Peace Conference of 1899 ended with an eloquent declaration, which retains its topicality, to the effect that

2

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A.A. Cançado Trindade, “Los Aportes Latinoamericanos al Primado del Derecho sobre la Fuerza”, in Doctrina Latinoamericana del Derecho Internacional, vol. II (eds. A.A. Cançado Trindade and F. Vidal Ramírez), San José of Costa Rica, IACtHR, 2003, p. 39. Cf., e.g., “Appel de juristes de Droit international concernant le recours à la force contre l’Irak”, 36 Revue belge de Droit international [RBDI] (2003) pp. 266-274; “The Australian Section of the ICJ Questions the Proposed Attack on Iraq”, in ibid., pp. 286-287; “Statement by Japanese International Law Scholars on the Iraqi Issue”, in ibid., pp. 293-294; “ICJ [International Commission of Jurists] Deplores Moves toward a War of Aggression on Iraq”, in ibid., pp. 297-298; declaratory resolution of the Instituto Hispano-Luso-Americano de Derecho Internacional [IHLADI], reviewed infra, and reproduced in: 16 Anuario del IHLADI – Madrid (2003) pp. 657-658. And, after the armed attack on Iraq, cf., on the need to respect and ensure respect for International Humanitarian Law, the Declaration of Bruges, adopted by roll-call vote by the Institut de Droit International, reproduced in 70 Annuaire de l’Institut de Droit International (Session de Bruges/2003)-II pp. 284-289. Furthermore, it is nowadays generally recognized that States ought to settle any dispute peacefully (by the methods provided under Article 33 of the U.N. Charter) until the Security Council makes a determination under Article 39 of the Charter; T.O. Elias, “Scope and Meaning of Article 2(4) of the United Nations Charter”, in Contemporary Problems of International Law: Essays in Honour of G. Schwarzenberger on his 80th Birthday (eds. Bin Cheng and E.D. Brown), London, Stevens, 1988, pp. 70-74 and 77.

The Primacy of International Law over Force “The limitation of military expenses, which presently weigh heavy on the world, is much to be desired for the sake of both material and moral development of humankind”.5

The II Hague Peace Conference (1907), on its turn, by adopting inter alia the Convention on the Limitation of Force for the Recovery of Ordinary Public Debts, contributed decisively to enhance recourse to arbitration as a means to put an end to coercitive means and the use of force. The widely acknowledged contributions of Latin American States to the work and outcome of the II Hague Peace Conference of 1907 and to developments thereafter, focused mainly on four issues, namely: recourse to arbitration and non-use of force, the basic principle of the juridical equality of States, the strengthening of international jurisdiction, and the direct access of individuals to international justice.6 The II Hague Peace Conference propounded a universalist outlook of international law, and acknowledged the much-needed compliance with the “duties of humanity”.7 In the course of the League of Nations era, the 1928 General Treaty for the Renunciation of War as an Instrument of National Policy became of almost uni-

5

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Cit. in: G. Best, “The Restraint of War in Historical and Philosophical Perspective”, in Humanitarian Law of Armed Conflict: Challenges Ahead – Essays in Honour of F. Kalshoven (eds. A.J.M. Delissen and G.J. Tanja), Dordrecht, Nijhoff, 1991, p. 19. These contributions were recently reviewed, on the occasion of the centennial celebration of the II Hague Peace Conference (Hague Colloquy of 2007); cf. A.A. Cançado Trindade, “The Presence and Participation of Latin America at the II Hague Peace Conference of 1907”, in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque de 2007) (ed. Y. Daudet), Leiden/The Hague, The Hague Academy of International Law/Nijhoff, 2008, pp. 51-84, and cf. pp. 110-112, 115-117, 122 and 205-206 (debates). On the Latin America’s fi rm support for the principles of non-use of force and juridical equality of States, cf., e.g., S. Pérez Triana and W.T. Stead (intr.), Doctrina Drago – Colección de Documentos, London, Impr. Wertheimer, Lea & Co., 1908, pp. X, XII-XIII, XVI, XVIII, XXIII, LXXIV, XLIV, 117, 120, 125 and 127; R. Barbosa, Obras Completas de Rui Barbosa, vol. XXXIV-II (A Segunda Conferência da Paz, 1907), Rio de Janeiro, MEC, 1966, pp. 49-50, 163-164, 252-258, 327 and 343; II Conférence de la Paix, Actes et discours de M. Ruy Barbosa, La Haye, W.P. van Stockum et Fils, 1907, pp. 209 and 212, and cf. pp. 117-118, 214-218 and 319-321; A. Truyol y Serra, Histoire du Droit international, Paris, Economica, 1995, p. 129. As to the recognition of the pressing need of evolution of international jurisdiction, and of the direct access of individuals thereto, as “a demand of the universal juridical conscience”, cf. Philadelpho Azevedo, A Justiça Internacional, Rio de Janeiro, MRE, 1949, pp. 24 and 26, and cf. pp. 9-10. Even when they do not form part of positive law, bearing in mind, in the words of the former Delegate of Cuba, Antonio Bustamante y Sirvén, the “unity of humankind”; A.S. de Bustamante y Sirvén, La Segunda Conferencia de la Paz Reunida en el Haya en 1907, vol. II, Madrid, Libr. Gen. de V. Suárez, 1908, pp. 137, 139-141 and 157-159, and cf. pp. 133 and 147.

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versal application, playing a considerable role throughout that era,8 and causing an impact on both theory and practice of International Law. This was significant, as, before the Pact, “according to the prevailing positivist opinion, Public International Law was indifferent towards the State’s extra-legal decision to go to war”.9 The Pact Briand-Kellogg (which entered into force on 24.07.1929) and the subsequent international practice put an end to that indifference. Soon the Pact became the first worldwide prohibition of war.10 The cumulative effect of the Pact Briand-Kellogg of 1928, the Pact Saavedra Lamas of 1933, the Stimson doctrine (of non-recognition of situations generated by force, of 1932), on the practice of International Law, was to the effect of crystallizing a customary norm of condemnation of illegality of the use of armed force as instrument of national policy. The prohibition of war in International Law had become opinio juris communis. Three decades after the historical II Hague Peace Conference, the principle of the non-use of force found eloquent expression, in the American continent, in the Declaration of Principles adopted by the Inter-American Conference of Lima of 1938.11 Shortly afterwards, that principle transcended that regional ambit to reach the universal one, set forth as it was in Article 2(4) of the U.N. Charter,12 in culmination of a long and dense evolution of consolidation

8

9

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12

Ratified or adhered to by 63 States, which avoided making reservations to it (before the II world war only 4 States were not bound by its provisions), and remaining still in force; cf. I. Brownlie, op. cit. infra n. (56), pp. 23 and 25. B. Roscher, “The ‘Renunciation of War as an Instrument of National Policy’”, 4 Journal of the History of International Law / Revue d’histoire du droit international (2002) p. 294. Despite not having provided for a mechanism for peaceful settlement of disputes. In the inter-war period, no other Treaty had more States Parties than it; B. Roscher, op. cit. supra n. (93), pp. 295-297 and 303, and cf. p. 299. In the years that followed its adoption, several States issued pronouncements of principle endorsing its terms, and some States even foresaw sanctions for acts which violated the Pact, in the ambit of their domestic law (constitutions and penal codes). Followed by the Declaration adopted in Mexico by the Inter-American Conference on Problems of War and Peace of 1945. Cf. J.-M. Yepes, “La contribution de l’Amérique Latine au développement du Droit international public et privé”, 32 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1930) pp. 744-747; and J.C. Puig, Les principes du Droit international public américain, Paris, Pédone, 1954, pp. 23-25. The prohibition of war was, thus, in fact, formulated in Europe, where, notwithstanding, it regrettably kept on being practiced, with millions of murdered persons. The Latin-American countries, on their turn, kept on condemning intervention and the use of force (short of war), which often victimized them, to the point of contributing successfully to set forth the principles of non-intervention and non-use of force both in the 1945 U.N. Charter (Article 2(4)) and in the 1948 OAS Charter (Article 18). G. Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law, Alphen aan den Rijn, Sijthoff/ Noordhoff, 1979, pp. 118-120.

The Primacy of International Law over Force

of the prohibition of the threat or use of force.13 In this respect, in its Judgment in the Corfu Channel case (1949) the International Court of Justice [ICJ] endorsed the principle of non-use of force in clear and emphatic terms: “The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given rise to most serious abuses and such as cannot, whatever be the present defects in international organization, fi nd a place in international law. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself”.14

Subsequently, three significant Declarations, adopted by the U.N. General Assembly in a period of less than two decades, – the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations,15 the 1974 Definition of Aggression,16 and the 1987 Declaration on Enhancing the Effectiveness of the Principle of the Non-Use of Force,17 – clearly expressed the view prevailing in the international community that the prohibition of the use of force or of forcible intervention was generally understood in absolute terms.18 The 1987 Declaration restated the principle as set forth in the U.N. Charter and numerous other documents, and asserted its universal character.19

13 14 15 16

17 18 19

With historical roots in the I and II Hague Peace Conferences (1899 and 1907, respectively – cf. supra). ICJ, Corfu Channel case (United Kingdom versus Albania, Merits), ICJ Reports (1949) p. 35. Cf. chapter III, supra. Which, reflecting a minimum consensus on a matter surrounded by much discussion, limited itself to the use of armed force in inter-State relations, conferring upon the U.N. Security Council the power of determination of the act of aggression. The Definition incorporated the principle of non-recognition of situations generated by aggression, and had the merit of securing the least, namely, the Security Council could no longer ignore an act of aggression alleged by certain States, without opposition; J. Zourek, “Enfin une définition de l’aggression”, 20 AFDI (1974) pp. 9-30. Conformed by a preamble of 21 paragraphs and an operative part with 33 paragraphs. C. Gray, International Law and the Use of Force, Oxford, University Press, 2000, pp. 5, 27-28 and 51. Paragraph 10. It further referred to, and insisted on, disarmament, and acknowledged the relations between the principle at issue and other principles of International Law, such as those of peaceful settlement of disputes and of the duty of international cooperation; cf. T. Treves, “La Déclaration des Nations Unies sur le renforcement de l’efficacité du principe du non-recours à la force”, 33 Annuaire français de Droit international [AFDI] (1987) pp. 383, 388-390 and 396-398.

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The U.N. International Law Commission itself, on its part, endorsed (in 1966) the understanding that the prohibition by the U.N. Charter of the use of force has the character of jus cogens, and expressed (in 1978) the view that a violation of the prohibition of aggression can result in an international crime.20 As recalled by E. Jiménez de Aréchaga, except for the hypothesis of self-defence in the terms of the U.N. Charter and of an enforcement measure ordered or duly authorized likewise by an international organization such as the United Nations, the use of force constitutes a delict.21 On the occasion of the fiftieth anniversary of the Hague Academy of International Law, in his survey of the contribution of the courses at the Academy to the development of International Law, R.-J. Dupuy remarked that “l’Académie a, sans nul doute, éprouvé dès le début beaucoup de répugnance à admettre qu’il puisse y avoir un droit de l’État à recourir à la force”.22

In the same understanding of the absolute prohibition of recourse to force have also manifested themselves, – besides successive resolutions of the U.N. General Assembly, – the Final Act of the Conference of Security and Cooperation in Europe (Helsinki, 1975), and the Charter of Paris for a New Europe (of 21.11.1990). Thus, restatements of that fundamental principle of international law multiplied themselves along the years, in doctrine, case-law, and international practice, giving unequivocal testimony of its crystallization, continuing validity, and imperative character. The ICJ itself, in the Nicaragua versus United States case (1986), reasserted the principle of the prohibition of the use of force as “being not only a principle of customary international law but also a fundamental or cardinal principle of such law”.23 The principle at issue, furthermore, served along the years as basis for the conclusion of numerous treaties and instruments in the domains of disarmament and of maintenance of international peace and security. The contemporary apologists of the use of force seem to make abstraction of one century of evolution of International Law.

20 21

22 23

M. Díez de Velazco, Las Organizaciones Internacionales, 12nd. ed., Madrid, Tecnos, 2002, pp. 177-178. E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Tecnos, 1980, pp. 116-117; and cf. E. Jiménez de Aréchaga, “International Law in the Past Third of a Century”, 159 RCADI (1978) pp. 87 and 111-113. R.-J. Dupuy, “La contribution de l’Académie au développement du Droit international”, 138 RCADI (1973) p. 58. ICJ, Nicaragua versus United States case, Judgment of 27 June 1986 (Merits), ICJ Reports (1986) p. 100, par. 190; in this connection, the ICJ expressly referred to the 1970 Declaration on Principles, and to the 1975 Helsinki Final Act; cf. ibid., p. 100, pars. 188-189, and cf. p. 84.

The Primacy of International Law over Force

III. The Primacy of Law over Force as a Cornerstone of Contemporary International Law Interventions in inter-State relations disclose the disparities of power among States, unilaterally decided by the same power which executes them, acting unjustifiably as “judge and party in each case”, perpetrating “acts of force against those who cannot defend themselves”.24 Interventions become the privilege, and monopoly, of the great powers;25 the weaker count on the Law to defend themselves, and rely on the precise formulation and compulsory application of “a universal normative order”.26 The contemporary heralds of militarism do not seem to take into account the enormous sacrifices of past generations.27 In a historical moment like the present one, of somber recrudescence of indiscriminate use of force,28 in which it regrettably appears again trivial to speak of war, there is pressing need to face the new threats to international peace and security within the framework of the U.N. Charter, and to insist on the realization of justice at international level29 as the best guarantee for peace. Only with the strengthening of the United Nations and other international organizations of universal character, with strict observance of the general principles of international law, can one contain and control the frenzy of violence, unilateralism and self-help,30 based usually on force rather than Law. The more lucid legal doctrine and the more learned commentaries of the U.N. Charter point out that the letter and spirit of its Article 51 (on self-defence) 24 25

26 27 28

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I. Fabela, Intervention, Paris, Pédone, 1961, p. 232; I. Fabela, Intervención, 1st. ed., Mexico, UNAM, 1959, pp. 141 and 26. The principle of the juridical equality of States, just as that of the equality before the Law, are antithetical to any schemes of unilateralism or self-help, which aggravate factual inequalities inevitably privileging the great powers. J. Castañeda, Obras Completas, vol. I: Naciones Unidas, México D.F., Colegio de México/Secretaría de Relaciones Exteriores, 1995, p. 522. Only in the armed conflicts and despotisms of the XXth century, 86 million human beings were killed. This was evidenced more than a decade ago, when, as from 1998, one attempted to “justify” such use of force by means the invocation of an alleged “implicit authorization” of the U.N. Security Council; in the following year, one attempted to “explain” the use of force by means of an alleged “authorization ex post facto”, by the same Security Council (bombardments of Iraq, 1998, and of Kosovo, 1999, respectively). With that, one attempted to render “relative” one of the basic principles of the U.N. Charter, that of the prohibition of threat or use of force, set forth in Article 2(4) of the U.N. Charter. Cf. A.A. Cançado Trindade, “Los Aportes Latinoamericanos al Derecho y a la Justicia Internacionales”, in Doctrina Latinoamericana del Derecho Internacional, vol. I (eds. A.A. Cançado Trindade and A. Martínez Moreno), San José of Costa Rica, IACtHR, 2003, pp. 33-64. R.P. Anand, “Sovereign Equality of States in International Law”, 197 RCADI (1986) pp. 54, 58, 107 and 164.

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are opposed to the pretension of the so-called “preventive self-defence”, and definitively dismiss it.31 Its own legislative history clearly indicates that Article 51 is subordinated to the fundamental principle of the general prohibition of the threat or use of force (Article 2(4) of the Charter), besides being subjected to the control of the Security Council.32 The unconvincing and frustrated attempts to widen the scope of Article 51 (on self-defence) of the U.N. Charter, so as to encompass an alleged and unsustainable “preventive self-defence”, have never succeeded to provide an answer to the objection to the effect that to admit it would be to open the door to reprisals, to the generalized use of force, to aggression, amidst the most complete conceptual imprecision33 and discretionality (of the powerful). Had the so-called “doctrine” of “preventive self-defence” been applied, for example, in the Cuban missile crisis (1961-1962), the world would possibly no longer exist, fatally victimized by the use of nuclear weapons by the two superpowers of the epoch.34 In our days, with the alarming proliferation of weapons of mass destruction, the principle of the prohibition of the threat or use of force (Article 2(4)) of the U.N. Charter imposes itself even more forcefully,35 disclosing a truly imperative character.36 31

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36

Cf., e.g., B. Simma (ed.), The Charter of the United Nations – A Commentary, Oxford, Oxford University Press, 1994, pp. 675-676; A. Cassese, “Article 51”, in La Charte des Nations Unies – Commentaire article par article (eds. J.-P. Cot and A. Pellet), Paris/Bruxelles, Economica/Bruylant, 1985, pp. 770, 772-773, 777-778 and 788-789; I. Brownlie, International Law and the Use of Force by States, Oxford, Clarendon Press, 1981 [reprint], pp. 275-278; J. Zourek, L’interdiction de l’emploi de la force en Droit international, Leiden/Genève, Sijthoff/Inst. H. Dunant, 1974, p. 106, and cf. pp. 96-107; H. Kelsen, Collective Security under International Law (1954), Union/New Jersey, Lawbook Exchange Ltd., 2001 [reprint], pp. 60-61; Chr. Gray, International Law and the Use of Force, op. cit. supra n. (18), pp. 112-115 and 192-193. Cf. H. Kelsen, The Law of the United Nations, London, Stevens, 1951, p. 792. J. Delivanis, La légitime défense en Droit international public moderne, Paris, LGDJ, 1971, pp. 50-53, and cf. pp. 42, 56 and 73; L.D. San Martino, Legítima Defensa Internacional, Buenos Aires, Ed. Ciudad Argentina, 1998, pp. 30-31 and 40-42, and cf. pp. 48-49. In his thoughtful account of that crisis, A. Chayes disclosed that “preventive selfdefence” was at a stage contemplated by some “realists” naturally supporting the unrestricted use of force, but was fortunately promptly discarded (A. Chayes, The Cuban Missile Crisis, Oxford, University Press, 1974, pp. 62-66), and sound reason at last prevailed, to the benefit of the then present, and succeeding, generations, ultimately to the benefit of humankind. G.I. Tunkin, El Derecho y la Fuerza en el Sistema Internacional, Mexico, UNAM, 1989, pp. 121, 151 and 155; and cf., to the same effect, the warning – in face of the constant growth of human capacity of destruction – of Quincy Wright, A Study of War, 2nd. ed., Chicago/London, University of Chicago Press, 1983 [Midway reprint], pp. 404 and 372-373. A.A. Cançado Trindade, “El Primado del Derecho sobre la Fuerza como Imperativo del Jus Cogens”, in Doctrina Latinoamericana del Derecho Internacional, op. cit. supra n. (2), pp. 51-66.

The Primacy of International Law over Force

In fact, Article 2(4) prohibits both the use and the threat of armed force. Nowadays, the institutional response to threats or breaches of peace or acts of aggression is found in chapter VII of the U.N. Charter, not in “preventive self-defence” (a privilege of the great powers), which is disruptive, aggravating disorder and anarchy in the international community.37 Under the U.N. Charter there is no “anticipatory self-defence”, which only challenges the general principles of international law that have preserved international peace and security along more than six decades.38 What is “anticipatory” is Law itself, rather than the use of force. “Preventive attacks” have no support in international practice either.39 It has been aptly pointed out that, if permissible self-defence (under the U.N. Charter) is governed by the principles of necessity and proportionality, how will the so-called “preventive” self-defence comply with the principle of proportionality if the armed attack has not occurred? Th is would mean that a State victimized by an armed aggression would have its self-defence limited by the requisite of proportionality, while a State which invokes “preventive” self-defence would have no such limitation, other than its own subjective assessment of the situation, which would lead to a juridical absurdity.40 “Preventive” self-defence is, not surprisingly, rejected by the overwhelming majority of States:41 it would be open only to the great powers, undermining the principle of the juridical equality of States, sinking the world in anarchical selfhelp, aggravating the effects of factual disparities of power in the international scenario. What is needed, quite on the contrary, is “a universal normative order”.42 Article 51 of the U.N. Charter, as consistently interpreted and applied to 37

38

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40

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J.A. Pastor Ridruejo, “Ha Sido Legal el Uso de La Fuerza en Afganistán?”, in Los Retos Humanitarios del Siglo XXI (ed. C. Ramón Chornet), Valencia, PUV/University of Valencia, 2004, pp. 103 and 105-106. L. Condorelli, “Vers une reconnaissance d’un droit d’ingérence à l’encontre des ‘États voyous’?”, in L’intervention en Irak et le Droit international (eds. K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pédone/CEDIN, 2004, pp. 51-52 and 56. As illustrated by the negative reactions and criticisms to the so-called “preventive” attacks by Israel on Iraq (in 1981), by South Africa on Lesotho (in the epoch of apartheid, by the United States on Sudan (in 1998), and by Israel in the “six-day-war” (in 1967. Cf. Th. Christakis, “Vers une reconnaissance de la notion de guerre préventive?”, in L’intervention en Irak et le Droit international (eds. K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pédone/CEDIN, 2004, pp. 23-25 and 27. Th. Christakis, op. cit. supra n. (39), pp. 20-21; not surprisingly, there are no U.N. resolutions endorsing “preventive” self-defence, and all regional treaties on security (from 1935 to date) condition self-defence to a prior armed attack (ibid., pp. 22-23). Cf. F. Nguyen-Rouault, “L’intervention armée en Irak et son occupation au regard du Droit international”, 108 Revue générale de Droit international public (2003) pp. 835-864; O. Corten, “Opération ‘Iraqi Freedom’...”, op. cit. infra n. (47), pp. 205-243. J. Castañeda, Obras Completas, vol. I: Naciones Unidas, México D.F., Colegio de México/Secretaría de Relaciones Exteriores, 1995, p. 522. And cf. G. Guerrero, La Codification du Droit International, Paris, Pédone, 1930, pp. 182 and 175, and cf.

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date, has not been “amended” by the practice of power-holders or self-helpers; it is the U.N. Security Council that regulates the use of force in the international system, in accordance with the relevant provisions of the U.N. Charter. The recent attempted return, by the contemporary apologists of the use of force, to “preventive wars”, is unwarranted and retrograde, a dangerous threat to the achievements of International Law in a century of evolution (from the two Hague Peace Conferences, of 1899 and 1907, until the present). The system of collective security of the Charter, essential to world peace, was erected upon the principles of the prohibition of the threat or use of force in inter-State relations and of the peaceful settlement of international disputes.43 Nothing in International Law authorizes a State, or a group of States, to launch sponte sua an international armed attack (such as the invasion and occupation of Iraq, in 2003), – outside the framework of the U.N. Charter,44 – under the pretext of dismantling arsenals of weapons of mass destruction, – while a few of them possess some of the major arsenals of weapons of mass destruction in the world. To that end, there are multilateral mechanisms of control and prohibition, created by international conventions, which are to be applied and strengthened, towards world disarmament. There are, moreover, the enforcement measures foreseen under chapter VII of the U.N. Charter, to face threats to international peace and security, to be applied by a strengthened United Nations. The much-needed and much-protracted reforms of the U.N. Charter to the effect of strengthening the United Nations’s system of collective security, appear nowadays necessary and urgent, so as to enable the U.N. to secure respect for the principles and purposes set forth in Articles 2 and 1 of its Charter.45 It is in difficult moments of world crisis such as the recent one, that one ought to, with all the more reason, reassert and preserve the foundations and principles of International Law. “Implicit authorization” and “authorization ex post facto” by the Security Council of the use of force are manifest distortions

43 44

45

pp. 9-10, 13, 24, 27 and 150; A. Álvarez, Exposé de motifs et Déclaration des grands principes du Droit international moderne, Paris, Éds. Internationales, 1938, pp. 8-9, 16-21 and 51; A. Álvarez, Le Droit international de l’avenir, Washington, Institut Américain de Droit International, 1916, pp. 7-8, 26, 71, 114, 134-136 and 146-149; R. Fernandes, A Sociedade das Nações, Rio de Janeiro, Imprensa Nacional, 1925, pp. 56, 9 and 26. These principles warn that any exception to the regular operation of such system ought to be restrictively interpreted. And deliberately confusing and manipulating the contents and legal effects of U.N. resolutions, such as, e.g, the recent attempt to “link” Security Council resolution 1441 (particularly its vague and generic paragraph 13), of November 2002, to Security Council resolutions 678 (of 1990) and 687 (of 1991), adopted much earlier in a distinct context, to try in vain to justify “preventive” armed attacks. O. Corten, Le retour des guerres préventives: le Droit international menacé, Bruxelles, Éd. Labor, 2003, pp. 42-44, 56 and 80.

The Primacy of International Law over Force

of chapter VII of the U.N. Charter.46 In the operation of the system of collective security, there is a presumption in favour of peaceful settlement, and eventual exceptions to that are to be restrictively interpreted, as that system was built upon the principles of non-use of force and peaceful settlement of disputes.47 IV. The Emerging Right to Humanitarian Assistance The idea of justice underlies International Law from the thinking of its founding fathers to our days, in the adoption and application of enduring norms that can secure international peace.48 Invoking a “collective conscience”,49 A. Ulloa drew attention, in the mid-XXth century, to the progressive universalization of International Law, remarking that it was not surprising that the “rules of humanitarian character” were the first ones to be universally applied.50 The world-wide survey Customary International Humanitarian Law (2005), recently undertaken by the International Committee of the Red Cross, identifies the universal common core of International Humanitarian Law.51

46

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48

49 50 51

Cf., e.g., Ph. Weckel, “L’emploi de la force contre la Yougoslavie ou la Charte fissurée”, 104 Revue générale de Droit international public [RGDIP] (2000) pp. 19-36; M. Sahovic, “Le Droit international et la crise en ex-Yougoslavie”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacional – Castellón/Spain (1999) pp. 417418; J.M. Ortega Terol, La Intervención de la OTAN en Yugoslavia, Oviedo, Septem Ed., 2001, pp. 19-21 and 39-40; D. Momtaz, “‘L’intervention d’humanité’ de l’OTAN au Kosovo et la règle du non-recours à la force”, 82 RICR (2000) n. 837, pp. 89-101; P. Kovács, “Intervention armée des forces de l’OTAN au Kosovo – Fondement de l’obligation de respecter le Droit international humanitaire”, 82 RICR (2000) n. 837, pp. 122 and 127-128, and cf. pp. 119-120 and 124. This appears, moreover, as the only way to secure a “minimum of international cohesion” in face of the challenges currently facing the international legal order; L.A. Sicilianos, “L’autorisation par le Conseil de Sécurité de recourir à la force: une tentative d’évaluation”, 106 RGDIP (2002) pp. 7, 39-40, 42-43 and 47-48. And cf. O. Corten, “Opération Iraqi Freedom: peut-on admettre l’argument de l’‘autorisation implicite’ du Conseil de Sécurité?”, 36 RBDI (2003) pp. 218-219, 224-227 and 237243. A. Ulloa, Derecho Internacional Público, vol. I, 2nd. ed., Lima, Impr. Torres Aguirre, 1939, pp. 3 and 14. Considerations of power, on their turn, are not static or permanent factors at the international level, but are rather constantly changing, “lasting or disappearing in the evolution of history”; A. Ulloa, Derecho Internacional Público, vol. II, 4th. ed., Madrid, Ed. Iberoamericanas, 1957, p. 218, and cf. p. 460. Ibid., vol. II, p. 301. A. Ulloa, Derecho International Público, vol. I, cit. supra n. (48), pp. 21-22 and 74. Cf. ICRC, Customary International Humanitarian Law (eds. J.-M. Henckaerts and L. Doswald-Beck), Cambridge, University Press, 2005, vol. I, pp. IX-LIII and 3-621; vol. II, pp. 3-1982; and vol. III, pp. 1983-4411.

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Throughout the nineties, the tragedy of the genocide in Rwanda (1994),52 the difficulties of defining “security areas” in the case of Bosnia-Herzegovina (1993-1995),53 and the much-criticized NATO’s “campaign of bombardments” in the case of Kosovo (1999),54 among others, have drawn attention to the need to enhance humanitarian assistance on a concerted multilateral basis,55 within the framework of the U.N. Charter (of a strengthened United Nations), in search of the realization of justice, putting an end to iniquities. Distinctly from “interventionist” operations,56 – always surrounded by controversy, – the right to humanitarian assistance finds clear and unequivocal support in International Law, and the United Nations Organization has contributed to that. Successive resolutions of the U.N. General Assembly 57 have effectively expressed a “universal recognition of the right of the victims to humanitarian assistance”; the international legal order has, thereby, “experienced in this matter the evolution from the right

52

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55

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57

For critical accounts, cf., e.g., A. Destexhe, Rwanda and Genocide in the Twentieth Century, London/East Haven Conn., Pluto Press, 1995, pp. 1-88; B. Bruneteau, Le siècle des génocides – Violences, massacres et processus génocidaires de l’Arménie au Rwanda, Paris, A. Colin, 2004, pp. 202-214; K.A. Acheampong, “Our Common Morality under Siege: The Rwanda Genocide and the Concept of the Universality of Human Rights”, 4 Review of the African Commission on Human and Peoples’ Rights (1994) pp. 31-40. Created in the region by decision of the U.N. Security Council during the conflict. Cf. criticisms in, e.g., A. Roberts, “El Papel de las Cuestiones Humanitarias en la Política Internacional en los Años Noventa”, in [Various Authors,] Los Desafíos de la Acción Humanitaria – Un Balance, Barcelona, Icaria Ed., 1999, pp. 49, 62-63 and 70; D. Momtaz, “‘L’intervention d’humanité’ de l’OTAN au Kosovo et la règle du nonrecours à la force”, 82 Revue internationale de la Croix-Rouge [RICR] (2000) n. 837, pp. 89-101; P. Kovács, “Intervention armée des forces de l’OTAN au Kosovo – Fondement de l’obligation de respecter le Droit international humanitaire”, 82 RICR (2000) n. 837, pp. 122 and 127-128, and cf. pp. 119-120 and 124. It has become manifest that “interventions” of a “humanitarian” character (by a handful of States) were incapable of “solving” cases of massive ethnic violence and of grave and systematic violations of human rights; A.J. Kuperman, The Limits of Humanitarian Intervention – Genocide in Rwanda, Washington D.C., Brookings Institution, 2001, pp. VII-IX and 109-119. The Ministerial Declaration of 24 September 1999 of the Meeting of Foreign Ministers of the Group of 77, – as pertinently recalled by Ian Brownlie, – distinguished between “humanitarian assistance” and other U.N. activities, and “rejected the so-called right of humanitarian intervention” as without foundation in the U.N. Charter or in International Law (par. 69); this represented the view of 132 States, including 23 from Asia, 51 from Africa, 22 from Latin America and 13 from the Arab world. I. Brownlie, “‘International Law and the Use of Force by States’ Revisited”, 21 Australian Year Book of International Law (2001) p. 21. Resolution 43/131, of 08.12.1988; and resolutions 45/100, 45/101, and 45/102, of 14.12.1990; and resolution 46/182, of 19.12.1991.

The Primacy of International Law over Force

of humanitarian assistance to the right to humanitarian assistance”.58 Instead of unsustainable “humanitarian” intervention, the right to humanitarian assistance is thus affirmed, with emphasis on the needs of the victims.59 Humanitarian assistance, as it ensues from some U.N. General Assembly resolutions, is in fact ineluctably linked to the fulfi lment of the basic needs of the victims.60 It is the victims who occupy a central position in humanitarian assistance, which is enhanced with the faithful observance and application of the norms of International Humanitarian Law. While the so-called “humanitarian intervention” shifts attention to the factual or material capacity to intervene, humanitarian assistance evokes, on a distinct plane, the imperatives of human solidarity. The former singles out the factual potential of action of the intervening agent, the latter the fulfilment of the basic needs of the victims, as titulaires of the right to humanitarian assistance.61 The emphasis is, thus, in my understanding, to be placed on the assistance to be given to those in need of it, rather than on the factual capability of the intervening actors. The adequate criterion lies in the focus on the beneficiaries of assistance, those in need of, and entitled to it, rather than on those rendering it. The former are the ones who can best identify their own basic needs of assistance; they are the titulaires of the right to humanitarian assistance.62 The ultimate foundation for the exercise of such a right is the dignity inherent to the human person, to all human beings. If attention is drawn to those who require assistance, – as it ought to, – and these latter deem that they indeed need it, the aim of humanitarian assistance will more appropriately be fulfi lled. Recent developments in this domain have in fact disclosed that humanitarian assistance has been evolving in the light of the needs of protection, in the conceptual framework of the corpus juris of the Inter58

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60 61 62

M.C. Márquez Carrasco, Problemas Actuales sobre la Prohibición del Recurso a la Fuerza en Derecho Internacional, Madrid, Tecnos, 1998, pp. 204-205. As to the free access to victims being a “customary rule”, cf. A. do Amaral Júnior, O Direito de Assistência Humanitária, Rio de Janeiro, Ed. Renovar, 2003, pp. 249-250. C. Zanghi, “Fondements éthiques et moraux du droit à l’assistance humanitaire”, in [Various Authors,] Colloque international sur le droit à l’assistance humanitaire – Actes (Paris, 25-27.01.1995), Paris, UNESCO, 1996, pp. 7 and 10, and cf. pp. 3-10; and cf. J.-M. Arbour, Droit international public, 4th. ed., Cowansville/Québec, Éd. Y. Blais, 2002, p. 648; A. Dieng, “L’action du système des Nations Unies et le droit à l’assistance humanitaire”, in [Various Authors,] Colloque international sur le droit à l’assistance humanitaire..., cit. supra (this footnote), pp. 50 and 52-53, and cf. pp. 47-53. E.g., U.N. General Assembly resolutions 43/131 (of 08.12.1988), 45/100 (of 14.12.1990) and 46/182 (of 19.12.1991). A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 429-433. A.A. Cançado Trindade, “Reply [- Assistance Humanitaire]”, in 70 Annuaire de l’Institut de Droit International – Session de Bruges (2002-2003), part 1, pp. 536540.

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national Law of Human Rights and of International Humanitarian Law, which provide elements for the construction of a right to humanitarian assistance, and the corresponding duty to provide it.63 The focus would, in sum, be on the human person, on the titulaires of the right to humanitarian assistance.64 The realization of this right to humanitarian assistance lies in the confluence between International Humanitarian Law, International Human Rights Law and the law of the United Nations.65 It finds inspiration, above all, in the principle of humanity, permeating customary international law itself, and enabling the victims themselves to request and receive humanitarian assistance.66 There occurs, nowadays, an unfortunate diversification of sources (sometimes not even identified) of violations of human rights, of which bear witness several situations of extreme hardship, distress and deprivation, which affect vulnerable sectors of the population in distinct latitudes, and call for humanitarian assistance.67 Instead of approaching the matter from the standpoint of the use of force, there is pressing need to develop the potential of International Law itself – that is, of the legal elements – in the formation, progressive development and crystallization of the right to humanitarian assistance.

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Cf., in this respect, the Guiding Principles on the Right to Humanitarian Assistance (1993) of the International Institute of Humanitarian Law in San Remo (Principles 1-3 and 6). The UNESCO Colloquy of Paris (of 1995) on the matter effectively concluded by approaching the question as from the angle of the subjective right of the victims to humanitarian assistance, of the determination of the active and passive subjects of this right, and of the pressing need to secure the direct access to the victims to be assisted or protected, – foreseen, in fact, by U.N. General Assembly resolutions 43/131 (of 08.12.1988) and 45/100 (of 14.12.1990); cf. “Conclusions du Colloque”, in Colloque international sur le droit à l’assistance humanitaire..., op. cit. supra n. (59), pp. 197-198, and cf. pp. 195-198. E.g., some provisions of the IV Geneva Convention on International Humanitarian Law of 1949 (Articles 23, 55 and 59-61) and of the Protocols I (Articles 69-70 and 54) and II (Articles 14 and 18) of 1977, and certain basic principles of the U.N. Charter besides resolutions of the General Assembly and the Security Council on humanitarian assistance; H. Fischer and J. Oraá, Derecho Internacional y Ayuda Humanitaria, Bilbao, University of Deusto, 2000, p. 81, and cf. pp. 17-101; [Various Authors,] Colloque international sur le droit à l’assistance humanitaire..., op. cit. supra n. (59), pp. 133-135 and 137-138 (intervention by V. Muntarbhorn). This right has also found expression in certain resolutions of the General Assembly (cf. supra) and the Security Council (e.g., those pertaining to the conflicts of Somalia and Bosnia-Herzegovina); the same does not occur with the so-called “humanitarian intervention” (on the part of one or more States individually, or a group of them), which finds no support in the U.N. Charter (or other treaties), nor in resolutions of the General Assembly or the Security Council. H. Fischer and J. Oraá, op. cit. supra n. (65), pp. 82-83 and 86-87. Such situations bring to the fore the duty erga omnes to provide the requested humanitarian assistance.

The Primacy of International Law over Force

In my understanding, emphasis should be laid on the primacy of law over force, in the provision of humanitarian assistance to those who stand in need of it. The key test here would be, in my view, the clear recognition that the basic needs of assistance to human beings anywhere, in their quest for survival as well as in their just aspirations to live with dignity, ought to be fulfilled. Human beings are the titulaires of the right to humanitarian assistance.68 Such right bears witness of the viability and desirability of rendering that assistance on the basis of Law, rather than force, as a response to current needs of the international community, affecting vulnerable and growing segments of the population in various countries. V.

The Decivilizing Effects of Unwarranted Use of Force

On quite a distinct level, the dangerous sophism of “preventive” armed attacks is destructive not only of the whole structure of the organized international community, but also of the values which inspire it. If, in the domestic legal order, society precedes Law, at international level – it has rightly been pondered, – occurs precisely the opposite: it is International Law which precedes international society, and this latter cannot even be conceived or exist without the former.69 It is the Law which is preventive or anticipatory, and not force, in the form of armed attacks, aggressions, unilateral interventions, and terrorist acts, which violate it openly. It may be recalled that already the ancient Greeks were aware of the devastating effects of the indiscriminate use of force and of war over both winners and losers, revealing the great evil of the substitution of the ends by the means: since the times of the Illiad of Homer until today, all “belligerents” are transformed in means, in things, in the senseless struggle for power, incapable even to “subject their actions to their thoughts”. As Simone Weil so perspicatiously once observed, the terms “oppressors and oppressed” almost lose meaning, in face of the impotence of everyone in front of the machine of war, converted into a machine of destruction of the spirit and of fabrication of the “inconscience”.70 As in the

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To the extent that their international legal personality and capacity is properly acknowledged, this right may gradually become justiciable; on its turn, the current phenomenon of the expansion of legal personality and capacity in international law (encompassing those of the human person) responds to a pressing need of the international community of our days; cf. chapters IX and X, infra. – Reference may here be made, in this connection, to the considerable and unprecedented expansion of beneficiaries of provisional measures of protection (especially those ordered by the IACtHR in the course of the last decade – cf. chapter II, supra), which have contributed to the development of a right to humanitarian assistance. B. Boutros-Ghali, “Le Droit international à la recherche de ses valeurs: paix, développement, démocratisation”, 286 RCADI (2000) pp. 20, 18 and 30, and cf. p. 37. S. Weil, Reflexiones sobre las Causas de la Libertad y de la Opresión Social, Barcelona, Ed. Paidós/Universidad Autónoma de Barcelona, 1995, pp. 81-82, 84 and 130-131.

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Illiad of Homer, there are no winners and losers, all are taken by force, possessed by war, degraded by brutalities and massacres.71 Homer’s perennial message is as valid and poignant in his times in ancient Greece as in our days: “War – I know it well, and the butchery of men. Well I know, shift to the left, shift to the right my tough tanned shield. That’s what the real drill, defensive fighting means to me. I know it all, (...) I know how to stand and fight to the finish, twist and lunge in the War-god’s deadly dance. (...) For a young man all looks fine and noble if he goes down in war, hacked to pieces under a slashing bronze blade – he lies there dead... but whatever death lays bare, all wounds are marks of glory. When an old man’s killed and the dogs go at the grey head and the gray beard (...) – that is the cruelest sight in all our wretched lives!”.72

Along the centuries, the “butchery of men” has kept occurring endlessly,73 and lessons do not yet seem to have been sufficiently learned, – in particular the pressing need and duty to secure the primacy of Law over brute force. Thus, in ancient Rome M.T. Cicero pondered, in his De Legibus,74 that there was “nothing more destructive for States, nothing more contrary to right and law, nothing less civil and humane, than the use of violence in public affairs”.75 And in his De Republica,76 Cicero added that nothing was “more damaging to a State” and “so contrary to justice and law” than recourse “to force through a measure of violence”, where a country had “a settled and established constitution”.77 In this same line of concern, by the end of the XVIIIth century, in his essay on Perpetual Peace (1795), Immanuel Kant eloquently warned: 71 72 73

74 75 76 77

S. Weil, “L’Iliade ou le Poème de la Guerre (1940-1941)” in Oeuvres, Paris, Quarto Gallimard, 1999, pp. 527-552. Homer, The Iliad, N.Y./London, Penguin Books, 1991 [reed.], pp. 222 and 543-544, verses 275-281 and 83-89. For an eloquent and historical account, cf., inter alia, e.g., Bartolomé de Las Casas, Brevísima Relación de la Destrucción de las Indias (1552), Barcelona, Ediciones 29, 2004 [reed.], pp. 7-94; Bartolomé de Las Casas, Tratados, vol. I, Mexico, Fondo de Cultura Económica, 1997 [reprint], pp. 14-199, and cf. pp. 219, 319 and 419. On the Laws, book II, circa 51-43 b.C.. M.T. Cicero, On the Commonwealth and On the Laws (ed. J.E.G. Zetzel), Cambridge, University Press, 2003 [reed.], book III, ibid., p. 172. Circa late 50s-46 b.C.. M.T. Cicero, The Republic – The Laws, Oxford, University Press, 1998, p. 166 (book III, par. 42).

The Primacy of International Law over Force “(...) il faut ajouter qu’être stipendié pour tuer ou être tué semble impliquer l’utilisation des hommes comme de simples machines et instruments aux mains d’autrui (de l’État), ce qui ne se laisse pas bien accorder avec le droit de l’humanité dans notre propre personne”.78

Subsequently, early in the XXth century, a tribute to the pacifist (and former Nobel prize recipient in literature in 1915) Romain Rolland, published in 1920, still amidst the general devastation generated by the I world war, denounced the lies that accompany and stimulate wars and seek to annihilate the conscience of their millions of victims, and added that “Dans son appel ‘Aux peuples assassinés’, Rolland n’exprime que de la pitié pour les millions d’hommes qui, par apathie, servent à des fins qui leur sont étrangères, et dont la pieuse immolation n’a pas d’autre sens que la beauté d’un sacrifice heroïque. (...) Rolland ressent d’une façon aussi tragique (...) la perte de millions d’hommes, c’est-à dire, le naufrage de la libre âme individuelle dans la cataracte de l’âme collective. (...) La guerre des masses, la brutalité uniformisée, la mobilisation au commandement, un idéal et une action privés de personnalité lui apparaissent comme le crime le plus terrible contre la liberté”.79

Whether perpetrated by States (or in their name) or non-State entities, the brutalities and massacres in different parts of the world, of past decades and of the somber times we now live in, have profound decivilizing effects. The 1997 UNESCO Declaration on the Responsibilities of the Present Generations Towards Future Generations stated that “The present generations should spare future generations the scourge of war. To that end, they should avoid exposing future generations to the harmful consequences of armed conflicts as well as all other forms of aggression and use of weapons, contrary to humanitarian principles”.80

Nothing in the U.N. Charter transfers to one or more of its member States the power to decide unilaterally that the peaceful means of settlement of international disputes have been “exhausted”, and nothing in the U.N. Charter authorizes one or more of its member States to decide motu propio, and pursuant to their own criteria (or lack of them) and strategies, as to the use of armed force. Those who proceed in this way, besides violating the U.N. Charter and the basic principles of International Law, have their international responsibility engaged. In sum, no State is allowed to place itself above the Law. 78 79 80

Cit. in: La paix (Textes choisis, ed. M. Lequan), Paris, Flammarion, 1998, pp. 173174. S. Zweig, Romain Rolland, Zurich/Paris, Belfond, 2000 [reed.], pp. 337, 346 and 366, and cf. p. 305. Article 9(2).

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“Preventive” armed attacks, unilaterally launched, have profound decivilizing effects. What, then, in our days, do the terms “civilized nations”81 mean, devoid of the colonialist connotation of the past? “Civilized nations” are no other than those which respect International Law 82 and abide by its general principles. Ultimately, “civilized nations” are those which recognize and respect, in any circumstance, the primacy of Law over force as an imperative of jus cogens. In the recent episode of the invasion and occupation of Iraq (2003), and the following hostilities in the occupied country, the most numerous victims – like those of terrorism in different parts of the world, – have invariably been innocent and unprotected civilians (including children).83 The heralds of this new Peloponnesian war of the XXIst century, like those of their predecessors over the centuries, have had their decisions vested with empty words and false rhetorics, seeking thereby a hiding place in the recondite labyrinths of their own irresponsibility (and impunity). What does one witness after all? Devastation, revenge, violations of International Humanitarian Law 84 and of International Human Rights Law,85 the practice of torture and other abuses against prisoners, – opening wounds and leaving scars that will take genera81 82

83

84

85

Coined in Article 38(1)(c) of the ICJ Statute. This associates the expression to an international legal order of a universal dimension, which seeks justice and peace and discards unwarranted recourse to force; J.A. Carrillo Salcedo, Soberanía de los Estados y Derechos Humanos en Derecho Internacional Contemporáneo, 2nd. ed., Madrid, Tecnos, 2001, p. 180. From this outlook, “civilized nations” are those which fully respect, and ensure respect for, the exercise of human rights to all persons under their respective jurisdictions, as the best measure of the degree of civilization”; A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, p. 344. In this respect, already in the XIXth century, a universal writer, F.M. Dostoievski, warned that the degree of civilization reached by any society can be assessed by entering into its prisons and detention centres; F.M. Dostoievski, Souvenirs de la maison des morts (1862), Paris, Gallimard, 1997 [reed.], pp. 35-416. A situation portrayed by some “strategists” (and part of the media) as “collateral damages”, an euphemism with which they seek to avoid listening to the voice of conscience, and which reflects in an unequivocal way the deep crisis of values in the world in which we live. Cf. J. Cardona Lloréns, “Libération ou occupation? Les droits et devoirs de l’État vainqueur”, in L’intervention en Irak et le Droit international (eds. K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pédone/CEDIN, 2004, pp. 221-250; G. Abi-Saab, “Les Protocoles Additionnels, 25 ans après”, in Les nouvelles frontières du Droit international humanitaire (ed. J.-F. Flauss), Bruxelles, Bruylant, 2003, pp. 33-36; Y. Sandoz, “L’applicabilité du Droit international humanitaire aux actions terroristes”, in ibid., pp. 71-72. In its Judgment of 08.07.2004, in the case of the Brothers Gómez Paquiyauri versus Peru, e.g., the IACtHR pondered that “the prohibition of torture is absolute (...), even in the most difficult circumstances, such as war, threat of war, ‘fight against terrorism’ (...)”; there is nowadays an “absolute prohibition of all forms of torture (...) which belongs (...) to the domain of international jus cogens” (pars. 111-112).

The Primacy of International Law over Force

tions to heal.86 In this line of concern it was pertinently warned by Jean Pictet, four decades ago, in an almost premonitory tone, that “it would be a disastrously retrograde step for humanity to try to fight terrorism with its own weapons”.87

Force only generates force, and one cannot pretend to create a new “international order” on the basis of unilateralism and unwarranted use of force, over the corpses of thousands of innocent victims (victimized by all kinds of terrorism, perpetrated by non-State entities as well as sponsored by States themselves), destined, amidst indifference, to oblivion. The projection in time of the cardinal principle of the prohibition of the threat or use of force cannot be overlooked. In fact, nothing in International Law authorizes a State or group of States to proclaim themselves defenders of “civilization”, – and those which pretend to take such a course of action, making recourse to the indiscriminate use of force, outside the framework of the U.N. Charter, do so in the opposite sense to the purpose professed. More than half a century ago (in 1950), the learned historian Arnold Toynbee warned that the improvement of military technique was symptomatic of the “decline of a civilization”, and the growing expenditures with militarism would fatally lead to the “ruin of civilizations”.88 Another remarkable writer of the XXth century, Stefan Zweig, in referring to the “old savagery of war”, likewise warned against the décalage between technical progress and moral ascent, in the face of “a catastrophe which with one sole blow made us move backwards a thousand years in our humanitarian endeavours”.89 On his turn, the Greek jurist Nicolas Politis, in a late monograph, published posthumously in 1944, in face of the great deprivations and misery brought by war in his time, added to the illusion of ephemeral advantages ensuing from the use of force, and the awareness of the “inutility of war” and violence, argued that only the organization of the international community on the basis of inter86

87 88

89

It has been timely remarked, in relation to some of the armed confl icts we witness nowadays, that “the repressive methods used by Israel against the Palestinians, the destabilization of Iraq after the American intervention, including the emergence of a new terrorist resistance, the more than uncertain stabilization of Afghanistan, the inability of Russia to bring peace to Chechnya by the use of force, none of these events is a success story”; M. Bothe, “The International Community and Terrorism”, in Les nouvelles menaces contre la paix et la sécurité internationales / New Threats to International Peace and Security, Paris, Pédone, 2004, pp. 59-60. J. Pictet, The Principles of International Humanitarian Law, 1st. ed., Geneva, ICRC, 1966, p. 36. A. Toynbee, Guerra e Civilização, Lisbon, Edit. Presença, 1963 (reed.), pp. 20, 29 and 178-179. – And cf. J. de Romilly, La Grèce antique contre la violence, Paris, Éd. Fallois, 2000, pp. 18-19 and 129-130. S. Zweig, O Mundo que Eu Vi [Le Monde d’hier], Rio de Janeiro, Ed. Record, 1999 (reed.), p. 19, and cf. pp. 474 and 483, and cf. p. 160.

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national cooperation and the constant search by all for the primacy of justice, could generate durable results, beneficial to humankind; yet, this depended, on his view, on the awakening of conscience as to the need to seek this goal.90 Such lucid insights and warnings of thinkers of vision of the previous decades cannot be forgotten in our dangerous days. Hermann Hesse (Nobel prize recipient in literature in 1946), faithful to his pacifist ideas, writing in 1932, in the inter-war period, strongly criticized the militarization of the epoch and the transformation of young people into “State criminals”; once the II world war was over, he pondered in 1945 that “c’est à nouveau pour nous la première nuit du nouvel an où il n’y a pas la guerre, où le monde n’est pas plein d’enfer et de mort, où nous n’entendons plus les grandes machines de destruction passer au-dessus de nous dans l’obscurité à la recherche de pitoyables cibles. (...) Nous avons amèrement compris que la véritable histoire universelle n’est pas celle des livres d’école et des ouvrages luxueusement illustrés, (...) mais qu’elle est une vague, un océan d’infinies souff rances”.91

Over a decade later, as the world became engulfed into new threats, proper of the cold war period, H. Hesse added, somewhat disillusioned, that “Si nous qui ne croyons pas à la violence et qui essayons dans la mesure du possible d’y échapper, devons malgré tout reconnaître qu’il n’y a pas de progrès, que le monde est toujours gouverné par les arrivistes, les assoiffés de pouvoir et les violents, on

peut appeler ça, si on aime les jolis mots, ‘tragique’”.92 The horrors of past conflicts in the XXth century, – the two world wars and successive atrocities victimizing millions of human beings, – added to those of the beginning of this new century, should be kept in mind, in particular by the contemporary apologists of recourse to force. It is not the function of international lawyers to seek “solutions” for threats to international peace and security through the use of force: this is a distortion of the legal profession, as such solutions are to be found within the domain of Law. VI. Final Observations: The Primacy of Law over Force as an Imperative of Jus Cogens In the last decades, one has witnessed a true conversion of the traditional and surpassed jus ad bellum into the jus contra bellum of our days; this is one of the

90 91 92

N. Politis, La morale internationale, N.Y., Brentano’s, 1944, pp. 164-165 and 158. H. Hesse, Guerre et paix – considérations politiques, Paris, L’Arche Éd., 2003, pp. 139-140, and cf. p. 115. Ibid., p. 179.

The Primacy of International Law over Force

most significant transformations of the contemporary international legal order.93 Law has an objective validity, which resists the violation of its norms. It is inadmissible to try to equate Law with force, which would moreover reflect a mental vice consisting in not distinguishing the world of Sein from that of Sollen.94 Law stands above force. One cannot pretend to erect a new “international order” on the basis of the use of force,95 while the fundamental principle applicable in that order along almost a century of evolution of International Law has been precisely to the opposite effect, namely, that of non-use of force.96 Law prevails over force. The violation of a basic principle of international law does not generate a “new practice”,97 but rather engages the international responsibility of the wrongdoers. Every faithful international lawyer has the ineluctable duty to stand against the apology of the use of force, which is manifested in our days through distinct “doctrinal” elaborations. One attempts, e.g., to widen the scope of Article 51 of the U.N. Charter so as to encompass an unsustainable “preventive self-defence”.98 One advocates recourse to “countermeasures” (a term reminiscent of the old practices

93

94 95

96

97 98

M.C. Márquez Carrasco, op. cit. supra n. (58), Madrid, Tecnos, 1998, p. 263. For a long time already, it has been contended that, even eventual recourse to force by States, on given occasions, has never affected the primacy of the jus cogens provision of Article 2(4) of the U.N. Charter; cf., e.g., T.O. Elias, op. cit. supra n. (4), p. 84; A.A. Cançado Trindade, “El Primado del Derecho sobre la Fuerza como Imperativo del Jus Cogens”, in Doctrina Latinoamericana del Derecho Internacional, op. cit. supra n. (2), pp. 51-66. And for a general study, cf. R. Kolb, Ius contra Bellum – Le droit international relatif au maintien de la paix, 2nd. ed., Bâle/Bruxelles, Helbing Lichtenhahn/Bruylant, 2009, pp. 1-342. A. Truyol y Serra, Fundamentos del Derecho Internacional Público, 4th. ed., Madrid, Tecnos, 1977, pp. 47 and 56-57. [Various Authors,] La pratique et le Droit international (Geneva Colloquy of 2003), Paris, Pédone/SFDI, 2004, pp. 116 and 120. – It may well be, as pointed out in this Colloquy, that “persistent objectors” of yesterday have become “persistent violators” of today; ibid., pp. 120, 233 and 300-301. Likewise, repeated violations of International Human Rights Law and International Humanitarian Law have not altered these latter; on the contrary, they have promptly reacted to such violations and have strengthened, rather than weakened; cf. ibid., pp. 300-301 (intervention by L. Condorelli). One cannot expect an illicit act or practice to generate legal effects (ex injuria jus non oritur). The XXII Congress of the Hispano-Luso-American Institute of International Law (IHLADI), held in San Salvador, El Salvador, adopted a declaration, approved by ample majority on 13 September 2002, which rejected categorically the “doctrine” of the so-called “preventive self-defence”, bearing in mind the U.N. Charter, customary international law and the general principles of law, as well as relevant norms and the principles of International Humanitarian Law. Cf. text of the declaration in: IHLADI, 16 Anuario del Instituto Hispano-Luso-Americano de Derecho Internacional – Madrid (2003) pp. 657-658.

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of reprisals and retaliation),99 outside the framework of the truly central chapter of International Law of the international responsibility of States.100 One invokes uncritically “humanitarian intervention or ingérence”, instead of vindicating the right of the affected populations to humanitarian assistance. One speaks of “persistent objector”, instead of focusing attention on the needed construction of an opinio juris communis. One has even attempted to issue a death certificate on Article 2(4) of the U.N. Charter, without foreseeing its harmful consequences for humankind as a whole. One could, in fact, compile a whole glossary of harmful neologisms, empty of any juridical meaning and bearing a potential of disastrous consequences for the international legal order. This reflects the dangerous world in which we live, engulfed into a profound crisis of values. The common denominator of all these new “doctrines” is their minimization or undervaluing of the foundations of International Law, besides the emphasis on the primitivism of the indiscriminate use of force. It is known that, for the necessary struggle against terrorism, within the Law, there are nowadays twelve international conventions and protocols at universal level,101 added to seven other conventions at regional level,102 which are to be applied and duly complied with. At the present moment of world crisis, – a true crisis of values, – of a worrisome attempted rupture of the international system of collective security, there

99

Cf. criticisms of M. Virally, “Panorama du droit international contemporain – Cours général de droit international public”, 183 RCADI (1983) p. 218. 100 Cf. criticisms of Ph. Allott, “State Responsibility and the Unmaking of International Law”, 29 Harvard International Law Journal (1988) pp. 23-24. 101 Namely, the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft; the 1970 Convention for the Suppression of Unlawful Seizure of Aircraft; the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (and its 1988 Protocol); the 1973 U.N. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons; the 1979 U.N. International Convention against the Taking of Hostages; the 1980 Vienna Convention on the Physical Protection of Nuclear Material; the 1988 Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (and the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf); the 1991 Montreal Convention on the Marking of Plastic Explosives for the Purpose of Detection; the 1997 U.N. International Convention for the Suppression of Terrorist Bombings; and the 1999 U.N. International Convention for the Suppression of the Financing of Terrorism. 102 Namely, the 1971 OAS Convention to Prevent and Punish Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that Are of International Significance; the 1977 European Convention on the Suppression of Terrorism; the 1987 SAARC Regional Convention on Suppression of Terrorism; the 1998 Arab Convention on the Suppression of Terrorism; the 1999 Convention of the Organization of the Islamic Conference on Combating International Terrorism; the 1999 OAU Convention on the Prevention and Combating of Terrorism; and the 2002 OAS Inter-American Convention against Terrorism.

The Primacy of International Law over Force

is pressing need to reassert the primacy of International Law over brute force,103 as an imperative of jus cogens. “Preventive” armed attacks and indefinite “countermeasures” do not find any support whatsoever in International Law; on the contrary, they openly violate it. They rely on spurious “doctrines”, which show the way back to the law of the jungle,104 besides multiplying their defenceless, silent and innocent victims in different parts of the world. The most lucid international legal doctrine has characterized the principle of the prohibition of the threat or use of force as belonging indeed to the domain of jus cogens,105 and has added that violations of this principle do not weaken its imperative character.106 The condemnation of the use of force has been qualified as the “most remarkable” feature of the U.N. Charter,107 – representing, effectively, a notable advance in relation to the Covenant of the League of Nations. The function of the international lawyer is not simply that of taking note of what States – or some particular States, the most powerful ones – do; his function is to identify and say what the Law is, the Law which derives its authority from certain principles of right reason (est dictatum rectae rationis).108 Law, definitively, does not silence, not even when recourse is made to weapons either by States or non-State entities. Well above force stands the Law, just as above the will stands the conscience.

103 The ICJ, stressing the role of opinio juris in the Nicaragua versus United States case (1986), effectively affirmed the fundamental character of the principle of the prohibition of the threat and use of force, recognized both in the U.N. Charter and in customary international law; cf. ICJ Reports (1986) p. 97 par. 181. 104 Cf. cit., in this sense, in A. Cassese, “Article 51”, in La Charte des Nations Unies – Commentaire article par article (eds. J.-P. Cot and A. Pellet), Paris/Bruxelles, Economica/Bruylant, 1985, p. 777. 105 R.St.J. Macdonald, “Reflections on the Charter of the United Nations”, in Des Menschen Recht zwischen Freiheit und Verantwortung – Festschrift für Karl Josef Partsch, Berlin, Duncker & Humblot, 1989, p. 45; R. Macdonald, “The Charter of the United Nations in Constitutional Perspective”, 20 Australian Year Book of International Law (1999) p. 215; and cf. C. Lang, L’affaire Nicaragua/États-Unis devant la Cour Internationale de Justice, Paris, LGDJ, 1990, pp. 135 and 253 (in relation to International Humanitarian Law). 106 Cf. M. Díez de Velazco, Las Organizaciones..., op. cit. supra n. (20), p. 177; and cf. E. Schwelb, “Some Aspects of International Ius Cogens as Formulated by the International Law Commission”, 61 American Journal of International Law (1967) pp. 946975. 107 D. Uribe Vargas, La Paz es una Trégua – Solución Pacífica de Conflictos Internacionales, 3rd. ed., Bogotá, Universidad Nacional de Colombia, 1999, p. 109. 108 A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Edit. Renovar, 2002, p. 1109; and cf. chapter I, supra.

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Part III Formation of International Law

Chapter V

I.

Contemporary International Lawmaking: A Reassessment of the Theory of Formal “Sources” of International Law

Introduction

The ways and means whereby International Law nowadays manifests itself surely do not exhaust themselves in the consideration of its formal “sources”. The growing complexity of the process of formation of contemporary International Law is a challenge to its scholarship, nowadays perhaps to a greater extent than in the past. This is a basic issue which cannot be dissociated, e.g., from that of the expansion of international legal personality in International Law.1 Classic doctrine already tended to single out the distinction between formal “sources” of International Law, that is, the means whereby this latter manifests itself and its norms are created (custom, treaties, general principles of law, case-law, doctrine, eqüity, among others), and its so-called material “source”, that is, the substratum – metajuridical – wherefrom the former are originated.2 In fact, the material “source” referred to is, in its turn, ineluctably linked, ultimately, to the question of the validity itself of the norms of International Law. This question, however, transcends the ambit of positive law.3 As international lawyers, in their great majority, did not appear prepared to enter into this line of inquiry, it became commonplace, somewhat easier, along the years, – as attested by numerous books and courses dedicated to the matter, – reiteratedly to circumscribe the study of the matter to the provision of Article 38 of the Statute of the International Court of Justice [ICJ], virtually the same as the corresponding Article of the Statute of the previous Permanent Court of International Justice [PCIJ].4 The list set forth in that well-known provision, however, refers 1 2

3 4

Cf. chapters VII-XI, infra. G. Scelle, “Essai sur les sources formelles du droit international”, in Recueil d’études sur les sources du droit en l’honneur de F. Gény, vol. III, Paris, Rec. Sirey, 1934, pp. 400-430; M. Sorensen, Les sources du Droit international, Copenhague, E. Munksgaard, 1946, pp. 13-14. M. Sorensen, op. cit. supra n. (2), p. 15. Apart from small variations of phraseology (in the introductory phrase) and in the numbering of paragraphs and subparagraphs: cf. Bin Cheng, op. cit. infra n. (52), pp. 2 and 21.

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only to the formal “sources”. The study of the formation of International Law, in this way, does not – could not – exhaust itself in the consideration only of the aforementioned list of formal “sources”. II.

General Considerations on the Formal “Sources” of International Law

Article 38 of the Statute of the PCIJ and the ICJ provides that, in the settlement of disputes submitted to it, the Court will apply international conventions, international custom and general principles of law, to which are added, as “subsidiary means”, judicial decisions and doctrine; the Court is, at last, entitled to decide a question ex aequo et bono, “if the parties agree thereto”. The legislative history of that provision goes back to 1920, when an Advisory Committee of Jurists was appointed by the Council of the League of Nations5 to prepare the project for the establishment of a PCIJ. The Committee convened at The Hague from 16 June to 24 July 1920. Draft Article 38 of the PCIJ Statute resulted from a project originally presented by Baron Descamps,6 which was object of debates among the members of the Committee referred to, in which a decisive influence was exerted, besides the author of the aforementioned project, also by E. Root and Lord Phillimore.7 Article 38 of the Statute of the old PCIJ (reincorporated two and a half decades later also into the Statute of the successor ICJ) soon became object of attention for enumerating the “sources” of International Law, but did not escape criticisms in the years following its adoption.8 G. Scelle, for example, observed in 1934 that the very conception of the aforementioned Article 38 appeared insufficient to fulfi l the social needs that should be taken into account by the International Law of the epoch.9 It is to be kept in mind that Article 38, however, was never intended to constitute a

5

6 7

8

9

The Advisory Committee was composed of Adatci, Altamira, Clovis Bevilaqua (subsequently replaced by Raul Fernandes), Baron Descamps, Hagerup, Albert de La Pradelle, Loder, Lord Phillimore, Ricci-Busatti, Elihu Root (assisted by J. B. Scott), being D. Anzilotti its Secretary-General; cit. in Bin Cheng, op. cit. infra n. (52), p. 6 n. 19. Including treaties, custom, general principles of law, case-law. Cf. proceedings in: Cour Permanente de Justice Internationale/Comité Consultatif de Juristes, Procès-verbaux des séances du Comité (16 juin/24 juillet 1920) avec Annexes, La Haye, Éd. Van Langenhuysen Frères, 1920, pp. 247, 270, 293-297, 306-321, 331-339, 344-346, 351, 584, 620 and 729-730. And, for a study of these procès-verbaux, cf. Maarten Bos, “The Recognized Manifestations of International Law – A New Theory of ‘Sources’”, 20 German Yearbook of International Law (1977) pp. 18 and 3339. In 1934, G. Scelle, e.g., criticized the formulation of Article 38 of the PCIJ Statute for have been much influenced by considerations of political order, representing a compromis between the demands of legal technique and the possibilities of intergovernmental relations; G. Scelle, op. cit. supra n. (2), p. 411. Ibid., p. 420.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

mandatory and exhaustive formulation of the “sources” of International Law, but only a guide to the judicial operation of the Hague Court.10 The provision at issue became also object of controversy in expert writing as to the question whether it established or not a hierarchy of sources of Public International Law.11 For the supporters of the natural law foundations of International Law, it became less difficult to apprehend the relationship between the general principles of law, treaties and custom: to them, treaties and custom would be “positivizations” of the general principles of law adapted to the varying historical situations.12 But this was just one of the existing conceptions. What soon seemed beyond doubt was that the so-called “sources” of International Law appeared in constant and dynamic interaction. Another point which became constantly clearer pertained to the prominent position of treaties and custom – normally endowed with equal authority – among the sources of International Law.13 There was support for the view that international custom can be found in treaties, just as treaties can, with the passing of time, move on to customary international law, and even exert effects, qua evidence of customary international law, on States not Parties thereto.14 With the exception of this last point, which has been challenged,15 it came to be admitted

10 11

12 13

14

15

M. Sorensen, Les sources..., op. cit. supra n. (2), pp. 28-33. Rigorously, doubts were to be raised mainly in respect of treaties, custom and general principles of law, since Article 38 itself was to characterize case-law and doctrine as “subsidiary means” and to attribute a limited function to equity. A. Truyol y Serra, Noções Fundamentais de Direito Internacional Público, Coimbra, A. Amado Ed., 1962, pp. 141-143. Former Soviet authors came even to refuse to recognize any sources of international law other than treaties and custom; cf. M. Akehurst, “The Hierarchy of the Sources of International Law”, 47 British Year Book of International Law [BYBIL] (1974-1975) pp. 273-285. Among them, there were those to whom treaties would prevail over custormary law for being based on the express agreement of States; cf. R. R. Baxter, op. cit. infra n. (14), pp. 101-102. R.R. Baxter, “Treaties and Custom”, 129 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1970) pp. 31-104; A.D. McNair, “Treaties Producing Effects ‘Erga Omnes’”, in Scritti di Diritto Internazionale in Onore di T. Perassi, vol. II. Milano, Giuff rè, 1957, pp. 23-36. Ph. Cahier, “Le problème des effets des traités à l’égard des États tiers”, 143 RCADI (1974) pp. 589-736. – And for a criticism of the preponderant role of treaties and custom, cf. C. Sepúlveda, Las Fuentes del Derecho Internacional Americano, Mexico, Ed. Porrúa, 1975, pp. 43-69, and pp. 94-95, on the importance of resolutions of international Conferences. Cf. also comments by M. Panebianco, “La Teoria delle Fonti del Diritto Internazionale nei Fondatori della Dottrina Latino-Americana (Sec. 1819)”, in Studi in Onore di G. Sperduti, Milano, Giuff rè, 1984, pp. 163-186; J.C. Puig, Les principes du Droit international public américain, Paris, Pédone, 1954, pp. 1-81.

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nowadays that a treaty may overcome a pre-existing custom (leading to the formation of a new custom), just as a subsequent custom may overcome a treaty.16 Moreover, the enumeration of “sources” of International Law listed in Article 38 of the ICJ Statute was never meant to be, nor could it be, exhaustive. This was soon indicated by decisions of the ICJ itself, on the basis of a combination of distinct “sources”, in addition to other evidences, of International Law.17 It may thus be inferred that the formal “sources” of International Law are not static categories, but are rather in in constant and dynamic interaction, reflecting, in a non-exhaustive manner, the ways and means of manifestation of International Law in time. III. The Formal “Sources” Enumerated in Article 38 of the ICJ Statute 1.

International Custom

Article 38 itself of the ICJ Statute duly qualifies international custom in referring to it as “evidence of a general practice accepted as law”. Hence the two classic constitutive elements of custom (considered by the PCIJ as early as in 1927, in the Lotus case, France versus Turkey):18 the objective element, represented by the international practice itself, and the subjective element, the opinio juris sive necessitatis, i.e., the belief that such practice is in accordance with law and accepted as such; this configuration of international custom remains predominantly accepted to date. Yet, it was once object of criticism on the part of H. Kelsen,19 endorsed by P. Guggenheim, in the sense that the objective element would be sufficient to create custom as “source” of law, since the subjective element of the opinio juris would, in their view, be of difficult determination.20 16

17

18

19 20

Treaties may also serve as evidence of customary law: for example, consular bilateral treaties much influenced the development of customary international law on consular relations, later codified in the 1963 Vienna Convention on Consular Relations; R.R. Baxter, op. cit. supra n. (14), pp. 87-89 and 101, and cf. p. 98. Cf. examples cit. in, e.g., R.R. Baxter, op. cit. supra n. (14), pp. 36-37; Ch. Schreuer, “Recommendations and the Traditional Sources of International Law”, 20 German Yearbook of International Law [GYIL] (1977) pp. 113-114. Cf. docs. reproduced in: K. Marek, Répertoire des décisions et des documents de la procédure écrite et orale de la Cour Permanente de Justice Internationale et de la Cour Internationale de Justice, vol. 2: Les sources du droit international, Geneva, I.U.H.E.I., 1967, pp. 801-831; in his Dissenting Opinion in the case (wherein the PCIJ stressed the “will” of States in the formation of international rules), Judge Nyholm argued that, in the formation of custom, it was by the continuing repetition of certain acts that an international juridical conscience began to manifest itself. – Subsequently the PCIC began to move away from its voluntarist-positivist thinking, and its successor, the ICJ, dissociated itself from it. And his followers of the school of the “pure theory of law”. P. Guggenheim, “Les deux éléments de la coutume en Droit international”, in La technique et les principes du droit public – études en l’honneur de G. Scelle, vol. I, Paris, LGDJ, 1950, pp. 275-284.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

In counterposition to this outlook, many other authors considered necessary or useful the preservation of the element of opinio juris as a means to prove the existence of certain customary norms, insisting on its necessity and relevance in the formation of custom, when, e.g., States disputed the content of customary law.21 Just as significant was the fact that H. Kelsen and P. Guggenheim themselves gradually recognized the necessity to abandon their arguments, yielding to the recognition of the continued viability, and necessity, of the opinio juris; to prescind from this latter would only benefit the powerful, besides incurring into the error of equating law with mere State conduct.22 Opinio juris came to attract growing attention on the part of international legal doctrine,23 and nowadays its wide scope is duly recognized (infra). The proof of custom, object of attention on the part of the ICJ in the Asylum case (Colombia versus Peru, 1950),24 was to abide by the principle of division or distribution of the burden of proof (onus probandi incumbit actori) between the contending parties in international litigation.25 A problem emerged at the epoch of decolonization was that of determining the application or not of customary International Law to the new States, then recently emancipated politically. The question appeared initially surrounded by uncertainties. If one was to apply the positivist theory of consent as the ultimate foundation of International Law, serious difficulties would arise, as only the norms with which the new States would entirely agree with would be automatically binding upon them; it is known, however, that, in practice, new States preferred, instead of trying promptly to reject certain norms which could appear adverse to them, to admit their existence and 21

22

23

24

25

A.A. D’Amato, The Concept of Custom in International Law, Ithaca, Cornell University Press, 1971, pp. 242 n. 28, and 74, and cf. pp. 271-272 (for the “claim-oriented approach”); and cf. also J.L. Kunz, “The Nature of Customary International Law”, 47 American Journal of International Law [AJIL] (1953) p. 665; D.W. Greig, International Law, 2nd. ed., London, Butterworths, 1976, p. 19. Sienho Yee, “The News that Opinio Juris ‘Is Not a Necessary Element of Customary [International] Law’ Is Greatly Exaggerated”, 43 GYIL (2000) pp. 231, 234 and 236238. Cf. M. Sorensen, op. cit. supra n. (2), p. 85. – On R. Ago’s view of a “spontaneous” customary international law, cf. comments by J.J. Lador-Lederer, “Some Observations on the ‘Vienna School’ in International Law”, 17 Nederlands Tijdschrift voor internationaal Recht (1970) pp. 137-138. This view was opposed to by J.L. Kunz, “The Nature of Customary International Law”, op. cit. supra n. (21), pp. 664-665. Cf. remarks in P. Guggenheim, Traité de Droit international public, vol. I, Geneva, Libr. Univ. Georg & Cie., 1953, pp. 46-48 and 506; cf. also H.W. Briggs, “The Colombian-Peruvian Asylum Case and Proof of Customary International Law”, 45 AJIL (1951) pp. 728-731, esp. p. 729. Cf. A.A. Cançado Trindade, “The Burden of Proof with Regard to Exhaustion of Local Remedies in International Law”, 9 Revue des droits de l’homme / Human Rights Journal – Paris (1976) pp. 81-121; and cf. the memorandum of the U.N. SecretaryGeneral, Ways and Means of Making the Evidence of Customary International Law More Readily Available, N.Y., U.N. publ. n. 1949-V-6, 1949, pp. 3-114.

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to endeavour to change them and to ensure effectively their evolution by means of their conscious and concerted action to this effect in international forums like the U.N. General Assembly. And this, in fact, brought about significant changes in contemporary International Law.26 In the past, International Law was characterized as “the generalization of the practice of States”;27 nowadays, international practice has a much wider scope, comprising not only that of States, but also that of international organizations and of other subjects of International Law.28 In fact, as much of the practice of States remains – with notable exceptions – largely unpublished and not examined (sometimes simply unrecorded), for the determination of the proof of custom resort has often been made to a mass of other available materials,29 at times transcending the practice of States themselves. In any case, no State – however powerful it might be – can claim that its individual practice is intrinsically more important than that of other States (just because of the publicity and dissemination given to it); as members of the international community, they all contribute, altogether, to the formation and development of international practice, jointly with other subjects of International Law. Another issue relating to international custom is that of the more or less “immediate” creation of customary norms in new areas of International Law, in which there was no prior regulation. A remarkable example was provided by the U.N. General Assembly resolutions in the early sixties, on the exploration and use of the space,30 resulting in great part from a “tacit agreement” between the two main space actors of the epoch, and which were to reflect, in the view of some authors, an “inchoate custom” on the matter.31 Resolutions 1721(XVI), of 20.12.1961, and 1962(XVIII), of 13.12.1963, were to be acclaimed as the “initial chapter” of the

26 27

28 29

30 31

M. Virally, “The Sources of International Law”, Manual of Public International Law (ed. Max Sorensen), London, MacMillan, 1968, p. 139. Cf. cit. in C. Parry, The Sources and Evidences of International Law, Manchester, University Press/Oceana, 1965, pp. 58 and 62, and cf. pp. 56-82; C. Parry, “The Practice of States”, 44 Transactions of the Grotius Society (1958-1959) pp. 167 and 159, and cf. pp. 145-186. A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1048-1049. Including bilateral and multilateral treaties, resolutions of the U.N. General Assembly, resolutions of scientific associations such as the Institut de Droit International and the International Law Association; cf. M. Akehurst, “Custom as a Source of International Law”, 47 BYBIL (1974-1975) pp. 13-14, 18-19, 23 and 51. E.g., resolutions 1721(XIV), 1802(XVII), 1962(XVIII) and 1963(XIX), and particularly resolution 1962(XVIII), of the U.N. General Assembly. G. Arangio-Ruiz, “The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations”, 137 RCADI (1972) p. 525.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

treatment of contemporary space law.32 It was at that time suggested that this solution represented an “instant customary law” for the aforementioned activity of regulation,33 an expression which also attracted a certain controversy 34 at that time. The ICJ itself, on its turn, has made it clear, as to the acknowledgement of custom, that it would look into both elements, -actual practice and opinio juris. It did so in the North Sea Continental Shelf cases (1969),35 and, again, in the Continental Shelf (Lybia versus Malta) case (1985).36 Over a decade later, the point was retaken by the ICJ, in an Advisory Opinion delivered on 08.07.1996.37 2.

Treaties

As to treaties, the first point directly related to the study of the formal “sources” of International Law pertains to the proper relationship between treaties and the notion of State sovereignty. In the Wimbledon case (judgment of 17.08.1923), the PCIJ clarified that the conclusion of treaties, and the faithful compliance with them, constituted precisely attributes of the sovereignty of the State. This latter cannot be invoked so as to conflict with conventional obligations.38 This amounts to a principle that governs international obligations, a principle of international responsibility and even of customary law: a State cannot evade its international obligations under the pretext of their alleged incompatibility with its own domestic legal order (or any acts – legislative, executive or judicial – emanated from the public power).39 Sovereignty does not have a bearing on the interpretation 32

33

34 35 36 37 38

39

It is known, today, however, that the “agreement” between the two superpowers of the epoch – the United States and the Soviet Union – which rendered the adoption of such resolutions possible did not pass without controversy. As to the form of such “agreement”, while the Soviet Union preferred a treaty, the United States insisted on a resolution of the General Assembly, a formula which the Soviet Union was finally persuaded to accept. Bin Cheng, “United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?”, 5 Indian Journal of International Law (1965) pp. 23-48; and cf. comments by I. Herczeg, “Space Treaties and Law-Making Process in International Law”, in Questions of International Law (ed. Hungarian Branch of the International Law Association), Budapest, Progressprint, 1971, pp. 51-63, esp. p. 53. Cf. criticisms by Maarten Bos, op. cit. supra n. (7), pp. 27 and 68. Cf. ICJ Reports (1969) p. 44, par. 77. ICJ Reports (1985) pp. 29-30, par. 27. ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons, ICJ Reports (1996) p. 253, par. 64. International case-law points in the sense that constitutional or domestic law provisions cannot be invoked to evade international obligations and cannot prevail over provisions of treaties in force. Lord McNair, “Treaties and Sovereignty”, in Symbolae Verzijl (présentées au Professeur J.H.W. Verzijl à l’occasion de son LXXième anniversaire), The Hague, M. Nijhoff, 1958, pp. 222-237; R. Ago, “Th ird Report on State Responsibility”, Yearbook of the International Law Commission [YILC] (1971)-II, Part I, pp. 226-233.

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of treaties;40 every conventional obligation limits the sovereign powers of States Parties. In an Advisory Opinion issued on 26.04.1988, the ICJ, holding that the United States was bound to respect the obligation to have recourse to arbitration under section 21 of the 1947 U.N. Headquarters Agreement, saw it fit to recall “the fundamental principle of international law that International Law prevails over domestic law”.41 The impressive and ever-continuing growth only of the United Nations Treaty Series, e.g., would suffice to attest the great relevance of the utilization of treaties in international practice and of the rules of conduct derived therefrom. Yet, distinct approaches have been propounded as to the consideration of treaties as “source” of International Law. There were those who contended that they were rather “sources” of obligations (G. Fitzmaurice, C. Parry), while others disagreed with that posture (A. Verdross); in an intermediary position, Maarten Bos proposed that treaties are “sources” of International Law to the extent that they increase or codify the corpus of already existing rules, and are “sources” of obligations when, rather distinctly, they exert the role equivalent to that of a contract in modern domestic law.42 The 1969 and 1986 Vienna Conventions on the Law of Treaties do not provide for the law which governs international obligations of States, but rather and more precisely for the law on the international instruments enshrining such obligations, i.e., the treaties.43 There is no impediment for treaty provisions to enter into the corpus of general international law, i.e., to generate rules of customary international law. Such possibility was cautiously admitted by the ICJ itself, in the same year of the conclusion of the first Vienna Convention on the Law of Treaties.44 In the account

40

41 42 43

44

Lord McNair, op. cit. supra n. (40), pp. 222-237, esp. pp. 236-237. On the rules of treaty interpretation set forth in Articles 31-33 of the 1969 Vienna Convention on the Law of Treaties, cf. M. K. Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur le droit des traités”, 151 RCADI (1976) pp. 9-112. ICJ, Advisory Opinion on the Applicability of the Obligation to Arbitrate under Section 21 of the U.N. Headquarters Agreement of 1947, ICJ Reports (1988) p. 34, par. 57. Maarten Bos, op. cit. supra n. (6), pp. 20-24. On the generic term “treaty” under the 1969 Vienna Convention, cf., e.g., P.M. Eisemann, “Le gentlemen’s agreement comme source du droit international”, 106 Journal du droit international – Clunet (1979) pp. 326-349, and cf. p. 326 on the insufficiencies of the “dogmatism” of Article 38 of the ICJ Statute. – Moreover, concerned with practical problems, the two aforementioned Vienna Conventions discard abstract classifications of treaties, so common in the past (such as, e.g., the distinction between traité-contrat and traité-loi); S. Rosenne, “Bilateralism and Community Interest in the Codified Law of Treaties”, in Transnational Law in a Changing Society – Essays in Honour of Ph. C. Jessup (ed. W. Friedmann, L. Henkin, and O. Lissitzyn), N.Y./London, Columbia University Press, 1972, pp. 202-227. Cf. the North Sea Continental Shelf cases (Denmark and The Netherlands versus Federal Republic of Germany, Judgment of 20.02.1969), ICJ Reports (1969) p. 41.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

of one participant in the Vienna Conference of 1968-1969, on the occasion the representative of Sweden observed that great part of the contents of the 1969 Convention expressed simply rules already existing in customary international law, while the Swiss representative, on his turn, added that, in order to fill the gaps which persisted, it was occasionally “still necessary, in the practice of international relations, to fall back on custom”.45 Moreover, even certain unratified conventions of general scope may have a bearing on the formation of international custom. Modern endeavours of codification, which go “much further beyond the mere expression of customary International Law” than earlier conventions did, have increasingly characterized the “progressive development” of International Law, in endeavouring to fulfi l “existing needs of the international community”.46 It has been conceded that even one or another of the so-called “codification conventions”47 are declaratory of customary law, and, having achieved a significant number of ratifications, even before entering into force they could keep on contributing to the evolving general international law itself.48 In this respect, it has been suggested that “in the case of a codification convention lato sensu, in other words, a convention which codifies and ‘progressively develops’ International Law (...), the codification process considered independently of ratification may give rise to new customary rules and thereby alter the rights and obligations of States regardless of the consent which the convention requires from them to be valid as such”.49

3.

General Principles of Law

I have already expressed my view that general principles of law conform the very foundations of International Law, and indeed of every and any legal system.50 At this stage, in approaching the formal “sources” of International Law, suffice it here to point out that the inclusion of general principles of law among the “sources” set forth in Article 38 of the ICJ Statute can be more clearly explained as from the outlook of the natural law foundations of International Law. Such inclusion, moreover, came to endorse the findings of earlier arbitral practice, 45 46 47

48

49 50

Cf. account in I.M. Sinclair, The Vienna Convention on the Law of Treaties, Manchester, University Press/Oceana, 1973, pp. 9 and 11. C.Th. Eustathiades, Unratified Codification Conventions (Gilberto Amado Memorial Lecture), Geneva, U.N. Publ., 1973, pp. 2 and 10. Such as, e.g., the 1969 and 1986 Vienna Conventions on the Law of Treaties, the 1982 U.N. Convention on the Law of the Sea, the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. The 1975 Vienna Convention on Representation of States in Their Relations with International Organizations of Universal Character, e.g., can be taken as declaratory of customary rules on the matter already crystallized even before their adoption. C.Th. Eustathiades, op. cit. supra (46), p. 13, and cf. pp. 3-4, 7-8 and 12. Cf. chapter III, supra.

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which contributed to the configuration of a third “source” of International Law, historically more recent than custom and treaties.51 There persisted, however, doubts and uncertainties as to the meaning of general principles of law, e.g., for some, the expression pertained to the principles of International Law properly, while for others it referred to the principles of comparative domestic law of the various States.52 The doubts and uncertainties already referred to were made present during the drafting itself, by the Advisory Committee of Jurists appointed to that end,53 of Article 38 of the Statute of the Hague Court in June-July 1920. Baron Descamps, who believed in “objective justice” (present in theories of natural law), proposed originally to the Committee the expression “juridical conscience of the civilized nations”, against whose “subjectivism” Mr. E. Root manifested himself. Lord Phillimore elaborated, together with E. Root, an amendment to the proposal of Descamps. The solution of compromis, between the principles of “objective justice” of Descamps, and the principles of “common law” (Phillimore) or recognized by “civilized nations” in foro domestico (Root), came into operation with the expression “general principles of law”.54 The expression incorporated, however, the tension of the polarity between jusnaturalism (the universal principles of objective justice) and legal positivism (the search for the principles of law recognized and crystallized in the domestic legal orders). It is, however, clear that the expression establishes a clear link between domestic law and International Law.55 As from the fifties reiterated references came to be made to general principles of law such as those of good faith, of res judicata, of the prohibition of the abuse of rights, among others. It has been argued that Article 38 of the Statute of the Hague Court, as adopted (i.e., containing references inter alia to custom and general principles of law), came to reject the thesis that only the rules created by means of a “formal process” were “valid”, 51 52

53 54 55

P. Guggenheim, “Contribution à histoire des sources du droit des gens”, 94 RCADI (1958) pp. 72-76 and 80-81. Cf., on the point, e.g., M. Virally, op. cit. supra n. (26), pp. 144-146. – Moreover, while the borderline between treaties and custom appeared clear, not always it appeared easy to distinguish customary rules from general principles of law. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, London, Stevens, 1953, p. 23; cf. also the critical remarks by Ch. Chaumont, “Cours général de Droit international public”, 129 RCADI (1970) pp. 456-464. Cf. its composition in n. (5), supra. Bin Cheng, op. cit. supra n. (52), pp. 6-21; Maarten Bos, op. cit. supra n. (7), pp. 3339. There have been calls for a thorough survey of comparative law for the identification of the general principles of law; cf. M. Akehurst, “Equity and General Principles of Law”, 25 International and Comparative Law Quartely (1976) pp. 817-819; A.A. Cançado Trindade, “La méthode comparative en Droit international: une perspective européene”, 55 Revue de droit international de sciences diplomatiques et politiques (1977) pp. 273-287; L.C. Green, “Comparative Law as a ‘Source’ of International Law”, 42 Tulane Law Review (1967) pp. 52-66.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

and to sustain that, like in the domestic legal systems, International Law also embodies certain principles not formally formulated.56 4.

Judicial and Arbitral Decisions

Another formal “source” of International Law, listed in Article 38 of the ICJ Statute, lies in the great mass of judicial and arbitral decisions.57 which vary in weight and influence. The tribunals (including the arbitral ones) wherefrom they emanate comprise both the international and national ones, these latter when pronouncing on questions of international law.58 There is here an area of significant interaction in the operation of international and national tribunals; just as judicial decisions of international tribunals can clarify certain questions of International Law and also of domestic law, judicial decisions of national tribunals can likewise do so when dwelling upon questions of International Law.59 56

57

58

59

Bin Cheng, op. cit. supra n. (52), p. 23, and cf. pp. 25-26. – On the usefulness to international tribunals to resort to general principles of law, cf. M.O. Hudson, International Tribunals – Past and Future, Washington, Carnegie Endowment for International Peace/Brookings Institution, 1944, p. 108. On judicial precedent as source of International Law, cf. H. Lauterpacht, The Development of International Law by the International Court, London, Stevens, 1958, pp. 20-22; J.G. Merrills, The Development of International Law by the European Court of Human Rights, 2nd. ed., Manchester, University Press, 1993, pp. 12-16 and 231-233; J.R.W.D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd. ed., Ardsley/N.Y., Transnational Publs., 2000, pp. 3643; L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law, Leiden, Nijhoff, 2005, pp. 1-284; Bin Cheng, “The Contribution of International Courts and Tribunals to the Protection of Human Rights under International Customary Law”, in International Protection of Human Rights – Proceedings of the VIIth Nobel Symposium (eds. A. Eide and A. Schou; Oslo, 1967), Stockholm, Almqvist & Wiksell, 1968, pp. 167-175; among others. Cf., e.g., R.A. Falk, The Role of Domestic Courts in the International Legal Order, Syracuse University Press, 1964, pp. 21-52 and 170; F. Morgenstern, “Judicial Practice and the Supremacy of International Law”, 27 BYBIL (1950) p. 90. – The practice of domestic tribunals in matters of international law has in fact been taken into account in the case-law of international tribunals themselves. Cf., e.g., J.A. Barberis, “Les arrêts des tribunaux nationaux et la formation du droit international coutumier”, 46 Revue de droit international de sciences diplomatiques et politiques (1968) pp. 247-253. C.H. Schreuer, “The Authority of International Judicial Practice in Domestic Courts”, 24 International and Comparative Law Quarterly (1975) pp. 180-183; A.A. Cançado Trindade, “Exhaustion of Local Remedies in International Law and the Role of National Courts”, 17 Archiv des Völkerrechts (1977-1978) pp. 333-360. – The old controversies between monism and dualism yield to a new approach to these aspects of the matter; cf. A. Drzemczewski, “Les faux débats entre monisme et dualisme – Droit international et droit français: l’exemple du contentieux des droits de l’homme”, 51 Boletim da Sociedade Brasileira de Direito International (1998) n.

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Although Article 38 of the ICJ Statute refers to judicial decisions as a “subsidiary means” for the determination of rules of law, the international judicial function has considerably enlarged since that provision was drafted, in 1920. At that time, the PCIJ had just been established. Nowadays, besides its successor, the ICJ, the international community counts on a multiplicity of international tribunals, – a phenomenon which discloses the advances achieved in the last decades by the old ideal of the realization of international justice.60 Such tribunals today operate in distinct areas of International Law, such as the international protection of human rights, the international law of the sea, international criminal law, the law of integration at regional level. Accordingly, judicial decisions as “source” of International Law are bound to increase in importance. Contemporary international tribunals pronounce, more and more often, on questions of interest of, or concern to, the international community as a whole. Judicial decisions of the international human rights tribunals – the European and Inter-American Courts of Human Rights, – for example, have indeed contributed to the creation of an international ordre public based upon the respect for human rights in all circumstances. They have both helped to achieve the aptitude of International Law to regulate efficiently relations which have a specificity of their own – at intra-State, rather than inter-State, level, opposing States to individuals under their respective jurisdictions; they have thus contributed to enrich and humanize contemporary International Law.61 Judicial decisions of the ad hoc international criminal tribunals – those for the Former Yugoslavia and for Rwanda, – for example, have, on their turn, contributed to combat impunity and to foster the rule of law at national and international levels. These reassuring developments are bound to confer a new dimension to international case-law, distinct from that which was envisaged in 1920. This new dimension encompassing contemporary international-law-making reflects, in turn, the recent advances towards international ordre public and rule of law, proper to the newly-emerging jus gentium at this beginning of the XXIst century.

60 61

113-118, pp. 95-109; G. Sperduti, “Dualism and Monism: A Confrontation to be Overcome”, 3 Italian Yearbook of International Law (1977) pp. 31-49. Cf. chapter XXV, infra. A.A. Cançado Trindade, “La perspective trans-atlantique: La contribution de l’oeuvre des cours internationales des droits de l’homme au développement du droit public international”, in La Convention européenne des droits de l’homme à 50 ans – Bulletin d’information sur les droits de l’homme, n. 50 (special issue), Strasbourg, Council of Europe, 2000, pp. 8-9 (published also in other idioms of the Council of Europe); and cf. A.A. Cançado Trindade, “The Case-Law of the Inter-American Court of Human Rights: An Overview”, in Studi di Diritto Internazionale in Onore di G. Arangio-Ruiz, vol. III, Napoli, Ed. Scientifica, 2004, pp. 1873-1898; H. Tigroudja and I.K. Panoussis, La Cour Interaméricaine des Droits de l’Homme – Analyse de la jurisprudence consultative et contentieuse, Bruxelles, Bruylant/Nemesis, 2003, pp. 21-308.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

5.

Doctrine

Article 38(1)(d) of the Statute of the Hague Court indicates expressly, moreover, that doctrine also constitutes a “subsidiary means”, among the “sources” listed therein. The reference to doctrine is accompanied by a qualification, namely, “the teachings of the most highly qualified publicists of the various nations”. The influence of some distinguished authors has appeared more remarkable in the epoch of formation of International Law than subsequently, as exemplified by the writings of the classics.62 Although there is a tendency to attribute to doctrine nowadays a rather modest position among the “sources” of International Law, one ought not, however, to neglect it. Resort is always made to doctrinal teachings, e.g., at least to substantiate claims at the international level. There have also been instances, however rare, of individual authors who have succeeded to influence the evolution itself of International Law in specific domains, such as diplomatic protection of nationals abroad,63 and the law of the sea,64 among others. Furthermore, the considerable influence may be recalled, e.g., of Latin-American doctrine (especially that of a defensive character) for the general recognition of certain principles of International Law, such as those of the juridical equality of States, of non-use of force and non-intervention in interState relations (the Drago and Calvo doctrines), and of peaceful settlement of international disputes.65 Some have regarded, as a limitative characteristic of doctrine (in the sense of the teachings of publicists), its alleged tendency to reflect the perceptions of International Law prevailing in a given legal system, region, or country. Be that as it may, the insertion of doctrine among the formal “sources” of International Law set forth in Article 38 of the ICJ Statute is not to be minimized. It should be kept in mind that, in historical perspective, some of the great doctrines of International Law, crystallized with the passing of time, have contributed to the “development of the juridical conscience” and have fostered the sentiment of interna-

62 63

64

65

Cf. chapter I, supra. E.M. Borchard, The Diplomatic Protection of Citizens Abroad, N.Y., Banks Law Publ. Co., 1916, pp. 1ss.; and cf. C. Parry, The Sources and Evidences of International Law, Manchester, University Press/Oceana, 1965, p. 107. Although States had claimed restricted rights in areas adjacent to their territorial sea well before Gilbert Gidel started writing on such claims (cf. G. Gidel, Le droit international public de la mer, 3 vols., Châteauroux, Mellottée, 1932-1934), “it was Gidel who produced the concept of contiguous zone as a basis for the discussion about the validity of such claims” (M. Akehurst, A Modern Introduction to International Law, 2nd. ed., London, G. Allen & Unwin, 1971, pp. 55-56). Cf., recently, A.A. Cançado Trindade and A. Martínez Moreno, Doctrina Latinamericana del Derecho Internacional, vol. I, San José of Costa Rica, Inter-American Court of Human Rights, 2003, pp. 5-64.

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tional solidarity.66 The influence of the teachings in the domain of International Law, as well pointed out by M. Lachs, projects itself well beyond the pedagogical sphere, reaching the practice itself of International Law.67 And as well pointed out also by A. de La Pradelle, while international judges and arbiters have remained aware of the self-limitations inherent to their functions, and representatives of States have only and invariably beheld their own interests, not seldom in a rather uncompromising way, – doctrine, on its turn, has retained its creative function.68 It is important, – he added, – that the inspiration of the human spirit devotes itself freely in the search for “juridical truth”, keeping forcefully in mind that the establishment of rules, regarded as obligatory for States “independently of their formal consent”, could not be undertaken by the States themselves.69 It is, moreover, to be born in mind that doctrine is not limited to the teachings of individual authors, but comprises, likewise related to the “sources” of International Law, the relevant doctrinal work emanated from collegiate organs within international organizations (e.g., the work of the U.N. International Law Commission,70 of the OAS Inter-American Juridical Committee,71 and the AsianAfrican Legal Consultative Committee,72 devoted to the realization of the aims of codification and progressive development of International Law), or else from international scientific-academic institutes or associations,73 whose Yearbooks and Reports contain a wealth of materials reflecting the evolving doctrine of International Law74 and dealing with themes of concern to the international community as a whole. 66 67 68 69 70 71 72

73

74

N. Mateesco, Doctrines-écoles et développement du droit des gens, Paris, Pédone, 1951, pp. 25 and 45. M. Lachs, The Teacher in International Law, 2nd. rev. ed., Kluwer, Nijhoff, 1987, pp. 159-229. A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd. ed., Paris, Éds. Internationales, 1950, p. 7. Ibid., pp. 7-8. Cf. United Nations, The Work of the International Law Commission, 5th. ed., N.Y., U.N., 1996, pp. 1-501. Reproduced in its series Recommendations and Reports. Cf., e.g., inter alia, AALCC, Asian-African Legal Consultative Committee – Report and Selected Documents (XXXII Session, 1993), New Delhi, AALCC Secretariat, 1993, pp. 1-312. Such as, in particular, the Institut de Droit International, and also the International Law Association, the Instituto Hispano-Luso-Americano de Derecho Internacional (IHLADI), among others. Cf. Institut de Droit International, Livre du Centenaire 1873-1973: Évolution et perspectives du droit international, Bâle, Karger, 1973, pp. 124-473; G. Fitzmaurice, “The Contribution of the Institute of International Law to the Development of International Law”, 138 RCADI (1973) pp. 211-259; International Law Association, The Present State of International Law – 1873-1973, Kluwer, Deventer, 1973, pp. 3-392; P.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

6.

Equity

In the course of the drafting, in 1920, of Article 38 of the PCIJ Statute, the Advisory Committee of Jurists (appointed to that end) conceived the function of equity as being very restricted, to be applied only if agreed upon by the parties.75 In fact, the notion of equity, which by Article 38(2) of the Statute (of the PCIJ and the ICJ) occupies only a secondary position among the “sources” of International Law, was surrounded by uncertainties;76 Article 38(2) limits itself to preserve “the power of the Court to decide a case ex aequo et bono, if the parties agree thereto”. According to the well-known classification of the functions of equity, this latter may be applied infra legem (adapting the law to the facts of concrete cases), praeter legem (filling gaps in law), or contra legem (as a means to refuse to apply unjust laws). It is generally reckoned that equity contra legem could not be applied in the absence of an express authorization in this sens;e; equity praeter legem is currently of reduced application, given the unlikelihood of gaps in International Law nowadays. There thus remains equity infra legem, the most usual form of its application, as, for example, in frontier disputes.77 Charles de Visscher once remarked that equity is “characterized essentially as an individualized expression of justice”.78 Because it has tended to be identified with a certain subjectivism, international tribunals have often joined references to equity to a simultaneous invocation of custom, or of treaties, or of general principles of law, or of earlier judicial or arbitral decisions.79 It has been argued that it remains incumbent upon equity to keep on proceeding to the “judicial adaptation of the rules to the circumstances of the concrete cases”.80 Considerations of equity have been invoked in international judicial practice, e.g., in the domains of the law of the sea,81 and of the international protection of human rights (in

75 76 77 78 79 80 81

de Visscher, “La contribution de l’Institut de Droit International à la protection des droits de l’homme”, in Le Droit international au service de la paix, de la justice et du développement – Mélanges M. Virally, Paris, Pédone, 1991, pp. 215-224; Ch. Dominicé, “La contribution de l’Institut de Droit International au développement du Droit de l’organisation internationale”, in Mélanges en l’honneur de N. Valticos – Droit et justice (ed. R.-J. Dupuy), Paris, Pédone, 1999, pp. 101-115. Cf. M. Sorensen, op. cit. supra n. (2), pp. 28-33. On these latter, cf., e.g., Ch. Rousseau, Droit international public, vol. I, Paris, Sirey, 1970, pp. 400-405. M. Akehurst, “Equity and General Principles of Law”, 25 International and Comparative Law Quarterly (1976) pp. 801-813. Ch. de Visscher, De l’équité dans le règlement arbitral ou judiciaire des litiges de Droit international public, Paris, Pédone, 1972, pp. 6-7, and cf. pp. 12-13. M. Akehurst, op. cit. supra n. (77), pp. 811-812; Ch. de Visscher, op. cit. supra n. (78), p. 4. Ch. de Visscher, op. cit. supra n. (78), p. 9. There are those who detected, in the Judgment of 1969 of the ICJ on the North Sea Continental Shelf case (Denmark and The Netherlands versus Federal Republic of

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this latter, e.g., in the acknowledgement of powers “inherent” to international supervisory organs82 and in the determination of reparations to victims), thus discarding State voluntarism.83 IV. The Formal “Sources” Not Enumerated in Article 38 of the ICJ Statute 1.

Unilateral Juridical Acts of States

Given the decentralization of the international legal order, in which co-exist, in a regime of co-ordination, politically organized entities such as the States (besides international organizations, peoples and individuals), it is not surprising that unilateral acts emanating from them have had legal effects attached thereto. International practice has admitted, in fact, that international obligations may be assumed under certain circumstances as a result of some unilateral acts.84 Unilateral acts have, as a matter of fact, been conceived as manifestations of a subject of International Law to which this latter attaches certain consequences.85 There are unilateral acts foreseen by customary law, e.g., protest, notification, promise, renunciation, recognition, among others. Even such acts do not pass without qualifications. Recognition, e.g., is often a unilateral act, based largely on the principle of effectiveness in a given situation, with the consequences ensuing therefrom.86 On the other hand, non-recognition is also utilized in practice to try to impede that a situation de facto (e.g., one generated by force), comes to produce legal effects.87 Proposed enumerations of

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Germany, ICJ Reports (1969) pp. 32-33, 49-50 and 53-54, pars. 47, 91-92 and 100), an example of a decision based on “considerations of equity”; K. Hjertonsson, The New Law of the Sea – Influence of the Latin American States on Recent Developments of the Law of the Sea, Leiden/Stockholm, Sijthoff/Norstedts, 1973, p. 166, and cf. pp. 163-168. B.G. Ramcharan, “Equity in the International Law of Human Rights”, 5 Dalhousie Law Journal (1979) pp. 52, 59 and 65-66. N.K. Hevener and S.A. Mosher, “General Principles of Law and the U.N. Covenant on Civil and Political Rights”, 27 International and Comparative Law Quarterly (1978) pp. 596-597, 601, 603-604 and 612-613. Cf., e.g., G. Venturini, “La portée et les effets juridiques des attitudes et des actes unilatéraux des États”, 112 RCADI (1964) pp. 387-388, 391 and 400-401; and cf. A. Miaja de la Muela, “Los Actos Unilaterales en las Relaciones Internacionales”, 20 Revista Española de Derecho Internacional (1967) pp. 456-459. E. Suy, Les actes juridiques unilatéraux en Droit international public, Paris, LGDJ, 1962, p. 44. P. Reuter, Institutions internationales, 6th. ed., Paris, P.U.F., 1969, pp. 120-128; and cf. chapter VII, infra. Cf. examples in, e.g., Alf Ross, A Textbook of International Law – General Part, London, Longmans, 1947, pp. 118-122; and cf. E. Suy, op. cit. supra n. (85), pp. 189-214.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

unilateral acts in International Law have not purported to be exhaustive,88 or conclusive as to their legal effects. Yet, it is to be recalled that, in the domain of the law of the sea, for example, the notions of contiguous zone, territorial sea (followed by patrimonial sea and subsequently exclusive economic zone) were initially formed (before the 1982 U.N. Convention on the Law of the Sea) by means of unilateral acts of regulation on the part of each State individually rather than by means of multilateral treaties.89 It was suggested that the constant repetition of these multiple unilateral acts, for more than three decades before the adoption of the 1982 Montego Bay Convention, contributed decisively to the formation of some customary norms in this domain.90 With the adoption, however, of the 1982 U.N. Convention on the Law of the Sea, some of them were consolidated therein, while other emerging concepts which appeared to reflect a more generalized consensus were adopted therein.91 2.

Resolutions of International Organizations

Some attempts were made in the past to approach unilateral acts of States and acts of international organizations jointly.92 This approach, however, gave margin to some uncertainties, and it soon it appeared more appropriate to consider the acts of international organizations separately from the unilateral acts of States. In fact, with the advent and growth of international organizations,93 as from the mid-XXth century, the gradual expansion of their regulatory powers, varying

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J. Dehaussy, “Les actes juridiques unilatéraux en Droit international public: à propos d’une théorie restrictive”, 92 Journal du droit international – Clunet (1965) pp. 55-56, and cf. p. 63. This was what also happened, at a given time, with the extension of the territorial sea to a limit of 200 miles on the part of some Latin-American States, by means of “internal” unilateral acts (proclamations, laws, decrees, etc.). Th is was, furthermore, what happened with the continental shelf as from the well-known proclamation by Truman of 1945. A.A. Aramburu Menchaca, “La Costumbre y la Delimitación de los Espacios Marítimos en el Continente Americano”, 38 Revista de Derecho y Ciencias Políticas – Lima/ Peru (1974) pp. 5-39; cf. also K. Hjertonsson, op. cit. supra n. (81), pp. 7-179. Such as that of the exclusive economic zone, as from the territorial sea of 12 miles. Cf. J. Dehaussy, op. cit. supra n. (88), pp. 45, 53-54 e 59-61; A. Miaja de la Muela, op. cit. supra n. (84), pp. 431-434. According to a defi nition proposed in 1956 to the U.N. International Law Commission, by international organization it was understood an entity established by a treaty, with a constitution and common organs, and a personality distinct from that of its member States, being a subject of International Law with capacity to conclude treaties; cf. Yearbook of the International Law Commission (1956) – II, p. 108; the definition was proposed by G.G. Fitzmaurice, rapporteur on the law of treaties.

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from case to case, took place.94 The activities and decisions of international organizations, in the most diverse sectors, are usually externalized by means of resolutions, of varying relevance and scope: some serve as instrument of exhortation, others enunciate general principles, and others require a given type of action aiming at specific results.95 Resolutions of international organizations have a specificity of their own, being distinct from other categories of “sources” enumerated in Article 38 of the ICJ Statute.96 Significantly, the silence, about them, of that provision, has not impeded the ICJ to take them promptly and properly into account.97 In various passages of its Advisory Opinion of 16.10.1975 on the Western Sahara, e.g., the ICJ considered and discussed in detail some resolutions of the U.N. General Assembly.98 Earlier on, the U.N. General Assembly itself, in its resolution 3232(XXIX) of 22.11.1970, about the revision of the function of the ICJ, also espoused the thesis that the development of International Law can be reflected, inter alia, in declarations and resolutions of the U.N. General Assembly, which can to this effect be thus taken into account by the ICJ.99 This is in fact what has happened in practice. In a subsequent Advisory Opinion, of 08.07.1996, the ICJ has asserted that “General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions

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On their contribution to the formation of international custom, cf. L. Kopelmanas, “Custom as a Means of the Creation of International Law”, 18 BYBIL (1937) p. 151. In recent decades there remained no doubt that the practice of International Law was no longer restricted to the practice of States, and comprised also that of international organizations, in need of systematization; cf., e.g., S. Rosenne, Practice and Methods of International Law, London/N.Y., Oceana Publs., 1984, pp. 1-117. Cf. chapter VIII, infra. K. Skubiszewski, “A New Source of the Law of Nations: Resolutions of International Organisations”, in Recueil d’études de Droit international en hommage à P. Guggenheim, Geneva, I.U.H.E.I., 1968, pp. 508 and 510-511, and cf. pp. 518-520. On the juridically relevant activity of the U.N. Secretariat, cf., e.g., O. Schachter, “The Development of International Law through the Legal Opinions of the United Nations Secretariat”, 25 BYBIL (1948) pp. 91-132. Cf., e.g., ICJ, Advisory Opinions on Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO (1956), and on Certain Expenses of the United Nations (1962). In the context of decolonization and self-determination; cf. ICJ Reports (1975) pp. 20, 23, 26-37, 40, 57 and 67-68. Cit. in Ch. Schreuer, “Recommendations...”, op. cit. supra n. (17), p. 112 and n. 42.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law may show the gradual evolution of the opinio juris required for the establishment of a new rule”.100

And, more recently, in its Advisory Opinion of 09.07.2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ observed that principles and rules of International Law (e.g., pertaining to the prohibition of threat or use of force, and to the self-determination of peoples) can be found in the U.N. Charter and certain other treaties, in customary international law and in the relevant resolutions adopted by the U.N. General Assembly and the Security Council.101 In fact, just as unilateral juridical acts of States (as subjects of International Law) rank among the formal “sources” of the contemporary law of nations, so do the juridical acts (resolutions) of international organizations (likewise subjects of International Law). The element of opinio juris may be more predominant in resolutions of the declaratory kind; in any case, resolutions of international organizations, and in particular those of the U.N. General Assembly, have been accepted as “sources” of International Law not only by the ICJ by also by other international (arbitral) tribunals.102 They often give expression to values and aspirations of the international community as a whole. As pointed out by B. Sloan in his review of forty years of U.N. General Assembly resolutions, “principles in Assembly resolutions may be expressions of the ethical or moral conscience of mankind, of a general world conscience, of basic concepts of equity and justice, or of the underlying spirit and aims of the U.N.”103

Thus, summing up, the category of resolutions of international organizations does rank among the formal “sources” of contemporary International Law. Under certain circumstances, some resolutions do meet this test of being a means whereby International Law manifests itself. And even if certain resolutions are purely recommendatory, – and, thus, not binding, – they are, nevertheless, juridically relevant, have much influenced international practice, and States themselves, naturally reluctant to infringe them, consider themselves at least in the duty to consider them in good faith.104 Those resolutions form today a vast corpus

100 ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons, ICJ Reports (1996) pp. 254-255, par. 70. 101 Cf. ICJ Reports (2004) p. 171-172, pars. 86-88. 102 B. Sloan, op. cit. infra n. (103), p. 116, and cf. pp. 74-75. 103 B. Sloan, “General Assembly Resolutions Revisited (Forty Years Later)”, 58 BYBIL (1987) p. 80, and cf. pp. 137 and 141. 104 Cf. Ch. Schreuer, op. cit. supra n. (17), pp. 103-118; and cf. K. Skubiszewski, “Recommendations of the United Nations and Municipal Courts”, 46 BYBIL (1972-1973) pp. 353-364.

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juris,105 turned to regulation of matters of concern of the international community as a whole. V.

The Process of Formation of Contemporary International Law: From Consent to Consensus

In the last decades, a great part of legal doctrine has accommodated itself to reviewing the list of the formal “sources” of International Law”; yet, as already pointed out, the study of the formation of International Law is far from exhausting itself in those formal “sources”. For roughly half a century (from the early twenties to the early seventies), the matter at issue was largely considered in the light of the question of consent in International Law, which was soon to become surrounded by controversies, not amenable to simple answers. By and large, the debates began to oscillate between the old thesis (upheld by the PCIJ in its Advisory Opinion of 1923 on the Status of Eastern Carelia) whereby the consent of States was the basis of international legal obligations (including in peaceful settlement of international disputes), – a view which was later on dismissed by the ICJ in its Advisory Opinions of 1950 on the Interpretation of Peace Treaties, and of 1971 on Namibia, – and the new approach shifting the focus, on the process of formation of International Law, from individual consent to consensus.106 According to this new outlook (propounded at the beginning of the seventies), in the evolution of International Law individual consent could never constitute the ultimate “source” of a legal obligation, and the new and clear tendency in favour of consensus in the formation of norms of International Law 107 was “an expression of the juridical conscience of the international community”108 This tendency was fostered by the formation of consensus in the Conferences of codification and progressive development of International Law. In this way, the old positivist posture of search for the consent of each State individually was challenged and overcome. Subsequently, in the case of Nicaragua versus United States (Merits, 1986), the ICJ took another step, and a significant one, in this di105 Cf. H.G. Schermers and N.M. Blokker, International Institutional Law, 3rd. rev. ed., The Hague, Nijhoff, 2001, pp. 1-1198; C.W. Jenks, The Proper Law of International Organisations, London, Stevens/Oceana, 1962, pp. 1-267; A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., op. cit. infra n. (117), pp. 75-76, and cf. pp. 9-853. 106 Cf. E. Suy, “The Meaning of Consensus in Multilateral Diplomacy”, in Declarations of Principles, A Quest for Universal Peace – Liber Amicorum Discipulorumque B.V.A. Röling, Leyden, Sijthoff, 1977, p. 272. 107 E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Tecnos, 1980, pp. 16, 33, 37 and 39. 108 T.O. Elias, “Modern Sources of International Law”, in Transnational Law in a Changing Society: Essays in Honour of Ph.C. Jessup (eds. W. Friedmann, L. Henkin and O. Lissitzyn), N.Y./London, Columbia University Press, 1972, pp. 49 and 51, and cf. p. 67.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

rection, discarding the thesis of the individual consent and attributing considerable importance to opinio juris,109 to the formation of which not only States but also international organizations contribute. The same emphasis on opinio juris was laid by the ICJ in the case of the Delimitation of the Maritime Boundary in the Gulf of Maine Area (1984).110 In the Nicaragua versus United States case (1986), the ICJ, while reemphasizing the need for both the objective and subjective elements (State practice and opinio juris,111 respectively), in fact demanded very little evidence of State practice, and took as clear-cut proof of opinio juris the 1970 U.N. Declaration of Principles of International Law Concerning Friendly Relations Among States, the contents of which it regarded as indeed reflecting rules of customary law.112 On their part, positivist doctrines, apparently obsessed only with juridical stability and certainty,113 seemed, on the other hand, to have kept on overlooking values and ideas, and opinio juris itself, and minimizing principles which emanate from the “juridical conscience of mankind”, often expressly invoked in international practice.114 The considerable expansion of International Law came to require a new outlook of its “sources”, which are ineluctably linked to the fundamental questions that it deals with; as pertinently remarked by G.F.H. van Hoof and R. Monaco, traditional “sources” of International Law no longer succeeded to comprise the whole and increasingly complex process of its own formation.115 109 C. Lang, L’affaire Nicaragua/États-Unis devant la Cour Internationale de Justice, Paris, LGDJ, 1990, pp. 138, 140 and 149. 110 Cf. ICJ Reports (1984) p. 299. 111 The insertion of custom into Article 38(1)(b) of the Statute of the Hague Court, it may be recalled, had been much influenced, when the provision was drafted, by the so-called “historical school” of law, which held that its subjective element, opinio juris, was seen as reflecting “juridical conscience”. 112 International Law Association/Committee on Formation of Customary (General) International Law, “Final Report of the Committee – Statement of Principles Applicable to the Formation of General Customary International Law”, in I.L.A., Report of the LXIX Conference (London, 2000), London, I.L.A., 2000, pp. 32, 41, 60 and 62. And cf. chapter III, supra. 113 Hence the approach to the “sources” of International Law as from a strictly interState outlook, with a reductionist view focusing largely on the conventional and customary means, and minimizing the role of general principles of law and of doctrine. Underlying this conception, the element of State consent marks constant presence, culminating in an apology of the so-called “doctrine of the persistent objector”, a last refuge of State voluntarism. Cf. P. Weil, “Le Droit international en quête de son identité – Cours général de Droit international public”, 237 RCADI (1992) pp. 131-201. 114 G.J.H. van Hoof, Rethinking the Sources of International Law, Deventer, Kluwer, 1983, pp. 35, 101, 153 and 162, and cf. pp. 157, 167 and 175. 115 Ibid., pp. 190, 195, 211, 241, 281, 283-284 and 287, and cf. p. 290; R. Monaco, “Réflexions sur la théorie des sources du Droit international”, in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 517-518.

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Thus, the classic theory of the formal “sources”, e.g., did not take fully in due account the considerable normative production emanated from international organizations,116 – which decisively contributed to the overcoming of the inter-State paradigm of the international legal order.117 This contribution of international organizations is reflected in their work of codification and progressive development of International Law, which, in its turn, has fostered the rule of law in international relations.118 Such contribution, in having a direct incidence in the process of formation of International Law, represents, moreover, an important stage in the process of gradual institutionalization of the international community, bearing in mind the basic principles of International Law.119 These principles120 have an inherent validity and necessity, emanate from natural law, and demonstrate – as categorically pointed out by G.G. Fitzmaurice – that consent can never constitute the ultimate source of International Law, and respond for its own validity: such voluntarist-positivist position was inconsistent, since consent, externalized by treaties or by State practice, was ex hypothesi incapable of explaining or justifying its own validity or its legal effects, nor the existence and validity of the principles of law essential to every and any legal system. Thus, the classic theory of formal “sources”, reflected in Article 38 of the ICJ Statute, firstly, could not have the pretension of being “exhaustive” and definitive as to those “sources”, and, furthermore, failed to distinguish between formal “sources” and the material “source” of International Law; it limited itself to enunciate – in a not exhaustive way – elements to be taken into account in the application of International Law, and it did so in a rather limited way.121 VI. Opinio Juris beyond Custom: Its Wide Scope and Role in the Formation of Contemporary International Law In recent years an increasing attention has been turned to the element of opinio juris in the very formation of contemporary international law. To the formation of an “idea of Law” contribute, in our days, not only States, but also interna116 R. Monaco, “Réflexions sur la théorie des sources...”, op. cit. supra n. (115), pp. 519520 and 529; and cf. R. Monaco, “Fonti e Pseudo Fonti del Diritto Internazionale”, 61 Rivista di Diritto Internazionale (1978) p. 740. 117 A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2003, pp. 721-747. 118 C.-A. Fleischhauer, “The United Nations at Fifty”, 38 German Yearbook of International Law (1995) p. 23. 119 A.G. López Martin, “La Codificación del Derecho Internacional en el Umbral del Siglo XXI: Luces y Sombras en la Labor de la CDI”, 15 Anuario del Instituto HispanoLuso-Americano de Derecho Internacional (2001) pp. 388-390. 120 Cf. chapter IV, supra. 121 G.G. Fitzmaurice, “Some Problems Regarding the Formal Sources of International Law”, in Symbolae Verzijl présentées au Professeur J.H.W. Verzijl à l’occasion de son LXXème. anniversaire, The Hague, M. Nijhoff, 1958, pp. 166-167 and 173-176.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

tional organizations and other subjects of international law (peoples, individuals and groups of individuals). If, some decades ago, it was frequent to approach the process of formation of the norms of general International Law with attention turned only to the “sources” manifested in inter-State relations,122 in our days it is no longer possible not to recognize likewise those ensuing from the practice of entities of the organized civil society and of groups of individuals at international level.123 It is nowadays acknowledged that these latter have come to participate in the process both of formation and of application of international norms.124 The so-called “normativists”, as already pointed out, never managed to provide a convincing explanation of the validity of international legal norms,125 which is a metajuridical question, belonging to the psychological ambit in which values manifest themselves. Yet, as Max Sorensen lucidly pointed out in the mid-forties, although values appear prima facie to transcend the domain of legal science, they are apprehended by acts performed at international level, out of the “intrinsic necessity” to recognize social ends and identify the means to accomplish them. Thus, – he added, – International Law cannot be indifferent to values and moral questions, which always mark their presence, and International Law ought to attribute “considerable importance” to general principles of law.126 In this line of thinking, A. Verdross, on his turn, assumed as foundation of the whole legal system an “idée du droit”, which has expression precisely in the general principles of law, which precede positive International Law.127 A continuous “rebirth” of natural law has been constantly identified,128 though this latter has never disappeared. This has taken place in face of the hermetic posture of legal positivism, upholding the status quo, with its typical sub122 Cf. R. Pinto, “Tendances de l’élaboration des formes écrites du Droit international”, in L’élaboration du Droit international public (Colloque de Toulouse, Société Française pour le Droit International), Paris, Pédone, 1975, pp. 13-30. 123 Cf., generally, e.g., F. Hondius, “La reconnaissance et la protection des ONGs en Droit international”, 1 Associations Transnationales (2000) pp. 2-4; J. Ebbesson, “The Notion of Public Participation in International Environmental Law”, 8 Yearbook of International Environmental Law (1997) pp. 51-97. 124 Cf. chapter IX, infra. 125 Max Sorensen, Les sources..., op. cit. supra n. (2), pp. 20-21. 126 Ibid., p. 254. 127 I.e., treaties and custom; ibid., p. 244; and cf. A. Verdross, Derecho Internacional Público, 5th. ed. [reimpr.], Madrid, Aguilar, 1969, pp. 15-19. – International Law effectively transcends mere juridical formalism, incapable of explaining the origin of its norms; and it does so precisely in order to fulfi l the new needs of the international community, and without that it would lose its own raison d’être. N.E. Ghozali, “Les fondements du Droit international public – approche critique du formalisme classique”, in Les droits des peuples à disposer d’eux-mêmes – Méthodes d’analyse du Droit international – Mélanges offerts à Ch. Chaumont, Paris, Pédone, 1984, pp. 305 and 314. 128 A. Truyol y Serra, “Théorie du Droit international public – Cours général”, 183 RCADI (1981) pp. 142-143.

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servience to power. It is no longer a return to classic natural law, but rather the affirmation or restoration of a higher standard of justice, whereby positive law is assessed. That “rebirth” has much contributed to the assertion and the consolidation of the primacy, in the order of values, of the obligations pertaining to the rights of the human person, owed to the international community as a whole.129 Irrespective of the profession or otherwise of a renewed jusnaturalism, it is clear that the enumeration of the “sources” of International Law undertaken by Article 38 of the ICJ Statute has shown itself – as already pointed out – inadequate and unconvincing. Several jusinternationalists have in fact taken a stand manifestly against the voluntarist-positivist conception which they regard as underlying the exercise of such enumeration. A notorious example was provided by the school of “spontaneous law” (R. Ago, G. Sperduti, R. Quadri, among others), which, in rejecting the enumeration of the formal “sources”, insisted on the “spontaneous” formation at least of customary international norms, regarded as essentially oriented to the common good. Underlying this outlook is the moral force of human conscience, – the universal juridical conscience, – of which, e.g., the Martens clause is a manifestation, even as a “general source of International Law”.130 Roberto Ago clearly summarized the outlook of the school of “spontaneous law”: “(...) une partie essentielle et finalement irremplaçable du droit, est celle qui n’a pas son origine dans des actes volontaires de création et souvent d’imposition, mais qui s’inscrit spontanément et idéalement dans la conscience des membres d’une société humaine déterminée, sous l’impulsion d’exigences concrètes et réelles”.131

He insisted on “the ‘spontaneous’ and hence not voluntary character of customary international law”, which moreover presented advantages to the complex and evolutive international community.132 In another line of thinking, but also in reaction against the voluntarist conception of International Law 133 (reflected, e.g., in the PCIJ decision in the Lotus case, supra), the so-called “historical school” of legal thinking emphasized the 129 J.A. Carrillo Salcedo, “Derechos Humanos y Derecho Internacional”, 22 Isegoría – Revista de Filosofía Moral y Política – Madrid (2000) p. 75. 130 F. Münch, “À propos du droit spontané”, in Studi in Onore di Giuseppe Sperduti, Milano, Giuff rè, 1984, pp. 149-162; F. Münch, “Le rôle du droit spontané”, in Pensamiento Jurídico y Sociedad Internacional – Libro-Homenaje al Prof. D. Antonio Truyol y Serra, vol. II, Madrid, Universidad Complutense, 1986, pp. 831-836. 131 R. Ago, “Nouvelles réflexions sur la codification du droit international”, 92 Revue générale de droit international public (1988) p. 540, and cf. p. 541 on “la nature non volontaire de l’origine du droit coutumier”. 132 Ibid., pp. 573-574, and cf. 564-565. 133 Cf. A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A Re-Assessment”, 59 Revue de droit international de sciences diplomatiques et politiques – Geneva (1981) pp. 201-240.

Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law

opinio juris, requiring practice to be an authentic expression of the “juridical conscience” of nations.134 This conception – though originally circumscribed to the “juridical conscience” – came subsequently to be developed in the modern theory of International Law, concerned above all with the reluctance of certain States to accept and apply norms addressed to a general interest.135 In fact, the conception of the opinio juris emerged, in the XIXth century, as a construction above all of the German historical school (Puchta, Savigny), in reaction precisely to the voluntarist conception; in this way, it succeeded in gradually discarding the “will” of the States, and in moving towards the “common juridical conscience”, of which were an expression the customary norms.136 This came to foster the formation of these latter in an universalized international community.137 With the passing of time, it became evident that the formation of International Law constituted a much wider process than the formulation of its formal “sources”, above all in seeking the legitimacy of norms to rule international life. This meant a clear distancing from, and abandonment of, classic voluntarism, and a moving towards the formation of a true “law of conscience”; in this way, opinio juris came to assume a considerably broader dimension than that of the subjective element constitutive of custom, and to play a key role in the emergence and identification of the norms of general International Law.138 There is a general awareness nowadays of the importance of the work of multiple multilateral forums for the expression of opinio juris communis and the development of general International Law, diminishing the unilateral influence of the most powerful States, promoting international law-making in fulfi lment of the public interest and the realization of the common good of the entire international community, and heading towards the universalization of International Law.139 Opinio juris is affirmed as a key factor in the formation itself of Interna134 K. Wolfke, “Some Persistent Controversies Regarding Customary International Law”, 24 Netherlands Yearbook of International Law (1993) pp. 5-6. 135 Ibid., pp. 13-14 and 16. 136 R. Huesa Vinaixa, El Nuevo Alcance de la ‘Opinio Juris’ en el Derecho Internacional Contemporáneo, Valencia, Tirant lo Blanch, 1991, pp. 30-31 and 76-77; L. Millán Moro, La ‘Opinio Juris’ en el Derecho Internacional Contemporáneo, Madrid, Ed. Centro Est. R. Areces, 1990, pp. 33-34 and 138. 137 At the time of the elaboration of the Statute of the old PCIJ (Article 38, cf. supra), Baron Descamps referred precisely to this common juridical conscience, but, at the end of the debates, there prevailed the reductionist outlook of characterizing opinio juris only as one of the elements (the subjective one) of custom; R. Huesa Vinaixa, El Nuevo Alcance de la ‘Opinio Juris’..., op. cit. supra n. (136), pp. 36-38. 138 Ibid., pp. 173, 192, 194, 199 and 204-205; and cf. R.E. Piza Escalante, “La ‘Opinio Juris’ como Fuente Autónoma del Derecho Internacional (‘Opinio Juris’ y ‘Jus Cogens’)”, 39 Relaciones Internacionales – Heredia/Costa Rica (1992) pp. 61-74. 139 Cf. J.I. Charney, “Universal International Law”, 87 American Journal of International Law (1993) pp. 548 and 551, and cf. p. 543; J.I. Charney, “International Lawmaking – Article 38 of the ICJ Statute Reconsidered”, in New Trends in International Lawmaking – International ‘Legislation’ in the Public Interest (Proceedings of the

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tional Law (and no longer as only one of the constitutive elements of one of its formal “sources”). The fundamental elements of the international legal order are independent from the “will” of the States, and opinio juris gives expression to the “juridical conscience”, not only of nations and peoples (as sustained in the past by the historical school), but of the international community as a whole.140 In this way, it fulfi ls the necessity of an objective validity of the fundamental principles and norms of the international community.141 With the abandonment of voluntarist positivism, the primacy of conscience over “will” seems to have been duly reestablished. It has, at last, been recognized that conscience refers to superior values which stand above the “will”, and that Law emanates from the common conscience of what is juridically necessary (opinio juris communis necessitatis). Distinctly from the formal “sources” of International Law, which are nothing more than the means or vehicles of formation of its norms, conscience (expressed in the opinio juris communis) appears distinctly, in my understanding, as its material “source” par excellence, affirming the binding character of such norms. It is therefrom, i.e., from the universal juridical conscience, that the peremptory norms of International Law (jus cogens)142 ultimately emanate.

Kiel Symposium, March 1996), Berlin, Duncker & Humblot, 1997, pp. 180-183 and 189-190. 140 P. Haggenmacher, “La doctrine des deux éléments du droit coutumier dans la pratique de la Cour Internationale”, 90 Revue générale de Droit international public (1986) pp. 101, 109 and 124. 141 And of any community in any epoch; F. Castberg, “Natural Law and Human Rights”, 1 Revue des droits de l’homme/Human Rights Law Journal (1968) pp. 34-35 and 37. 142 Cf. chapter XII, infra.

Chapter VI

I.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

Introduction: Insufficiencies of the Formal “Sources” and the Relevance of the Material “Source” of International Law

The attitude, adopted in the last decades, by part of the international legal doctrine, of limiting itself, as from an essentially positivist outlook, to consider only the formal “sources” of International Law, has deprived the consideration of the matter from an in-depth examination of the legal foundations, and, ultimately, of the validity itself, of the norms of International Law. It has excluded from the examination of the formation of International Law the substratum of legal norms: the beliefs, values, ethics, ideas, and human aspirations. Not surprisingly, such attitude has rendered the study of the matter rather arid, uninspiring, circumscribed to the modes or procedures whereby international norms are formally created.1 Such posture has reduced the outlook of International Law to that of a merely formal legal order. This reductionist outlook, conducive to unsatisfactory results, has, however, persisted along the last decades, and has had, in my view, harmful consequences, among which the perpetuation of the hermetic outlook of the positivist conception, and the emptying of an international legal order insensible to values, and its incapacity to fulfi l social needs. By the late sixties, for example, J.H.W. Verzijl, after duly distinguishing between the formal and material “sources” of Public International Law, pondered that it was not possible to examine the “sources” of Public International Law without recognizing the importance of natural law for the law of nations (droit des gens), irrespective of whether the content of natural law has an “objective” existence or emanates from human conscience.2 However, somewhat surprisingly, he suddenly interrupted this line of reasoning to affirm that only the “formal” 1

2

For example, Michel Virally openly stated that what was designated as material “source” would not be of “interest” to the study of International Law; M. Virally, “Panorama du Droit international contemporain – Cours général de Droit international public”, 183 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1983) p. 167. J.H.W. Verzijl, International Law in Historical Perspective, vol. I, Leyden, Sijthoff, 1968, pp. 1-3.

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sources, as procedures of “creation” adopted to that end by a given legal system, ought to be regarded as “sources” of Public International Law.3 Years earlier, the same posture of mental reservation had already manifested itself in legal doctrine. Contrary to what was affirmed, e.g., by Hans Kelsen, that it was not possible to reconciliate the legal order with the moral order,4 it is my view that human experience throughout the XXth century, – marked by so many advances in the scientific-technological domain accompanied by unprecedented atrocities, – demonstrates that it is not possible to conceive the legal order making abstraction of the moral order. The assertion by Kelsen was made in his evaluation of a classic study by J.L. Brierly, who, like him, sought to examine the basis of validity of the norms of International Law. Brierly came to affi rm, in his study, that the connection between Law and moral was much more fundamental than its distinction, and that the ultimate basis of an international obligation rested on its ethical content;5 however, further on, Brierly himself confessed not to know how to conciliate the individual belief to act in conformity with Law with the “imperative” character of this latter.6 In my understanding, there is not, in fact, how to dissociate the formation of International Law from the aspects pertaining to its own foundations. The tipically positivist feature of approaching the formation of International Law as from the outlook of the formal “sources” of International Law (listed in Article 38 of the ICJ Statute) with emphasis on evidence of State consent, – as followed for years in the case-law of the PCIJ and the ICJ, – appears increasingly open to challenge. It is the posture resulting from the analytical positivism of the XIXth century, grounded on legal formalism (including its list of “sources”), and making abstraction of the multifaceted, vast and complex process of formation of contemporary International Law,7 aiming at facing the new challenges with which

3

4

5 6

7

In refusing to take into account the principles which transcend the norms of positive law, – irrespective of their being captured by doctrine, or by reason, or by human conscience, or formed “spontaneously” (as propounded by the “historical school” – ibid., pp. 7-8), – he yielded to the hermetic outlook of legal positivism. H. Kelsen, “The Basis of Obligation in International Law”, in Estudios de Derecho Internacional – Homenaje al Profesor C. Barcía Trelles, Santiago de Compostela, University of Santiago de Compostela, 1958, p. 110. J.L. Brierly, The Basis of Obligation in International Law, Oxford, Clarendon Press, 1958, p. 65. Cf. ibid., pp. 66-67, and cf. also pp. 68-80. And, in his Law of Nations, he limited himself, in a rather unsatisfactory way, to say, tout court, that the answer to this question was to be found outside the legal order, it being incumbent upon the philosophy of Law to provide it. He thus withheld himself in the middle of the road... Cf. J.L. Brierly, The Law of Nations, 6th. ed., Oxford, Clarendon Press, 1963, p. 54. E.g., the “law-making activity” of some U.N. organs (for the realization of U.N. purposes), – mainly certain resolutions of the General Assembly, – with a bearing on the evolving opinio juris of the international community; D.P. Verma, “Rethinking

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

the international community is confronted, besides fulfi lling its new needs and aspirations. In fact, the reduccionist posture of considering only the formal “sources” of International Law has never demonstrated the logical or juridical impossibility of also taking into account the substratum of juridical norms. It simply and dogmatically refuses to do so, without explaining why. On my part, I see no impediment for considering, in the study of the formation of International Law, likewise its material “source”, even if this latter transcends, as it effectively does, the positive legal order. And I go further: bearing in mind the hard human experience accumulated in the last decades, and the new challenges faced by humankind, I do not see how not to take into account the material “source” of International Law. After all, International Law is absolutely not at all reduced to an instrument at the service of power; its final addressees are ultimately the human beings, it being incumbent upon itself to fulfi l their needs, among which the realization of justice.8 Its material “source” lies in human conscience itself. II.

Human Conscience, Recta Ratio, and the Universality of International Law

The history of international human thinking discloses that conscience has always opposed injustice and rebelled against oppression.9 In modern history, even before the industrial revolution, there were those who refused to adhere to the growing belief that scientific and material progress would replace philosophy and humanities, and “all the demands of the human spirit”.10 The need of the prevalence of the recta ratio has been pointed out in face of the considerable sufferings inflicted upon human beings11 as well as of the divorce between sciences and

8

9 10

11

about New International Law-Making Process”, 29 Indian Journal of International Law (1989) pp. 38, 43-44, 46-47 and 51. A.A. Cançado Trindade, “Reflexiones sobre el Desarraigo como Problema de Derechos Humanos Frente a la Conciencia Jurídica Universal”, in La Nueva Dimensión de las Necesidades de Protección del Ser Humano en el Inicio del Siglo XXI (eds. A.A. Cançado Trindade and J. Ruiz de Santiago), 3rd. ed., San José of Costa Rica, UNHCR, 2004, pp. 72-73. Cf., e.g., P. Hazard, La crise de la conscience européenne (1680-1715), vol. I, Paris, Gallimard, 1968, p. 114. P. Hazard, La crise de la conscience européenne (1680-1715), vol. II, Paris, Gallimard, 1968, p. 123. As the author pointed out, in the period 1680-1715, even then there was some awareness of the need to unmask the “myth” of the overriding, if not unlimited, scientific and material progress (divorced from moral progress); ibid., vol. II, p. 123. Cf. I. Berlin, The Crooked Timber of Humanity, Princeton, University Press, 1997, pp. 19 and 175.

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humanities.12 The rights of humanity (droits de l’humanité) were at times invoked already in the XVIIth century and beginning of the XVIIIth century.13 In fact, the notion of conscience is deeply-rooted in human thinking. It marked its presence in classic Greek-Latin thinking, which first attempted to elaborate on it. It might be argued that, born in classic Greek-Latin thinking, the notion of conscience would be of difficult apprehension, as new meanings may be ascribed to it throughout the centuries. This does not mean that it does not exist; quite on the contrary, it is always present. The same may be said of the very conception of the law of nations, or indeed of any object of human knowledge. While it is true that ideas and conceptions evolve with time, and so does Law itself (including jus gentium),14 this does not deprive, in my understanding, the notion of conscience of an irreducible minimum. Conscience seems to be like time, in the sense that one knows what it means, but if someone asks what it is, one has difficulties do define it.15 This irreducible minimum, hardly susceptible of one sole definition, is always present in the distinct meanings attributed to conscience in the history of human thinking. One may call it “syneidesis/synderesis” (as in ancient Greece16),

12 13 14 15

16

I. Berlin, The Proper Study of Mankind, N.Y., FSG, 2000, pp. 217, 235-236 and 326358. P. Hazard, op. cit. supra n. (10), vol. II, pp. 55 and 71. Cf. chapter I, supra. Paraphrasing St. Augustine (book XI of his Confessions): – “ (...) Qu’est-ce donc que le temps? Si personne ne me le demande, je le sais. Si quelqu’un pose la question et que je veuille l’expliquer, je ne sais plus. Toutefois, j’affi rme avec force ceci: si rien ne passait, il n’y aurait pas de passé; si rien n’advenait, il n’y aurait pas de futur; si rien n’était, il n’y aurait pas de présent”. St. Augustin, Oeuvres I – Les Confessions précédées de Dialogues philosophiques, Paris, Gallimard, 1998, p. 1041. An approximation, e.g., to the practical syllogism of Aristotle. – In his Nicomachean Ethics (circa 335-322 b.C.), Aristotle insists on human behaviour in accordance with the recta ratio, this being a general principle, valid for all; Aristóteles, Ética Nicomaquea – Política, Mexico, Ed. Porrúa, 2000, pp. 9, 16, 19, 23, 43, 95 and 144 (book I, sections VII and XIII; book II, sections II and VI; book III, section XII; book VII, sections VIII and IX; and book X, section IX). – Even before him, the recta opinio marks presence in Plato’s Dialogues (explicitly in The Banquet); cf. Platón, Diálogos, vol. III (Phedon, The Banquet, Phedro), Madrid, Ed. Gredos, 1997, p. 245.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

or the moral good (Cicero17 and Seneca18), or the knowledge and pursuance of the common good (Thomas Aquinas19), or the precept of right reason and enlightenment (Francisco de Vitoria 20), or the categorical imperative (I. Kant21), – the irreducible meaning is always present, corresponding to the recta ratio of the founding fathers of International Law (as found in Francisco de Vitoria’s De Lege, Francisco Suárez’s De Legibus, Hugo Grotius’s De Jure Belli ac Pacis), which appears in fact as the ultima ratio. The lack or absence of the recta ratio leads to the total submission of human beings to power-holders, to oppressions and atrocities against human beings (epitomized by the holocaust and other genocides of the XXth century), and ultimately, to chaos. With the recta ratio of classic international legal thinking 17

18

19

20 21

In his De Legibus (On the Laws, circa 51-43 b.C., book II), M.T. Cicero held that what is “right and true” is also “eternal”, not deriving from legislation and legal decisions; cf. Cicero, On the Commonwealth and On the Laws (ed. J.E.G. Zetzel), Cambridge, University Press, 2003 [reed.], p. 133. Still in his De Legibus (book I), Cicero maintained that the whole humankind was “bound together”, and “the right way of life” makes “all people better”; ibid., p. 116. In his On Duties (De Officiis, 44 b.C.), Cicero wrote that “everything produced on the earth is created for the use of mankind, and men are born for the sake of men, so that they may be able to assist one another”; Cicero, On Duties (eds. M.T. Griffi n and E.M. Atkins), Cambridge, University Press, 2003 [reed.], p. 10. And in his De Republica (circa late 50s-46 b.C.), Cicero concentrated on first principles, legitimacy and justice, resorting to natural law; to him, justice gives “everyone his due”, takes “thought for the interests of mankind”, sparing all human beings; Cicero, The Republic – The Laws, Oxford, University Press, 1998, p. 66 (book III, par. 24). In the first years of our era (up to the year of 63), Seneca’s Letters to Lucilius contain passages in which he referred to the “common law of humankind” (L.A. Seneca, Cartas a Lucilio (ed. V. López Soto), Barcelona, Ed. Juventud, 1982, pp. 124 and 282, and cf. pp. 168 and 375) and affi rmed that virtue is identified with recta ratio (ibid., p. 177); and cf. Sénèque, Entretiens – Lettres à Lucilius (ed. P. Veyne), Paris, Éd. R. Laffont, 1993, pp. 768 and 813). In the XIIIth century, in his Summa Theologiae (Part I), Thomas Aquinas wrote that human laws only have the quality of law when they accord with right reason, and its validity depends upon its justice; and to be just, laws ought to accord with the rule of reason (a precept of natural law). Cf. relevant excerpts in: Aquinas Selected Political Writings (ed. A.P. D’Entrèves), Oxford, Blackwell, 1970, pp. 121, 125 and 129; and cf. chapter I, supra, ns. 67-68. Cf. Francisco de Vitoria, Political Writings (eds. A. Pagden and J. Lawrance), Cambridge, University Press, 1991, pp. XIV-XV. As set forth particularly in his Metaphysic of Morals (Fondements de la métaphysique des moeurs, 1785), which in Kant’s conception was an a priori, pointing towards the universalization of norms, to the effect of treating human beings not as means, but each one as an end in himself, honouring thereby the dignity of human personality. In addition, in his Critique of Practical Reason (1786), Kant conceptualizes conscience as the “internal tribunal” of each person as a “moral being”; I. Kant, [Critique de] la raison pratique, Paris, PUF, 1963 [reed.], p. 201.

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the belief comes to prevail that it is possible to capture the contents of the jus gentium by human reason.22 Such recta ratio does not fall into subjectivism, as it presupposes and calls for an objective International Law, endowed with an intrinsic validity of its own, which renders it capable of keeping humankind together, united. It further presupposes and calls for an order of universal values, which finds expression in the universalist outlook of the law of nations, the International Law for humankind. Human conscience, – more precisely the universal juridical conscience, – appears as the ultimate material source of International Law, providing the intrinsic foundation of jus gentium, in pursuit of the realization of justice. It goes without saying that, in the historical process of its formation, the law of nations has benefitted from contributions of distinct lines of thinking, especially modern International Law in a multicultural world. It would be inaccurate not to acknowledge the influence of European history in the origin of the discipline which came to be known as International Law, – in particular the international legal order as historically emerged in the Peace of Wesphalia in the mid-XVIIth century, – just as it would be likewise inaccurate not to acknowledge the process of universalization and of humanization of International Law that has been gradually taking place for more than a century, with greater intensity in the last decades, with contributions from distinct cultures. It is nowadays generally acknowledged that the universality of International Law can recognizedly be achieved only on the basis of pluralism, mutual respect for cultural diversity, and the pursuance of common aims, converging ultimately into the welfare of humankind. International Law has indeed undergone a process of continuing expansion and universalization in a multicultural world, so as to fulfill the aspirations of humankind. It is my view that there is, in the multicultural world of our times, an irreducible minimum, which, insofar as international law-making is concerned, rests on its ultimate material source: human conscience. This may admittedly have distinct forms of expression, in distinct cultures, but I believe they all mean, ultimately, that which is common to all human beings (and distinguishes them from other species), which guides their actions, which identifies their values, which assists them in searching the meaning of their lives, individually and in socially organized collectivities: human conscience. It is, ultimately, from this latter, however it may be called in distinct parts of the world, that International Law, like all law, emanates. The acknowledgment of the universal juridical conscience as its ultimate material source (largely overlooked by international legal doctrine in recent decades) has likewise taken place, for a long time already, in lucid writing in distinct parts of the world and in different cultures. Thus, in the last quarter of the XIXth century, e.g., Chao Phya Aphay Raja (then main adviser to King Rama V of Thailand), to whom the “ex-

22

G. Fourlanos, Sovereignty and the Ingress of Aliens, Stockholm, Almqvist & Wiksell, 1986, p. 17, and cf. pp. 19-23, 79-81, 160-161 and 174-175.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

pression of public conscience” was the fi rst manifestation of International Law, stated in 1886 that “(...) Aujourd’hui déjà, les progrès de la conscience publique nous permettent d’affirmer comme une vérité incontestable que le développement et, par conséquent, la liberté rationnelle de l’être humain forment le but principal et légitime de tout droit, national ou international”23.

One decade later, in a similar line of reasoning, S. Sucharitkul pondered in 1983 that International Law “(...) devrait être humanisé, aussi longtemps que l’on garde l’espoir de survivre (...). L’humanité tout entière devrait se faire valoir comme sujet de droit dans ce monde (...) multiculturel. (...) Si (...) l’homme persiste dans sa prudence, l’humanité aura encore sa chance”.24

In sum, it is human conscience that can lead to, and secure, the universality of International Law. The universal juridical conscience is the material source par excellence of the corpus juris of International Law, which nowadays orients itself to the fulfi lment of the needs and aspirations of humankind as a whole. III. The Material Source of International Law Beyond State Legal Positivism Along the history of international legal thinking, resort to “conscience” and “consciousness” has been much more frequent than one may prima facie assume. From Grotius to Vattel, from Martens to Alejandro Álvarez and Barile, the doctrine of International Law is replenished with invocations to human conscience to establish the foundations of the discipline and the validity of its rules.25 The notion of universal juridical conscience has gradually found expression in the theory and practice of International Law, particularly in the last two centuries, with the emergence, in the XIXth century, of the concept of communis opinio juris, and its insertion into the international legal thinking.26 23

24 25

26

Cit. in: S. Sucharitkul, “L’humanité en tant qu’élément contribuant au développement progressif du Droit international contemporain”, in L’avenir du Droit international dans un monde multiculturel / The Future of International Law in a Multicultural World (Colloque de La Haye, novembre 1983, ed. R.-J. Dupuy), The Hague, Nijhoff/Académie de Droit International de La Haye/U.N.U., 1984, pp. 418-419. S. Sucharitkul, op. cit. supra n. (23), pp. 423 and 426-427. Cf., e.g., M. Koskenniemi, From Apology to Utopia – The Structure of International Legal Argument, Helsinki, Finnish Lawyers’ Publ. Co., 1989, pp. 82, 92, 95, 97, 113, 120, 182 and 357-358. Due to a large extent to the approach of the German historical school of law (cf. ibid., p. 367), and the decay of the old positivist dogma of consent (individual voluntas) to establish international custom; A. Carty, The Decay of International Law? A

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In the first decades of the XXth century, the expression “international juridical conscience” was used, recalling the classic notion of civitas maxima gentium, in order to foster the spirit of international solidarity.27 In fact, as early as the beginning of the XXth century, as from 1906, Hugo Krabbe propounded a universal legal order for the whole of humankind, following the Spanish theologians’ tradition of International Law; but unlike F. Vitoria and F. Suárez, who based their construction upon natural law, that of H. Krabbe ensued from the “universal juridical conscience”.28 Léon Duguit, on his turn, envisaged an objective International Law deriving, not from the sovereignty of States, but rather, again, from “an international juridical conscience”; his intellectual successor, Georges Scelle, supported the primacy of International Law over the various national legal systems.29 In his account of this doctrinal development, Alfred Verdross held that the general principles of law, which lay at the basis of the domestic law of several nations, were as such recognized by the “universal juridical conscience”.30 Thus, in the words of A. Verdross, “la règle juridique est créée par une pratique constante tandis que[, dans le premier cas,] le principe général naît déjà au moment de sa première reconnaissance par la conscience juridique universelle”.31

All States, whether they have accepted or not the compulsory jurisdiction of international tribunals, are bound by such principles apprehended by the universal juridical conscience.32 This conceptual evolution was taken further by moving from an international into a truly universal dimension. Concern for securing State sovereignty

27 28

29 30 31 32

Reappraisal of the Limits of Legal Imagination in International Affairs, Manchester, University Press, 1986, pp. 26-28 and 33. Already by the end of the XIXth century customary law was referred to as “the manifestation of the international juridical conscience” (by the Swiss jurist A. Rivier, in his Principes du droit des gens, of 1896), operated by the continuous repetition of acts with the awareness of their necessity; cit. in ibid., p. 27. Cf., e.g., G. Tassitch, “La conscience juridique internationale”, 65 RCADI (1938) pp. 310-311, 314, 316-317 and 320. A. Verdross, “Coincidences: Deux théories du droit des gens apparues à l’époque de la création de l’Académie de Droit International”, in Hague Academy of International Law, Livre jubilaire / Jubilee Book (1923-1973, ed. R.J. Dupuy), Leyde, Sijthoff, 1973, pp. 84-85. Ibid., p. 85. Ibid., p. 92; and A. Verdross, “Les principes généraux du Droit dans la jurisprudence internationale”, 52 RCADI (1935) pp. 223ss. A. Verdross, “Coincidences: Deux théories du droit des gens...”, op. cit. supra n. (28), p. 93. Ibid., p. 96.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

has yielded to concern for jointly guaranteeing the international legal order on the basis of a sense of objective justice: the overcoming of the voluntarist conception of International Law (incapable of explaining the process of formation of the norms of general international law) was clearly shown by the line of jurisprudential evolution separating, e.g., the obiter dicta of the Permanent Court of International Justice [PCIJ] in the Lotus case (1927) from those of the International Court of Justice [ICJ] in the North Sea Continental Shelf cases (1969); the acknowledgement of objective values much contributed to the formation of the communis opinio juris,33 and the same can be said of the widespread awareness of the imperative of fulfilment of the basic social needs of the international community as a whole. To positivists and political “realists”, resort to the universal juridical conscience may appear somewhat difficult to demonstrate, if not metajuridical. They have, accordingly, sought support for their own views mainly in the “will” of States. They seem indifferent to recourse to conscience, which aimed at setting up necessary limits and controls to the arbitrariness in the “will” of States. This is overlooked by them. They seem likewise oblivious of the fact that recourse to conscience has, behind itself, a long-standing juridical thinking, which, by their insistence on propounding “realism” – which appears en vogue again, – seems almost forgotten in our days. The recourse so commonly and uncritically made nowadays to the allegedly “creative will” of States neglects the fact that the practice ensuing therefrom is not at all devoid of ambiguities, incongruencies and contradictions. The creative role of the universal juridical conscience in pursuance of common goals of the international community is, in turn, clearly demonstrable. It has been consistently invoked in the theory and practice of International Law: in the elaboration of adopted texts of international treaties, in the proceedings before international tribunals and in international case-law, and in the works of international legal doctrine. The universal juridical conscience is, ultimately, the material source of International Law. IV. Invocation and Assertion of Juridical Conscience in International Treaties In international practice, the idea of a universal juridical conscience has marked presence in many debates of the United Nations (above all of the VIth Committee of the General Assembly, cf. infra), in the work of the Conferences of codification of International Law (the so-called “law of Vienna”) and in the respective

33

B. Stern, “La coutume au coeur du Droit international – quelques réflexions”, in Mélanges offerts à P. Reuter – Le droit international: unité et diversité, Paris, Pédone, 1981, pp. 493, 496 and 487; Maarten Bos, A Methodology of International Law, Amsterdam, North-Holland, 1984, p. 251, and cf. pp. 246 and 253-255.

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travaux préparatoires of the U.N. International Law Commission [ILC].34 References to conscience, certainly susceptible in our days of a deeper conceptual development, appear likewise in other international treaties. The 1948 Convention against Genocide, e.g., refers, in its preamble, to the “spirit” of the United Nations. Half a century later, the preamble of the Rome Statute of 1998 of the International Criminal Court refers to the “conscience of humanity” (second considerandum). And the preamble of the 1994 Inter-American Convention on Forced Disappearance of Persons, to quote another example, evokes the “conscience of the hemisphere” (third considerandum of the preamble). Other examples can be added. The constitutive elements of the Martens clause – “the principles of humanity and the dictates of the public conscience” – are expressly invoked in the preambles of the 1977 Additional Protocol II to the 1949 Geneva Conventions on International Humanitarian Law (fourth considerandum), and of the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (fifth considerandum). Likewise, the 1972 Convention on the Prohibition of Bacteriological (Biological) Weapons and on Their Destruction states in the last two consideranda of its preamble that the prohibition of those weapons is to the benefit of all mankind, and that their use “would be repugnant to the conscience of mankind”. The universal juridical conscience has been in fact invoked in the travaux préparatoires of the two Vienna Conventions on the Law of Treaties (1969 and 1986), by Delegations from different parts of the world. Thus, in the Vienna Conference of 1968-1969, which adopted the 1969 Vienna Convention on the Law of Treaties, the Delegate of Mexico (E. Suárez) stated that “the rules of jus cogens were those rules which derived from principles that the legal conscience of mankind deemed absolutely essential to coexistence in the international community at a given stage of its historical development”.35 In the same line, the Representative of Italy (A. Maresca) affirmed that the norms of jus cogens “were norms of general international law acknowledged by the international community as a whole, that was to say they were based on the legal conscience of the whole of mankind”.36 Likewise, the Delegate of France (J.-J. de Bresson) asserted that “the substance of jus cogens was what represented the undeniable expression of the universal conscience, the common denominator of what men of all nationalities regarded as sacrosanct, namely, respect for and protection of the rights of the

34 35

36

More recently, it has occupied an important space in the cycle of World Conferences of the United Nations in the nineties; cf. chapter XXVI, infra. U.N., United Nations Conference on the Law of Treaties – Official Records [UNCLT – O.R.] (First Session, March/May 1968), vol. I (statement of 04.05.1968), p. 294, par. 7 (emphasis added). U.N., UNCLT – O.R. (Second Session, April/May 1969), vol. II (statement of 12.05.1969), p. 104, par. 39 (emphasis added).

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

human person”.37 To the Representative of Mali (D. Maiga), also, “the jus cogens rule would help to strengthen the legal conscience of the nations”.38 The Delegate of Iraq (M.K. Yasseen), on his turn, warned that “States could not, by treaty, override those higher norms which were essential to the life of the international community and were deeply rooted in the conscience of mankind”.39 The Representative of Uruguay (E. Jiménez de Aréchaga) ventured to predict that, in practice, a treaty in breach of those higher norms, amounting to “a flagrant challenge to the international conscience, would be infrequent”.40 Still in the context of the debates on jus cogens, the Delegate of Spain (F. de Castro) saw it fit also to warn that international court or arbitrators “could not regard as binding any provision which ran counter to the conscience of the international community”.41 To the Representative of Poland (S. Nahlik), the basis of contemporary International Law was to be found in the realities of international life as expressed in the “conscience” of States.42 And the Delegate of Colombia (H. Ruiz Varela), likewise, invoked “the rules of the universal legal conscience”.43 If should not pass unnoticed that, already by the late sixties, in the XXth century, such invocations of the universal juridical conscience, as related to the peremptory norms of international law, came from Delegates of all latitudes and distinct juridical and cultural backgrounds. They echoed the pluralist international community of those days, which, notwithstanding, felt the need for the assertion of such universal juridical conscience. Thus, contrary to what the spokesmen of an outdated positivism try to contend, such assertion was a reaction to the old pattern of domination or manipulation of the international legal order by a small number of individual big powers, with all the abuses that it entailed. More recently, in the mid-eighties, the issue was again dwelt upon at the 1986 U.N. Conference on the Law of Treaties between States and International Organizations or between International Organizations. On the occasion, the Representative of Brazil (A.A. Cançado Trindade) warned that jus cogens was “incompatible with the voluntarist conception of international law, because that conception failed to explain the formation of rules of general international law”.44 And the Delegate of Cyprus (Droushiotis) added that “norms of jus cogens were 37 38 39 40 41 42 43 44

U.N., UNCLT – O.R. (First Session, March/May 1968), vol. I (statement of 06.05.1968), p. 309, par. 32 (emphasis added). Ibid., vol. I (statement of 07.05.1968), p. 327, par. 74 (emphasis added). Ibid., vol. I (statement of 04.05.1968), p. 296, par. 23 (emphasis added). Ibid., vol. I (statement of 06.05.1968), p. 303, par. 48 (emphasis added). U.N., UNCLT – O.R. (Second Session, April/May 1969), vol. II (statement of 14.05.1969), p. 124, par. 72 (emphasis added). U.N., UNCLT – O.R. (First Session, March/May 1968), vol. I (statement of 06.05.1968), p. 302, par. 33 (emphasis added). Ibid., vol. I (statement of 06.05.1968), p. 301, par. 26 (emphasis added). U.N., United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations – Official Records, vol. I (statement of 12.03.1986), pp. 187-188, par. 18.

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the most important rules of international law, as they were of a universal nature and contained obligations erga omnes”.45 One could hardly deny the tendency of contemporary international law to develop the protection of mankind as a whole, – a process which has been fostered by decolonisation and the emergence and development of International Human Rights Law.46 Even before the insertion of the concept of jus cogens in the first Vienna Convention on the Law of Treaties (that of 1969), the Delegations of some States related the emerging concept to the universal juridical conscience, in the course of the debates at the VIth Committee of the U.N. General Assembly on the Draft Articles by the ILC on the Law of Treaties. Thus, as indicated by a study on this specific point, in those debates (of 19631966) of the VIth Committee, prior to the adoption of the 1969 Vienna Convention, the Delegations of some States related the foundations of jus cogens to the superior interests, the very maintenance and survival of the international community. Thus, the Delegation of Cyprus, for example, stated that certain norms find their essential justification as being “the common expression of the conscience of the international community”.47 To the French Delegation, the universal character of jus cogens indicated that certain principles were binding upon the international community as a whole, while the Italian Delegation, on its turn, identified in this new trend an evolution towards a “true universal public law”.48 V.

Universal Juridical Conscience: The Historical Significance of the Martens Clause

A clause of major transcendence deserves to be singled out: the so-called Martens clause, which counts on more than a century of history. Presented by the Delegate of Russia (Friedrich von Martens) to the I Hague Peace Conference (of 1899), it was inserted into the preambles of the II Hague Convention of 1899 (par. 9) and of the IV Hague Convention of 1907 (par. 8), both pertaining to the laws and customs of land warfare. Its purpose – pursuant to the wise premonition of the Russian jurist and diplomat – was to extend juridically the protection to civilians and combatants in all situations, even though not contemplated by the conventional norms; to that end, the Martens clause invokes “the principles of 45 46

47

48

In ibid., p. 193, par. 84. S. Sucharitkul, “Évolution continue d’une notion nouvelle: le patrimoine commun de l’humanité”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, p. 905. Cit. in: M. Pérez González, “Los Gobiernos y el Jus Cogens: Las Normas Imperativas del Derecho Internacional en la Sexta Comisión”, in Estudios de Derecho Internacional Público y Privado – Homenaje al Profesor L. Sela Sampil, vol. I, Universidad de Oviedo, 1970, pp. 107 and 109. Cit. in ibid., pp. 118 and 115, respectively. The modifications introduced by the jus cogens superveniens were regarded as being due to a change in the “communitarian conscience” as to the application of international norms; ibid., p. 115.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

international law” derived from “established custom”, as well as “the principles of humanity” and the “dictates of public conscience”. Subsequently, the Martens clause was again to appear in the common provision, concerning denunciation, of the four Geneva Conventions of International Humanitarian Law of 1949 (Article 63/62/142/158), as well as in the Additional Protocol I (of 1977) to those Conventions (Article 1(2)), – to quote some of the main Conventions of International Humanitarian Law. The Martens clause has thus been endowed, along more than a century, with continuing validity, – in its invocation of public conscience, – as, however advanced may the codification of humanitarian norms be, it will hardly be considered as being truly complete. The Martens clause thus continues to serve as a warning against the assumption that whatever is not expressly prohibited by the Conventions on International Humanitarian Law could be allowed; quite on the contrary, the Martens clause sustains the continued applicability of the principles of International Law, the principles of humanity and the dictates of public conscience, independently of the emergence of new situations and of the development of technology.49 The Martens clause impedes, thus, the non liquet, and exerts an important role in the hermeneutics and the application of humanitarian norms. The fact that the draftsmen of the Conventions of 1899, 1907 and 1949 and of Protocol I of 1977 have reiteratedly asserted the elements of the Martens clause in those international instruments reckons that clause as an emanation of the material source of International Humanitarian Law 50 and of International Law in general. In this way, it exerts a continuous influence in the spontaneous formation of the contents of new rules of International Humanitarian Law.51 The Egyptian jurist Hamed Sultan, e.g., has related the “modern language” of the Martens clause to longstanding fundamental principles of the Islamic conception of humanitarian law (such as those of justice and equity, and of the dignity and integrity of the human person).52

49

50

51

52

B. Zimmermann, “Protocol I – Article 1”, in Commentary on the Additional Protocols of 1977 to the Geneva Conventions of 1949 (eds. Y. Sandoz, Ch. Swinarski and B. Zimmermann), Geneva, ICRC/Nijhoff, 1987, p. 39. H. Meyrowitz, “Réflexions sur le fondement du droit de la guerre”, in Études et essais sur le Droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (ed. Ch. Swinarski), Genève/La Haye, CICR/Nijhoff, 1984, pp. 423-424; and cf. H. Strebel, “Martens’ Clause”, in Encyclopedia of Public International Law (ed. R. Bernhardt), vol. 3, Amsterdam, North-Holland Publ. Co., 1982, pp. 252-253. F. Münch, “Le rôle du droit spontané”, in Pensamiento Jurídico y Sociedad Internacional – Libro-Homenaje al Prof. D. A. Truyol Serra, vol. II, Madrid, Univ. Complutense, 1986, p. 836; H. Meyrowitz, op. cit. supra n. (50), p. 420. H. Sultan, “La conception islamique du Droit international humanitaire dans les conflits armés”, 34 Revue egyptienne de Droit international (1978) pp. 7-9, and cf. p. 4. And cf. also, on the dictates of public conscience in general, e.g., W.B. Hallaq,

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The Swiss-Polish jurist Christophe Swinarski pondered that, by intertwining the principles of humanity and the dictates of public conscience, the Martens clause establishes an “organic interdependence” of the legality of protection with its legitimacy, to the benefit of all human beings.53 A monograph published in Russia in 1999 on the legacy of Martens stressed the primacy of Law in the settlement of disputes and search for peace.54 Contemporary juridical doctrine has also characterized the Martens clause as source of general International Law itself;55 and no one would dare today to deny that the “principles of humanity” and the “dictates of public conscience” invoked by the Martens clause belong to the domain of jus cogens.56 The aforementioned clause, as a whole, has been conceived and reiteratedly affi rmed, ultimately, to the benefit of humankind as a whole, thus maintaining its topicality. The clause may be considered as an expression of the raison d’humanité imposing limits to the raison d’État. VI. Invocation of Juridical Conscience in Judicial Proceedings and International Case-Law In the course of the advisory proceedings (written and oral phases) before the ICJ (1994-1995) pertaining to the requests by the U.N. General Assembly and the World Health Organization (WHO) for an Advisory Opinion (rendered in 1996) on the question of the legality (or rather illegality) of nuclear weapons, some of the intervening States, not surprisingly, invoked the “principles of humanity” or the “dictates of public conscience” in their arguments. To recall but a couple of examples, Australia, e.g., expressly invoked the Martens clause, and argued that the principles of humanity and the dictates of public conscience are not static, an permeate the whole of International Law in its evolution, calling for the prohibition of nuclear weapons for all States. Australia further recalled the final preambular paragraph of the Convention against Biological Weapons, pondering that its warning that those weapons are “repugnant to the conscience of mankind” applies likewise to nuclear weapons, and that the use of them all would be contrary to general principles of humanity.57 On its turn, Japan contended that the use of nuclear weapons, for the considerable injuries inflicted, was clearly contrary to the principle of humanity in

53 54 55 56 57

The Origins and Evolution of Islamic Law, Cambridge, Cambridge University Press, 2005, p. 203. C. Swinarski, “Préface”, in V.V. Pustogarov, F.F. Martens..., op. cit. infra n. (54), p. XI. V.V. Pustogarov, Fedor Fedorovitch Martens – Jurist i Diplomat, Moscow, Ed. Mezdunarodinye Otnoscheniya, 1999, pp. 1-287. F. Münch, op. cit. supra n. (51), p. 836. S. Miyazaki, “The Martens Clause and International Humanitarian Law”, in Études et essais... en l’honneur de J. Pictet, op. cit. supra n. (50), pp. 438 and 440. ICJ, loc. cit., pleadings of Australia (1995), pp. 45, 60 and 63, and cf. p. 68.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

the foundation of International Law.58 New Zealand stated that the rationale of the 1968 Nuclear Non-Proliferation Treaty is that “nuclear weapons are too dangerous for humanity and must be eliminated”.59 And Egypt asserted that the threat or use of nuclear weapons as weapons of mass destruction is prohibited by International Humanitarian Law; the Additional Protocol I of 1977 to the 1949 Geneva Conventions establishes the prohibition of unnecessary suffering (Article 35) and imposes the differentiation between civilian population and military personnel (Article 48). Thus, by their effects, nuclear weapons, being weapons of indiscriminate mass destruction, infringe International Humanitarian Law, which contain precepts of jus cogens, as recalled by successive resolutions of the U.N. General Assembly; those precepts are the opinio juris of the international community.60 As to international case-law, a prompt example lies in the case-law of the Inter-American Court of Human Rights [IACtHR],61 to which one may add the emerging case-law of the two ad hoc International Criminal Tribunals, for exYugoslavia and Rwanda. And the case-law itself of the ICJ contains elements developed as from, e.g., basic considerations of humanity.62 VII. Invocation and Assertion of Juridical Conscience in International Legal Doctrine Also in the doctrine of International Law elements are found for the development of the matter, although, surprisingly, not sufficiently articulated to date. The no58

59 60 61

62

Government of Japan, Written Statement of the Government of Japan [on the Request for an Advisory Opinion to the ICJ by the World Health Organization], 10.06.1994, p. 2 (internal circulation); Government of Japan, Written Statement of the Government of Japan [on the Request for an Advisory Opinion to the ICJ by the United Nations General Assembly], 14.06.1995, p. 1 (internal circulation); Government of Japan, The Oral Statement by the Delegation of Japan in the Public Sitting Held at the Peace Palace, The Hague, 07.11.1995, p. 1 (internal circulation). ICJ, loc. cit., pleadings of New Zealand (1995), p. 33. ICJ, loc. cit., pleadings of Egypt (1995), pp. 37-41 and 44. Express references to the universal juridical conscience are found, e.g., in some of my Individual Opinions in the case-law of the IACtHR, e.g., in Advisory Opinion n. 16, on The Right to Information on Consular Assistance in the Ambit of the Guarantees of the Due Process of Law (1999), paragraphs 3-4, 12 and 14; in the Provisional Measures of Protection in the case of the Haitians and Dominicans of Haitian Origin in the Dominican Republic (2000), paragraph 12; in the case Bámaca Velásquez versus Guatemala (merits, judgment of 25.11.2000), paragraphs 16 and 28; among others. Cf., e.g., A.A. Cançado Trindade, “La jurisprudence de la Cour Internationale de Justice sur les droits intangibles / The Case-Law of the International Court of Justice on Non-Derogable Rights”, in Droits intangibles et états d’exception / Non-Derogable Rights and States of Emergency (eds. D. Prémont, C. Stenersen and I. Oseredczuk), Bruxelles, Bruylant, 1996, pp. 73-89; and cf. chapter XVI, infra.

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tion which I see it fit to denominate universal juridical conscience comes to find doctrinal expression in relatively recent times (cf. supra), particularly along the XXth century, with the emergence of the concept of communis opinio juris, to face the old positivist dogma of individual consent (voluntas) for the formation of customary law.63 In the first three decades of the XXth century, the expression “international juridical conscience” was effectively utilized, in a slightly distinct sense, recalling the classic notion of civitas maxima, so as to promote and foster the spirit of international solidarity.64 The debates of the Institut de Droit International (New York Session of 1929) about a project of declaration on human rights may here be recalled. It was observed, on the occasion, that the “spiritual life” and the “juridical conscience” of the peoples required a new law of nations, with the affirmation of human rights.65 At a given moment of those memorable debates of 1929 of the Institut, – almost forgotten in our days, – it was pondered, for example, that “dans la conscience du monde moderne, la souveraineté de tous les États doit être limitée par le but commun de l’humanité. (...) L’État dans le monde n’est qu’un moyen en vue d’une fin, la perfection de l’humanité (...). La protection des droits de l’homme est le devoir de tout État envers la communauté internationale. (...) Il s’agit de proclamer les droits que la conscience du monde civilisé reconnaît aux individus en tant qu’hommes.(...)”.66

At the end of the debates referred to, the Institut (22nd. Commission) in fact adopted a resolution containing the “Déclaration des droits internationaux de l’homme”, the first considerandum of which emphatically affirmed that “the juridical conscience of the civilized world requires the recognition to the individual of rights safeguarded from any threat or breach on the part of the State”.67 Still at the time of the II world war (1944), Alejandro Álvarez sustained that the principles of law and the precepts of international justice emanated spontaneously from the international juridical conscience.68 And, three years later, in a report submitted to the Institut de Droit International (1947 Lausanne session), A. Álvarez, amidst the “grave crisis” faced by International Law, reiterated his view that international justice was a manifestation of the international juridical 63 64 65 66 67 68

A. Carty, op. cit. supra n. (26), Manchester, University Press, 1986, pp. 26-28 and 33. Cf., e.g., G. Tassitch, “La conscience juridique internationale”, op. cit. supra n. (27), pp. 310-311, 314, 316-317 and 320. Cf. Annuaire de l’Institut de Droit International (New York Session), vol. II, 1929, pp. 114, 134-135 and 137. Ibid., pp. 112 and 117. Cit. in ibid., p. 298. To him, “international justice” itself emanates from the “public conscience” or “conscience of the peoples”; A. Álvarez, La Reconstrucción del Derecho de Gentes – El Nuevo Órden y la Renovación Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 19-21, 24-25 and 86-87, and cf. p. 488.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

conscience, to which the precepts of the law of nations owed their formation;69 he added that the general interests of the international community should “model” the “rights of States and individuals” and guide the work of reconstruction of International Law.70 On his part, in his inspiring monograph International Law in an Expanded World (1960), B.V.A. Röling also invoked the superior interests of the international community as a whole to protect humankind against war, to “protect the weak against the strong”, to establish an international legal order in which members are “legally obliged to abstain from actions unreasonably harmful to others”, and to lay the basis – in an expanded world – for the construction of a truly universal international law.71 Further references to the “juridical conscience” and “moral conscience” are found, for example, in the Meditación sobre la Justicia (1963) of Antonio Gómez Robledo, amidst his lucid criticism of legal positivism.72 Still in the mid-sixties, S. Glaser sustained that customary international norms are those that, “according to universal conscience”, ought to regulate the international community, for fulfi lling common interest and responding to the demands of justice; and he added that “C’est sur cette conscience universelle que repose la principale caractéristique du droit international: la conviction que ses normes sont indispensables pour le bien commun explique leur reconnaissance en tant que règles obligatoires”.73

The recognition of certain fundamental values, embodying a sense of objective justice, has much contributed to the ongoing evolution of the communis opinio juris 74 in the last decades of the XXth century. One acknowledges here a conceptual evolution which has moved, as from the sixties, from the international to the universal dimension (under the great influence of the development of the International Law of Human Rights itself), conducive to the identification of the com69

70 71

72 73 74

A. Álvarez, “Méthodes de la codification du Droit international public – Rapport”, in Annuaire de l’Institut de Droit International (1947) pp. 38 and 46-47, and cf. pp. 50-51, 54, 64 and 69. Ibid., pp. 44-45 and 68-69, and cf. p. 70. B.V.A. Röling, International Law in an Expanded World, Amsterdam, Djambatan, 1960, pp. XIII, XV, 52-53, 56, 83, 122 and 126. Such goals, – he added, – were prompted by a “revolt” of international conscience against the horrors (in particular the criminal Nazi practices) of the II world war, and a new awareness that human beings could no longer be left entirely only as subjects of their respective nation-States (ibid., p. 114); their rights emanated directly from International Law. A. Gómez Robledo, Meditación sobre la Justicia, Mexico/Buenos Aires, Fondo de Cultura Económica, 1963, pp. 179 and 185. S. Glaser, L’arme nucléaire à la lumière du droit international, Paris, Pédone, 1964, p. 18. Maarten Bos, A Methodology..., op. cit. supra n. (33), 1984, p. 251, and cf. pp. 246 and 253-255.

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mon interests of the international community and of the generalized recognition of the imperative to satisfy basic human needs.75 Thus, in the early seventies, it was possible to behold, – as done by the Nigerian jurist T.O. Elias, for example, – an “overwhelming trend toward consensus which is an expression of the juridical conscience of the world community”.76 Later on, in the late eighties, a trend of the international legal doctrine asserted that the source of the higher norms of International Law lies in the universal conscience, wherefrom certain principles of International Law also emanate; positivist doctrine proved incapable of elaborating a conception of international law conducive to establishing a true legal order, it thus becoming necessary to identify in the “universal conscience” the ultimate source of the “supreme norms of International Law”.77 These are but some examples to disclose that, along the XXth-century, there were jusinternationalists who had the intuition and sensitiveness to detect the reality of human conscience, beyond the crude “reality” of the facts. VIII. Final Observations: The Achievements of International Law and the Universal Juridical Conscience Along the time of formation and growth of International Law, resort to the universal juridical conscience has helped to set necessary limits to excesses of those who hold public power, whose decisions were identified as the “will” of the States. This latter has often appeared as a disaggregating factor, accounting for incongruencies and contradictions in State practice. Thus, traditional International Law, as it stood at the beginning of last century, was characterized by unlimited State voluntarism, which was reflected in the permissiveness of recourse to war, of the celebration of unequal treaties, of secret diplomacy, of the maintenance of colonies and protectorates and of zones of influence. Against this oligarchical and unjust order principles arose such as those of the prohibition of the use and threat of force and of the war of aggression (and of the non-recognition of situations generated therefrom), of the juridical equality of States, of the peaceful settlement of international disputes.78 Moreover, there started the struggle against inequalities (with the abolition of the capitulations, the establishment of the system of protection of minorities under the League of Nations, and the adoption of the first international labour conventions of the ILO). 75 76

77

78

B. Stern, “La coutume au coeur...”, op. cit. supra n. (33), p. 487. T.O. Elias, “Modern Sources of International Law”, in Transnational Law in a Changing Society: Essays in Honour of Ph.C. Jessup (eds. W. Friedmann, L. Henkin and O. Lissitzyn), N.Y./London, Columbia University Press, 1972, p. 51. G. Sperduti, “La souveraineté, le droit international et la sauvegarde des droits de la personne”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne, Dordrecht, Nijhoff, 1989, pp. 884-885, and cf. p. 880; he added that the jurist must tell the truth, beyond positivism, which is illogical (ibid., pp. 879-880). Cf. chapter III, supra.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

The universal juridical conscience, unlike the voluntarist conception, has consistently given expression to the fundamental principles of International Law. The invocation of these latter came to fulfi l the “ethical demands” of the international legal order, as from a renewed jusnaturalist outlook. Such principles came to illuminate the formation and evolution of the international legal order, given the flagrant incapacity of legal positivism to explain the formation of customary norms, of visualizing Law as a means for the realization of justice, and of recognizing that the ultimate foundation of Law is necessarily found outside the positive legal order.79 In the mid-XXth century the necessity was recognized of the reconstruction of International Law with attention turned to the rights inherent to every human being, – of what the adoption of the Universal Declaration of 1948 gave eloquent testimony, followed, along five decades, by more than 70 treaties of protection nowadays in force at global and regional levels,80 in a manifestation of the awakening of the universal juridical conscience to the necessity to secure the effective protection of the human being in all and any circumstances. International Law came to experiment, in the second half of the XXth century, an extraordinary expansion, fostered in great part by the operation of the United Nations and specialized agencies, besides regional organizations. Thus, by direct influence of the international organizations, the process of formation of the norms of International Law became complex and multifaceted, in the purpose of achieving a wide regulation which fulfilled the needs and aspirations of the international community as a whole.81 The vast normative production of the United Nations, for example, was no longer limited to the projects of the ILC,82 – which retain their value and utility, – but came to extend itself to the General Assembly, to its VIth Committee (for Legal Affairs), to the Conferences of Plenipotentiaries convened by the United Nations; furthermore, specialized agencies of the United Nations system, such as the International Labour Organization (ILO), the UNESCO, the International Atomic Energy Agency (IAEA), among others, – besides regional organizations, – came to produce numerous treaties and conventions of importance in distinct areas of human activity.83 79 80

81 82 83

Cf. A. Truyol y Serra, Fundamentos de Derecho Internacional Público, 4th. ed., Madrid, Tecnos, 1977, pp. 19, 61, 68, 73, 104-105 and 117. Parallel to that, in the United Nations era the system of collective security was consolidated, which, however, did not satisfactorily operate as a result of the deadlocks generated by the cold war, – though it remains essential today for the preservation of international peace and security. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2003, pp. 724-737. U.N., The Work of the International Law Commission, 5th. ed., N.Y., U.N., 1996, pp. 1-501. A. Pellet, “La formation du droit international dans le cadre des Nations Unies”, 6 European Journal of International Law (1995) pp. 401-425; F. Cede, “New Approaches to Law-Making in the U.N. System”, 1 Austrian Review of International and Com-

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The emergence of new States, in the course the historical process of decolonization, was to mark deeply its evolution in the fi fties and sixties, amidst the great impact within the United Nations of the emerging right of self-determination of peoples. The process of democratization of International Law was launched.84 In transcending the old parameters of the classic law of peace and war, International Law was equiped to respond to the new demands and challenges of international life, with greater emphasis in international cooperation.85 In the sixties up to the eighties, multilateral forums were engaged in an intense process of elaboration and adoption of successive treaties and resolutions of regulation of the spaces.86 From then onwards international law has gradually undergone a remarkable transformation. As accurately observed, contemporary International Law ceased to be a formalistic legal order, to become a “droit matériel”, and “under the pressure of the universal human community (...) the normative production has enriched”, giving expression to the “values of solidarity and of justice among peoples”.87 The evolution of International Law along the XXth century bears witness of advances due, in my understanding, to their ultimate material “source”, the universal juridical conscience, – despite successive abuses committed against human beings and victimizing humankind as a whole. There are several elements that disclose such advances, whether one dwells upon international case-law, or the practice of States and international organizations and of other subjects of International Law, or else the more lucid juridical doctrine. From these elements there ensues, – may I insist on this central point, – the awakening of a universal juridical conscience, to reconstruct, at this beginning of the XXIst century, International Law, on the basis of a new paradigm, no longer State-centric, but rather placing human beings in a central position and bearing in mind the problems which affect the whole of humankind.88 Recourse to the universal juridical conscience has thus been in line with the humanist thinking in International Law, with the acknowledgment of the pressing need to set limits to force in the relations among States and other subjects of International Law. On the one hand, resort to “will” is in line with the factual

84

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86 87 88

parative Law (1996) pp. 51-66; E. McWhinney, Les Nations Unies et la formation du droit, Paris, Pédone/UNESCO, 1986, pp. 101-129 and 261-287. Cf. H. Valladão, Democratização e Socialização do Direito Internacional, Rio de Janeiro, Livr. José Olympio Ed., 1961, pp. 7-98; P. Buirette-Maurau, La participation du tiers-monde à l’élaboration du Droit international, Paris, LGDJ, 1983, pp. 19-202. The United Nations gradually turned their attention also to the economic and social domain, besides international trade, without prejudice to their initial and continued concern with the preservation of international peace and security. In distinct areas such as those of outer space and the law of the sea. B. Conforti, “Humanité et renouveau de la production normative”, in Humanité et droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991, pp. 113-114 and 118. A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1039-1109.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

capacity to act and influence of each one of them, which varies from State to State and other subjects of International Law, and favours the primacy of authority and force over belief. The former posture, of recourse to the universal juridical conscience, supports, in turn, the primacy of spirit over matter (which is the view I have always firmly sustained). Throughout the successive crisis and disasters that have affected humankind, it has notwithstanding remained aware of its creativity and of the need to be master of its own fate. It is true that humankind has, in a temporal dimension, witnessed the destruction of civilizations in history, one after another, but it is equally true that it has remained aware of the importance of conscience to guide human action and the evolution of humankind itself. As poignantly remarked by Pierre Teilhard de Chardin, although Susa, Memphis, Athens, and other centres of civilization, died in their respective epochs, yet a “conscience of the universe” has kept on evolving and growing along time.89 The destructive forces, both natural disasters and man-made wars, have not succeeded in hindering the course of evolution of that conscience, and of the awareness of the need to live with justice and peace in an orderly universe. That conscience is the ultimate material source of all Law. It is, after all, not surprising that, despite the rise and fall of civilizations in time (e.g., Rome), the idea of Law has survived all destruction,90 has moved forward, in my understanding, by human conscience, in pursuit of the realization of an objective justice. Over a decade of experience so far, serving as Judge of an international tribunal of human rights, has reinforced my feelings that the universal juridical conscience is the material source par excellence of International Law. In several of my Individual Opinions in the case-law of the IACtHR I have sustained my understanding that it is due ultimately to the universal juridical conscience that we can witness nowadays the current historical process of humanization of International Law.91 I sincerely hope that the legal doctrine of the XXIst century comes to dedicate considerably more attention to the material source of International Law, to the foundations and the validity of the norms of this latter. The prevailing attitude of international lawyers in the last decades of the XXth century was to limit themselves to the “formal” sources of International 89 90 91

P. Teilhard de Chardin, Himno del Universo, 2nd. ed., Madrid, Ed. Trotta, 2000 [reed.], pp. 90-91. Cf. Montesquieu, Considérations sur les causes de la grandeur des romains et de leur décadence (1734), Paris, Garnier, 1954 [reed.], pp. 50-51, 62 and 118. Cf. my Concurring Opinion in the Advisory Opinion n. 16, on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999), paragraphs 3-4, 12 and 14; Concurring Opinion in the Provisional Measures of Protection in the case of the Haitians and Dominicans of Haitian Origin in the Dominican Republic (2000), paragraph 12; Separate Opinion in the Bámaca Velásquez versus Guatemala case (merits, 2000), paragraphs 28 and 16; Concurring Opinion in the Advisory Opinion n. 18, on The Juridical Condition and Rights of Undocumented Migrants (2003), paragraphs 23-25 and 28-30, esp. par. 29.

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Law, as recognized in Article 38 of the ICJ Statute.92 This provision was a product of its time (1920), and the challenges of the XXIst century do require to go much further than that. The study of the “sources” of International Law cannot be appropriately undertaken from a strictly positivist outlook, making abstraction of the values. International Law93 cannot at all be reduced to an instrumental at the service of power. Some may argue, and have argued, that the universal juridical conscience is metajuridical. If one bears in mind that no norm of positive law can become the source of its own validity, then one need not fear the charge that the material source of International Law, like that of any law, is indeed metajuridical, and this in my view does not exempt international lawyers from the duty to consider it in good faith.94 Jurists of the past (until the seventies) appeared more prepared to go into an examination of the matter, in greater depth, than most of our contemporaries. Hence the reductionist views of International Law that unfortunately seem to prevail in our days, marked by pragmatism and “technicism”. Many international lawyers nowadays seldom dare to go beyond positive law, being on the contrary receptive – if not subservient – to relations of power and dominance, and thus paying a disservice to International Law. Jurists cannot make abstraction of the ineluctable axiological dimension of the discipline, and in my view cannot truly escape considering its ultimate material source: the universal juridical conscience. It is this latter that moves ahead International Law, as all Law. The universality of International Law cannot possibly be achieved on the basis of positive law strictly; nor can an international legal order turned to the fulfilment of the needs and aspirations of humankind. Hence the great necessity, and utmost importance, of taking into due account, first and foremost, the material source of international law, and of all Law, that which actually moves it forward always: the universal juridical conscience. In conclusion, the very dynamics of contemporary international life, moved by human conscience, has taken care of dismissing the traditional view that international norms derive entirely from the “free will” of the States themselves. It has evidenced that one could only find an answer to the problem of the foundations and validity of this latter in the universal juridical conscience, as from the assertion of the idea of an objective justice. At this beginning of the XXIst century, we have the privilege to witness and the duty to foster the process of 92 93

94

A provision which is almost 90 years old... Its addressees are the States, international organizations, peoples and human beings, and ultimately humankind, and it ought to fulfi l their needs, among which and above all the realization of justice. It may be recalled that, as already pointed out in this General Course, – in the process of elaboration of the 1970 U.N. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, the understanding was propounded that the Declaration was intended to express a “universal juridical conviction”; cf. chapter III, supra.

The Material Source of International Law: Manifestations of the Universal Juridical Conscience

humanization of International Law, which, in conformity with the new ethos of our times, comes to dwell more directly upon the identification and realization of common superior values and goals. In this way, International Law evolves, expands itself, strengthens and improves itself, and, ultimately, it legitimates itself.

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Part IV Subjects of International Law

Chapter VII

I.

States as Subjects of International Law and the Expansion of International Legal Personality

Introduction: International Legal Personality Expanded

The domain of the subjects of International Law, which in the past was largely devoted – sometimes exclusively – to States, has lately been much enriched with the acknowledgement of international organizations and individuals as also subjects of the law of nations. In turning now to this chapter of International Law, my intention is here to focus on the expansion of international legal personality, rather than to review classic doctrine on the matter. Th is means to review new developments on the matter,1 with the advent of international organizations and of the human person, individually or in groups, and of humankind as a whole, also as subjects of the law of nations. This does not mean to overlook the international legal personality of States, which has already been firmly established in International Law a long time ago, and which has been overworked in the past. It means to concentrate attention, as from the personality of States, on the expansion of international legal personality in the current process of humanization of International Law. II.

Statehood and Recognition

The preconditions for statehood in International Law are those of an objective International Law, irrespective of the “will” of individual States.2 Suffice it at this stage to focus statehood in the right perspective, as distinguished from the question of recognition of States. It is, in fact, precisely in relation to the effects of recognition that the classic dispute between the declaratory and the constitutive theses arose.3 Recognition being largely discretional, it has in practice operated 1 2

3

In this chapter and in chapters VIII-XI, infra. As to the classic prerequisites of statehood, gradually greater emphasis has shifted from the element of territory to that of the normative system, and, in more recent times, to that of the population, thus reflecting the current process of humanization of International Law; cf. chapter XXI, infra. With regard to recognition in particular, the partisans of the constitutive thesis sustain that the act of recognition is decisive even for the emergence of the interna-

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empirically, often escaping from fi xed criteria or preestablished rules.4 It is not surprising that the declaratory thesis has become much more widely accepted: it is certainly an exageration to condition the very configuration of the international personality of a new State, and of its corresponding rights and duties, to the “will” of the States which recognize it, as upheld in the past by voluntarist positivism. The extreme view which pretended in the past that the arbitrary “will” of the States constituted the source not only of their rights but also of their own existence is wholly surpassed in contemporary International Law,5 thus avoiding harmful consequences for the international system.6 As to the classic polemics, in respect of recognition, between those who considered, on the one hand, the State, and, on the other hand, the international legal system (“objective” International Law) as providing the ultimate “source” of international rights and duties, it may further be pointed out that a State can perfectly “exist” without entering into international relations with some other States, it can be the bearer of certain rights and duties without it. There are always States non-recognized by others, negotiations are conducted despite non-recognition, and the international responsibility of non-recognized States or governments has at times been asserted. In sum, States do not regard other non-recognized States as immune from the norms of International Law. All this demonstrates that the determination of the conditions of existence of a State is incumbent upon International Law itself. It is, thus, not without

4

5 6

tional personality of the new State and the rights and duties normally associated to it, while the supporters of the declaratory thesis advocate that the act of recognition is only a political act, a formal one, which normally precedes the establishment of diplomatic relations with a State which already exists as such. Cf., on the matter, K. Marek, Identity and Continuity of States in Public International Law, 2nd. ed., Geneva, Droz. 1968, pp. 1-619; J. Verhoeven, “L’État et l’ordre juridique international – remarques”, 82 Revue générale de Droit international public (1978) pp. 749-774; F. Münch, “Quelques problèmes de la reconnaissance en Droit international”, in Miscellanea W.J. Ganshof van der Meersch, vol. I, Bruxelles/Paris, Bruylant/LGDJ, 1972, p. 171, and cf. pp. 157-172; Ch. Rousseau, “L’indépendance de l’État dans l’ordre international”, 73 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1948) pp. 213-219. H. Lauterpacht, Recognition in International Law, Cambridge, University Press, 1947, pp. 2, 51, 59, 62-63, 75 and 77. Such position proved wholly unsustainable, as it would amount to render the very existence of a State a relative question, depending on the individual recognition of each other State; Ti-Chiang Chen, The International Law of Recognition, London, Stevens, 1951, pp. 40-42, and cf. pp. 33-38. And, what was even more worrisome, if the non-recognized State was juridically non-existent, everything would then be permissible in relation to it, -sufficing it here to recall the declaration of Hitler of the non-existence of Czechoslovaquia on the eve of the German invasion of 15.03.1939, and the proclamation by the old Soviet Union of the extinction of Poland before the Soviet invasion of that country, on 17.09.1939; K. Marek, op. cit. supra n. (4), pp. 146 and 148-149, and cf. also pp. 149-150.

States as Subjects of International Law and the Expansion of International Legal Personality

reason that, if in the past, the study of statehood appeared often strictly linked to that of the unilateral act of recognition, by influence of voluntarist positivism, modern theory and practice have turned their attention to aspects of statehood and international legal rules pertaining to statehood itself (e.g., legal status and competences) independently of the unilateral juridical act of recognition.7 It is nowadays generally acknowledged that the recognition of States is of a declaratory, rather than constitutive nature, as the existence of a State cannot depend on the manifestation of the “will” of another State. The preconditions for statehood in International Law were well captured by the 1933 Montevideo Convention on the Rights and Duties of States, comprising a population, a defined territory, a normative system and the capacity to enter into relations with other States. Such factual preconditions, as pointed out by classical doctrine, ensued essentially from the principle of effectiveness, though modern doctrine goes beyond this latter and resorts to jus cogens so as to discard any illegal use of force also in the present domain.8 III. Rights and Duties of States With the fulfi lment of those preconditions, the new entities, the States, emerged as subjects of International Law, originally conceived for the realization of the common good. Their international juridical personality was beyond question. The fundamental rights and duties of States, ensuing therefrom, were elaborated by legal doctrine, along with the assertion of the independence of States from the empire and the papacy, particularly in doctrinal writings of the XVIIIth century, such as those of C. Wolff and E. de Vattel.9 States, composed of individuals, became persons of International Law, endowed with corresponding rights and duties, by means of an “anthropomorphic” analogy.10

7

8

9

10

K. Marek, op. cit. supra n. (4), pp. 134, 142-144 and 158-160; T.-Ch. Chen, op. cit. supra n. (6), pp. 3, 28-29, 33-38, 55 and 62; Cf. also H. Kelsen, “Recognition in International Law – Theoretical Observations”, 35 American Journal of International Law (1941) pp. 605-617; and cf. A.J.P. Tammes, “The Legal System as a Source of International Law”, 1 Nederlands Tijdschrift voor Internationaal Recht (1954) pp. 374-384. Cf., e.g., J. Crawford, The Creation of States in International Law, Oxford, Clarendon Press, 1979, pp. 58, 81, 106-107 and 421; J. Crawford, “The Criteria for Statehood in International Law”, 48 British Year Book of International Law [BYBIL] (1976-1977) pp. 93-182. States are thus directly subjects of International Law; cf. E. Jouannet, Emer de Vattel et l’émergence doctrinale du droit international classique, Paris, Pédone, 1998, pp. 97-98, 255, 311 and 319. Ch. de Visscher, Les effectivités du Droit international public, Paris, Pédone, 1967, pp. 34-52; C.D. de Albuquerque Mello, Curso de Direito Internacional Público, vol. I, 15th. rev. ed., Rio de Janeiro, Ed. Renovar, 2004, pp. 366-368; L.A. Podestá Costa and J.M. Ruda, Derecho Internacional Público, vol. I, Buenos Aires, Tipogr. Ed. Argentina, 1979, pp. 53-55.

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The aforementioned Convention of Montevideo of 1933 singled out, in its 16 Articles, such rights as those of independence and self-preservation (irrespective of the recognition by other individual States), of inviolability of territory, besides the right to juridical equality, among others. Significantly, the “personification” of the States, composed anyway of human beings, suggested that even in the consideration of the classic theme of statehood, one cannot make abstraction of the human person, for whom the State ultimately exists, and not vice-versa. In any case, the 1933 Convention had the merit of identifying and formulating principles that were to shape the conduct of States in their relations with each other, in terms of rights and duties of these latter. When, years later, the matter was retaken by the U.N. International Law Commission, in May 1949, it was beyond doubt that inter-State relations were subject to the primacy of International Law.11 Moreover, rights and duties of States were articulated on the basis of the general principle of the juridical equality of States, which, overcoming subservience to the policies of the great powers, had found expression during the two Hague Peace Conferences (of 1899 and 1907), and with renewed force in the second Conference. At the II Hague Peace Conference, Ruy Barbosa remarked that the principle of juridical equality applied in the relations between States as well as well as individuals.12 In fact, even the rights and duties of States are exercised or performed by individuals, i.e., the authorities vested with the public power of States, who take decisions of their behalf. Those rights and duties were construed of the basis of the principle of juridical equality of States as subjects of International Law, set forth in the U.N. Charter (Article 2(1)). Such principle encompassed, despite shortcomings in the practice of States itself, equality of rights and equality before International Law.13 The rights and duties of States, as set forth, e.g., in the 1933 Convention of Montevideo, were conceived and formulated in the framework of the relations of States inter se. But international law underwent a considerable evolution ever since, encompassing new and diversified areas of human activity. Thus, in December 1974, the U.N. General Assembly adopted the celebrated Charter of Economic Rights and Duties of States,14 which expressly referred to the “international community as a whole” 15 or the “entire international community” (twice in the preamble), and listed a series of principles to orient 11 12 13

14

15

R.J. Alfaro, “The Rights and Duties of States”, 97 RCADI (1959) pp. 95-176. R.P. Anand, “Sovereign Equality of States in International Law”, 197 RCADI (1986) pp. 72 and 74. Cf. ibid., pp. 117-121, and cf. pp. 99 and 105; and cf. chapter III, supra). And cf. II Conférence de la Paix, Actes et discours de M. Ruy Barbosa, La Haye, W.P. van Stockum et Fils, 1907, pp. 213-222 and 316-322. For an account, cf. J. Castañeda, “La Charte des droits et devoirs économiques des États – Note sur son processus d’élaboration”, 20 Annuaire français de Droit international (1974) pp. 36-37; and cf. also P.J.I.M. de Waart, “Permanent Sovereignty over Natural Resources as a Cornerstone for International Economic Rights and Duties”, 24 Netherlands International Law Review (1977) pp. 304-322. Article 31, and cf. Article 10.

States as Subjects of International Law and the Expansion of International Legal Personality

the establishment of a new international economic order,16 in the “promotion of international social justice”.17 The topic of rights and duties of States has ever since been a recurrent one, revived from time to time in relation to specific domains of International Law. In the last two decades, one of such domains has been that of the rights and duties of riparian States of international rivers (in relation to, e.g., equitable and reasonable utilization, the duty not to cause sensible harm, freedom of navigation).18 Another has been the law of the sea,19 as illustrated by relevant provisions of the 1982 U.N. Convention on the Law of the Sea (in force as from 16.11.1994): while it recognizes rights to coastal States, and others, it also sets forth duties erga omnes concerning the use of the high seas (Part VII), the protection and preservation of the marine environment (Part XII), thus taking into account the interests of other States as well as of the international community as a whole.20 Developments in the last two decades suggest that the treatment of even a classic chapter such as that of the rights and duties of States – and in particular States’ duties – nowadays goes far beyond the strictly inter-State dimension, and is approached in a distinct light, bearing also in mind current needs of humankind as a whole. Nowadays one cannot envisage individual States making abstraction of other States, and, ultimately, of the international community, which encompasses also other subjects of International Law. States themselves have gradually realized that, for their own survival in the present nuclear age, they ought to be concerned also with the needs of others and of humankind as a whole.

16

17 18

19

20

Hardly any other subject raised some much interest among international lawyers in those days; only in the period 1974-1980, for example, some 600 books were published on the matter, besides 1600 articles in specialized periodicals, and 700 studies and reports on it were prepared in the U.N. Secretariat and related agencies or organs; cf., on the matter, A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2003, pp. 381-408, and sources referred to therein. As stated in the preamble. Cf., e.g, J.A. Barberis, “Bilan de recherches de la section de langue française du Centre d’Étude et de Recherche de l’Académie”, in Droits et obligations des pays riverains des fleuves internationaux (1990), The Hague/Dordrecht, The Hague Academy of International Law/Nijhoff, 1991, pp. 15-57. Cf., e.g., inter alia, S. Bateman, D.R. Rothwell and D. VanderZwaag, “Navigational Rights and Freedoms in the New Millenium: Dealing with XXth Century Controversies and XXIst Century Challenges”, in Navigational Rights and Freedoms and the New Law of the Sea (eds. D.R. Rothwell and S. Bateman), The Hague, Nijhoff, 2000, pp. 314-335. Cf., e.g., K. Highet, Rights and Duties of States under the 1982 Law of the Sea Convention, Washington D.C., OAS General Secretariat/Inter-American Juridical Committee, 2000, pp. 43-75.

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IV. States and the Expansion of International Law The last decades have witnessed an extraordinary expansion of International Law, with the emergence and participation (as from decolonization) of numerous politically-emancipated States with wide cultural differences, the rise of international organizations and their thousands of resolutions of varying juridical effects, the already vast and ever-growing corpus of international case-law, the delimitation of new areas of regulation (e.g., communications and regulation of spaces), among other factors. International Law has thus become a considerably well-equipped domain of Law, besides being a cultural one. The expansion of International Law has virtually discarded arguments of the past based on an alleged “legal vacuum”, as the possibilities of non liquet became extremely rare. Such expansion of International Law promptly received judicial recognition. Thus, in its celebrated Advisory Opinion of 21.06.1971 on Namibia, the International Court of Justice [ICJ] pondered (referring to the regime of the mandates) that in the supervening half-century “the corpus juris gentium has been considerably enriched”, and this the ICJ, “if it is faithfully to discharge its functions, may not ignore”. The Court, in fact, seemed to admit that the evolution of the general practice in the last years was due not only to the practice of States but also to the practice of international organizations, as the Opinion of 1971 referred to the practices of the Security Council as well as of the Court itself, besides discussing the significance and the extent of resolutions of the General Assembly and of the Security Council.21 The expansion of International Law, soon acknowledged in expert writing,22 occurred at first at normative level, thus considerably enlarging its scope of application. States began to address new domains of human activity, and new concepts emerged in the expanded regulation by International Law of such domains. Gradually, as pointed out by B. Conforti, concern with issues pertaining to humankind came to mark its presence in the expanded international regulation; States themselves began to bear in mind considerations concerning bonum commune humanitatis, in the gradual formation of a universalized international community.23 21 22

23

Paragraphs 22, 38, 84 and 105-115 of the Opinion. Cf., e.g., inter alia, E. Jiménez de Aréchaga, “International Law in the Past Third of a Century”, 159 RCADI (1978) pp. 9-343; I. Brownlie, “International Law at the Fiftieth Anniversary of the United Nations – General Course on Public International Law”, 255 RCADI (1995) pp. 21-228; M.S. Rajan, The Expanding Jurisdiction of the United Nations, Bombay/Dobbs Ferry N.Y., N.M. Tripathi/Oceana, 1982, pp. 1-236; A. Truyol y Serra, “L’expansion de la société internationale aux XIXe et XXe siècles”, 116 RCADI (1965) pp. 95-171; Lord McNair, The Expansion of International Law, Jerusalem, Hebrew University, 1962, pp. 9-68. B. Conforti, “Humanité et renouveau de la production normative”, in Humanité et Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991, p. 116, and cf. 113120.

States as Subjects of International Law and the Expansion of International Legal Personality

In the domain of international environmental protection, for example, throughout the negotiatory process of the 1997 Kyoto Protocol to the 1992 U.N. Framework Convention on Climate Change, governmental Delegates themselves sought to reach a consensus,24 overcoming their individual divergent interests, and succeeding to adopt the Kyoto Protocol as a package deal, aware as they were of the importance of facing the challenge of climate change which afected ultimately humankind as a whole.25 The adoption of the Kyoto Protocol reflected the common consciousness of the far-reaching implications of patterns of production and consumption for everyone’s life, and of the pressing need of “protecting the earth’s climate for the benefit of humankind”.26 The gradual and considerable expansion of International Law has taken place not only at normative level: it has been, after all, an expansion of the function itself of the discipline. Suffice it here to recall one historical example in this regard. The function itself of International Law transformed and expanded, e.g., by the prohibition of war as an instrument of national policy:27 it became incumbent on International Law to regulate all questions pertaining to international peace and security, including some, – like the regulation of the use of force, – that in the past were assumed to be the monopoly of the great powers.28 The transformation occasioned by the condemnation of war as an illicit act had remarkable repercussion in the evolution of the discipline of International Law itself. The doctrine of the past discoursed within the parameters of the classical division between the law of peace (droit de la paix) and the law of war (droit de la guerre). The unequivocal condemnation of war, as an institution and an allegedly sovereign prerrogative, operated a profound transformation: the study of the obsolete notions of war (just or unjust, offensive or defensive, among others) was abandoned, and the classification itself of the means of peaceful settlement of international disputes began to fall under the ambit of the law of peace. In the timely expression of Descamps, from then onwards one could no longer “speak 24

25

26 27 28

A positive attitude which, years earlier, was also displayed in the negotiation of the 1985 Vienna Convention for the Protection of the Ozone Layer, and the 1987 Montreal Protocol on Substances that Deplete de Ozone Layer; cf., e.g., R.E. Benedick, Ozone Diplomacy – New Directions in Safeguarding the Planet, 2nd. ed., Cambridge/ Mass., Harvard University Press, 1998, pp. 44-47 and 98-99. H. Schröder, Negotiating the Kyoto Protocol – An Analysis of Negotiation Dynamics in International Negotiations, Münster/Hamburg, LIT, 2001, pp. 92 and 96, and cf. pp. 17-18 and 21. S. Oberthür and H.E. Ott, The Kyoto Protocol – International Climate Policy for the 21st Century, Berlin/Heidelberg, Springer-Verlag, 1999, pp. 278 and 311. By the 1928 Pact Briand-Kellogg; cf. chapter IV, supra. Such transformation brought about important consequences for the traditional notions of treatment of belligerents, neutrality, debellatio, territorial acquisitions, celebration of treaties, – some of them having undergone fundamental modifications, and others having simply been suppressed; J. Zourek, L’interdiction de l’emploi de la force en Droit international, Leiden/Genève, Sijthoff/Inst. H.-Dunant, 1974, pp. 42 and 44-46.

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juridically of the law of war and of peace”, but one should rather “speak of the law of peace in face of the illicit fact of war”.29 The expansion of International Law was meant to be an expansion of the law of peace, – and this should be kept in mind in our turmoiled days at this beginning of the XXIst century. Attempts of “revival” of the term “war” (irrespective of qualification, whether defensive or “preventive”, or any other) would amount to regrettable steps historically backwards, besides being wholly unwarranted. V.

The Erosion of the Domestic Jurisdiction of States

The considerable expansion experienced by International Law along the second half of the XXth century, prompted in particular by the advent of international organizations and the law-making initiatives undertaken in the framework of these latter, is evidenced, inter alia, by the concomitant erosion of the objection of the domestic jurisdiction or the reserved domain of States. Such objection, which was gradually overcome by international organs, is distinct from the principle of non-intervention, which retained its applicability in the ambit of strictly inter-State relations. In the framework of multilateralism, however, States gradually realized that the objection of domestic jurisdiction (compétence nationale exclusive) was self-defeating, and should be avoided, for the sake of the growth of International Law itself. The starting point of this development lay in the provision of Article 15(8) of the Covenant of the League of Nations, which read: “If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by International Law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement”.

In the practice of the League this restriction on the Council was invoked on only three occasions.30 It was in one of them, in the Nationality Decrees Advisory Opinion (1923) that the Permanent Court of International Justice [PCIJ] shed

29

30

Baron Descamps, “L’influence de la condamnation de la guerre sur l’évolution juridique internationale”, 31 RCADI (1930) p. 528, and cf. pp. 450, 460-461, 465, 479, 482, 493, 510-511 and 525-526. On the “international criminality” of war, cf. N. Politis, Les nouvelles tendances du Droit international, Paris, Libr. Hachette, 1927, pp. 126-127. Namely, in the Aaland Islands case (Finland versus Sweden), in the Nationality Decrees in Tunis and Morocco case (United Kingdom versus France), and in the dispute concerning the expulsion of the Oecumenical Patriarch from Turkey (Greece versus Turkey, settled amicably in 1925-1926 by direct negotiations between the parties). The Aaland Islands case was settled amicably in 1920-1921 by the contending parties, following an opinion delivered by a Commission of Jurists (since the Permanent Court of International Justice [PCIJ] had not yet been formed), and agreed with by the League Council.

States as Subjects of International Law and the Expansion of International Legal Personality

some light into the problem of domestic jurisdiction, when it stated, in a celebrated obiter dictum, that “The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations”.31

Years later, throughout the work at the San Francisco Conference conducive to the adoption of the United Nations Charter in 1945, the participant Delegations did not advocate that the determination of matters which fell under the domestic jurisdiction should be attributed to the interested States. Instead, they favoured referring that determination to the international organs, in an implicit recognition of the International Law criterion.32 This fact should be always kept in mind, for a proper understanding of the subsequent practice of the United Nations on the application of Article 2(7) of the U.N. Charter; the attribution to the organ concerned rather than to the interested State of the determination whether a matter was or not covered by the limitation of Article 2(7) of the Charter helped to draw attention to its artificiality as a safeguard for State sovereignty.33 Expert writing took varying positions on the problems raised by the domestic jurisdiction clause of the U.N. Charter. A first trend propounded the view that the reserved domain of States depended upon the fact whether International Law had or not made of the matter at issue an object of regulation.34 Another trend simply favoured the International Law criterion for the determination of the reserved domain.35 At last, a distinct trend visualised different spheres of jurisdiction or a certain distribution of competence, seemingly to maintain that 31 32

33

34

35

PCIJ, Nationality Decrees in Tunis and Morocco, Advisory Opinion, 1923, Series B, n. 4, pp. 23-24. L. Kopelmanas, L’Organisation des Nations Unies, vol. I, Paris, Sirey, 1947, pp. 232 and 241-242; M. S. Rajan, United Nations and Domestic Jurisdiction, New Delhi, Orient Longmans, 1958, p. 394. R.L. Bindschedler, “La délimitation des compétences des Nations Unies”, 108 RCADI (1963) p. 396; P. Berthoud, La compétence nationale des États et l’Organisation des Nations Unies (thesis), Neuchâtel, University of Neuchâtel, 1948, p. 32; H. Lauterpacht, International Law and Human Rights, London, Stevens, 1950, p. 271; F. Ermacora, “Human Rights and Domestic Jurisdiction (Article 2(7) of the Charter)”, 124 RCADI (1968) p. 440. H. Kelsen, The Law of the United Nations, London, Stevens, 1950, pp. 776 and 778; A. Ross, Constitution of the United Nations, Copenhagen, E. Munksgaard, 1950, pp. 120-121 and 131; E. Jiménez de Aréchaga, Derecho Constitucional de las Naciones Unidas, Madrid, E.F.I., 1958, pp. 104 and 107-108; H. Waldock, “General Course on Public International Law”, 106 RCADI (1962) pp. 173-191. H. Lauterpacht, op. cit. supra n. (33), p. 215; G. Sperduti, Il Dominio Riservato, Milano, Giuff rè, 1970, pp. 17-18, 35-40 and 56-58; and cf., in the same sense, earlier, G. Scelle, “Critique du soi-disant domaine de ‘compétence exclusive’”, Revue de droit international et de législation comparée (1933) pp. 368 and 369 n. 2.

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there were matters which might well fall per se within the reserved domain of States.36 Article 2(7) of the U.N. Charter deleted the express reference to the International Law criterion previously found in the corresponding provision of the League Covenant (supra). The Charter formula did not provide any ascertainable standard to operate as an adequate basis for judicial determination. It paved the way for political organs, such as the General Assembly or the Security Council, to evaluate in a given case, within the framework of the U.N. Charter, all the issues which may prove relevant to the determination of the problem in any given case.37 The depth of the problem was promptly depicted in the mid-XXth century: “While the erection of the reserved domain into a constitutional limit upon international jurisdiction may be relevant in the case of international political organs not bound to decide in accordance with the legal rights of the parties, it creates an entirely artificial position in international legal tribunals. If the matter is within the reserved domain, the tribunal is incompetent to investigate the merits at all. Yet it cannot determine whether or not the matter is within the reserved domain without an investigation of the merits”.38

Be that as it may, an examination of cases brought before the United Nations following the adoption of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples,39 shows in fact that the U.N. political organs did not much hesitate to take position openly adverse to contentions of domestic jurisdiction when the issues involved were those of self-determination. The 1960 Declaration, taken together with the evolving practice by U.N. organs, gradually asserted the existence of the right of self-determination40 (in the conceptual universe of human rights), thus overcoming eventual objections on the ground of Article 2(7) of the U.N. Charter. This process has taken place within the framework of the U.N. Charter as a whole, and thus cannot at all be invoked by contemporary apologists of the use of force to try to justify unilateral recourse to force by States, which is a breach of International Law. 36

37 38

39 40

H. Rolin, “The International Court of Justice and Domestic Jurisdiction”, International Organisation (1954) pp. 43-44; A. Verdross, “The Plea of Domestic Jurisdiction before an International Tribunal and a Political Organ of the United Nations”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1968) pp. 37-38. L. Preuss, “Article 2(7) of the Charter of the United Nations and Matters of Domestic Jurisdiction”, 74 RCADI (1949) pp. 645-648. C.H.M. Waldock, “The Plea of Domestic Jurisdiction before International Legal Tribunals”, 26 BYBIL (1954) pp. 140-142, and cf. pp. 131-137; cf. also H.W. Briggs, “United States v. Bulgaria: Domestic Jurisdiction and Sovereign Determinations of Legal Irresponsibility”, in Mélanges offerts à H. Rolin, Paris, Pédone, 1964, pp. 13-29. U.N., G.A. Resolution 1514 (XV), of 14.12.1960. Cf. chapter III, supra.

States as Subjects of International Law and the Expansion of International Legal Personality

While explicitly enlarging the scope of the reserved domain of States (in relation to the League Covenant), the draftsmen of the U.N. Charter at the same time implicitly limited it by recognising to the organs of the Organisation the competence to interpret the Charter provisions as applicable to their particular functions. The whole construction was thus artificial and ambiguous. The success of the great powers on the phraseology adopted in Article 2(7) of the U.N. Charter at the San Francisco Conference, by deleting the reference to the International Law criterion, proved to be an ephemeral one. One year later the Spanish case reached the United Nations, and the debates on the case brought to the fore the concept of international concern, opening a wide field of action, as confirmed by subsequent practice, in situations hitherto deemed to fall exclusively within the reserved domain.41 As Article 2(7) is basically concerned with the relations between the Organisation and its members, it was less by the express reservation of a domain of competence than by the actual restrictions of action imposed upon the organs of the Organisation42 that a reserved domain of States could be secured. Other provisions of the U.N. Charter (e.g., Article 33) could simultaneously be interpreted in such a way as to render the domestic jurisdiction clause innocuous. The same result was obtained from the interpretation of this clause in combination with other provisions of the Charter (taken as a whole): Articles 10 and 14 asserting the General Assembly competence to discuss any matter (and recommended measures) within the scope of the Charter, Article 34 affirming the Security Council power to investigate any dispute or situation likely to endanger international peace and security irrespective of origin, or Article 39 on its power to determine the existence of a threat to or breach of peace.43

41

42 43

Not surprisingly, shortly after its adoption, the rule contained in Article 2(7) of the UN Charter was considered to be nothing but a makeshift (C.B.H. Fincham, Domestic Jurisdiction, Leiden, Sijthoff, 1948, pp. 184-187), and some changes in the provision, including its deletion, were contemplated (a possibility envisaged by two delegations even at the San Francisco Conference). M.S. Rajan, op. cit. supra n. (32), pp. 528-541; and cf. L. Kopelmanas, L’Organisation des Nations Unies, vol. I, Paris, Sirey, 1947, p. 248. M. Bourquin, L’État souverain et l’organisation internationale, N.Y., Manhattan Publ. Co., 1959, p. 28. In practice, U.N. political organs either rejected objections to their competence, or else took action apparently ignoring them; not seldom debates on competence were intermingled with discussion on issues of substance. Yet, the United Nations practice as a whole, – and that of international organizations, – rather than reflecting an arbitraire politique seems to express a possible and to some extent reasonable interpretation of the domestic jurisdiction clause inserted into the Charter; A. Ross, “La notion de ‘compétence nationale’ dans la pratique des Nations Unies – une rationalisation a posteriori”, in Mélanges offerts à H. Rolin, Paris, Pédone, 1964, p. 290.

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Out of the empiricism of international practice on the matter,44 a constant factor in successive cases in U.N. practice was to the effect that a State raising an objection on the ground of domestic jurisdiction could not impede the inclusion of the matter into the agenda of the international organ seized of it and the discussion of the matter at the international level.45 This factor afforded evidence for the view that the reserved domain of States underwent a continuing process of reduction, appearing rather as a residuum of discretionary authority left by International Law within the domestic jurisdiction of States. The material or objective criterion of determination of matters which fall within the reserved domain of States, whereby there were matters which, by their own nature, were essentially within the domestic jurisdiction of States, appeared soon to be groundless. The locus classicus of the problem remained the Nationality Decrees Advisory Opinion, to the effect that this was an essentially relative question depending upon the development of international relations. The view was corroborated by the work of the U.N. Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation among States (1964-1970), with particular reference to the principle of non-intervention in matters within the domestic jurisdiction of any State.46 In a monograph on the subject published three decades ago, I saw it fit to write, on the basis of the evidence examined, that as the concept was mutable and depended upon the the development of international relations, an interpretation was needed “(...) in favour of rendering States accountable for their behaviour affecting international society in areas of international concern. The practice of international organisations has not allowed States to determine for themselves the matters falling within their domestic jurisdiction. It has rather stressed their responsibility for breaches of their international obligations, in view of the dictates and needs of present-day international life”.47

44

45 46 47

The domestic jurisdiction clause itself constitutes the source of all possible ambiguity, which – it should not pass unnoticed – regional organizations sought to avoid. Thus, the Inter-American Juridical Committee rejected a proposal for the inclusion of a domestic jurisdiction clause into the Charter of the Organization of American States (OAS). The [former] Organisation of African Unity (nowadays African Union) was from the start less concerned with domestic jurisdiction as such than with the risks of secession that might threaten the territorial unity and integrity of independent States. The League of Arab States has reduced the domestic jurisdiction principle to a clause de style. And the Council of Europe, likewise, minimised contentions of domestic jurisdiction. As illustrated, e.g., by the South African and Southern Rhodesian cases. Cf. chapter III, supra. A.A. Cançado Trindade, “The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organisations”, 25 International and Comparative Law Quarterly (1976) pp. 715-765.

States as Subjects of International Law and the Expansion of International Legal Personality

In fact, in the following decades, States have given up relying on objections of domestic jurisdiction. Bearing in mind the principles and rules governing international relations, they rather opted for strengthening multilateralism – given the intensification of international intercourse and the expansion of International Law in distinct areas of human activity – and lay emphasis on more international co-operation in social and economic matters. By the end of the XXth century, it could hardly be denied that the objection of the reserved domain of States had become a remnant of the past, of simply historical interest. Its erosion took place within the ambit of multilateralism, that is, of the relations between the United Nations Organisation and its member States, and could not possibly be resorted to or invoked to attempt to justify unilateral action in the framework of inter-State relations outside the U.N. Charter. As far as interState relations were concerned, the 1970 U.N. Declaration on Principles of International Law restated the express prohibition of intervention of one State into another, and so did the 1974 U.N. Definition of Aggression. The aforementioned erosion rendered it possible to consider, within the United Nations, matters of international concern, of interest of the international community as a whole. This historical development, therefore, cannot possibly be invoked today by the unfounded heralds of unilateralism. VI. Final Observations: States and the New Horizons of International Legal Personality Traditional International Law as purely inter-State has led to abuse of power by those who held it. Although States keep on playing a predominant role at the international level, contemporary International Law has been enriched with the overcoming of the old inter-State dimension and the contributions of other subjects, such as international organizations, individuals and humankind. The end of the monopoly of international personality by States and the expansion of such personality at international level is a guarantee against the abuses of the past, reducing at international level the scope for oppression or tyranny.48 That abuses and crimes have been (and are) committed in the name of the public power of the State is wholly unjustifiable, as the State was originally conceived – it should not be forgotten – as promoter and guarantor of the common good.49 In the past, States (or more precisely, the great powers) used to invoke their “vital interests” to “justify” unilateral measures (as some apologists of the use of force still attempt to do today). Early in the XXth century admonitions were 48

49

That State monopoly has come to an end even in sensitive areas, such as the regulation of the legitimate use of force, with the advent of the enforcement action under chapter VII of the U.N. Charter; Ch. Schreuer, “The Waning of the Sovereign State: Towards a New Paradigm for International Law?”, 4 European Journal of International Law (1993) pp. 447-471. J. Maritain, The Person and the Common Good, Notre Dame, University of Notre Dame Press, 1966 [reprint 1985], pp. 11-105.

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raised against this posture. Thus, in 1924, the Brazilian jurist Clovis Bevilaqua discarded what there was of “vague and arbitrary” in the once prevailing view of “vital interests” of States, “so cherished by many international lawyers”.50 And already by 1916 the Chilean jurist Alejandro Álvarez warned as to the necessity of “rendering precise with the greatest clarity the place or the situation of International Law in the national legislation of each country”.51 Nowadays, it goes without saying that what is perceived as the “vital interests” of any State cannot be imposed upon others, and cannot be made to prevail over the common and superior interests of the international community as a whole. International Law does not – cannot – recognize, – as warned by H. Mosler in 1974, – any act by a given State, or some States in “coalition”, directed against its basic principles and its very foundations.52 International Law has, moreover, paved the way for the expansion of international legal personality; States themselves have contributed to such expansion, moved by the consciousness that they could hardly find by themselves adequate solutions to the formidable challenges that they face in modern times. As the ICJ lucidly pointed out more than half a century ago, “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of International Law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States”.53

The expansion of international legal personality does not mean that States are bound to weaken and vanish, but rather that they are bound to reorient their outlook and policies in pursuance of the common good. The new, wider horizons of international legal personality are not to be faced with resentment by States. Th is is a historical phenomenon that they have acquiesced with, and, further than that, they have contributed to. They did so with the awareness that they could not alone, by themselves, fulfil the new needs and aspirations of the international community. This latter, on its turn, is not to be taken nowadays as meaning the international community of States, – a static concept which would be synonymous 50

51 52 53

Legal Opinion of 30.09.1924, reproduced in A.A. Cançado Trindade, Repertório da Prática Brasileira do Direito Internacional Público (Period 1919-1940), Brasília, MRE/FUNAG, 1984, pp. 17 and 31-32. A. Álvarez, Le Droit international de l’avenir, Washington, Institut Américain de Droit International, 1916, p. 137. H. Mosler, “The International Society as a Legal Community”, 140 RCADI (1974) pp. 33-34. ICJ, Advisory Opinion on Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports (1949) p. 178.

States as Subjects of International Law and the Expansion of International Legal Personality

with the old international society of States, which it is not. It is today much more than that. In my understanding, the conception of international community encompasses today all subjects of International Law, – States, international organizations, individuals, and humankind. The expansion of the international legal personality is not to be feared by States either, as it brings about an expansion of international accountability as well. All subjects of International Law are bearers of rights and duties, conferred upon them directly by the international legal order. This contributes to the perennial human search for the realization of justice, also at the international level. It is not to be forgotten that, as originally conceived, States exist for human beings (who compose them), and not vice-versa. In recent years, States have at times disclosed their capacity to search for the realization of the common good, advancing causes – such as those pursued by the international protection of human rights as well as of the environment – that well transcend their individual interests. Their conciousness of the ultimate goal of the pursuit of the common good has led States nowadays to work together with international organizations and with individuals and entities of the civil society to fulfil their common needs and aspirations, to the benefit ultimately of humankind as a whole.

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I.

International Organizations as Subjects of International Law

Introduction: International Organizations and the Modification of the Structure of the International Legal Order

The advent and multiplication of international organizations, as from the midXXth century, came in a way to fulfi l a functional necessity: States themselves came to realize that, – as they were originally conceived for the realization of the common good,1 – besides their basic obligation to preserve future generations from the scourge of wars, they could no longer exert properly certain public functions acting individually. The work in areas such as international communications, the exploration of the seabed and outer space, air navigation over the high seas or other areas beyond the limits of national jurisdiction, among others, evidenced to States the need to promote greater international cooperation and co-ordination, also for performing their public functions with greater efficacy.2 The emergence of international organizations, operating at both universal and regional levels, and in the most diverse domains of human activity (political, economic, social, cultural, and of human security), brought about an expansion of the corpus juris of International Law, starting with the international legal personality and capacity themselves.3 These latter, which in the past were monopoly of the States, came to encompass also international organizations, bringing about

1

2

3

On the “human end of power”, as “basis of the international order”, cf. Ch. de Visscher, Théories et réalités en Droit international public, 4th. rev. ed., Paris, Pédone, 1970, pp. 151-162. H.G. Schermers, “International Organizations as Members of Other International Organizations”, in Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte – Festschrift für Hermann Mosler (eds. R. Bernhardt et alii), Berlin, Springer-Verlag, 1983, p. 823; R. Ago, “Le quarantième anniversaire des Nations Unies”, in L’adaptation des structures et méthodes des Nations Unies (Colloque de La Haye, 1985 – ed. D. Bardonnet), Dordrecht, Académie de Droit International de La Haye/Nijhoff, 1986, p. 26. Cf. C. Dominicé, “La personnalité juridique dans le système du droit des gens” in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 157 and 160-161.

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a reassessment – and expansion – of the chapter of subjects of International Law. The Wesphalian model of the international legal order, marked by the purely inter-State outlook of International Law, did not resist the challenges of the new times. International organizations, of the most distinct kinds and characteristics, have effectively modified the structure of International Law: they have put an end to the former State monopoly of international legal personality4 and of privileges and immunities,5 have expanded treaty-making power, have altered the rules of their own composition, have come to participate in international judicial proceedings,6 and have considerably widened the means of international cooperation and regional and subregional integration. This phenomenon, which was already noticeable in the sixties and seventies,7 became more and more conspicuous, and can nowadays be adequately appreciated, in historical perspective, in the ambit of the Law of International Organizations.8 II.

International Organizations and the Ideal of the Realization of Justice

International organizations have, for more than six decades, echoed the aspirations of humankind of pursuit of the ideal of realization of justice, and have 4

5 6

7

8

As subjects of International Law, international organizations became direct addressees of its norms (of rights and obligations at international level); J.A. Barberis, “El Desarrollo del Derecho Internacional Público a partir de la Creación de las Naciones Unidas”, in XIII Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano (1986), Washington D.C., OAS General Secretariat, 1987, p. 15, and cf. p. 26. Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2003, pp. 659-668. Cf. C.P.R. Romano, “International Organizations and the International Judicial Process: An Overview”, in International Organizations and International Dispute Settlement: Trends and Prospects (eds. L. Boisson de Chazournes, C. Romano and R. Mackenzie), Ardsley/N.Y., Transnational Publs., 2002, pp. 3-36; T. Treves, “International Organizations as Parties to Contentious Cases: Selected Aspects”, in ibid., pp. 37-46. Cf. W. Friedmann, Mudança da Estrutura do Direito Internacional, Rio de Janeiro, Livr. Freitas Bastos, 1971, pp. 53-54 and 106-107 (originally published in English in 1964); and cf. Ch. de Visscher, Les effectivités du Droit international public, Paris, Pédone, 1967, pp. 53-62; P.-M. Dupuy, “Dialogue onirique avec W. Friedmann – Sur les évolutions du Droit international entre la fin des années soixante et loa veille du XXIème. siècle”, in Liber Amicorum In Memoriam of Judge J.M. Ruda (eds. C.A. Armas Barea and J.A. Barberis et alii), The Hague, Kluwer, 2000, pp. 20-21. Cf., generally, e.g., H.G. Schermers and N.M. Blokker, International Institutional Law, 3rd. ed. rev., The Hague, Nijhoff, 2001, pp. 1-1198; Ph. Sands and P. Klein, Bowett’s Law of International Institutions, 5th. ed., London, Sweet & Maxwell, 2001, pp. 1-580; R.St.J. Macdonald, “Reflections on the Charter of the United Nations”, in Des Menschen Recht zwischen Freiheit und Verantwortung – Festschrift für K.J. Partsch, Berlin, Duncker & Humblot, 1989, pp. 29-45.

International Organizations as Subjects of International Law

furthermore given their contribution to that end. Their work to this effect has not, however, passed without difficulty: they had, from the start, to overcome the then prevailing lack of sensitivity, if not the predominant indifference, in this respect. It should not pass unnoticed, in this connection, that the Dumbarton Oaks Proposals, which served as basis for the work of the San Francisco Conference from which the Charter of the United Nations emerged in 1945, remained silent – by influence of the great powers – on the inclusion of an express mention to International Law. It was, in fact, due to the insistence of the States of lesser power (such as the Latin American countries) that, at the San Francisco Conference, at last, references were included to International Law in the preamble and in Articles 1(1) and 13 of the U.N. Charter.9 Although International Law was not expressly mentioned in the key chapters (V, VI and VII) of the Charter that govern the Security Council, those general references to it (in the preamble and Article 1) provided a foundation, however slim, for the U.N. to act on the basis of International Law; keeping this in mind, “it is indeed one of the notable achievements of the U.N. system”, – as remarked by O. Schachter on the fi ftieth anniversary of the United Nations, – that “it has produced a corpus juris of such remarkable diversity and depth”.10 And it has, thereby, – as pointed out by Ian Brownlie on the same occasion, – contributed to the international ordre public and the rule of law at international level.11 Article 13(1) of the U.N. Charter served, in fact, as basis for the establishment, in 1947, of the U.N. International Law Commission [ILC].12 Article 13 of the Charter, resulting from a proposal by China, provided the basis for the whole work of the ILC and its recognized contribution, along the last decades, to international law.13 And it was also made possible to broaden the faculties of the U.N. Economic and Social Council (ECOSOC), which came to count on subsidiary organs the operation of which was to have incidence in the international legal

9

10

11

12

13

G.E. do Nascimento e Silva, “A Codificação do Direito Internacional”, 55/60 Boletim da Sociedade Brasileira de Direito Internacional [BSBDI] (1972-1974) pp. 83-84 and 103. E.g., setting up legal limits on decisions taken; O. Schachter, “Discours: The United Nations and International Law”, 66 Annuaire de l’Institut de Droit International (1995)-II, pp. 81-82. I. Brownlie, “International Law at the Fiftieth Anniversary of the United Nations – General Course on Public International Law”, 255 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1995) p. 21. Cf. United Nations, The Work of the International Law Commission, 5th. ed., N.Y., U.N., 1996, pp. 4-5; Maarten Bos, “Aspects phénomenologiques de la codification du Droit international public”, Le droit international à l’heure de sa codification – Études en l’honneur de Roberto Ago, vol. I, Milano, Giuffrè, 1987, pp. 142-143; C.-A. Fleischhauer, “The United Nations and the Progressive Development and Codification of International Law”, 25 Indian Journal of International Law (1985) pp. 1-2. O. Schachter, op. cit. supra n. (10), p. 81.

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order. Thus, due to those references in the constitutive Charter of the United Nations, the Organization promptly proceeded, in the ambit of its functions, already in the forties, to its work in the field of the progressive development of International Law. Thus, in the mid-XXth century, the international community seemed at last to have awakened for the imperative of the realization of justice, neglected in the past, and essential at both national and international levels. In his reminiscences of the epoch and his reflections on justice, the Mexican jurist Antonio Gómez Robledo perspicatiously pointed out that, at that time, justice was “simply absent” in the whole draft articles submitted by the great powers to the consideration of the other Delegations at the San Francisco Conference of 1945: of everything one would speak, above all of security, of everything but justice itself. It was not simple oblivion or involuntary omission, as the express references to “justice” of the Covenant of the League of Nations were known; it was, therefore, “an intentional cover-up”.14 The reaction of the Delegations of Latin American States contributed to overcoming that grave omission: they presented an amendment which resulted in the inclusion of an express reference to “justice” in Article 2(3)15 – under chapter I, pertaining to the purposes and principles – of the U.N. Charter. But it was a “hard battle”, – added the author, – as to the amendment of Latin American States the “representatives of the great powers” opposed themselves, alleging that justice was a “vague concept”.16 If one had started from a strictly positivist posture, the simple mention to justice would not have been achieved; such reference was made as a result of the awakening of human conscience. The episode seems to have suggested that, in historical projection, it would no longer be possible to conceive an international legal order which would make abstraction of the imperative of the realization of justice. Nowadays, it clearly appears to go without saying that every legal system aims at securing “le règne de la justice parmi les sujets qu’il régit”,17 – and the international legal system surely makes no exception to that. This is promptly recalled, e.g., by the aforementioned Article 1(1) of the U.N. Charter, which sets forth, among the purposes of the Organization, that of peaceful settlement of international disputes “in conformity with the principles of justice and international law”. The Constitution of the International Labour Organization [ILO], – to evoke another example, – calls for, in its preamble, an international legal order based upon “social justice”. That is further recalled by the Constitution 14 15 16 17

“Un encubrimiento doloso”; A. Gómez Robledo, Meditación sobre la Justicia, Mexico, Fondo de Cultura Económica, 1963, p. 8. Cf., e.g., B. Simma et alii (eds.), The Charter of the United Nations – A Commentary, 2nd. ed., vol. I, Oxford, University Press, 2002, p. 111 n. 50. Ibid., p. 9. Ch. Rousseau, “Le droit international et l’idée de justice”, in Le droit international au service de la paix, de la justice et du développement – Mélanges M. Virally, Paris, Pédone, 1991, p. 399.

International Organizations as Subjects of International Law

of UNESCO, which, likewise, sets as its purpose (Article 1(1)) the promotion of international collaboration through education, science and culture in order to “further universal respect for justice”, for the “rule of law” and for the rights of the human person. III. International Organizations and the Expansion of International Legal Personality and Responsibility The international legal personality of the United Nations – and, a fortiori, of other international organizations, – was soon to obtain judicial recognition. Once the International Court of Justice [ICJ] acknowledged in its landmark 18 Advisory Opinion of 1949 on Reparations for Injuries Suffered in the Service of the United Nations that the United Nations was endowed with an objective international legal personality,19 it could no longer be denied that the U.N., and a fortiori other international organizations, could act as distinct entities in the exercise of their respective functions, irrespective of the “will” of individual member States.20 Soon distinct doctrinal trends developed as to the extent of the powers conferred upon them: to the strict approach that the U.N. could only do what was expressly provided in its Charter,21 the opposite view was advanced that the U.N. had wide “inherent powers” which placed it in the same legal position than States.22 The U.N. itself followed a more balanced approach, in the lines of the aforementioned 1949 Advisory Opinion of the ICJ, to the effect that, whilst States possess the totality of the international rights and duties recognized by International Law, those of an entity such as the U.N. ought to depend on its purposes and functions, specified or implicit in its constitutive charter and developed in

18

19 20

21

22

Cf. J.E.S. Fawcett, “The United Nations and International Law”, in The Evolving United Nations: A Prospect for Peace? (ed. K.J. Twitchett), London, Europa Publ., 1971, p. 58. ICJ Reports (1949) p. 185. G. Weissberg, The International Status of the United Nations, London/N.Y., Stevens/Oceana, 1961, p. 211; M. Rama-Montaldo, “International Legal Personality and Implied Powers of International Organizations”, 44 British Year Book of International Law (1970) pp. 144-145. Given that it was an Organization of peaceful co-existence among States (belonging to distinct socio-economic systems); G. Tunkin, “The Legal Nature of the United Nations”, 119 RCADI (1966) pp. 11 and 18. F. Seyersted, Objective International Personality of Intergovernmental Organizations, Copenhagen, 1963, pp. 28-29, 35-38, 40, 45-46, 53-56, 60, 96 and 100; and cf., more recently, F. Seyersted, “Basic Distinctions in the Law of International Organizations: Practice versus Legal Doctrine”, in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 691-699. But the doctrine of inherent powers has not passed unchallenged; cf. J. Klabbers, An Introduction to International Institutional Law, Cambridge, University Press, 2002, pp. 77-78.

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practice.23 This doctrine of implied powers, which came to be followed by the U.N., rendered it possible to it to adapt itself to new circumstances of international life and to face new and successive challenges.24 The traditional monopoly of States of international personality had come to an end.25 The doctrine of implied powers, rather than attributing carte blanche to the U.N., clarified that its competences would be delimited by its purposes, so that the exercise of its functions would be valid.26 International organizations such as the U.N., began to establish (by resolutions) not only new organs or entities not originally foreseen in their constitutive charters,27 but also their own internal law to regulate their legal relations with their agents.28 Their treaty-making power or capacity was promptly asserted and exercised29 (cf. infra). Together with the acknowledgement of the objective international legal personality of the U.N., the doctrine of implied powers provided the basis for a reasonable intepretation of the provisions of its constitutive charter, so as to avoid opposed or diverging results – as properly warned by H. Kelsen in his The Law of the United Nations (1950), – and drew attention to the need to resort to fundamental ideas underlying the Charter.30 23 24

25

26

27

28

29

30

ICJ Reports (1949) p. 180, and cf. p. 182. For a recent assessment, in support of the doctrine of implied powers, cf., e.g., C.M. Brölmann, “A Flat Earth? International Organizations in the System of International Law”, 70 Nordic Journal of International Law / Acta Scandinavica Juris Gentium (2001) p. 322. Cf. E. Jiménez de Aréchaga, “International Law in the Past Third of a Century, 159 RCADI (1978) pp. 170-171; Quincy Wright, International Law and the United Nations, Bombay/Calcutta/New Delhi, 1960, p. 31 n. 33; A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., op. cit. supra n. (5), pp. 10-26. Cf. R. Khan, Implied Powers of the United Nations, New Delhi/Bombay/Bangalore, Vikas Publ., 1970, pp. 1-222; P. Reuter, “Principes de Droit international public”, 103 RCADI (1961) pp. 519-524. E.g,, as to the U.N., UNCTAD (in 1964) and UNIDO (in 1966); L.B. Sohn, “The Development of the Charter of the United Nations: The Present State”, in The Present State of International Law – International Law Association 1873-1973, Deventer, Kluwer, 1973, p. 58; J. Castañeda, Legal Effects of United Nations Resolutions, N.Y., Columbia University Press, 1969, p. 52. C.W. Jenks, The Proper Law of International Organizations, London, Stevens/Oceana, 1962, pp. 35-39; G. Balladore Pallieri, “Le droit interne des organisations internationales”, 127 RCADI (1969) pp. 30-31. Well before the adoption of the 1986 Vienna Convention on the Law of Treaties betweeen States and International Organizations or between International Organizations; cf. B. Kasme, La capacité de l’Organisation des Nations Unies de conclure des traités, Paris, LGDJ, 1960, pp. 7-197; Y. Souliotis, “La capacité des organisations internationales de conclure des accords d’après leurs actes constitutifs et la pratique”, 25 Revue hellénique de Droit international (1972) pp. 194-233. A. Verdross, “Idées directrices de l’Organisation des Nations Unies”, 83 RCADI (1953) p. 7.

International Organizations as Subjects of International Law

In its Advisory Opinion of 1980 on the Interpretation of the Agreement of 1951 between the WHO and Egypt, the ICJ warned as to the necessary recognition of the mutual obligations between international organizations and member States (and, in particular, host States),31 and recalled that “international organizations are subjects of International Law”, and, as such, are bound by all the obligations incumbent upon them by the general rules of International Law, by their constitutive charters or by treaties or agreements that they become Parties to.32 Furthermore, international organizations also create norms, which bind their internal organs, and require compliance on the part of States. Once international organizations had their own international legal personality and capacity asserted and widely recognized, they contributed decisively, – by their work in domains such as those of decolonization and self-determination of peoples, promotion and protection of human rights, environmental protection, among others, – to the gradual recognition of the international legal personality and capacity of individuals and groups (such as movements of national liberation) at the international level, within the framework of their respective ambits of operation. In this respect, in historical perspective, U.N. General Assembly resolutions, in particular, have, inter alia, “determined the status of other entities such as Namibia and liberation organizations and movements. (...) A new category of subjects of international law (...) was not only characterized as such but actually created through actions of the Assembly”.33

In their turn, international organizations, once created, assumed a life of their own, and, as legal persons of International Law, came to externalize their own decisions by means of resolutions, of variable legal contents and effects. They have contributed to the growth and sophistication of contemporary international law-making, so as to respond to the needs of the international community as a whole.34 In adapting themselves to the demands of the new times,35 they did not conform themselves that their activities were to exhaust themselves in those expressly foreseen, originally, in their constitutive charters. The “authentic interpretations” of the constitutive charters” of international organizations have

31 32 33 34 35

ICJ, Advisory Opinion of 20.12.1980 on Interpretation of the Agreement of 1951 between the WHO and Egypt, ICJ Reports (1980) p. 94, par. 46. ICJ Reports (1980) pp. 89-90, par. 37. B. Sloan, “General Assembly Resolutions Revisited (Forty Years Later)”, 58 British Year Book of International Law [BYBIL] (1987) pp. 111-112. D.H. Anderson, “Law-Making Processes in the U.N. System – Some Impressions”, 2 Max Planck Yearbook of United Nations Law (1998) pp. 40, 42 and 48-49. On the adaptations of international organizations to changes in the international scenario, cf., e.g., G.I. Tunkin, “The Legal Nature of the United Nations”, 119 RCADI (1966) pp. 16 and 65.

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contributed to the institutionalization36 (with the prevalence of an international ordre public)37 and, to some extent, to a certain “constitutionalization” of the international legal order,38 in pursuance of the common good.39 An organization of universal vocation such as the United Nations, in particular, made ample use of the doctrine of “implied powers”, so as to perform faithfully their functions and to seek the fulfi lment of their purposes, in an international scenario in constant mutation. Moreover, by overcoming the old objection of the so-called “domestic jurisdiction of States” (compétence nationale exclusive),40 the work of international organizations has thereby contributed in a notable way to the expansion of two other chapters of International Law: those pertaining to jurisdiction, and to international responsibility.41 The expansion of international legal personality42 is ineluctably accompanied in our days by the expansion of international responsibility. While this latter was until very recently centered on the international responsibility of States, it is not surprising that nowadays attention has been turned also onto the international responsibility of international organizations; the topic was included in the program of work of the U.N. International Law Commission [ILC] in 2000 (cf. infra), which has produced, until mid-2008, six reports and 57 provisionally ap36

37

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39 40 41

42

J. Castañeda, Obras Completas – vol. I: Naciones Unidas, Mexico, Colégio de México/Secretaría de Relaciones Exteriores, 1995, p. 568; and cf., generally, I. Seidl-Hohenveldern and G. Loibl, Das Recht der Internationalen Organisationen, Köln/Berlin, C. Heymanns Verlag, 2000, pp. 1-375; C. Zanghi, Diritto delle Organizzazioni Internazionali, Torino, G. Giappichelli Ed., 2001, pp. 1-406. B. Stern, “L’évolution du rôle des Nations Unies dans le maintien de la paix et de la sécurité internationales”, in International Law as a Language for International Relations / Le Droit international comme langage des relations internationales (Proceedings of the U.N. Congress on Public International Law, New York, 13-17.03.1995), The Hague, Kluwer/U.N., 1996, p. 63. Cf., e.g., R. Macdonald, “The Charter of the United Nations in Constitutional Perspective”, 20 Australian Year Book of International Law (1999) pp. 213-214; O. Schachter, “United Nations Law”, 88 American Journal of International Law (1994) pp. 1-23; P.-M. Dupuy, “The Constitutional Dimension of the Charter of the United Nations Revisited”, 1 Max Planck Yearbook of United Nations Law (1997) pp. 2, 11-19; T. Sato, Evolving Constitutions of International Organizations, The Hague, Kluwer, 1996, pp. 230-237; B. Fassbender, The United Nations Charter as the Constitution of the International Community, Leiden, Nijhoff, 2009, pp. 1-187. H.G. Schermers, “We the Peoples of the United Nations”, 1 Max Planck Yearbook of United Nations Law (1997) pp. 112-113 and 116-117. On the erosion of that objection, cf. chapter VII, item V, supra. As regards this latter, as from the assertion of the legal personality of international organizations, one came to admit the possibility of these latter appearing as both active and passive subjects in the matter of international responsibility; M. Pérez González, “Les organisations internationales et le droit de la responsabilité”, 92 Revue générale de droit international public (1988) pp. 64, 82 and 99-100. Cf. chapters VII-XI.

International Organizations as Subjects of International Law

proved draft articles; by mid-2009 the ILC has concluded its work on the seventh report. As international organizations had their international legal personality and capacity consolidated in International Law, the determination of the legal regime of their international responsibility has become indispensable, so as to secure their compliance with International Law and to avoid or reduce breaches of obligations ensuing therefrom.43 The responsibility, be it of an international organization or of a State, constitutes a centre of imputation of its own.44 In his Third Report, the ILC rapporteur (G. Gaja) considered the responsibility of an international organization by “action” or by “omission”.45 Significantly, and not surprisingly, the Fourth Report acknowledged that the peremptory norms of international law (jus cogens) by international organizations in the same way as States.46 The point was retaken and further elaborated in the Fifth Report (of 2007).47 It may well be that the work of the ILC on the subject at issue comes to shed light on related questions which have lately been attracting attention of expert writing, such as, e.g., those of the locus standi in judicio of international organizations before the ICJ;48 of the judi-

43

44

45

46 47 48

Cf. comments in A. Rey Aneiros, Una Aproximación a la Responsabilidad Internacional de las Organizaciones Internacionales, Valencia, Ed. Tirant lo Blanch/Univ. da Coruña, 2006, pp. 26, 34 and 194-195. Cf. P. Klein, La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens, Bruxelles, Bruylant/Éd. Univ. de Bruxelles, 1998, pp. 430-431, 437-438 and 467; and cf. also T. Stein, “Kosovo and the International Community – The Attribution of Possible Internationally Wrongful Acts: Responsibility of NATO or of Its Member States?”, in Kosovo and the International Community – A Legal Assessment (ed. C. Tomuschat), The Hague, Kluwer, 2002, pp. 181-192; B. Kasme, La capacité de l’Organisation des Nations Unies de conclure des traités, Paris, LGDJ, 1960, pp. 31-35. U.N./ILC, Third Report on Responsibility of International Organizations (rapporteur G. Gaja), U.N. doc. A/CN.4/553, of 13.05.2005, pp. 3-4, pars. 8 and 10. And cf., on this point, e.g., K. Wellens, Remedies against International Organisations, Cambridge, University Press, 2002, pp. 193-196. U.N./ILC, Fourth Report on Responsibility of International Organizations, U.N. doc. A/CN.4/564, of 28.02.2006, pp. 18-19, pars. 47 and 49. Cf. U.N./ILC, Fifth Report on Responsibility of International Organizations, U.N. doc. A/CN.4/583, of 02.05.2007, p. 17, pars. 55-56, and cf. p. 18, par. 61. Cf. Ph. Couvreur, “Développements récents concernant l’accès des organisations intergouvernementales à la procédure contentieuse devant la Cour Internationale de Justice”, in Liber Amicorum Judge M. Bedjaoui (eds. E. Yakpo and T. Boumedra), The Hague, Nijhoff, 1999, pp. 293-323; K. Wellens, Remedies against International Organisations, op. cit. supra n. (45), pp. 236-261.

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cial control of acts of the U.N. political organs;49 of the impact of international jus cogens on the Law of International Organizations;50 among others. IV. The Expansion of International Law Itself by the Law of International Organizations As subjects of International Law, international organizations have had a remarkable operation in, with a considerable impact on, contemporary international relations, as illustrated, e.g., by the exercise of their capacity in domains such as those of the law of treaties,51 of protection of their own officials, and of external relations (right of representation) themselves.52 This is particularly noticeable in the work of an international organization of universal vocation such as the United Nations. The ICJ itself has recently observed that “while the Security Council has tended to focus on the aspects of such matters related to international peace and security, the General Assembly has taken a broader view, considering also their humanitarian, social and economic aspects”.53 In its Advisory Opinion of 09.07.2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ placed the matter at issue in the perspective of the law of the United Nations itself, in con-

49

50

51 52

53

Cf., e.g., R. Chemain, “Le contrôle des actes de l’Organisation”, in La Charte des Nations Unies, Constitution mondiale? (eds. R. Chemain and A. Pellet), Paris, Pédone, 2006, pp. 45-63; D. Sarooshi, International Organizations and Their Exercise of Sovereign Powers, Oxford, University Press, 2005, p. 120; M.E. López-Jacoiste Díaz, Actualidad del Consejo de Seguridad de las Naciones Unidas – La Legalidad de Sus Decisiones y el Problema de Su Control, Madrid, Univ. Navarra/Thomson/Civitas, 2003, pp. 153-360; E. de Wet, “Judicial Review of the United Nations Security Council and General Assembly through Advisory Opinions of the International Court of Justice”, 10 Schweizerische Zeitschrift für internationales und Europaïsches Recht (2000), pp. 237-277; F. Mazeron, “Le contrôle de légalité des décisions du Conseil de Sécurité – Un bilan après les ordonnances Lockerbie et l’arrêt Tadic”, 10 Revue québécoise de Droit international (1997) pp. 105-136. Cf., e.g., A. Orakhelashvili, “The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions”, 16 European Journal of International Law (2005) pp. 59-88; and cf., generally, A.A. Cançado Trindade, “La Ampliación del Contenido Material del Jus Cogens”, in XXXIV Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – 2007, Washington D.C., OAS General Secretariat, 2008, pp. 1-15; [Various Authors,] Quel droit international pour le 21e. siècle? (ed. Y. Sandoz), Bruxelles, Bruylant, 2007, pp. 99, 116-117, 119, 129-131 and 133-134. Cf., e.g., T.I.H. Detter, “The Organs of International Organizations Exercising Their Treaty-Making Power”, 38 BYBIL (1962) pp. 421-444. Parallel to that, they are endowed, in the domestic legal orders, with the well-known capacities, acknowledged in numerous international agreements, to celebrate contracts, to acquire goods, and to interpose judicial actions. ICJ Reports (2004) p. 150, par. 27.

International Organizations as Subjects of International Law

sidering that the subject-matter of the General Assembly’s request could not be regarded as only a bilateral matter between Israel and Palestine. In its view, “Given the powers and responsibilities of the United Nations in questions relating to international peace and security, it is the Court’s view that the construction of the wall must be deemed to be directly of concern to the United Nations. (...) The Opinion is requested on a question which is of particularly acute concern to the United Nations, and one which is located in a much broader frame of reference than a bilateral dispute. (...)”.54

The legal basis and operation of international organizations have much contributed to the considerable expansion of International Law itself as a whole along the last six decades. This can be perceived in a multitude of aspects, starting with the ascertainment itself of opinio juris. The same occurs with regard to their own treaty-making power, as well as with evolving issues pertaining to their own composition. With the reassuring growth of multilateralism, international organizations fostered international cooperation. 1.

International Organizations and the Ascertainment of Opinio Juris

General debates preceding the adoption of resolutions in international organizations have afforded an opportunity for the ascertainment and assessment of the formation and evolving of the opinio juris.55 In certain historical contexts56 those resolutions have generally been regarded as reflecting opinio juris.57 In fact, by direct influence of international organizations, the process of the formation itself of the norms of International Law became complex and multifaceted, to the effect of providing regulation which would fulfil the needs and aspirations of the international community as a whole. The vast normative production of the United Nations, for example, is no longer limited to the drafts of the ILC,58 – which retain their value and utility, – but extend to the General Assembly itself, to its VIth Committee (for Legal Af54 55

56 57 58

Ibid., p. 159, pars. 49-50. H. Bokor-Szegó, “The Contribution of International Organizations to the Formation of the Norms of International Law”, in Questions of International Law (ed. Hungarian Branch of the International Law Association), Budapest, Progresprint, 1971, pp. 20-21; and, for an assessessment of their varying contents and legal effects, cf., e.g., O.Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations, The Hague, Nijhoff, 1966, pp. 68-213. Decolonization, self-determination, permanent sovereignty over natural resources, economic rights and duties of States. E. Hambro, “Some Notes on the Development of the Sources of International Law”, 17 Scandinavian Studies in Law (1973) p. 92. U.N., The Work of the International Law Commission, 5th. ed., N.Y., U.N., 1996, pp. 1-501.

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fairs), to the Conferences of Plenipotentiaries convoked by the United Nations; moreover, specialized agencies of the system of the United Nations, such as the ILO, UNESCO, the International Atomic Energy Agency [IAEA], have produced numerous treaties and conventions of importance in distinct areas of human activity.59 The same applies to regional organizations, such as the Organization of American States [OAS] and the former Organization of African Unity (OAU, nowadays African Union), the normative production of which is not exhausted, either, in the useful work of the Inter-American Juridical Committee60 and the Asian-African Legal Consultative Committee,61 respectively. In recent years, by initiative of the OAS, the African Union (the former OAU), and the Council of Europe, numerous international conventions have been adopted, mainly in the domain of the protection of the rights of the human person. And the corpus juris thus formed, of the International Law of Human Rights, has exerted a sensible impact on the evolution of Public International Law itself.62 Certain declaratory resolutions of the United Nations are nowadays considered “authentic interpretations” of the U.N. Charter itself.63 All this reveals the considerable contribution of international organizations, – and above all of the United Nations, – in the last decades, ultimately to the codification and the 59

60

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A. Pellet, “La formation du droit international dans le cadre des Nations Unies”, 6 European Journal of International Law (1995) pp. 401-425; F. Cede, “New Approaches to Law-Making in the U.N. System”, 1 Austrian Review of International and Comparative Law (1996) pp. 51-66; E. McWhinney, Les Nations Unies et la formation du droit, Paris, Pédone/UNESCO, 1986, pp. 101-129 e 261-287. Cf., besides its own series Informes y Recomendaciones del Comité Jurídico Interamericano, e.g.: J.J. Caicedo Castilla, La Obra del Comité Jurídico Interamericano, Rio de Janeiro, OAS/CJI, 1966, pp. 5-143; A.A. Cançado Trindade, “The Inter-American Juridical Committee: An Overview”, The World Today – London (Nov. 1982) pp. 437-442; R. Ribeiro, “A Contribuição da Comissão Jurídica Interamericana ao Desenvolvimento e à Codificação do Direito Internacional”, 16 Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano (1989) pp. 150-168. Cf., e.g., AALCC, Asian-African Legal Consultative Committee – Report and Selected Documents (32nd session, Kampala/Uganda, 1993), New Delhi, AALCC Secretariat, 1993, pp. 1-296. A.A. Cançado Trindade, “La perspective trans-atlantique: La contribution de l’oeuvre des Cours Internationales des Droits de l’Homme au développement du Droit international public”, in La Convention européenne des droits de l’homme à 50 ans, Strasbourg, Conseil de l’Europe (Bulletin d’information n. 50 – numéro spécial), 2000, pp. 8-9; A.A. Cançado Trindade, “The Interpretation of the International Law of Human Rights by the Two Regional Human Rights Courts”, in Contemporary International Law Issues: Conflicts and Convergence (Proceedings of the III Joint Conference ASIL/Asser Instituut, The Hague, July 1995), The Hague, Asser Instituut, 1996, pp. 157-162 and 166-167. K. Skubiszewski, “Remarks on the Interpretation of the United Nations Charter”, in Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte – Festschrift für Hermann Mosler (eds. R. Bernhardt et alii), Berlin, Springer-Verlag, 1983, p. 899. And cf. chapter V, supra.

International Organizations as Subjects of International Law

progressive development itself of International Law,64 widening and updating its conceptual universe. 2.

International Organizations and Treaty-Making Capacity

The assertion and recognition of the international legal personality of international organizations was accompanied pari passu by the acknowledgement of their treaty-making capacity.65 The advent of international organizations came thus to enrich considerably also the law of treaties. In fact, attention was drawn to the treaty-making power of international organizations (operating at both global and regional levels) well before the celebration of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations,66 – at times focusing on the treaty-making capacity of certain organizations in particular.67 It may be recalled that, in the preceding Vienna Convention (of 1969) on the matter, only treaties between States fell in principle under its (Article 1), – what at the time was somewhat surprising, particularly after the ICJ had stated, in 1949, in its landmark Advisory Opinion on Reparations for Injuries, that international organizations (in the case, the U.N.) were endowed with juridical personality at international level. Throughout the Vienna Conference of 1968-1969 such exclusion appeared somewhat strange to several Delegations,68 to the extent that Article 3 of the Convention saw it fit to add that the exclusion would not prejudice the juridical value of international agreements between States and other subjects of International Law and the application to these agreements of the rules contained in the Convention by which they would be bound by virtue of International Law, independently of the Vienna Convention. In any case, that gap was definitively fi lled with the adoption, in 1986, of the second Vienna Convention on the Law of Treaties between States and Inter64 65

66 67

68

C.-A. Fleischhauer, op. cit. infra n. (135), p. 23. Cf., e.g., F. Seyersted, “International Personality of Intergovernmental Organizations: Do Their Capacities Really Depend upon Their Constitutions?”, 4 Indian Journal of International Law (1964) pp. 1-74; R. Socini, Gli Accordi Internazionali delle Organizzazioni Inter-Governative, Padova, Cedam, 1962, pp. 3-292; J.W. Schneider, Treaky-Making Power of International Organizations, Geneva, Droz, 1963, pp. 11142. among others. Cf., e.g., K. Zemanek (ed.), Agreements of International Organizations and the Vienna Convention on the Law of Treaties, Vienna, Springer-Verlag, 1971, pp. 1-268. Cf., e.g., C. Parry, “The Treaty-Making Power of the United Nations”, 26 BYBIL (1949) pp. 108-149; B. Kasme, La capacité de l’Organisation des Nations Unies..., op. cit. supra n. (29), pp. 7-197; P.F. Smets and P. Mertens, “Le ‘Treaty-Making Power’ de l’UNESCO”, 70 Revue générale de Droit international public (1966) pp. 916-960; among others. Cf. comments in P.K. Menon, “The Law of Treaties with Special Reference to the Vienna Convention of 1969”, 56 Revue de droit international de sciences diplomatiques et politiques (1978) pp. 133-147, esp. pp. 137-139.

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national Organizations or between International Organizations. Treaty-making ceased to be a monopoly of States, and this development was in accordance with the historical process of expansion of international legal personality in International Law.69 The treaty-making power of international organizations is nowadays firmly and definitively consolidated in International Law, for what surely contributed the adoption of the aforementioned Vienna Convention, in 1986. International organizations have in practice celebrated different kinds of treaties, such as, with member States, e.g., headquarters agreements, and agreements pertaining to the implementation of their own competences (e.g., in the case of the U.N., military agreements and truesteeship agreements); and with non-member States, e.g., agreements of association,70 and agreements of representation; and, among themselves, e.g., “accords de liaison” (such as those between the United Nations and the specialized agencies), agreements of cooperation, and agreements of succession.71 The basic precepts pertaining to all these agreements, quite numerous, celebrated in practice by international organizations, are nowadays consolidated in the 1986 Vienna Convention on Treaties between States and International Organizations or between International Organizations.72 3.

Composition of International Organizations: Evolving Issues

Significantly, the very composition of the international organizations has nowadays ceased to be a monopoly of States. Thus, there are international organizations that admit today the participation of territories and given regions (which are no more than “fractions of States”) and which do not have – and nor would they acquire for their admission into the organizations – international legal personality: thus, the UPU, e.g., allows such “fractions of States to act as members”, and the WMO admits that a territory, as from the moment in which it may count

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Cf. chapters VII-XI, infra. E.g., in the ambit of the former EEC Treaty (Article 238), prior to the European Union. Cf., e.g., K. Karunatilleke, “Essai d’une classification des accords conclus par les organisations internationales, entre elles ou avec des États”, 75 Revue générale de Droit international public (1971) pp. 12-91; F. Seyersted, “Treaty-Making Capacity of Intergovernmental Organizations: Article 6 of the International Law Commission’s Draft Articles on the Law of Treaties between States and International Organizations or between International Organizations”, 34 Österreichische Zeitschrift für öffentliches Recht und Völkerrecht (1983) pp. 261-267; H. Chiu, The Capacity of International Organizations to Conclude Treaties, and the Special Legal Aspects of the Treaties So Concluded, The Hague, Nijhoff, 1966, pp. 1-212. For the account of a participant in the 1986 Vienna Conference which adopted this Convention, cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., op. cit. supra n. (5), 2003, pp. 197-251.

International Organizations as Subjects of International Law

on a meteorological service of its own, be “represented within its organization”73 (cf. infra). There are entities which, not being States, did not fail thereby to have a permanent representation before the United Nations Organization. A pertinent example was provided by the Palestine Liberation Organization (P.L.O.), which, on the basis of resolution 3237 (XXIX), of 22 November 1974, of the U.N. General Assembly, came to benefit from the status of observer in the United Nations, it being entitled, ever since, in that condition or capacity, “to participe in the sessions and in the work of the General Assembly” (par. 1), “to participe in the sessions and in the work of all international conferences convened under the auspices of the General Assembly” (par. 2), and to participate likewise in the sessions of “other organs of the United Nations” (par. 3). Similar status and prerrogatives were granted to the South West Africa People’s Organization (SWAPO) by the U.N. General Assembly resolution 31/152, of 20.12.1976. Subsequently, the U.N. went even further in relation to the P.L.O.: by the end of August of 1989, the President of the U.N. Security Council submitted to the consideration of the Council the request by the Deputy Permanent Observer of Palestine to the United Nations in the sense of “participating” in the consideration of the item titled “the situation in the Arab territories occupied” by Israel. The P.L.O. thereby sought to “enlarge” its status and its functions of observer (supra) so as to “participate” in the considerations of the Security Council on the matter at issue. Submitted to voting, the Palestinian request was approved by the Security Council, and on 30 August 1989 the representative of Palestine (Mansour), invited by the President of the Security Council, took a seat at the Council table to participate in the consideration, by that U.N. organ, of the item titled “the situation in the Arab territories occupied” by Israel.74 There was, furthermore, the example of Namibia. Well before the schedule of the celebrations of the independence of Namibia for 21 March 1990, and well before one could foresee the day of such transformation of Namibia into an independent territory, into a State, it was notwishtanding admitted as “full member” of FAO (in l977) and of ILO (in 1978), what granted it a new status in its relations with member States in the ambit of those two international organizations. Moreover, the U.N. Council for Namibia participated effectively – though without right to vote – of important international conferences, such as the Vienna Conference on Succession of States in the Matter of Treaties (1977) and the five first sessions of the III U.N. Conference on the Law of the Sea (1973-1982).75

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Ibid., pp. 218-219, and cf. p. 230. This matter was object of study of my Legal Opinions (to Brazil’s Ministry of External Relations) CJ/112, of 10.03.1988; CJ/148, of 11.11.1988; CJ/157, of 02.03.1989; CJ/194, of 20.01.1990; and CJ/200, of 12.03.1990. E. Osieke, “Admission to Membership in International Organizations: The Case of Namibia”, 51 BYBIL (1980) pp. 200-229.

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Although the constitutive charters of international organizations limited their membership to “States”,76 the more recent practice of international organizations has in this particular gone much further than the letter of their constitutive charters, there having occurred even resolutions, such as those of the U.N. General Assembly,77 which sought “ full membership” for Namibia or the U.N. Council for Namibia in the United Nations, in their specialized agencies and other international organizations and conferences78 (e.g., the position in the UPU and in the WMO, which, together with the ITU, were to admit non-self-governing territories as “full members”).79 And there still remained the possibility of non-independent territories being admitted as “associate members” of certain international organizations (namely, FAO, WHO, UNESCO, ITU, IMO).80 The aforementioned considerations disclose that, in the light of the modern law – and the practice itself – of international organizations, the question of their composition has assumed a new and complex dimension in our days. Non-State entities have participated, with status and prerrogatives conferred upon them, of their work, meetings and conferences. The membership itself of international organizations has in our times ceased to be an exclusive prerrogative or monopoly of the States. 4.

The Growth of Multilateralism and International Cooperation

As from the judicial recognition by the Advisory Opinion of the ICJ on Reparations for Injuries (1949), the capacity of international organizations was established to interpose an international claim of their own, for reparation for injuries suffered by their agents in the exercise of their functions (“contentious” capacity). In a wider dimension, international organizations have maintained relations with States, with other international organizations and other entities, and, in international relations, they have celebrated the most diverse treaties (cf. supra). Besides such celebration of agreements (of the organizations inter se), they have in practice also resorted to techniques such as exchange of observers and the establishment of liaison missions. Structurally, they have moreover proceeded to the joinder of organs and to the creation of a common organ.81 In the last decades the normative corpus 76

77 78 79 80 81

E.g., U.N., Arts. 3-4; ILO,, Art. 1(2); WHO, Arts. 3-6; UNESCO, Art. 2(2); IMO, Arts. 5 and 7-8; IAEA, Art. 4; or to “nations”, e.g., FAO, Art. 2; or to “countries”, e.g., IMF, Art. I, sections 1 and 2; IBRD, section 2(c), (e) and (f)). Resolutions A/RES/32/9E, of 1977, and A/RES/S-9/2, of 1978. Cf. E. Osieke, op. cit. supra n. (75), pp. 190-191. This, on the basis of their own constitutive Charters (UPU, Art. 2; WMO, Art. 3; ITU, Art. 1 and Annex I); ibid., pp. 190 and 227. In accordance with their own constitutive Charters (FAO, Art. 2 (3)-(5); WHO, Art. 8; UNESCO, Art. 2(3); ITU, Art. 1(3); IMO, Art. 9); ibid., pp. 190 and 227. R.J. Dupuy, “Le droit des relations entre les organisations internationales”, 100 RCADI (1960) pp. 461-488, and cf. 489-527.

International Organizations as Subjects of International Law

of what could be called the “diplomatic law of international organizations” has been formed; the representation of States before international organizations of a universal character is nowadays governed by the 1975 Vienna Convention on the matter; reversely, certain international organisms (e.g., the former EEC, and, in the ambit of the U.N., the UNDP) have in practice established a representation before certain States, even though non-members; and, at last, international organizations have sent representatives to other international organizations (of which they are not members), so that they reciprocally inform each other of their respective works and coordinate better joint programmes of work.82 To this effect of better co-ordination, and of maintenance of regular consultations in matters of common interest, specialized agencies such as UNESCO, FAO, ILO and WHO have celebrated bilateral agreements between themselves.83 The overall framework of the operation of international organizations has led D. Vignes to ponder rightly that the “finality” which is proper to certain international organizations, which conduces them to participate in the work of other organizations, “va encore amener à éclipser quelque peu le caractère de la représentation étatique”.84 It has tended gradually to do so. It is to be born in mind, moreover, that, apart form the States, also international organizations can themselves participate – and have done so – in the process of creation of other international entities.85 Some international organizations, created by multilateral treaties, continue to suffer the vicissitudes of politicization and pressures exerted by some States (mainly the most powerful ones). This is illustrated, e.g., by the episode of the withdrawal of the United States and the United Kingdom from UNESCO, and the tensions created around the administration of its Director General who concluded his functions in 1987.86 This is further exemplified, e.g., by the chronic financial crisis that universal organizations like the United Nations and the ILO have undergone in recent years, as well as regional organizations like the OAS, 82

83 84

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J.A. Barberis, “Nouvelles questions concernant la personnalité juridique internationale”, 179 RCADI (1983) pp. 228-231; M.K. Yasseen, “Création et personnalité juridique des organisations internationales”, in Manuel sur les organisations internationales/ A Handbook on International Organizations (ed. R.-J. Dupuy), The Hague/ Dordrecht, Hague Academy International Law/Nijhoff, 1988, p. 48. E. Luard, International Agencies: The Emerging Framework of Interdependence, London, MacMillan, 1977 (reprint 1979), pp. 271-272. Ibid., pp. 79-80; and cf. Ph. Cahier, “L’ordre juridique interne des organisations internationales”, in Manuel ... (ed. R.-J. Dupuy), op. cit. supra n. (82), pp. 246 and 255. There are, in fact, examples of international entities created by the joint initiative of States and international organizations (e.g., inter alia, the creation, in 1926, by the League of Nations and by Italy, of the International Institute for the Unification of Private Law – Unidroit); cf., also for other examples, J.A. Barberis, op. cit. supra n. (82), p. 218. J.A. Pastor Ridruejo, Curso de Derecho Internacional Público y Organizaciones Internacionales, 6th. ed., Madrid, Tecnos, 1996, p. 803.

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due in part to the delay in the payment of the budgetary quotas (mainly on the part of States of greater economic power). But it is equally certain that, with the advent of international organizations, States have lost the monopoly of conduction of international relations, and cannot ignore or neglect the endeavours of such organizations in securing respect for, and observance of, the norms of International Law.87 By means of multilateralism, within international organizations, the more vulnerable States have sought to mitigate to some extent their worrisome factual inequalities. And by the same means of multilateralism they came to seek, jointly, the realization of common objectives.88 In fact, international organizations, and in particular the United Nations, have much fostered the duty of international cooperation (Article 56 of the U.N. Charter) in the last decades, despite the divisions – ideological and others – of the world. This is illustrated by the creation of the UNDP in 1965,89 of UNCTAD (as a subsidiary organ of the General Assembly) in 1964,90 the initiative – although unattained – of establishment of a new international economic order,91 and the cycle of World Conferences of the United Nations of the nineties and the turn of the century.92 The fact of, along the last decades, the constant search, e.g., of the redefinition of the role of the ECOSOC of the United Nations, the expansion of its composition and domain of operation, as well as the multiplication of its subsidiary organs93 and the incursion into the field of human development, – well demonstrate the concern of States with the compliance – even if not full to date – with the duty of international cooperation.94 In their operation for more than six decades, international organizations have sought guidance from the relevant norms of their constitutive charters, affirming, as to matters which fall in the ambit of their respective competences, the primacy of the international legal order over the domestic legal order of the 87

88

89 90 91 92 93 94

D. Vignes, op. cit. infra n. (101), pp. 816 and 813. – The U.N. Security Council, for example, has addressed its resolutions not only to States, but at times also to non-State entities; J.-L. Florent, “Les destinataires non-étatiques des résolutions du Conseil de Securité”, in Le sujet en Droit international (Colloque du Mans de 2004 de la SFDI), Paris, Pédone, 2005, pp. 107-115. A. Lewin, “Structures et méthodes de travail des Nations Unies: l’adaptation du multilatéralisme aux défis de notre temps”, in L’adaptation des structures et méthodes des Nations Unies, op. cit. supra n. (2), p. 358. Resolution 2029 of the U.N. General Assembly. Resolution 1995 of the U.N. General Assembly. Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., op. cit. supra n. (5), pp. 381-403. Cf. chapter XXVI, infra. By geographical distribution as well as by material or functional specialization. R. Paniagua Redondo, La Reforma del Consejo Económico y Social de las Naciones Unidas (1945-2000), Madrid/Barcelona, Marcial Pons Ed., 2001, pp. 23-38, 49-50, 56, 73-93, 98-101, 127, 133-134 and 161-167.

International Organizations as Subjects of International Law

member States. International organizations (above all those of universal vocation, such as the United Nations) have come to apply general International Law, at the same time that they have, in turn, given rise to international legal norms.95 The decision-making process, in some instances, evolved from the individual consent of States to the search for consensus, fostering the spirit of international cooperation, as notably exemplified, inter alia, by the negotiations of one whole decade, which culminated in the adoption of the historical U.N. Convention on the Law of the Sea, opened to signature in Montego Bay, Jamaica, on 10 December 1982.96 It was the great merit of the III U.N. Conference on the Law of the Sea, not only to have established the rights and duties of States under the 1982 Convention,97 but also – and above all – to have demonstrated the possibility to seek distributive justice by means of the international law-making process.98 This would hardly have been achieved without the contribution of the United Nations, which rendered possible this dialogue at universal scale. In his closing statement, at the session of 10 December 1982 of the U.N. Conference in Montego Bay, Jamaica, the then Secretary-General of the Organization (J. Pérez de Cuéllar), in face of the fact that 119 countries had signed the Convention on that day, the very day of its opening for signature, pondered that 95

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M. Lachs, “International Law and the United Nations”, in L’adaptation des structures et méthodes des Nations Unies, op. cit. supra n. (2), p. 39. – The internal structure itself of international organizations has evolved, as time went on, further generating the establishment of international contacts between the powers of the State other than the Executive (as, in the European and American continents, with the Legislative). For a detailed historical account, cf. J.-P. Lévy, La Conférence des Nations Unies sur le Droit de la Mer – Histoire d’une négotiation singulière, Paris, Pédone, 1983, pp. 17-145. And cf. also T. Treves, “La Decima Sessione della Conferenza sul Diritto del Mare”, 65 Rivista di Diritto Internazionale (1982) pp. 24-55; V. Marotta Rangel, “A Nova Convenção sobre Direito do Mar”, 18 Problemas Brasileiros (1981) n. 199, pp. 20-32; J. Reverdin, “Le régime juridique des grands fonds marins”, 39 Annuaire suisse de droit international/Schweizerisches Jahrbuch für internationales Recht (1983) pp. 105-132; S. Rosenne, “The Th ird United Nations Conference on the Law of the Sea”, 11 Israel Law Review (1976) pp. 1-45. Cf. chapter VII, supra. Ph. Allott, “Making the New International Law: Law of the Sea as Law of the Future”, 40 International Journal (1985) pp. 442-443 and 455-457. This, despite the vicissitudes of the renegociation of its Part XI, resulting in the Agreement of 1994, which modified the legal regime of Part XI referred to (for an examination, cf., e.g., G. Jaenicke, “The United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI of the Convention – Treaty Law Problems in the Process of Revising the Deep Seabed Mining Regime of the Convention”, in Recht zwischen Umbruch und Bewahrung – Festschrift für Rudolf Bernhardt (eds. U. Beyerlin et alii), Berlin, [Springer-Verlag], 1995, pp. 121-134), – without thereby escape criticims (cf., e.g., J.A. Pastor Ridruejo, “Le droit international à la veille du vingt et unième siècle: normes, faits et valeurs – Cours général de Droit international public”, 274 RCADI (1998) pp. 262-265).

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Chapter VIII “Never in the history of international relations have such a large number of countries immediately signed the result of their deliberations, thereby committing themselves to act in accordance with their obligations. This is a particularly important lesson to emerge from this Conference”.99

Likewise, two decades earlier, the U.N. contributed decisively for the gradual formation of the corpus juris of the law of outer space, by means of the adoption of pioneering resolutions in this respect, in the sixties, followed by five treaties on the matter adopted until the late seventies (in 1967, 1968, 1972, 1975, and 1979, respectively).100 Thus, even a domain of International Law such as that of regulation of the spaces, which, in the past, seemed to exhaust itself in the bilateral – and at times multilateral – relations among States, assumed a new dimension, with the advent of international organizations in the second half of the XXth century, as exemplified by the developments in the chapters of the law of the sea and of the law of outer space. Although international organizations continue to depend on the budgetary contributions on the part of member States, – and at times suffer pressures in this regard – it is difficult to imagine today, as perspicatiously pondered Daniel Vignes, that States may consider to abolish such organizations, or pretend to do without them.101 What is certain is that States have came to need them for their own international intercourse, and visualize in them an appropriate vehicle of expression of international solidarity. V.

The Projected Reforms of the International Organizations, Particularly of the United Nations

The considerable contribution, particularly of the United Nations, for the formation of the new international agenda of the XXIst century, by means of the adoption of the final documents of the recent U.N. World Conferences,102 has regrettably not been accompanied pari passu by the adoption of all the neces99

J. Pérez de Cuéllar, “International Law is Irrevocably Transformed”, United Nations Convention on the Law of the Sea – Index and Final Act of the III U.N. Conference on the Law of the Sea, N.Y., United Nations, 1983, p. XXX. 100 Cf., e.g., M. Lachs, The Law of Outer Space – An Experience in Contemporary LawMaking, Leiden, Sijthoff, 1972, pp. 1-152; J.E.S. Fawcett, Outer Space – New Challenges to Law and Policy, Oxford, Clarendon Press, 1984, pp. 3-122; Bin Cheng, “The United Nations and the Development of International Law Relating to Outer Space”, in The Evolution of International Law since the Foundation of the U.N. – Thesaurus Acroasium, vol. XVI, Thessaloniki/Greece, Institute of International Public Law and International Relations, 1990, pp. 55-121. 101 D. Vignes, “The Impact of International Organizations on the Development and Application of Public International Law”, The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (eds. R.St.J. MacDonald and D.M. Johnston), The Hague, Nijhoff, 1983, pp. 853 and 843. 102 Cf. chapter XXVI, infra.

International Organizations as Subjects of International Law

sary changes in its internal structure, so as to equip adequately the world Organization to face effectively the new and great challenges of the contemporary world. Just as the United Nations has much contributed to the evolution of the international legal order, moving from an initially State-centric outlook towards a multipolar dimension, marked by a new multicentrism, today, paradoxally, it is the U.N. itself that resents the pressing need to reform wholly its own structure, so as to render it in some respects more representative,103 in order to strenghen multilateralism (cf. supra) and to enable the world Organization itself to respond adequately the global challenges which likewise require global solutions.104 At regional level, the OAS, for example, succeeded in modifying its internal structure (on two occasions, in 1970 and in 1985, respectively),105 perhaps for having tackled punctual reforms and of an international organization with a more circumscribed scope of operation. The African Union – to recall another example – succeeded in 1999 the former Organization of African Unity (OAU). In the ambit of the United Nations, however, the debates about the reforms of its internal structure have been hanging on already for two and a half decades (since 1985), without having attained all the expected concrete results to date.106 The focus of attention has lately fallen mainly upon the proposals of reform of the Security Council,107 as well as the revitalization of the U.N. General Assembly as a forum of universal dialogue,108 added to the widening of the functions of the ECOSOC so as to foster international cooperation.109

103 With regard to the Security Council, the ECOSOC and the Trusteeship Council. 104 Cf. J.A. Carrillo Salcedo, “Cambios en la Sociedad Internacional y Transformaciones de las Naciones Unidas”, in La ONU, 50 Años Después (coord. P.A. Fernández Sánchez), Sevilla, Ed. Universidad de Sevilla, 1996, pp. 11-23. 105 Cf. J.C. Baena Soares, “Aspectos Jurídico-Políticos das Recentes Reformas da Carta da Organização dos Estados Americanos (OEA)”, 87/90 BSBDI (1993) pp. 59-71; J.-M. Arrighi, “Les réformes à la Charte de l’Organisation des États Américains: Problèmes de droit des traités”, 43 AFDI (1997) pp. 1-12. 106 Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 4th. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2009, pp. 543-555. 107 Proposed expansion of composition and representativity, as well as the end of the veto, as propounded by the World Forum of NGOs parallel to the II World Conference of Human Rights (Vienna, 1993); cf. detailed account in A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 220-231, esp. pp. 222-223. 108 With the eventual transference to this latter of faculties of the U.N. Security Council. – To this one may add the eventual extinction of the Trusteeship Council, for having already fulfi lled its historical role, or its modification so as to come to deal with global issues, such as human rights and rights of peoples, environment and sustainable development, economic and human security, among others. 109 For an examination, cf., e.g., M. Seara Vázquez, “La Organización de Naciones Unidas: Diagnóstico y Tratamiento”, Las Naciones Unidas a los Cincuenta Años (ed. M. Seara Vázquez), Mexico, Fondo de Cultura Económica, 1995, pp. 9-39.

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It is to be hoped that common sense comes to prevail (what does not always happens) and that these proposals, among others, come to materialize in the foreseeable future. Concretely, so far, the creation has been achieved, in late 2005, of the U.N. Peacebuilding Commission, as an intergovernmental advisory body, by decision of the U.N. General Assembly acting concurrently with the U.N. Security Council (G.A. resolution 60/180, of 20.12.2005, par. 1), and, in early 2006, of the U.N. Human Rights Council (replacing the former U.N. Commission on Human Rights, and consisting of 47 member States, by decision of the U.N. General Assembly).110 This was the outcome of half a decade (2000-2005) of intensified consultations. Expectations were high when the General Assembly adopted the Millenium Declaration (resolution 55/2, of 08.09.2000), calling for the strengthening of the United Nations, reasserting the “central position” of the General Assembly, and stressing the need to intensify efforts to achieve a wider reform of the Security Council “in all its aspects” (par. 30). The U.N. Secretary General (Kofi Annan) then announced (in September 2003), the creation of a High-Level Panel on Threats, Challenges and Change, integrated by recognized experts, as the next step of U.N. reforms. The Panel’s Report drew attention, inter alia, to the need of a more effective system of collective security.111 In this respect, the Brahimi Report of 2000112 had already called for greater cooperation of member States of the U.N. with peace operation of the United Nations.113 The 2004 Report of the High-Level Panel sustained the reform of the Security Council,114 and recommended the creation of a new U.N. organ, the Peacebuilding Commission, which would operate in coordination with regional organizations, to render tbe necessary attention to emerging emerging from a sitution of conflict.115 This document was followed by the Report of the Secretary-General himself, titled In Larger Freedom: Towards Development, Security and Human Rights for All (of 21.03.2005), which focused on “the imperative of collective ac-

110 And as its subsidiary organ; U.N. General Assembly resolution 60/251, of 15.03.2006, pars. 1 and 7. 111 United Nations, A More Secure World: Our Shared Responsibility – Report of the High-Level Panel on Threats, Challenges and Change (Executive Summary), U.N., N.Y., 2004, pp. 1-2. 112 Cf., in general, chapter XXIV, infra, on peaceful settlement of international disputes. 113 Ibid., pp. 2-4; and cf. L. Boisson de Chazournes, “Rien ne change, tout bouge, ou le dilemme des Nations Unies propos sur le rapport du Groupe de Personnalités de Haut Niveau sur les menaces, les défis et le chagement”, 109 Revue générale de Droit international public (2005) pp. 155-156, and cf. pp. 147-161. 114 Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 4th. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2009, pp. 546-547. 115 United Nations, A More Secure World: Our Shared Responsibility..., op. cit. supra n. (111), pp. 5-6.

International Organizations as Subjects of International Law

tion”,116 with due attention to the rule of law at both national and international levels.117 It drew further attention to the “complementary functions” of the U.N. and regional organizations in facing threats to international peace and security, and supported reforms of both the Security Council (to render it “more widely representative of the international community as a whole”) and of ECOSOC.118 In mid-September 2005 the Summit of Heads of State and Government at last met, at the United Nations headquarters in New York. The virtual totality of the items of the agenda was assembled in a document circulated on 15.09.2005, titled the 2005 World Summit Outcome. The document, composed of five parts and 178 paragraphs, drew attention to the importance of multilateralism and collective security,119 and condemned State unilateralism (pars. 72-78), given “the importance of acting in accordance with the purposes and principles of the Charter” (par. 79). The 2005 World Summit Outcome further stressed the relevant role of the United Nations in peacekeeping and peacebuilding,120 and decided to create a Peacebuilding Commission as an “intergovernmental consultative organ” (par. 97). And it went on to assert that “Recognizing the need for universal adherence to and implementation of the rule of law at both the national and international levels, we: – reaffirm our commitment to the purposes and principles of the Charter and international law and to an international order based on the rule of law and international law, which is essential for peaceful coexistence and cooperation among States” (par. 134(a)).

At the end of the prolonged debates that followed, the Summit decided to establish the aforementioned Human Rights Council and Peacebuilding Commission (supra). There was, moreover, commitment to give a follow-up to the results of the World Conferences of the United Nations121 (pars. 155, 157 and 169). The docu116 United Nations, In Larger Freedom: Towards Development, Security and Human Rights for All – Report of the Secretary General, document A/59/2005, of 21.03.2005, pp. 6 and 24. 117 Ibid., pp. 34-39. And, on the endorsed formulation of the so-called “responsibility to protect”, emanated from a Canadian proposal, cf., e.g., P. Hilpold, “The Duty to Protect and the Reform of the United Nations – A New Step in the Development of International Law?”, 10 Max Planck Yearbook of United Nations Law (2006) pp. 50-54; H. Owada, “The United Nations and the Maintenance of International Peace and Security – The Current Debate in the Light of Reform Proposals”, 48 Japanese Annual of International Law (2006) pp. 7-10. 118 Ibid., pp. 52 and 55-62, esp. p. 60; and cf., e.g., B. Fassbender, U.N. Security Council Reform and the Right of Veto – A Constitutional Perspective, The Hague, Kluwer, 1998, ch. IX, pp. 221-275. 119 Cf. United Nations, 2005 World Summit Outcome, document A/60/L.1, of 15.09.2005, pp. 1-40, esp. pars. 6-8 and 13-14. 120 Pars. 81-87, 91-92, 97-98 and 106. 121 Cf. chapter XXVI, infra.

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ment added that the Trusteeship Council had already concluded the historical functions conferred upon him, what called for the deletion of chapter XIII of the Charter and the reference to it in chapter XII; furthermore, the decision was taken to delete also the references to “enemy States” contained in Articles 53, 77 and 107 of the Charter (pars. 176-177). There was, however, some disappointment as to the lack of success in the handling of both the reform of the Security Council (postponed ever since), and the new steps towards disarmament and nuclear non-proliferation. It became apparent that the endeavours towards the reform of the Security Council were to continue (pars. 146 and 153). The process of the reform of the United Nations as a whole appears, thus, to be still on its way. The remarkable expansion of the operation of international organizations – having so much contributed to the evolution of contemporary International Law itself – has lately raised the issue of relating them also to the domain of international responsibility. As already pointed out, the ILC, since its initial steps on the consideration of the topic “Responsibility of International Organizations”122 (supra), has just completed, in mid-2009, its examination of seven successive reports on it. After all, the acts of international organizations are imputable to them as subjects of International Law.123 The shortcomings in the operation of the U.N. system of collective security, e.g., stress the need of wider reforms in the structure of the United Nations, which come effectively to contemplate the establishment of a regime of control of legality, not only to govern the relations between international organizations and member States, but also to assess the work of international political organs. This point was raised a few years ago before the ICJ in the Lockerbie cases (1992), but the reticent position taken by the ICJ on it124 left the issue open for future search of a solution to the question of the establishment of a regime of control of international political organs.125 The armed operations in Kosovo and in Irak at the end of the XXth century further drew attention to the need of control of legality, also in order to avoid undue unilateralisms.126 Closer attention has in fact been drawn to the issue of the legality or otherwise of international politi122 Cf., e.g., U.N./ILC, Report of the Working Group on Responsibility of International Organizations – The Responsibility of International Organizations: Scope and Orientation of the Study, U.N. doc. A/CN.4/L.622, de 06.06.2002, pp. 1-3. 123 Ugo Draetta, Principi di Diritto delle Organizzazioni Internazionali, Milano, Giuffrè, 1997, pp. 128 e 137. 124 Cf. ICJ, case of the Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Lybia versus United Kingdom), ICJ Reports (1992) pp. 15-16. 125 The reticence of the ICJ provoked the comment that it contrasted with the preparedness of the Court of Justice of the European Communities to establish and consolidate a system of judicial review; N.D. White, The Law of International Organizations, Manchester, University Press, 1996, pp. 125-128. 126 Cf. B. Fassbender, “Quis Judicabit? The Security Council, Its Powers and Its Legal Control”, 11 European Journal of International Law (2000) pp. 220, 225-227 and 230-

International Organizations as Subjects of International Law

cal organs.127 The bombings in the case of Kosovo (1999)128 provide an illustration of this concern, as an entity such as NATO cannot reasonably expect to have a military action legitimized ex post facto;129 might is not right. By the time of the creation of the U.N., it was assumed that each of its organs would have the faculty to interpret the provisions of the U.N. Charter pertaining to their respective areas of action,130 and this has been postponing the realization of the goal of setting up a control of the legality of the acts of its political organs, despite the doubts and uncertainties generated by the practice of these latter, mainly in recent years. Such need has, with the passing of time, become manifest, especially to the extent that the U.N. becomes increasing engaged in an international scenario marked by new and intense conflicts, including internal armed conflicts.131 Despite differences, distinct proposals of reforms of the U.N., advanced since 1985, have at least converged into the general premise of the need of a general restructured framework, overcoming the old inter-State paradigm, rethinking multilateralism with greater emphasis on the socio-economic and developmental domain, as, in our days, there seems to be no viable alternative to multilateralism.132 The current – and apparently chronic – financial crisis undergone by the United Nations, and so many other international organizations, curiously occurs at the end of the recent cycle of U.N. World Conferences which have precisely

127

128

129

130

131 132

232; and cf., generally, J. Charpentier, “Le contrôle par les organisations internationales de l’exécution des obligations des États”, 182 RCADI (1983) pp. 151-229. J. Klabbers, “The Life and Times of the Law of International Organizations”, 70 Nordic Journal of International Law / Acta Scandinavica Juris Gentium (2001) pp. 309 and 314, and cf. p. 287; R.St.J. Macdonald, “A Short Note on the Interpretation of the Charter of the United Nations by the International Court of Justice”, in Liber Amicorum Judge S. Oda (eds. N. Ando et alii), The Hague, Kluwer, 2002, pp. 187-189. On that case, cf., e.g., Independent International Commission on Kosovo, The Kosovo Report – Conflict, International Response, Lessons Learned, Oxford, Oxford University Press, 2000, pp. 1-298. In support of the need of control of the legality of the decisions of the U.N. Security Council, on the basis of the mechanisms of control set forth in the U.N. Charter itself, and made to operate to that effect, cf., e.g., M.E. López-Jacoiste Díaz, Actualidad del Consejo de Seguridad de las Naciones Unidas – La Legalidad de Sus Decisiones y el Problema de Su Control, Madrid, Thomson Civitas, 2003, pp. 31-360. The 1945 San Francisco Conference came to accept this posture (Report of the Legal Committe IV/2), which set up a dispersal of the power of interpretation within the U.N.; M. Bedjaoui, Nuevo Orden Mundial y Control de Legalidad de los Actos del Consejo de Seguridad, Bilbao, Ed. Instituto Vasco de Administración Pública, [1995,], pp. 29-30 and 34, and cf. p. 128. Cf. ibid., pp. 38, 47, 51, 55, 103, 113, 124-125, 128 and 137. J.P. Renninger, “What Structural Changes Are Needed in the System of International Institutions?”, in The Future Role of the United Nations in an Interdependent World (ed. J.P. Renninger), Dordrecht, Nijhoff, 1989, pp. 227, 230-239 and 241.

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conformed its “social agenda” for the XXIst century,133 – which appears somewhat paradoxical. The new era in which we live, inaugurated by the events which have profoundly altered the international scenario as from 1989 (with the fall of the Berlin wall), discloses to us a world – that of the post-cold war – for the challenges of which international organizations, starting with the U.N. and those which integrate the U.N. system itself, may not be, structurally, prepared and sufficiently restructured yet. VI. Concluding Observations: The Contribution of International Organizations to the Progressive Development of International Law The dilution of power, in the international relations not only of States inter se, but also with international organizations, is altogether beneficial to the international community: it operates refraining the temptations of cesarism, the arbitrarinesses and the opression, at both international and – above all – domestic levels.134 The beneficial effects of the operation of the United Nations are undeniable, along the last mid-century, in the fields of the maintenance of international peace and security (and endeavours in favour of disarmament), of the international protection of human rights, and of the decolonization and realization of the right of self-determination of peoples; in these areas, as well as in the treatment of economic, social and cultural questions, the United Nations learned to adapt itself to the realities of the new times,135 as it endeavours to do it today in the period of the post-cold war. 1.

International Organizations: Contents and Legal Effects of Resolutions

If certain resolutions of an international organ on a given theme are regarded as intimately linked among themselves, as parts of a continuous process in time, one will be able to identify in them a more specific content, reflecting an opinio juris of generalized consensus.136 Such method of crystallization of new concepts and general principles, – in general subsequently accompanied by certain mechanisms of supervision and control, – can come to fill in part the insufficiency of the traditional modalities of formation of International Law (set forth in Article 133 Cf. chapter XXVI, infra. 134 C. Schreuer, “The Waning of the Sovereign State: Towards a New Paradigm for International Law?”, 4 European Journal of International Law (1993) pp. 470 and 448. 135 Cf., e.g., C.-A. Fleischhauer, “The United Nations at Fifty”, 38 German Yearbook of International Law (1995) pp. 9-25; B. Broms, “The Present Stage in the Work of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, pp. 73-90. 136 As occurred a couple of decades ago in respect of the questions of decolonization, of recognition of the right of self-determination of peoples, and of the permanent sovereignty of States over their natural resources.

International Organizations as Subjects of International Law

38 of the ICJ Statute), mainly in the regulation of the relations among States in distinct stages of economic development.137 In practice, in the absence until now of a regime of control of legality of its acts (supra), each international organ, in the normal exercise of its functions, has proceeded to the determination of the so-called “constitutionality” of its own acts. The praxis itself of the organ concerned has so far been a decisive factor for the determination of the legal ambit of its specific functions,138 as well as an element of interpretation in the determination of the powers attributed to the organs of international organizations. Some factors have been taken into account in assessing the contents and legal effects of resolutions of international organizations, namely, the circumstances of their adoption,139 the consensus they obtained,140 their travaux préparatoires,141 and the presence of certain principles of law.142 Given the distinct modes of resolutions adopted by international organizations, it is not surprising that their legal effects are also varied.143 Such resolutions have contributed to the expansion of International Law, besides fi lling a gap gen137 Institut Universitaire de Hautes Études Internationales, Les résolutions dans la formation du Droit international du developpement, Geneva, IUHEI, 1971, pp. 5-19. 138 J. Castañeda, Legal Effects of United Nations Resolutions, N.Y., Columbia University Press, 1969, pp. 1-16. 139 I.e., if there was intention on the part of the international organ at issue to formulate propositions, norms or principles existing in International Law. 140 Cf. C.W. Jenks, “Unanimity, the Veto, Weighted Voting, Special and Simple Majorities and Consensus as Modes of Decision in International Organizations”, in Cambridge Essays in International Law – Essays in Honour of Lord McNair, London, Stevens/Oceana, 1965, pp. 48-63; G. de Lacharrière, “Consensus et Nations Unies”, 14 Annuaire français de droit international [AFDI] (1968) pp. 9-14; S. Bastid, “Observations sur la pratique du consensus”, in Multitudo Legum Ius Unum – Festchrift für W. Wengler, vol. I, Berlin, Inter-Recht, 1973, pp. 11-25; F.Y. Chai, Consultation et consensus: un aspect du fonctionnement du Conseil de Sécurité, N.Y., UNITAR, 1971, pp. 3-45. 141 On the relations of these latter with the formation of opinio juris, cf. H. Bokor-Szegó, “The Contribution of International Organizations to the Formation of the Norms of International Law”, in Questions of International Law (ed. Hungarian Branch of the International Law Association), Budapest, Progresprint, 1971, pp. 20-21. 142 E.g., the 1960 U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples, and the 1963 U.N. Declaration on the Elimination of All Forms of Racial Discrimination (followed, three years later, by the U.N. Convention on the matter) O.Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations, The Hague, M. Nijhoff, 1966, pp. 68-213. 143 A clear example would be that of the distinctive features between recommendations of the General Assembly (Articles 10 to 14 of the U.N. Charter) and decisions of the Security Council (Article 25), as these latter, unlike the former, have a mandatory effect; F.A. Vallat, “The Competence of the United Nations General Assembly”, 97 RCADI (1959) pp. 207-287; M.K. Nawaz, “Law and International Organization – A Perspective on the United Nations”, 17 Indian Journal of International Law (1977) pp. 234-241.

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erated by the very absence of permanent legislative organs at international level; they have ensued from the non-institutionalized nature of the process whereby International Law is created.144 The question of the legal nature and effects of the resolutions of international organizations soon generated a considerable specialized bibliography, not seldom linking the question at issue to that of the “sources” of International Law.145 In favouring the development of standards of international behaviour, such resolutions have contributed to mould customary International Law and to crystallize, in the long run, emerging general principles of International Law,146 in sum, to provide indications on the opinio juris of the international community as a whole.147 2.

Responses to New Needs and Aspirations of the International Community

The work and dynamism of the international organizations have contributed decisively to modify the structure itself of the international legal order. Not seldom the work of one of them came to have repercussion within the others, and has even generated structural changes in some of them. This is illustrated by the episode occurred at the beginning of the nineties, when the then European Economic Community (EEC, nowadays European Union) requested its admission as 144 J. Castañeda, op. cit. supra n. (138), pp. 165-196, and cf. 22-138, 177-180 and 150-164. And cf., generally, e.g., A. El-Erian, “The Legal Organizations of International Society”, in Manual of Public International Law (ed. M. Sorensen), London, MacMillan, 1968, pp. 90-92 and 98-100; I.L. Claude Jr., Swords into Plowshares, 4th. ed., N.Y., Random House, 1971, pp. 118-162. 145 Cf., inter alia, A.J.P. Tammes, “Decisions of International Organs as a Source of International Law”, 94 RCADI (1958) pp. 265-363; M. Lachs, “Le rôle des organisations internationales dans la formation du Droit international”, in Mélanges offerts à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964, pp. 168-169, and cf. pp. 157-170; K. Skubiszewski, “Enactment of Law by International Organizations”, 41 BYBIL (1965-1966) pp. 198-274; J. Castañeda, “Valeur juridique des résolutions des Nations Unies”, 129 RCADI (1970) pp. 205-332; M. Virally, “La valeur juridique des recommendations des organisations internationales”, 2 AFDI (1956) pp. 66-96. And cf. chapter V, supra. 146 E. Hambro, “Some Notes on Parliamentary Diplomacy”, in Transnational Law in a Changing Society – Essays in Honor of Ph.C. Jessup (ed. W. Friedmann, L. Henkin and O. Lissitzyn), N.Y., Columbia University Press, 1972, pp. 280-297; and cf. also R. Monaco, “Fonti e Pseudo Fonti del Diritto Internazionale”, 61 Rivista di Diritto Internazionale (1978) pp. 743-758. 147 E. Hambro, “Some Notes on the Development of the Sources of International Law”, 17 Scandinavian Studies in Law (1973) pp. 77-93; and cf. J. Monnier, “Observations sur quelques tendances récentes en matière de formation de la volonté sur le plan multilatéral”, 31 Annuaire suisse de Droit international (1975) pp. 31-51; H. Rolin, “De la volonté générale dans les organisations internationales”, in La technique et les principes de droit public – Études en l’honneur de G. Scelle, vol. II, Paris, LGDJ, 1950, pp. 553-564.

International Organizations as Subjects of International Law

full member of the U.N. Food and Agriculture Organization (FAO). The developments in this episode were to disclose that the composition itself of international organizations was no longer a monopoly of States, whenever a request of the kind was adjusted to the functional purposes of the organization at issue.148 In fact, shortly afterwards, with the corresponding modifications having been introduced in the Constitution of FAO (on 18.11.1991), the EEC was at last admitted (on 26.11.1991) as member of FAO, parallel to its member States.149 These latter, and an international organization (the EEC), came to coexist as members of another international organization (the FAO). The way was, thus, paved to new developments in this sense: although the EEC – and more recently the European Union – did not become a member of the U.N. itself (what would perhaps not fulfil their interests), there are, however, areas of common interest between the European Union and some of the U.N. specialized agencies, – such as, besides FAO, for example, ILO, UNESCO, UNIDO, – the Statutes of which do not exclude the possibility that the European Union “participates in their operations”.150 Contemporary international relations have thus become more institutionalized and more complex, by the advent and impact of international organizations. Not always the developments in this area, including the most recent ones, have taken place with the necessary and desirable conceptual clarity.151 Yet, their international legal personality and capacity have been asserted, as entities distinct from their members, and have enabled them to exert their functions in the fulfi lment of the common interests and in pursuance of the common good. It is, furthermore, to be kept in mind that the international legal personality and capacity

148 Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., op. cit. supra n. (5), pp. 293-331. 149 K. Lenaerts and E. De Smijter, “The European Union as an Actor under International Law”, 19 Yearbook of European Law (1999-2000) p. 135. 150 Ibid., p. 135. On the arrangements, for the voting system within FAO (whether on the part of the [then] EEC as such, in areas of its exclusive competence, or on the part of its individual member States, in areas of “national competence”), cf. ibid., p. 135. 151 For example, the Treaty of the European Union, also known as the Treaty of Maastricht (1992), has not escaped criticisms for not having expressly affirmed the legal personality of the European Union, an omission that one would hope would be promptly remedied; J. Charpentier, “De la personnalité juridique de l’Union Européenne”, in Mélanges en l’honneur du Professeur G. Peiser (eds. J.-M. Galabert and M.-R. Tercinet), Grenoble, Presses Universitaires de Grenoble, 1995, pp. 93-102. It has, however, been pondered that the silence of the Treaty of Maastricht in this respect has not at all affected the legal personality of the European Union, because this latter ensues not from an express provision, but rather from the “general economy” of its constitutive charter as a whole, and one may infer from this latter the “implicit existence” of such personality for the faithful exercise of functions attributed to the European Union by the Treaty of Maastricht itself; ibid., pp. 95-96 and 101-102.

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of the international organizations have guided the relations of these latter both with their own members152 as well as with the outside world in general.153 It may be recalled that Article 2(6) of the U.N. Charter, e.g., entitles the United Nations to ensure that States which are not its members also act in accordance with the principles set forth in the U.N. Charter, so far as may be necessary for the maintenance of international peace and security.154 Moreover, it is nowadays generally admitted that international norms can be created and enforced irrespective of the consent of each or every individual State. A universal organization such as the United Nations has constantly been adapting itself to changing circumstances and to face new challenges of the world scenario, so as to provide responses to new needs and aspirations of the international community. The U.N. has never been paralysed, not even during the bipolar confrontation, followed by the détente.155 The U.N. has witnessed the formation and considerable growth of the corpus juris of the International Law of Human Rights. In the post cold-war period, new U.N. initiatives consisted in the great peace operations (post-1989), and in the establishment, on the initiative of the Security Council, of the ad hoc International Criminal Courts for the Former Yugoslavia

152 Cf., in general, inter alia, J. Boulouis, “Le droit des Communautés Européennes dans ses rapports avec le droit international général”, 235 RCADI (1992) pp. 19-79. 153 Cf., in general, inter alia, e.g., J.A. Carrillo Salcedo, “El Futuro de la Unión Europea”, 249 Revista de Occidente (2002) pp. 13-27. – On the particular significance of the case of the European Union, given its high degree of institutionalization and its communitarian legal order, cf., e.g., F. Pocar, Lezioni di Diritto delle Comunità Europee, 2nd. ed., Milano/Varese, Giuffrè, 1979, pp. 9-282; A.H. Robertson, European Institutions – Cooperation, Integration, Unification, 3rd. ed., London/N.Y., Stevens/M. Bender, 1973, pp. 150-226 and 287-309; K. Lipstein, The Law of the European Economic Community, London, Butterworths, 1974, pp. 21-45; P. Pescatore, L’ordre juridique des Communautés Européennes – Étude des sources du droit communautaire, Liège, Presses Universitaires de Liège, 1971, pp. 5-211; P. Pescatore, The Law of Integration, Leiden, Sijthoff, 1974, pp. 4-115. 154 Such was, by the way, the intention of the founding fathers of the United Nations; J.A. Frowein, “Reactions by Not Directly Affected States to Breaches of Public International Law”, 248 RCADI (1994) pp. 357-358; and cf. C. Tomuschat, “Obligations Arising for States Without or Against Their Will”, 241 RCADI (1993) pp. 252-257. – When it comes to this latter, it may be pointed out that the U.N. Security Council action has transcended the classic dimension of purely inter-State relations, as many of its resolutions over recent years have been directed not only to States, but also to groups (such as insurgent ones) and also individuals; B. Simma, “From Bilateralism to Community Interest in International Law”, 250 RCADI (1994) p. 266. 155 I.L. Claude Jr., “The United Nations of the Cold War: Contributions to the Post-Cold War Situation”, 18 Fordham International Law Journal (1995) pp. 789-791. – Humanitarian issues have always deserved due attention from the U.N., and from its predecessor the League of Nations; cf. F. Ermacora, “The Protection of Minorities before the United Nations”, 182 RCADI (1983) pp. 247-370.

International Organizations as Subjects of International Law

and for Rwanda (in 1993 and 1994, respectively),156 followed by the 1998 Rome Conference on the Statute of the permanent International Criminal Court.157 The U.N. was no longer concerned only with keeping the peace, but also with preventing the outbreak or aggravation of conflicts (preventive diplomacy), with peace-building and avoidance of new conflicts, besides applying enforcement measures (under chapter VII of the U.N. Charter); it was further concerned with combatting impunity, and with continuing to promote disarmament.158 The U.N. has, in sum, contributed decisively to the new ethos of our times. It has witnessed advances in the principle of universal jurisdiction, as well as in the exercise of the collective guarantee exercised by States Parties to human rights treaties, all disclosing the primacy of the raison d’humanité over the raison d’État.159 Despite this conceptual aggiornamento, the widening of the spectre of new situations for operation of the Security Council has not passed without practical difficulties. Criticisms have had a bearing mostly, and not surprisingly, on the indefinition of the Council to distinguish between the invocation of chapter VI (peaceful settlement of disputes) and of chapter VII (enforcement measures) of the U.N. Charter, and on the lack of demonstration or of determination of a real threat to internacional peace for the purposes of the invocation of chapter VII of the Charter.160 Hence the call of contemporary legal doctrine in the sense that the enforcement measures referred to be characterized by “clarity and precision”, so as to refrain from the “indiscriminate use” of euphemisms.161

156 Cf. B. Boutros-Ghali, “A Grotian Moment”, 18 Fordham International Law Journal (1995) pp. 1609-1616. 157 Cf. B. Boutros-Ghali, An Agenda for Peace, 2nd. ed., N.Y., United Nations, 1995, pp. 5-152; B. Boutros-Ghali, An Agenda for Development, N.Y., United Nations, 1995, pp. 5-126; B. Boutros-Ghali, An Agenda for Democratization, N.Y., United Nations, 1996, pp. 1-56. 158 B. Boutros-Ghali, An Agenda for Peace, op. cit. supra n. (157), pp. 8-72. 159 A.A. Cançado Trindade, “A Emancipação do Ser Humano como Sujeito do Direito Internacional e os Limites da Razão de Estado”, in 6/7 Revista da Faculdade de Direito da Universidade do Estado do Rio de Janeiro (1998-1999) pp. 425-434. – For a penetrating and poignant criticism of the so-called raison d’État, cf. Ernst Cassirer, El Mito del Estado, Mexico, Fondo de Cultura Económica, 1996 (reed.), pp. 7-352. 160 For criticisms, cf. G. Arangio-Ruiz, “On the Security Council’s ‘Law-Making’”, 83 Rivista di Diritto Internazionale (2000) pp. 609-725; F.L. Kirgis Jr., “The Security Council’s First Fifty Years”, 89 American Journal of International Law (1995) pp. 516, 525-526, 535 and 537-538. 161 I.L. Claude Jr., op. cit. supra n. (155), p. 793.

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I.

The Legal Personality of the Individual as Subject of International Law

Introduction

The consolidation of the legal personality1 and capacity2 of the individual as subject of international law constitutes the most precious legacy of the international legal thinking of the second half of the XXth century. Such thinking overcame the exclusion of the individual from the international legal order by State legal positivism, and achieved the rescue of the individual as subject of International Law. The acknowledgement of the legitimatio ad causam of the individuals in International Law (active subjectivity) took place as a response to a need of the international community. The same can be said of the recognition of his condition as bearer of duties emanating from international law (passive subjectivity). Individuals appear nowadays as true subjects – rather than simply “actors” – of International Law. II.

The Individual as Subject of the Emerging Law of Nations

In considering the position of individuals in International Law, the thinking of the so-called founding fathers of the law of nations is not to pass unnoticed. In the initial period of formation of International Law the influence exercised by their writings was indeed considerable, understandably, given the need of articulation and systematization of the matter.3 The doctrinal contribution, in particu1

2 3

A.A. Cançado Trindade, “El Nuevo Reglamento de la Corte Interamericana de Derechos Humanos (2000) y Su Proyección Hacia el Futuro: La Emancipación del Ser Humano como Sujeto del Derecho Internacional de los Derechos Humanos”, 28 Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – OAS (2001) pp. 33-92. Cf. chapter X, infra. A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo, Brasília, Edit. University of Brasília, 1981, pp. 20-21. For an account of the formation of the classic doctrine, cf., inter alia, e.g., P. Guggenheim, Traité de droit international public, vol. I, Geneva, Georg, 1967, pp. 13-32; A. Verdross, Derecho Internacional Público, 5th. ed., Madrid, Aguilar, 1969 (reimpr.), pp. 47-62; Ch. de Visscher,

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lar, of the writings of the Spanish theologians Francisco de Vitoria and Francisco Suárez, as well as of the Grotian work, is widely acknowledged. Even in our days, it is necessary to bear in mind those teachings. In the vision of Suárez (author of the treatise De Legibus ac Deo Legislatore, 1612), the law of nations reveals the unity and universality of the human kind; States have necessity of a legal system which regulates their relations, as members of the universal society.4 The learned master of Salamanca, Francisco de Vitoria, in a pioneering and decisive contribution to the notion of prevalence of the rule of law (État de Droit), sustained, with rare lucidity, in his acclaimed Relecciones Teológicas (1538-1539), that the legal order binds everyone – both the rulers and those ruled, – and, in this same line of thinking, the international community (totus orbis) has primacy over the free will of each individual State.5 In his celebrated De Indis – Relectio Prior (1538-1539), he reiteratedly warned that the emperor is not, and has never been, the master of the world.6 In the conception of Vitoria, the law of nations regulates an international community constituted by human beings organized socially in States and coextensive with humanity itself; the reparation of violations of (human) rights reflects an international necessity fulfi lled by the law of nations, with the same principles of justice applying both to the States and to the individuals or peoples who form them. In his De Indis (chapters VI and VII), Vitoria clarified his understanding of jus gentium as a law for all, individuals and peoples as well as States, “every fraction of humanity”; jus gentium, in his view, is conformed by the “common consensus of all peoples and nations”.7 Earlier on, in his De Lege, Vitoria sustained the necessity of every law to pursue, above all, the common good; and he added that natural law is found not in the “will”, but rather in right reason (recta ratio).8 More than four and a half centuries later, his message retains a remarkable topicality. The conception of jus gentium of Hugo Grotius (De Jure Belli ac Pacis, 1625), always attentive to the role of civil society, envisaged the State as not an end in

4 5

6 7

8

Théories et réalités en Droit international public, 4th. rev. ed., Paris, Pédone, 1970, pp. 18-32; L. Le Fur, “La théorie du droit naturel depuis le XVIIe. siècle et la doctrine moderne”, 18 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1927) pp. 297-399. Cf. Association Internationale Vitoria-Suarez, Vitoria et Suarez – Contribution des Théologiens au Droit International Moderne, Paris, Pédone, 1939, pp. 169-170. Cf. Francisco de Vitoria, Relecciones – del Estado, de los Indios, y del Derecho de la Guerra, México, Porrúa, 1985, pp. 1-101; A. Gómez Robledo, op. cit. infra n. (11), pp. 30-39. Francisco de Vitoria, De Indis – Relectio Prior (1538-1539), in: Obras de Francisco de Vitoria – Relecciones Teológicas (ed. T. Urdanoz), Madrid, BAC, 1960, p. 675. J. Brown Scott, The Spanish Origin of International Law – Francisco de Vitoria and his Law of Nations, Oxford/London, Clarendon Press/H. Milford – Carnegie Endowment for International Peace, 1934, pp. 282-283, 140, 150, 163-165, 170 and 172. F. de Vitoria, La Ley (De Lege – Commentarium in Primam Secundae), Madrid, Tecnos, 1995, pp. 5, 23 and 77.

The Legal Personality of the Individual as Subject of International Law

itself, but rather a means to secure the legal order “consonant with human intelligence”, so as to improve “common society which embraces all mankind”.9 The subjects have rights vis-à-vis the sovereign State, which cannot demand obedience from its citizens in an absolute way (imperative of the common good); thus, in the vision of Grotius, the raison d’État has limits, and the absolute conception of this latter is inapplicable in the international as well as internal relations of the State. In Grotian thinking, every legal norm – whether of domestic law or of the law of nations – creates rights and duties for the persons addressed to.10 Even before Grotius, Alberico Gentili (author of De Jure Belli, 1598) sustained, by the end of the XVIth century, that it is Law that regulates the relationships among the members of the universal societas gentium.11 In his De Jure Belli Libri Tres (1612), A. Gentili held that the law of nations was “established among all human beings”, being “observed by all mankind”.12 One is thus to bear always in mind the true legacy of the Grotian tradition of international law. The international community cannot pretend to base itself on the voluntas of each State individually. In face of the historical necessity to regulate the relations among the emerging States, Grotius sustained that international relations are subject to legal norms, and not to the “raison d’État”, which is incompatible with the existence itself of the international community: this latter cannot exist without Law.13 The human person and his well-being occupy a central position in the system of international relations. In this line of thinking, also Samuel Pufendorf (author of the De Jure Naturae et Gentium, 1672) sustained likewise “the subjection of the legislator to the higher law of human nature and of reason”.14 Pufendorf founded International Law on natural law, envisaging it as a great system of universal law “embracing even private law”.15 On his turn, Christian Wolff (author of Jus Gentium Methodo Scientifica Pertractatum, 1749), pondered that, just as individuals ought to, in their association in the State, promote the common good, in its turn the State has the correla9 10 11 12 13 14

15

P.P. Remec, The Position of the Individual in International Law according to Grotius and Vattel, The Hague, Nijhoff, 1960, pp. 216 and 203. Ibid., pp. 219-220, 217, 243 and 221. And cf., on his conception of jus gentium, H. Grotius, De Jure Belli ac Pacis (1625), The Hague, Nijhoff, 1948, pp. 6, 10 and 84-85. A. Gómez Robledo, Fundadores del Derecho Internacional, México, UNAM, 1989, pp. 48-55. A. Gentili, De Jure Belli Libri Tres (1612), vol. II, Oxford/London, Clarendon Press/ H. Milford – Carnegie Endowment for International Peace, 1933, p. 8. Cf., in this respect, the classic essay by Hersch Lauterpacht, “The Grotian Tradition in International Law”, 23 British Year Book of International Law (1946) pp. 1-53. Accordingly, the standards of justice applied vis-à-vis the States as well as the individuals; Hersch Lauterpacht, “The Law of Nations, the Law of Nature and the Rights of Man”, 29 Transactions of the Grotius Society (1943) pp. 7 and 21-31, esp. p. 26. H. Wehberg, “Introduction”, in S. Pufendorf, Elementorum Jurisprudentiae Universalis Libri Duo (1672), vol. II, Oxford/London, Clarendon Press/H. Milford – Carnegie Endowment for International Peace, 1931, pp. XIV, XVI and XXII.

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tive duty to seek its perfection.16 Stressing that the law of nations was necessary rather than voluntary, Wolff defined it as “the science of that law which nations or peoples use in their relations with each other and of the obligations corresponding thereto”; it “binds nations in conscience”, in order to preserve society composed of individuals, and to promote the common good. Wolff stressed that, just as all individuals were free and equal, all nations likewise were “by nature equal the one to the other”; and he added that “since by nature all nations are equal, since moreover all men are equal in a moral sense whose rights and obligations are the same, the rights and obligations of all nations are also by nature the same”.17 Already in the presentation of his treatise, Wolff wrote with clarity that natural law “controls the acts of individual men as well as those of nations also, by prescribing duties both toward themselves and toward each other. And just as it has united individual men to each other (...) and has established among them a certain society, so that man is necessary to man (...); so (...) has it united nations, (...) so that nation is necessary to nation (...). Therefore the entire human race is likened to a living body (...), and it retains unimpaired health so long as the individual members perform their functions properly”.18

However, the illuminating thoughts and vision of the so-called founding fathers of International Law, which conceived it as a truly universal system, regrettably came to be gradually surpassed by new doctrinal constructions, and mainly by the emergence of legal positivism. Yet, even with the early emergence of this latter, doctrinal constructions such as that of Cornelius van Bynkershoek (De Foro Legatorum, 1721; Questiones Juris Publici – Libri Duo, 1737) continued to uphold a multiplicity of subjects of jus gentium. To Bynkershoek, e.g., those subjects were mainly the nations (gentes), but also peoples and other “persons of free will” (inter volentes); legal subjectivity, to him, embraced all those who acted in the field

16

17

18

C. Sepúlveda, Derecho Internacional, 13th. ed., Mexico, Ed. Porrúa, 1983, pp. 2829. Wolff beheld nation-States as members of a civitas maxima, a concept which Emmerich de Vattel (author of Le Droit des Gens, 1758), subsequently, invoking the necessity of “realism”, pretended to replace by a “society of nations” (a less advanced concept); cf. F.S. Ruddy, International Law in the Enlightenment – The Background of Emmerich de Vattel’s Le Droit des Gens, Dobbs Ferry/N.Y., Oceana, 1975, p. 95; for a criticism to this step backwards (incapable of laying the foundation of the principle of obligation in International Law), cf. J.L. Brierly, The Law of Nations, 6th. ed., Oxford, Clarendon Press, 1967 [reprint], pp. 38-40. C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (edition of 1764), vol. II, Oxford/London, Clarendon Press/H. Milford – Carnegie Endowment for International Peace, 1934, pp. 9-11, 13 and 15-16. Ibid., p. 3.

The Legal Personality of the Individual as Subject of International Law

of jus gentium of his times, and, to approach this latter, resort was to some extent still made to ratio.19 The beginning of the personification of the State – in fact, of the modern theory of the State – in the domain of International Law took place, in the midXVIII century, with the work of E. de Vattel (Le Droit des gens ou Principes de la loi naturelle appliquée à la conduite et aux affaires des nations et des souverains, 1758), which was to have much repercussion in the international legal practice of his times. The emphasis on State personality and sovereignty led to the conception of an International Law applicable strictly to the relations among States (the jus inter gentes, rather than the jus gentium), that is, an inter-State legal order; it amounted to a reductionist outlook of the subjects of the law of nations, admitting only and exclusively the States as such.20 Subsequently (late XIXth century onwards), legal positivism wholly personified the State, endowing it with a “will of its own”, and reducing the rights of human beings to those which the State “conceded” to them. The consent of the “will” of the States (according to the voluntarist positivism) was erected into the alleged predominant criterion in International Law, denying jus standi to the individuals, to the human beings; this rendered difficult a proper understanding of the international community, and undermined International Law itself, reducing its dimension to that of a strictly inter-State law, no more above but rather among sovereign States.21 In fact, when the international legal order moved away from the universal vision of the so-called “founding fathers” of the law of nations (droit des gens – supra), successive atrocities were committed against human beings, against humankind. The disastrous consequences of this historical distortion are widely known. III. The Attempted Exclusion of the Individual from the International Legal Order The personification of the all-powerful State, inspired mainly in the philosophy of law of Hegel, had a harmful influence in the evolution of International Law by the end of the XIXth century and in the first decades of the XXth century. This doctrinal trend resisted as much as it could to the ideal of emancipation of the human being from the absolute control of the State, and to the recognition of the individual as subject of International Law. But the individual’s submission to the will of the State was never convincing to all, and it soon became openly challenged by the more lucid doctrine. Already in the late twenties, the negative outlook of individuals from the perspective of Hegelian legal philosophy, whereby the State was a supreme ideal 19 20 21

K. Akashi, Cornelius van Bynkershoek: His Role in the History of International Law, The Hague, Kluwer, 1998, pp. 56-59, 174-175 and 178-179, and cf. pp. 68-69. Cf., e.g., E. Jouannet, Emer de Vattel et l’émergence doctrinale du Droit international classique, Paris, Pédone, 1998, pp. 255, 311, 318-319, 344 and 347. P.P. Remec, The Position of the Individual..., op. cit. supra n. (9), pp. 36-37.

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and an end in itself, endowed with a power subject only to its own “will”, was severely criticized as an obstacle to the achievement of the civitas maxima gentium.22 In opposition to that reactionary position stood, among others, early in the XXth century, Jean Spiropoulos, in a luminous monograph titled L’individu en Droit international, published in Paris in 1928: contrary to what ensued from the Hegelian doctrine, – he pondered, – the State is not a supreme ideal subject only to its own “will”, is not an end in itself, but rather “a means of realization of the vital aspirations and necessities of the individuals”, it being, thus, necessary to protect the human being against the violation of his rights by his own State.23 To him, the gradual emancipation of the individual from the tutelage of the allpowerful State imposed itself as “a necessary consequence of the evolution of the international organization” of the new times.24 N. Politis, likewise, was an early and eloquent supporter of the recognition of the international legal personality of individuals, who were the final addressees of all Law.25 Positivism, in turn, appeared subservient to the established legal order, and endorsed the abuses praticed in the name of this latter. But already in the mid-XXth century, the most enlightened international legal doctrine was taking definitively a distance from the Hegelian and neo-Hegelian formulations of the State as a final repository of the freedom and responsibility of the individuals who composed it, and which entirely integrated themselves in it.26 The old polemics, sterile and pointless, between monists and dualists, erected upon false premises, not surprisingly failed to contribute to the doctrinal endeavours in favour of the emancipation of the human being vis-à-vis his own State. In fact, what both dualists and monists did, in this particular, was to “personify” the State as subject of International Law. While monists discarded all anthropomorfism, affi rming the international subjectivity of the State by an

22

23

24 25 26

J. Spiropoulos, “L’individu et le droit international”, 30 RCADI (1929) pp. 258 and 266; and cf. also J. de Soto, “L’individu comme sujet du droit des gens”, in La technique et les principes du Droit public – Études en l’honneur de G. Scelle, vol. II, Paris, LGDJ, 1950, pp. 687-716. J. Spiropoulos, L’individu en Droit international, Paris, LGDJ, 1928, pp. 66, 33 and 55, and cf. p. 19; an evolution to this effect, he added, would have to bring us closer to the ideal of the civitas maxima. Ibid., pp. 42-43 and 65. Cf. N. Politis, Les nouvelles tendances du Droit international, Paris, Libr. Hachette, 1927, pp. 76-77, 82-83 and 89-90. W. Friedmann, The Changing Structure of International Law, London, Stevens, 1964, p. 247.

The Legal Personality of the Individual as Subject of International Law

analysis of the juridical person,27 dualists28 did not contain themselves in their excesses of characterization of the States as sole subjects of International Law.29 A whole doctrinal trend, of traditional positivism,30 maintained that only the States were subjects of Public International Law.31 Against this vision emerged an opposite trend,32 sustaining, a contrario sensu, that ultimately only the individuals, addressees of all juridical norms, were subjects of International Law (cf. infra). The idea of absolute State sovereignty, – which led to the irresponsibility and the alleged omnipotence of the State, not impeding the successive atrocities committed by it (or in its name) against human beings, – appeared with the passing of time entirely unfounded. The State – it is nowadays acknowledged – is responsible for all its acts – both jure gestionis and jure imperii – as well as for all its omissions. Created by human beings themselves, composed by them, it exists for them, for the realization of the common good. In case of violation of human rights, the direct access of the individual to the international jurisdiction is thus fully justified, to vindicate such rights, even against his own State.33

27 28 29

30 31

32

33

Cf. C.Th. Eustathiades, “Les sujets du Droit international et la responsabilité internationale – Nouvelles tendances”, 84 RCADI (1953) pp. 405-406. Such as H. Triepel and D. Anzilotti mainly. For a criticism of the incapacity of the dualist theory to explain the access of individuals to international jurisdiction, cf. P. Reuter, “Quelques remarques sur la situation juridique des particuliers en Droit international public”, in La technique et les principes du Droit public – Études en l’honneur de G. Scelle, vol. II, Paris, LGDJ, 1950, pp. 542-543 and 551. Formed, besides Triepel and Anzilotti, also by K. Strupp, E. Kaufmann, R. Redslob, among others. The same posture was adopted by the old Soviet doctrine of International Law, with emphasis on the so-called inter-State “peaceful coexistence”; cf., e.g., Y.A. Korovin, S.B. Krylov, et alii, International Law, Moscow, Academy of Sciences of the USSR/ Institute of State and Law, [s/d], pp. 93-98 and 15-18; G.I. Tunkin, Droit international public – problèmes théoriques, Paris, Pédone, 1965, pp. 19-34. As from the publication, in 1901, of the book by Léon Duguit L’État, le droit objectif et la loi positive, – formed by G. Jèze, H. Krabbe, N. Politis and G. Scelle, among others. S. Glaser, “Les droits de l’homme à la lumière du droit international positif”, in Mélanges offerts à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964, pp. 117118, and cf. pp. 105-106 and 114-116; A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 9-104.

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IV. The Individual’s Presence and Participation in the International Legal Order The individual is, thus, subject of both domestic and international law.34 In fact, he has always remained in contact, directly or indirectly, with the international legal order. In the inter-war period, the experiments of the minorities35 and mandates 36 systems under the League of Nations, for example, bear witness thereof.37 They were followed, in that regard, by the trusteeship system38 under the United Nations era, parallel to the development under this latter, along the years, of the multiple mechanisms – conventional and extraconventional – of international protection of human rights. Those early experiments in the XXth century were of relevance for subsequent developments in the international safeguard of the rights of the human person.39 To that effect of evidencing and reasserting the constant contact of the individual with the international legal order, the considerable evolution in the last decades not only of the International Law of Human Rights but likewise of International Humanitarian Law, has contributed decisively. Th is latter likewise considers the protected persons not only as simple object of regulation that they 34

35

36

37 38

39

On the historical evolution of the legal personality in the law of nations, cf. H. Mosler, “Réflexions sur la personnalité juridique en Droit international public”, in Mélanges offerts à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964, pp. 228-251; G. Arangio-Ruiz, Diritto Internazionale e Personalità Giuridica, Bologna, Coop. Libr. Univ., 1972, pp. 9-268; G. Scelle, “Some Reflections on Juridical Personality in International Law”, in Law and Politics in the World Community (ed. G.A. Lipsky), Berkeley/L.A., University of California Press, 1953, pp. 49-58 and 336; J.A. Barberis, “Nouvelles questions concernant la personnalité juridique internationale”, 179 RCADI (1983) pp. 157-238. Cf., e.g., P. de Azcárate, League of Nations and National Minorities: An Experiment, Washington, Carnegie Endowment for International Peace, 1945, pp. 123-130; J. Stone, International Guarantees of Minorities Rights, Oxford, University Press, 1932, p. 56; A.N. Mandelstam, “La protection des minorités”, 1 RCADI (1923) pp. 363-519. Cf., e.g., G. Diena, “Les mandats internationaux”, 5 RCADI (1924) pp. 246-261; N. Bentwich, The Mandates System, London, Longmans, 1930, p. 114; Quincy Wright, Mandates under the League of Nations, Chicago, University Press, 1930, pp. 169172. C.A. Norgaard, The Position of the Individual in International Law, Copenhagen, Munksgaard, 1962, pp. 109-131. Cf., e.g., C.E. Toussaint, The Trusteeship System of the United Nations, London, Stevens, 1956, pp. 39, 47 and 249-250; J. Beauté, Le droit de pétition dans les territoires sous tutelle, Paris, LGDJ, 1962, pp. 48-136; G. Vedovato, “Les accords de tutelle”, 76 RCADI (1950) pp. 613-694. Cf., e.g., C.Th. Eustathiades, “Une nouvelle expérience en Droit international – Les recours individuels à la Commission des droits de l’homme”, in Grundprobleme des internationalen Rechts – Festschrift für J. Spiropoulos, Bonn, Schimmlebusch, 1957, pp. 111-137, esp. pp. 77 and 121 n. 32.

The Legal Personality of the Individual as Subject of International Law

establish, but rather as true subjects of International Law.40 This is what clearly ensues from the fact that the four Geneva Conventions plainly prohibit to the States Parties to derrogate – by special agreements – from the rules enunciated in them and in particular to restrict the rights of the persons protected set forth in them.41 In effect, the impact of the norms of the International Law of Human Rights has, in turn, been having already for a long time repercussions in the corpus juris and application of International Humanitarian Law.42 Thus, International Humanitarian Law gradually frees itself from a purely inter-State obsolete outlook, giving an increasingly greater emphasis – in the light of the principle of humanity – to the protected persons and to the responsibility for the violation of their rights.43 The attempts of the past to deny to individuals the condition of subjects of International Law, for not being recognized to them some of the capacities which States have (such as, e.g., that of treaty-making), are definitively devoid of any meaning. Nor at domestic law level, not all individuals participate, directly or indirectly, in the law-making process, and they do not thereby cease to be subjects of law. That doctrinal trend, attempting to insist on such a rigid definition of international subjectivity, conditioning this latter to the very formation of international norms and compliance with them, simply does not sustain itself, not even at the level of domestic law, in which it is not required – it has never been – from all individuals to participate in the creation and application of the legal norms in order to be subjects (titulaires) of rights, and to be bound by the duties, enmanated from such norms. Besides unsustainable, that conception appears contaminated by an ominous ideological dogmatism, which had as the main consequence to alienate the individual from the international legal order. It is surprising – if not astonishing, – besides regrettable, to see that conception repeated mechanically and ad nauseam by a doctrinal trend, apparently trying to make believe that the intermediary of the State, between the individuals and the international legal order, would 40

41

42

43

It is what ensues, e.g., from the position of the four Geneva Conventions on International Humanitarian Law of 1949, erected as from the rights of the protected persons (e.g., III Convention, Articles 14 and 78; IV Convention, Article 27). I, II and III Geneva Conventions, Article 6; and IV Geneva Convention, Article 7. Cf. S. Glaser, op. cit. supra n. (33), p. 123. In fact, as early as in the passage from the XIXth to the XXth century, the fi rst Conventions on International Humanitarian Law expressed concern for the fate of human beings in armed confl icts, thus recognizing the individual as direct beneficiary of the international conventional obligations. Cf. chapter XXIII, infra, on their approximations and convergences, contributing to improve and strengthen the condition of the individual as titulaire of rights inherent to him in any circumstances. Th. Meron, “The Humanization of Humanitarian Law”, 94 American Journal of International Law [AJIL] (2000) pp. 239-278. On the historical roots of this development, cf. E.W. Petit de Gabriel, Las Exigencias de Humanidad en el Derecho Internacional Tradicional (1789-1939), Madrid, Tecnos, 2003, pp. 149, 171 and 210.

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be something inevitable and permanent. Nothing could be more fallacious. In the brief historical period in which that Statist conception prevailed, in the light – or, more precisely, in the darkness – of legal positivism, successive atrocities were committed against the human being, in a scale without precedents. It results quite clear today that there is nothing intrinsic to International Law that impedes or renders it impossible to non-State actors to enjoy international legal personality. No one in sane conscience would today dare to deny that the individuals effectively possess rights and obligations which emananate directly from International Law, with which they find themselves, therefore, in direct contact. And it is perfectly possible to conceptualize – even with greater precision – as subject of International Law any person or entity, titulaire of rights and obligations, which emanate directly from norms of International Law. It is the case of the individuals, who thus have strengthened this direct contact – without intermediaries – with the international legal order. The international movement in favour of human rights, launched by the Universal Declaration of Human Rights of 1948, came to dismiss the aforementioned false analogies, and to overcome traditional distinctions (e.g., on the basis of nationality): subjects of law are all human beings as members of the “universal society”.44 Moreover, individuals and non-governmental organizations (NGOs) assume nowadays an increasingly relevant role in the formation itself of opinio juris communis.45 NGOs have gained considerable visibility throughout the recent cycle of U.N. World Conferences (1992-2001), by their presence and lobbying in the Conferences themselves46 or by their articulation in their own forums parallel to such Conferences.47 In recent years, they have been entitled to present on a regular 44

45

46

47

R. Cassin, “L’homme, sujet de droit international et la protection des droits de l’homme dans la société universelle”, in La technique et les principes du Droit public..., op. cit. supra n. (29), vol. I, pp. 81-82. At global level, Article 71 of the U.N. Charter has served as basis to the advisory status of NGOs acting in the ambit of the U.N., and resolution 1996/31, of 26.07.1996, of the U.N. Economic and Social Council (ECOSOC), regulates in detail the relations between the U.N. and NGOs with advisory status (providing the framework for accreditation of these latter). At regional level, the Permanent Council of the Organization of American States (OAS) has issued directives (on 15.12.1999) governing the participation of NGOs and other entities of civil society in OAS activities; ever since they have appeared regularly before the Council and other OAS organs. And the European Convention on Recognition of the Legal Personality of International Non-Governmental Organizations (of 24.04.1986), on its turn, provides for the constitutive elements of the NGOs (Article 1) and for the ratio legis of their legal personality and capacity (Article 2). The Rules of Procedure of the Preparatory Committee to the U.N. World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, 2001), e.g., contained a provision (Rule 66) which regulated the participation of NGOs directly in its own work (as from May 2000). For my personal recollections of the World NGO Forum parallel to the U.N. II World Conference on Human Rights (Vienna, 1993), cf. A.A. Cançado Trindade, Tratado

The Legal Personality of the Individual as Subject of International Law

basis their amici curiae before international tribunals such as the Inter-American and the European Courts of Human Rights, and the ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda. In recent years, individuals and NGOs have effectively participated in the travaux préparatoires of certain international treaties, or influenced them,48 such as, e.g., the 1984 U.N. Convention against Torture and its 2002 Optional Protocol, the 1989 U.N. Convention on the Rights of the Child, the 1991 Madrid Protocol (to the 1959 Antarctica Treaty) on Environmental Protection in the Antarctica, the 1997 Ottawa Convention on the Prohibition of Anti-Personnel Mines and on Their Destruction, the 1998 Rome Statute of the International Criminal Court, and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, – and subsequently in the monitoring of their implementation. The growing performance, at international level, of NGOs and other entities of civil society has had an inevitable impact in the theory of the subjects of International Law, contributing to render individuals not only direct beneficiaries (without intermediaries) of the international norms, but true subjects of International Law, and to put an end to the purely inter-State anachronistic dimension of this latter; moreover, their activities have contributed to the prevalence of superior common values in the ambit of International Law.49 Individuals, NGOs and other entities of civil society come, thus, to act in the process of formation as well as application of international norms.50 This is symptomatic of the democratization of international relations, parallel to a growing conscientization of the multiple subjects of law operating at international level in pursuance of universal values. Taking into account the presence in the contemporary international legal order not only of States and international organizations but also of individuals (however differentiated their legal status

48

49 50

de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 220-231; and cf. also M. Nowak (ed.), World Conference on Human Rights (Vienna, June 1993) – The Contribution of NGOs, Reports and Documents, Wien, Manzsche Verlags- und Universitätsbuchhandlung, 1994, pp. 1-231. Cf. G. Breton-Le Goff, L’influence des organisations non gouvernementales (ONG) sur la négotiation de quelques instruments internationaux, Bruxelles, Bruylant/Éd. Y. Blais, 2001, pp. 33, 58, 60, 143-144 and 191-192; R. Wedgwood, “Legal Personality and the Role of Non-Governmental Organizations and Non-State Political Entities in the United Nations System”, in Non-State Actors as New Subjects of International Law (Proceedings of the Kiel Symposium of 1998, eds. R. Hofmann and N. Geissler), Berlin, Duncker & Humblot, 1999, pp. 25-26; P. Klein, “Les Nations Unies, les États et la société civile: la place et le rôle des organisations non gouvernementales au sein de l’ONU”, in La démocratisation du système des Nations Unies (Colloque d’Aix-enProvence de 2000, ed. R. Mehdi), Paris, Pédone, 2001, pp. 106-107. R. Ranjeva, “Les organisations non-gouvernementales et la mise-en-oeuvre du Droit international”, 270 RCADI (1997) pp. 22, 50, 67-68, 74 and 101-102. M. Bettati and P.-M. Dupuy, Les O.N.G. et le Droit international, Paris, Economica, 1986, pp. 1, 16, 19-20, 252-261 and 263-265.

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might be), the Greek jurist Emmanuel Roucounas sustained that this is indicative of the rule of law in the international community, and rightly added that “la préséance du droit traverse États, organisations et individus, et requiert ainsi l’action de toutes les composantes, identifiées aussi clairement que possible, de la communauté internationale”.51

In sum, the very process of formation and application of the norms of International Law ceases to be a monopoly of the States. Furthermore, beyond the individual’s presence and participation in the international legal order, to the recognition of his rights, as subject of International Law, ought to correspond the procedural capacity to vindicate them at international level. It is by means of the consolidation of the full international procedural capacity of individuals that the international protection of human rights becomes reality.52 But even if, by the circumstances of life, certain individuals (e.g., children, the mentally ill, aged persons, among others) cannot fully exercise their capacity (e.g., in civil law), this does not mean that they cease to be titulaires of rights, opposable even to the State. Irrespective of the circumstances, the individual is subject jure suo of International Law, as sustained by the more lucid doctrine since the writings of the so-called founding fathers of the discipline.53 Human rights were conceived as inherent to every human being, independently of any circumstances. V.

The Rescue of the Individual as Subject of International Law

Although the contemporary international scenario is entirely distinct from that of the epoch of the so-called founding fathers of International Law (supra), who propounded a civitas maxima ruled by the law of nations (droit des gens), there is a recurrent human aspiration, transmitted from one generation to another, along the last centuries, to the effect of the construction of an international legal order applicable both to States (and international organizations) and to individuals, pursuant to certain universal standards of justice. The continuous “rebirth” of natural law, already referred to,54 reinforces the universality of human rights, as inherent to all human beings, – in contraposition to positive norms, which lack

51 52

53 54

E. Roucounas, “Facteurs privés et Droit international public”, 299 RCADI (2002) p. 61, and cf. pp. 136-137 and 389-391. Cf. A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales..., op. cit. supra n. (33), pp. 17-96; A.A. Cançado Trindade, “Vers la consolidation de la capacité juridique internationale des pétitionnaires dans le système interaméricain des droits de la personne”, 14 Revue québécoise de Droit international (2001) n. 2, pp. 207-239. P.N. Drost, Human Rights as Legal Rights, Leyden, Sijthoff, 1965, pp. 226-227, and cf. pp. 223 and 215. Cf. chapter V, supra.

The Legal Personality of the Individual as Subject of International Law

universality, for varying from one social milieu to another.55 Hence the relevance of the international legal personality of the individual (as titulaire of rights), also as a limit to the arbitrary manifestations of State power. The eternal return or “rebirth” of jusnaturalism has much contributed to the assertion and the consolidation of the primacy, in the order of values,56 of State obligations as to human rights, and of the recognition of their necessary compliance vis-à-vis the international community as a whole.57 This latter, witnessing the moralization of Law itself, assumes the vindication of common superior interests.58 One has gradually turned to conceive a truly universal legal system. Still under the impact of the II world war, international legal experts acknowledged the need to reconstruct International Law on the basis of the recognition of the condition of the individual as its subject and of his access to international justice. The human person was the reason and ultimate end of all law, and only thereby would it be possible to “régénérer le droit international sur une base à la fois morale et juridique”.59 In a report to the Institut de Droit International (Lausanne session) in 1947, Charles de Visscher stressed the close connection between human rights and natural law in the framework of the historical evolution of jus gentium.60 55

56

57 58 59

60

Vicente Ráo, O Direito e a Vida dos Direitos, 5th. ed., São Paulo, Ed. Rev. Tribs., 1999, pp. 85, 101 and 641. And cf. A. Truyol y Serra, “Théorie du Droit international public – Cours général”, 183 RCADI (1981) pp. 142-143. Gustav Radbruch, particularly sensitive – above all in the mature age – to the value of justice, summed up the diverse conceptions of natural law as disclosing the following common fundamental features: fi rst, they all provide certain “judgments of juridical value with a given content”; second, such judgments, which are universal ones, have always as source, nature, or revelation, or reason; third, such value judgments are “accessible to rational knowledge”; and fourth, such judgments have primacy over positive laws contrary to them; in sum, “natural law ought to prevail always over positive law”. G. Radbruch, Filosofia do Direito, vol. I, Coimbra, A. Amado Ed., 1961, p. 70. J.A. Carrillo Salcedo, “Derechos Humanos y Derecho Internacional”, 22 Isegoría – Revista de Filosofía Moral y Política – Madrid (2000) p. 75. R.-J. Dupuy, “Communauté internationale et disparités de développement – Cours général de Droit international public”, 165 RCADI (1979) pp. 190, 193 and 202. Ch. de Visscher, “Les droits fondamentaux de l’homme, base d’une restauration du Droit international – Rapport”, in Annuaire de l’Institut de Droit International (1947) p. 9. And cf. M. Pilotti, “Le recours des particuliers devant les juridictions internationales”, in Grundprobleme des internationalen Rechts – Festschrift für J. Spiropoulos, Bonn, Schimmelbusch, [1957], p. 351. Ch. de Visscher, “Les droits fondamentaux de l’homme...”, op. cit. supra n. (59), pp. 3-4. The individual, as subject of International Law on his own right, was certainly distinguishable from his own State, and a wrong done to him was a breach of classical jus gentium, as universal minimal law; C. Parry, “Some Considerations upon the Protection of Individuals in International Law”, 90 RCADI (1956) pp. 686-688 and 697-698.

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The early international experiments which for decades had been granting international procedural capacity to the individuals (such as the minorities, mandates and trusteeship systems, supra) reflected, in fact, the recognition of superior common values consubstantiated in the imperative of protection of the human being in any circumstances. The whole new corpus juris of the International Law of Human Rights has been constructed on the basis of the imperatives of protection and the superior interests of the human being, irrespectively of his link of nationality or of his political statute, or any other situation or circumstance. Hence the importance assumed, in this new law of protection, by the legal personality of the individual, as subject of both domestic and international law. The application and expansion of the International Law of Human Rights, in turn, has repercussions, not surprisingly, and with a sensible impact, in the trends of contemporary Public International Law.61 As contemporary Public International Law recognizes rights and duties to the individuals (as evidenced by the international instruments of human rights), one cannot deny them international personality, without which that recognition could not take place. In recognizing rights inherent to every human being, International Law dismisses the archaic positivist dogma which pretended to reduce those rights to those “granted”, in an authoritarian way, by the State. The recognition of the individual as subject of both domestic and international law, endowed in both with full procedural capacity (cf. infra), represents a true juridical revolution, conferring an ethical content upon the norms of both domestic public law and International Law. In fact, already in the first decades of the XXth century one recognized the manifest inconveniences of the protection of the individuals by the intermediary of their respective States of nationality, that is, by the exercise of discretionary diplomatic protection, which rendered the “complaining” States at a time “judges and parties”. One started, as a consequence, to overcome such inconveniences, to nourish the idea of the direct access of the individuals to the international jurisdiction, under certain conditions, to vindicate their rights against States, – a theme which came to be effectively considered by the Institut de Droit International in its sessions of 1927 and 1929. In a monograph published in 1931, the Russian jurist André Mandelstam warned as to the necessity of the recognition of a juridical minimum – with the primacy of International Law and of human rights over the State legal order, – below which the international community should not allow the State to fall. In his vision, the “horrible experience of our time” demonstrated the urgency of the necessary acknowledgement of this juridical minimum, to put an end to the 61

Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 33-50, and vol. II, 1999, pp. 23-194; A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1048-1109; A.A. Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI, Santiago, Editorial Jurídica de Chile, 2001, pp. 15-58 and 375-427.

The Legal Personality of the Individual as Subject of International Law

“unlimited power” of the State over the life and the freedom of its citizens, and to the “complete impunity” of the State in breach of the “most sacred rights of the individual”.62 In his celebrated Précis du Droit des Gens (1932-1934), Georges Scelle criticized the fiction of the contraposition of an “inter-State society” to a (national) society of individuals: one and the other – he pondered – are formed by individuals, subjects of domestic law and of International Law, whether they are individuals moved by private interests, or else endowed with public functions (rulers and public officials) in charge of looking after the interests of national and international collectivities.63 G. Scelle then identified “the movement of extension of the legal personality of individuals”, by means of the emergence of the right of individual petition at international level, which led him to conclude that “Les individus sont à la fois sujets de droit des collectivités nationales et de la collectivité internationale globale: ils sont directement sujets de droit des gens”.64

Very early in Latin America the international legal doctrine flourished on a humanist basis. Thus, already in the XIXth century, in his pioneering work on Principles of International Law (1832), Andrés Bello founded International Law on natural law, which, applied to nations, “considered the human kind (...) as a great society of which each of them was member, and in which some in respect of others have the same duties than the individuals of the human species inter se”.65

Also in the American continent, in the XXth century, even before the adoption of the American and Universal Declarations of Human Rights of 1948, doctrinal manifestations flourished in favour of the international juridical personality of the individuals, such as those which are found, for example, in the writings of

62 63 64

65

A.N. Mandelstam, Les droits internationaux de l’homme, Paris, Éds. Internationales, 1931, pp. 95-96 and 138, and cf. p. 103. G. Scelle, Précis de Droit des Gens – Principes et systématique, part I, Paris, Libr. Rec. Sirey, 1932 (CNRS reprint, 1984), pp. 42-44. Ibid., p. 48. – Also singling out the importance of the attribution to individuals of international personality and remedies for the protection of their rights, cf. Lord McNair, Selected Papers and Bibliography, Leiden/N.Y., Sijthoff/Oceana, 1974, pp. 329 and 249; A. Gonçalves Pereira and F. de Quadros, Manual de Direito Internacional Público, 3rd. rev. ed., Coimbra, Almedina, 1995, p. 405, and cf. pp. 381-408. A. Bello, Principios de Derecho Internacional (1832), 3rd. ed., Paris, Libr. Garnier Hermanos, 1873, pp. 11-12.

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Alejandro Álvarez66 and Hildebrando Accioly.67 And Philip Jessup, in 1948, pondered that the old conception of State sovereignty was not consistent with the higher interests of the international community and the status of the individual as subject of International Law.68 In Europe, Hersch Lauterpacht, in a substantial work published in 1950, did not hesitate to assert that “the individual is the final subject of all law”, there being nothing inherent to international law impeding him to become subject of the law of nations and to become a party in proceedings before international tribunals.69 On his turn, in a perspicatious essay, published also in 1950, Maurice Bourquin pondered that the growing concern of the International Law of the epoch with the problems which affected directly the human being revealed the overcoming of the old exclusively inter-State vision of the international legal order.70 In his course delivered at the Hague Academy of International Law, three years later, in 1953, Constantin Eustathiades linked the international subjectivity of the individuals to the broad theme of the international responsibility (of them, parallel to that of the States). As a reaction of the universal juridical conscience, the recognition of the rights and duties of the individual at international level, and his capacity to act in order to defend his rights, are linked to his capacity to commit an international delict; international responsibility thus comprises, in his vision, both the protection of human rights as well as the punishment of war criminals (forming a whole).71 This development heralded the emancipation of the individual from the tutelage of his own State; thus, one cannot deny the individual’s condition of subject of International Law.72 66

67

68 69

70 71 72

A. Álvarez, La Reconstrucción del Derecho de Gentes – El Nuevo Orden y la Renovación Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 46-47 and 457-463, and cf. pp. 81, 91 and 499-500. H. Accioly, Tratado de Direito Internacional Público, vol. I, 1st. ed., Rio de Janeiro, Imprensa Nacional, 1933, pp. 71-75. -And cf. also, to the same effect, Levi Carneiro, O Direito Internacional e a Democracia, Rio de Janeiro, A. Coelho Branco Fo. Ed., 1945, pp. 121 and 108, and cf. pp. 113, 35, 43, 126, 181 and 195. Ph.C. Jessup, A Modern Law of Nations – An Introduction, New York, MacMillan Co., 1948, p. 41. H. Lauterpacht, International Law and Human Rights, London, Stevens, 1950, pp. 69, 61 and 51, and cf. p. 70. Such recognition of the individual as subject of rights also at international law level brings about a clear rejection of the old positivist dogmas, discredited and unsustainable, of the dualism of subjects in the domestic and international orders, and of the “will” of States as exclusive “source” of International Law; cf. ibid., pp. 8-9. On the “natural right” of petition of individuals, exercised also in the general interest, cf. ibid., pp. 247-251, and cf. pp. 286-291 and 337. M. Bourquin, “L’humanisation du droit des gens”, in La technique et les principes du Droit public..., op. cit. supra n. (29), vol. I, pp. 21-54. C.Th. Eustathiades, “Les sujets du Droit international...”, op. cit. supra n. (27), pp. 402, 412-413, 424, 586-589, 601 and 612. C.Th. Eustathiades, “Les sujets du Droit international...”, op. cit. supra n. (27), pp. 426-427, 547, 586-587, 608 and 610-611. Although not endorsing the theory of Duguit

The Legal Personality of the Individual as Subject of International Law

The same conclusion was reached by Paul Guggenheim, in a course delivered also at the Hague Academy, one year earlier, in 1952: as the individual is “subject of duties” at international law level, one cannot deny his international legal personality, recognized also in fact by customary International Law itself.73 Still in the mid-XXth century, in the first years of application of the European Convention on Human Rights, there was support for the view that the individuals had become “titulaires of legitimate international interests”, as, in International Law, a process of emancipation of the individuals from the “exclusive tutelage of the State agents” had already started.74 In the legal doctrine of that time the recognition of the expansion of the protection of individuals at the international legal order became evident.75 In the lucid words of B.V.A. Röling, the overcoming of legal positivism was reassuring, as the individual, bearer of international rights and duties, was no longer at the mercy of his State, and “Humanity of today instinctively turns to this natural law, for the function of law is to serve the well-being of man, whereas present positive international law tends to his destruction”.76

This view was in keeping with the posture upheld by the Japanese jurist Kotaro Tanaka, in his Opinions in cases before the ICJ at The Hague in that epoch, that is, an International Law transcending the limitations of legal positivism,77 and thus capable of responding effectively to the needs and aspirations of the international

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75 76 77

and Scelle (of the individuals as the sole subjects of International Law), – regarded as expression of the “sociological school” of International Law in France, – Eustathiades recognized in it the great merit of reacting to the traditional doctrine which visualized States as the sole subjects of International Law; the recognition of the international subjectivity of individuals, parallel to that of States, came to transform the structure of International Law and to foster the spirit of international solidarity; ibid., pp. 604-610. P. Guggenheim, “Les principes de Droit international public”, 80 RCADI (1952) pp. 116, and cf. pp. 117-118. G. Sperduti, “L’individu et le droit international”, 90 RCADI (1956) pp. 824, 821 and 764. The juridical experience itself of the epoch contradicted categorically the unfounded theory according to which the individuals were simple objects of the international legal order, and destructed other prejudices of State positivism; ibid., pp. 821-822; and cf. also G. Sperduti, L’Individuo nel Diritto Internazionale, Milano, Giuff rè Ed., 1950, pp. 104-107. C. Parry, “Some Considerations upon the Protection of Individuals...”, op. cit. supra n. (60), p. 722. B.V.A. Röling, International Law in an Expanded World, Amsterdam, Djambatan, 1960, p. 2, and cf. pp. XXII and 1-2. Cf. Y. Saito, “Judge Tanaka, Natural Law and the Principle of Equality”, in The Living Law of Nations – Essays in Memory of A. Grahl-Madsen (eds. G. Alfredsson and P. Macalister-Smith), Kehl/Strasbourg, N.P. Engel Publ., 1996, pp. 401-402 and 405408; K. Tanaka wanted Law to be wholly liberated from both the State (“as asserted

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community as a whole.78 In the late sixties, the pressing need was pointed out of protecting internationally the human person both individually and in groups (cf. infra), for unless such international protection was secured to individuals and groups of them, “the fate of the individual” would be “at the mercy of some Staatsrecht”.79 In an essay published in 1967, René Cassin, who had participated in the preparatory process of the elaboration of the Universal Declaration of Human Rights of 1948,80 stressed with eloquence the advance represented by the access of individuals to international instances of protection, secured by many human rights treaties: “(...) If there still subsist on earth great zones where millions of men and women, resigned to their destiny, do not dare to utter the least complaint nor even to conceive that any remedy whatsoever is made possible, those territories diminish day after day. The awakening of conscience that an emancipation is possible, becomes increasingly more general. (...) The first condition of all justice, namely, the possibility of cornering the powerful so as to subject them to (...) public control, is nowadays fulfi lled much more often than in the past. (...) The fact that the resignation without hope, that the wall of silence and that the absence of any remedy are in the process of reduction or disappearance, opens to moving humanity encouraging perspectives (...)”.81

To Paul Reuter, individuals become subjects of International Law when two basic conditions are fulfilled, namely, when they are titulaires of rights established directly by International Law, which they can exercise, and are bearers of obligations “sanctioned directly by International Law”.82 A similar view was upheld by Eduardo Jiménez de Aréchaga, to whom “there is nothing inherent to the structure of the international legal order” which impedes the recognition to the individuals of rights that emanate directly from International Law, as well as international remedies for the protection of those rights.83 Also in this line of

78

79 80

81 82 83

by Hegel and his followers”) and from the nation (Völk, – as asserted by Savigny and Puchta, and other jurists of the “historical school”); ibid., p. 402. Cf. V. Gowlland-Debbas, “Judicial Insights into Fundamental Values and Interests of the International Community”, in The International Court of Justice: Its Future Role after Fifty Years (eds. A.S. Muller et alii), The Hague, Kluwer, 1997, pp. 344-346. J.J. Lador-Lederer, International Group Protection, Leyden, Sijthoff, 1968, p. 19. As rapporteur of the Working Group of the United Nations Commission on Human Rights, entrustred with the preparation of the Draft Declaration (May 1947 to June 1948). R. Cassin, “Vingt ans après la Déclaration Universelle”, 8 Revue de la Commission Internationale de Juristes (1967) n. 2, pp. 9-10, and cf. pp. 11-17. P. Reuter, Droit international public, 7th. ed., Paris, PUF, 1993, pp. 235 and 238, and cf. p. 106. E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Tecnos, 1980, pp. 207-208; and cf. A. Cassese, International Law, Oxford, OUP, 2001, pp. 79-85.

The Legal Personality of the Individual as Subject of International Law

reasoning, J. Barberis pondered in 1983 that, for individuals to be subjects of law, it is necessary that the legal order at issue attributes to them rights or obligations (as is the case of International Law).84 In fact, successive studies of instruments of international protection came to emphasize precisely the historical importance of the recognition of the international legal personality of individuals as complaining party before international organs.85 In my own lectures delivered at the Hague Academy of International Law in 1987, I pondered that the continuous expansion of International Law is also reflected in the multiple contemporary mechanisms of international protection of human rights, the operation of which cannot be dissociated from the new values acknowledged by the international community.86 At last individuals were enabled “to exercise rights emanating directly from International Law (droit des gens)”. And I added: “In this connection, the insight and conception of Vitoria developed in his manuscripts of 1532 (made public in 1538-1539), can be properly recalled in 1987, four-anda-half centuries later: it was a conception of a universal law of nations, of individuals socially organized in States and also composing humanity (...); redress of violations of (human) rights, in fulfi lment of an international need, owed its existence to the law of nations, with the same principles of justice applying to both States and individuals or peoples forming them. (...) There is a growing and generalized acknowledgement that human rights, rather than deriving from the State (or from the will of individuals composing the State), all inhere in the human person, in whom they find their ultimate point of

84

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86

The subjects of law are, thus, heterogeneous, – he added, – and theoreticians who beheld only States as such to be subjects simply distorted reality, failing to take into account the transformations undergone by the international community, which came to admit that non-State actors also possess international legal personality; J. Barberis, “Nouvelles questions concernant la personnalité juridique internationale”, 179 RCADI (1983) pp. 161, 169, 171-172, 178 and 181. Cf., e.g., A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, Cambridge, University Press, 1983, pp. 1-445; A.Z. Drzemczewski, European Human Rights Convention in Domestic Law, Oxford, Clarendon Press, 1983, pp. 20-34 and 341; F. Matscher, “La Posizione Processuale dell’Individuo come Ricorrente dinanzi agli Organi della Convenzione Europea dei Diritti dell’Uomo”, in Studi in Onore di Giuseppe Sperduti, Milano, Giuffrè, 1984, pp. 601-620; J.A. Carrillo Salcedo, Dignidad frente a Barbarie – La Declaración Universal de Derechos Humanos, Cincuenta Años Después, Madrid, Ed. Trotta, 1999, pp. 27-145; E.-I.A. Daes (rapporteur spécial), La condition de l’individu et le Droit international contemporain, U.N. doc. E/CN.4/Sub.2/1988/33, of 18.07.1988, pp. 1-92; R.A. Mullerson, “Human Rights and the Individual as Subject of International Law: A Soviet View”, 1 European Journal of International Law (1990) pp. 33-43. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels”, 202 RCADI (1987) pp. 32-33.

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VI. The Legal Personality of the Individual as a Response to a Need of the International Community International Law itself, in recognizing rights inherent to every human being, has dismissed the archaic positivist dogma which, in an authoritarian way, intended to reduce such rights to those “conceded” by the State. The recognition of the individual as subject of both domestic law and international law represents a true juridical revolution, – to which we have the duty to contribute in the search for the prevalence of superior values, – which comes at last to give an ethical content to the norms of both public domestic law and international law (supra). This transformation, proper of our time, corresponds, in its turn, to the recognition of the necessity that all States are made answerable for the way they treat all human beings who are under their jurisdiction, so as to avoid new violations of human rights. This accountability would simply not have been possible without the crystallization of the right of individual petition, amidst the recognition of the objective character of the positive obligations of protection and the acceptance of the collective guarantee of the compliance with them. This is the real meaning of the historical rescue of the individual as subject of the International Law of Human Rights88 (cf. supra). In fact, the recognition of the juridical personality of the individuals fulfi ls a true necessity of the international community,89 which today seeks to guide itself by common superior values.90 This expansion of the international legal personality, nowadays encompassing that of individuals, is a remarkable feature of the irreversible evolution of contemporary International Law itself.91 The international subjectivity of the human being (whether a child, an elderly person, a person with disability, a stateless person, or any other) erupted indeed with all vigour in the legal science of the XXth century, as a reaction of the universal juridical conscience against the successive atrocities committed 87 88

89 90

91

Ibid., pp. 411-412. Cf. Inter-American Court of Human Rights [IACtHR], Castillo Petruzzi and Others versus Peru case (Preliminary Objections), Judgment of 04.09.1998, Series C, n. 41, Concurring Opinion of Judge A.A. Cançado Trindade, p. 62, par. 35. As recognized decades ago (cf. supra). As it can be inferred, e.g., from the historical case of the “Street Children” (case Villagrán Morales and Others versus Guatemala) before the IACtHR (1999-2001), the international juridical subjectivity of the individuals is nowadays an irreversible reality, and the violation of their fundamental rights, emanated directly from the international legal order, brings about juridical consequences. C. Gutiérrez Espada, Derecho Internacional Público, Madrid, Ed. Trotta, 1995, pp. 32, 231 and 74-76.

The Legal Personality of the Individual as Subject of International Law

against the human kind. An eloquent testimony of the erosion of the purely interState dimension of the international legal order is found in the historical and pioneering Advisory Opinion n. 16 of the Inter-American Court of Human Rights [IACtHR], on the Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of 01.10.1999),92 which has served as orientation to other international tribunals and has inspired the evolution in statu nascendi of the international case-law on the matter. The IACtHR recognized, in the light of the impact of the corpus juris of the International Law of Human Rights on the international legal order itself, the crystallization of a true individual subjective right to information on consular assistance,93 of which is titulaire every human being deprived of his freedom in another country;94 furthermore, it broke away from the traditional purely interState outlook of the matter, extending support to numerous individuals victimized by poverty, discrimination, and deprived of freedom abroad. The subsequent Advisory Opinion n. 17 of the IACtHR, on the Juridical Condition and Human Rights of the Child (of 28.08.2002), fits into the same line of assertion of the juridical emancipation of the human being, in stressing the consolidation of the juridical personality of the child, as a true subject of law and not simple object of protection, and irrespective of the extent of his legal capacity to exercise his rights for himself (capacity of exercise). This is in accordance with the Kantian conception of every human person being ultimately an end in herself, irrespective of her existential condition. The juridical category of the international legal personality has not shown itself insensible to the necessities of the international community, among which appears with prominence that of providing protection to the human beings who compose it, in particular those who find themselves in a situation of special vulnerability, as do the children. In fact, doctrine and international case-law on the matter sustain that the subjects of law themselves in a legal system are endowed with attributes that fulfil the needs of the international community.95 Hence, – as Paul de Visscher pointed out perspicaciously, – while “the concept of juridical person is unitary as concept”, given the fundamental unity of the human person who “finds in herself the ultimate justification of her own rights”, the juridical capacity, on its turn, reveals a variety and multiplicity of scopes.96 But such varieties of the extent of the juridical capacity, – including its limitations in relation to, e.g., the children, the elderly persons, the persons with mental disability, the 92 93

94 95 96

IACtHR, Advisory Opinion OC-16/99, Series A, n. 16, pp. 3-123, pars. 1-141, and resolutory points 1-8. Set forth in Article 36(1) of the 1963 Vienna Convention on Consular Relations and linked to the guarantees of the due process of law under Article 8 of the American Convention on Human Rights. Cf. paragraph 82 of that Opinion. ICJ, Advisory Opinion on Reparations for Damages, ICJ Reports (1949) p. 178. Paul de Visscher, “Cours Général de Droit international public”, 136 RCADI (1972) p. 56, and cf. pp. 45 and 55.

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stateless persons, among others, – in no way affect the juridical personality of all human beings, as juridical expression of the dignity inherent to them. VII. The Attribution of Duties to the Individual Directly by International Law As already indicated, to the legal doctrine of the XXth century it did not pass unnoticed that individuals, besides being titulaires of rights at international level, also have duties which are attributed to them by International Law itself.97 And, – what is more significant, – the grave violation of those duties, reflected in the crimes against humanity, engages the international individual penal responsibility, independently from what provides the domestic law on the matter.98 Contemporary developments in International Criminal Law have, in fact, a direct incidence in the crystallization of both the international individual penal responsibility 99 and the principle of universal jurisdiction. It may be added that the decisions of the U.N. Security Council to create the ad hoc International Criminal Tribunals for the former Yugoslavia (1993) and for Rwanda (1994), added to the subsequent establishment of the permanent International Criminal Court (pursuant to the 1998 Rome Statute), for judging those responsible for grave violations of human rights and of International Humanitarian Law, gave a new impetus to the struggle of the international community against impunity, – as a violation per se of human rights, – besides reaffirming the principle of the international penal responsibility of the individual100 for such violations, and seeking thus to prevent future crimes.101 The process of criminalization of grave violations of human rights and of International Humanitarian Law has, in fact, marked the evolution of contempo97 98

Active and passive subjects of the legal relationship (cf. supra). M.Ch. Bassiouni, Crimes against Humanity in International Criminal Law, 2nd. rev. ed., The Hague, Kluwer, 1999, pp. 106 and 118; and cf. A. Cassese, International Criminal Law, Oxford, OUP, 2003, pp. 23-26. 99 The individual as subject, both active and passive, of International Law, titulaire of rights as well as bearer of duties emanated directly from the law of nations. 100 Cf., in this respect, e.g., D. Th iam, “Responsabilité internationale de l’individu en matière criminelle”, in International Law on the Eve of the Twenty-First Century – Views from the International Law Commission / Le droit international à l’aube du XXe siècle – Réflexions de codificateurs, N.Y., U.N., 1997, pp. 329-337. 101 The antecedents of these recent endeavours of establishment of and international criminal jurisdiction go back to the old ad hoc international commissions of inquiry (as from 1919), and above all the célèbres Tribunals of Nuremberg (established in August 1945) and of Tokyo (established in January 1946). Cf. M.R. Marrus, The Nuremberg War Crimes Trial 1945-1946 – A Documentary History, Boston/N.Y., Bedford Books, 1997, pp. 1-268; T. Maga, Judgment at Tokyo – The Japanese War Crimes Trials, Lexington, University Press of Kentucky, 2001, pp. 1-171; M.C. Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court”, 10 Harvard Human Rights Journal (1997) pp. 11-62.

The Legal Personality of the Individual as Subject of International Law

rary international law itself: the establishment of an international criminal jurisdiction is nowadays regarded as an element which strengthens International Law itself, overcoming basic insufficiencies of the past as to the incapacity to punish war criminals. The travaux préparatoires102 of the Statute of the permanent International Criminal Court, adopted at the Rome Conference of 1998, in contributing to the prompt recognition, in the ambit of application of the Statute, of the individual international criminal responsibility, – parallel to the responsibility of the State, – achieved a great doctrinal advance in the struggle against impunity for the gravest international crimes.103 Such advance, in our days, is due to the intensification of the clamour of all humankind against the atrocities which have victimized millions of human beings everywhere, – atrocities which can no longer be tolerated and which ought to be fought with determination.104 Attention ought to be drawn to the superior universal values which underlie the whole theme of the recent creation of an international criminal jurisdiction on a permanent basis, as well as the current process of criminalization of grave violations of human rights and of Humanitarian Law, – of crucial importance to the struggle against impunity.105 The consolidation of the international legal personality of individuals, as active as well as passive subjects of International Law, enhances accountability in International Law for abuses perpetrated against 102 Preceeded by the Draft Code of Offences against the Peace and Security of Mankind (first version, 1991), prepared by the U.N. International Law Commission, which, in 1994, concluded its (own) Draft Statute of a permanent International Criminal Court. 103 For a substantial and pioneering study, cf. C.Th. Eustathiades, “Les sujets du droit international...”, op. cit. supra n. (27), pp. 401-614. 104 To this end, the adoption by the Statute of the International Criminal Court by the 1998 Rome Conference constitutes an achievement of the international community as a whole, in the struggle against impunity and in defence of dignity of the human person. Cf., generally, e.g., M.Ch. Bassiouni (ed.), The Statute of the International Criminal Court – A Documentary History, Ardsley/N.Y., Transnational Publs., 1998, pp. 1-793; R.S. Lee (ed.), The International Criminal Court – The Making of the Rome Statute, The Hague, Kluwer, 1999, pp. 1-639; W.A. Schabas, An Introduction to the International Criminal Court, Cambridge, University Press, 2001, pp. 1-164. 105 As from its judgment (on the merits, of 08.03.1998) in the case of Paniagua Morales and Others versus Guatemala (also known as che “White Van” case), the IACtHR has consistently warned as to the State’s duty to struggle against impunity, and conceptualized impunity as “the total lack of investigation, prosecution, capture, trial and conviction of those responsible for violations of the rights protected by the American Convention”; it warned that “impunity fosters chronic recidivism of human rights violations, and total defencelessness of victims and their relatives” (Series C, n. 37, par. 173). The Court further affi rmed that the State’s duty to fight impunity (under Article 1(1) of the American Convention on Human Rights) required the organization of “the public power to guarantee to the persons under their jurisdiction the free and full exercise of human rights”, a duty which “imposes itself irrespective of the fact that those resposible for the violations of those rights are agents of the public power, private persons, or groups of them” (ibid., par. 174).

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human beings. Thus, individuals are also bearers of duties under International Law, and this reflects the consolidation of their international legal personality.106 Developments in international legal personality and international accountability bear witness of the formation of the opinio juris communis to the effect that the gravity of certain violations of fundamental rights of the human person affects directly basic values shared by the international community as a whole.107 VIII. Personality and Capacity: The Individual’s Access to Justice at International Level Ultimately, all Law exists for the human being, and the law of nations is no exception to that, guaranteeing to the individual his rights and respect for his personality at international level, by means of the exercise of the right of international individual petition.108 This latter appears as a truly fundamental clause (cláusula pétrea) of the human rights treaties which provide for it.109 As I have seen it fit to ponder, “The right of individual petition shelters, in fact, the last hope of those who did not find justice at national level. I would not refrain myself nor hesitate to add, – allowing myself the metaphor, – that the right of individual petition is undoubtedly the most luminous star in the universe of human rights”.110

106 H.-H. Jescheck, “The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the ICC Statute”, 2 Journal of International Criminal Justice (2004) p. 43. 107 Cf., e.g., A. Cassese, “Y a-t-il un conflit insurmontable entre souveraineté des États et justice pénale internationale?”, in Crimes internationaux et juridictions internationales (eds. A. Cassese and M. Delmas-Marty), Paris, PUF, 2002, pp. 15-29; and cf., generally, [Various Authors], La Criminalización de la Barbarie: La Corte Penal Internacional (ed. J.A. Carrillo Salcedo), Madrid, Consejo General del Poder Judicial, 2000, pp. 17-504. 108 Cf. chapter X, infra. 109 To which one can add, – insofar as the American Convention on Human Rights is concerned, – the other fundamental clause (cláusula pétrea) of the recognition of the competence of the Inter-American Court of Human Rights in contentious matters; A.A. Cançado Trindade, “Las Cláusulas Pétreas de la Protección Internacional del Ser Humano: El Acceso Directo de los Individuos a la Justicia a Nivel Internacional y la Intangibilidad de la Jurisdicción Obligatoria de los Tribunales Internacionales de Derechos Humanos”, in El Sistema Interamericano de Protección de los Derechos Humanos en el Umbral del Siglo XXI – Memoria del Seminario, vol. I, 2nd. ed., San José of Costa Rica, IACtHR, 2003, pp. 3-68. 110 IACtHR, case Castillo Petruzzi and Others versus Peru (Preliminary Objections), Judgment of 04.09.1998, Series C, n. 41, Concurring Opinion of Judge A.A. Cançado Trindade, p. 62, par. 35.

The Legal Personality of the Individual as Subject of International Law

Human rights do assert themselves against all forms or domination or arbitrary power.111 In the public hearings before the IACtHR (mainly those pertaining to reparations), a point which has particularly drawn my attention has been the remark, increasingly more frequent, on the part of the victims or their relatives, in the sense that, were it not for their access to the international instance, justice would never have been made in their concrete cases. Without the right of individual petition, and the consequent access to justice at international level, the rights set forth in human rights treaties would be reduced to a little more than dead letter. The human being emerges, at last, even in the most adverse conditions, as ultimate subject of Law, domestic as well as international. The case of the “Street Children” (case Villagrán Morales and Others versus Guatemala, 1999-2001), decided by the IACtHR, the first one of the kind in which the cause of the children abandoned in the streets was brought before an international human rights tribunal,112 and in which some of those marginalized and forgotten by this world succeeded to resort to an international tribunal to vindicate their rights as human beings, is truly paradigmatic,113 and gives a clear and unequivocal testimony that the International Law of Human Rights has nowadays achieved its maturity. As it can be inferred from this historical case of the “Street Children”, the international juridical subjectivity of the individuals is nowadays an irreversible reality, and the violation of their fundamental rights, emanated directly from the international legal order, brings about juridical consequences. As I have seen it fit to sum up in my Concurring Opinion in the aforementioned Advisory Opinion of the IACtHR on the Juridical Condition and Human Rights of the Child (2002), “every human person is endowed with juridical personality, which imposes limits to State power. The juridical capacity varies in virtue of the juridical condition of 111

A.A. Cançado Trindade, “The Future of the International Protection of Human Rights”, in B. Boutros-Ghali Amicorum Discipulorumque Liber – Paix, Développement, Démocratie, vol. II, Bruxelles, Bruylant, 1998, pp. 961-986. – On the need to overcome the current challenges and obstacles to the prevalence of human rights, cf. A.A. Cançado Trindade, “L’interdépendance de tous les droits de l’homme et leur mise-en-oeuvre: obstacles et enjeux”, 158 Revue internationale des sciences sociales – Paris/UNESCO (1998) pp. 571-582. 112 IACtHR, case Villagrán Morales and Others versus Guatemala, Judgment (merits) of 19.11.1999, Series C, n. 63, pars. 1-253, and Joint Concurring Opinion of Judges A.A. Cançado Trindade and A. Abreu Burelli, pars. 1-11. 113 In fact, in that case of the killing of the “Street Children”, the mothers of the murdered children (and the grandmother of one of them), as poor and abandoned as their sons (and grandson), had access to the international jurisdiction, appeared before the Court (public hearings of 28/29.01.1999 and of 12.03.2001), and, due to the judgments of the IACtHR (as to the merits, of 19.11.1999, and reparations, of 26.05.2001), which brought them redress, could at least recover their faith in human justice.

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Chapter IX each one to undertake certain acts. Yet, although such capacity of exercise varies, all individuals are endowed with juridical personality. Human rights reinforce the universal attribute of the human person, given that to all human beings correspond likewise the juridical personality and the protection of the Law, independently of her existential or juridical condition” (par. 34).

The international legal personality of human beings has in recent years been forcefully asserted, envisaging them not only in isolation but also in groups. The issue of the protection of minorities, for example, which occupied much space in the international agenda of the inter-war period (cf. supra), has reemerged in the post-cold war period114 (with the outbreak of so many internal armed conflicts in different latitudes); the entry into force, in February 1998, of the 1994 Framework Convention for the Protection of National Minorities of the Council of Europe, exemplifies the renewal of concern with the theme at issue. When one comes to minorities or human collectivities, it is, more precisely, the individuals who compose them that are subjects of International Law; thus, the protection they are entitled to, as such, is in fact extended, through them, to the groups they belong to. In this sense, the rights protected disclose an individual and a collective or social dimensions, but it is the human beings, members of such minorities or collectivities, who are, ultimately, the titulaires of those rights.115 In this respect, the endeavours undertaken in both the United Nations and the OAS, throughout the nineties, to reach the recognition of indigenous peoples’ rights through their projected and respective Declarations, pursuant to certain basic principles (such as, e.g., that of equality and non-discrimination), have emanated from human conscience. It has been suggested that those endeavours recognize the debt that humankind owes to indigenous peoples, due to the “historical misdeeds against them”, and a corresponding sense of duty to “undo the wrongs” done to them.116 This particular development has, likewise, contributed

114 Cf., generally, P. Thornberry, International Law and the Rights of Minorities, Oxford, Clarendon Press, 1992 [reprint], pp. 38-54; F. Ermacora, “The Protection of Minorities before the United Nations”, 182 RCADI (1983) pp. 257-347. 115 This approach was espoused by the IACtHR in the unprecedented decision (the first pronouncement of the kind by an international tribunal) in the case of the Community Mayagna (Sumo) Awas Tingni versus Nicaragua (2001), which safeguarded the right to communal property of their lands (under Article 21 of the American Convention on Human Rights) of the members of a whole indigenous community (cf. in particular paragraph 141 of the Court’s Judgment on the merits). There are also international instruments, like the 1989 ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention n. 169, in force as from 05.09.1991), which appear to lay more emphasis, as far as duties are concerned, on the human collectivities as such. 116 A. Meijknecht, Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law, Antwerpen/Groningen, Intersentia, 2001, pp. 228 and 233.

The Legal Personality of the Individual as Subject of International Law

to the expansion of the international legal personality of individuals (belonging to groups, minorities or human collectivities) as subjects of International Law. Still in respect of the human rights of individuals belonging to groups or human collectivities, in its more recent Advisory Opinion n. 18, on The Juridical Condition and Rights of Undocumented Migrants (of 17.09.2003), the IACtHR stressed that the migratory status cannot serve as justification for depriving them of the enjoyment and exercise of their human rights, including labour rights. It added that States cannot discriminate, or tolerate discriminatory situations, to the detriment of migrants, and ought to guarantee the due process of law to any person, irrespective of her migratory status.117 The Advisory Opinion of the Court thus benefitted a considerable number of persons, those belonging to numerous groups of undocumented migrants, exposed to all sorts of abuses in numerous countries nowadays. IX. Final Observations: The Historical Significance of the International Subjectivity of the Individual The international juridical subjectivity of the human being, as foreseen by the so-called founders of International Law (the droit des gens), is nowadays a reality. At this beginning of the XXIst century, this highly significant achievement can be appreciated within the framework of the historical process of humanization of International Law, – to which it is a privilege to be able to contribute, – which, always attentive to fundamental values, comes to occupy itself more directly with the realization of superior common goals. Furthermore, the international (active) subjectivity of the individuals fulfi ls a true necessity of their legitimatio ad causam, to vindicate their rights, emanated directly from International Law. In the ambit of the International Law of Human Rights, in the European and inter-American systems of protection, – endowed with international tribunals, and operating within the framework of the universality of human rights,118 – the recognition of the direct access of the individuals to the international justice reveals, at this beginning of the XXIst century, the new primacy of the raison de l’humanité over the raison d’État, inspiring the historical process of humanization of International Law. On the basis of the right of individual petition is erected the juridical mechanism of emancipation of the human being vis-à-vis his own State for the protection of his rights in the ambit of the International Law 117 The Court further warned that States cannot subordinate or condition the observance of the fundamental principle of equality before the law and non-discrimination to the aims of their migratory or other policies. In my Concurring Opinion I sustained that this fundamental principle belongs to the domain of jus cogens, and stressed the importance of the erga omnes obligations (encompassing also inter-individual relations) vis-à-vis the rights of undocumented migrants. 118 Cf., e.g., L. Hennebel, Le régionalisme comme garant de l’universalisme des droits de l’homme (doctoral thesis), vols. I-II, Brussels, Université Libre de Bruxelles, 2005, pp. 1-575.

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of Human Rights. Human conscience thus reaches in our days a degree of evolution which renders it possible to secure justice at international level by means of the safeguard of the rights inherent to the human person. The international legal subjectivity of the individuals is nowadays an irreversible reality, and the human being emerges, at last, even in the most adverse conditions, as the ultimate subject of Law, both domestic and international, endowed with full juridico-procedural capacity. Moreover, it should not pass unnoticed that individuals have already begun to participate effectively in the increasingly complex process of elaboration of norms of International Law, as illustrated by the growing presence and participation of entities of the civil society (NGOs and others) in the international legal order, as verified in the travaux préparatoires of recent treaties as well as along the cycle of the great World Conferences of the United Nations during the nineties and at the turn of the century,119 which addressed issues of concern to humankind as a whole. Those entities of civil society have also been dedicating themselves to monitor the observance of, and compliance with, the international norms, thus bringing to an end the States’ monopoly of the past in this domain. It is certain that, in this as in so many other domains of the discipline, it is no longer possible to approach International Law from a merely inter-State outlook. The subjects of International Law have, already for a long time, ceased to be reduced to territorial entities.120 It appears quite clear nowadays that there is nothing intrinsic to International Law that would impede, or render it impossible, to non-State “actors” to be endowed with international legal personality and capacity. Yet, part of the contemporary legal doctrine keeps on referring to individuals as “actors” (rather than subjects) in the international legal order. This is not a juridical term, it is rather a term of art, to which no specific juridical contents and consequences are necessarily attached. To call individuals “actors” in International Law is nothing but a platitude. They are true subjects of International Law, bearers of rights and duties which emanate directly therefrom. It is perfectly possible to conceptualize as subject of International Law any person or entity, titulaire of rights and bearer of obligations, which emanate directly from International Law. It is the case of individuals, who have their direct contacts – without intermediaries – with the international legal order thus fostered and strengthened. This evolution is to be appreciated in a wider dimension. The expansion of international legal personality, nowadays encompassing that of individuals as ac119 Cf. chapter XXVI, infra. 120 More than half a century ago, as acknowledged in the celebrated Advisory Opinion of the International Court of Justice on Reparations for Damages (1949), the advent of international organizations had put an end to the States’ monopoly of the international legal personality and capacity, with all the juridical consequences which ensued therefrom. Cf., for a general study on the matter, A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2003, pp. 9-853.

The Legal Personality of the Individual as Subject of International Law

tive and passive subjects of International Law, goes pari passu with the acknowledgment of accountability in International Law. This contributes ultimately to the international rule of law, to the realization of justice also at international level, thus fulfilling a long-standing aspiration of humankind. In reaction to the successive atrocities which, along the XXth century, have victimized millions and millions of human beings, in a scale until then unknown in the history of humankind, the universal juridical conscience – as the ultimate material source of all Law, – has restituted to the human being (final addressee of all legal norms, whether of national or international origin) his condition of subject of both domestic and International Law. Human beings were to benefit from that, and International Law was thereby enriched and justified. Having liberated itself from the chains of Statism, International Law again met with the conception of a true jus gentium, which, in its early beginnings, inspired its historical formation and evolution.121 In our days, the way is paved for the construction of a new jus gentium of the XXIst century, the International Law for humankind.

121 A.A. Cançado Trindade, “A Emancipação do Ser Humano como Sujeito do Direito Internacional e os Limites da Razão de Estado”, 6/7 Revista da Faculdade de Direito da Universidade do Estado do Rio de Janeiro (1998-1999) pp. 425-434.

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I.

The Legal Capacity of the Individual as Subject of International Law

Introduction

In the ambit of the considerable evolution of the corpus juris of the international protection of the human person in the last decades, at both normative and procedural levels, one ought to single out the historical and irreversible achievement of the access of the individual to justice at the international level, as a true emancipation of the human person from domination or arbitrary power. As all human beings are titulaires of rights which inhere in them as such, and which are prior to, and stand above, the State and all forms of political organization, the protection of such rights cannot exhaust itself in the action of the State. The norms of protection of those rights emanate directly from International Law.1 On the basis of this understanding, the way was paved for the assertion and consolidation of the international capacity of individuals to vindicate those rights directly at international level. II.

The International Legal Capacity of the Individual: Legal Foundations, Nature and Scope

1.

Legal Foundations of the Access of the Human Being to International Tribunals

In addition to the acknowledgement of their international legal personality,2 the access of the individuals to the contemporary international tribunals for the protection of their rights overcame the traditional doctrine of the domestic jurisdic-

1

2

A.A. Cançado Trindade, “The International Law of Human Rights at the Dawn of the XXIst Century”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacional – Castellón/Spain (1999) p. 213. A.A. Cançado Trindade, “A Emancipação do Ser Humano como Sujeito do Direito Internacional e os Limites da Razão de Estado”, in 6/7 Revista da Faculdade de Direito da Universidade do Estado do Rio de Janeiro (1998-1999) pp. 427-428 and 432433.

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tion of States (or “exclusive” national competence).3 The human person started having recourse to the international tribunals, to protect herself by norms of International Law from the arbitrariness of the State.4 Ultimately, all Law exists for the human being, and the law of nations is no exception to that, guaranteeing to the individual his rights and respect for his personal integrity. The question of the procedural capacity of the individuals before the International Court of Justice [ICJ], and its predecessor the Permanent Court of International Justice [PCIJ], was effectively considered on the occasion of the original drafting, by a Committee of Jurists appointed by the old League of Nations, of the Statute of the PCIJ, in 1920. Of the ten members of the aforementioned Committee of Jurists, only two – Loder and De Lapradelle – pronounced themselves in favour of enabling the individuals to appear as parties before the Hague Court (jus standi) in contentious cases against (foreign) States. The majority of the Committee, however, was firmly opposed to this proposition: four members5 objected that the individuals were not subjects of International Law (and could not, thus, in their view, be parties before the Court) and that only the States were juridical persons in the international order, – in what they were followed by the other members.6 The position which prevailed in 1920 – which has been surprisingly and regrettably maintained in Article 34(1) of the Statute of the PCIJ to date – was promptly and strongly criticized in the more lucid doctrine of the epoch (already in the twenties). Thus, in his memorable monograph Les nouvelles tendances du Droit international (1927), Nicolas Politis pondered that the States are no more than fictions, composed as they are of individuals, and that all Law ultimately aims at the human being, and nothing more than the human being7: this is something “so evident”, – he added, that “il serait inutile d’y insister si les brumes de la souveraineté n’avaient pas obscurci les vérités les plus élémentaires”.8

3 4

5 6

7 8

Cf. chapter VII, supra. F.A. von der Heydte, “L’individu et les tribunaux internationaux”, 107 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1962) pp. 329-333, 345 and 356-357, and cf. pp. 301-302; and cf. also, in this respect, e.g., E.M. Borchard, “The Access of Individuals to International Courts”, 24 American Journal of International Law [AJIL] (1930) pp. 359-365. Ricci-Busatti, Baron Descamps, Raul Fernandes and Lord Phillimore. Cf. account in J. Spiropoulos, L’individu en Droit international, Paris, LGDJ, 1928, pp. 50-51; N. Politis, op. cit. infra n. (7), pp. 84-87; M.St. Korowicz, “The Problem of the International Personality of Individuals”, 50 AJIL (1956) p. 543. N. Politis, Les nouvelles tendances du Droit international, Paris, Libr. Hachette, 1927, pp. 76-77 and 69. Ibid., pp. 77-78.

The Legal Capacity of the Individual as Subject of International Law

And Politis proceeded in the defence of the granting to individuals of the direct appeal to international instances to vindicate their “legitimate interests”, what would present the advantage, e.g., of depoliticizing the classic procedure, that of the inter-State contentieux (the discretionary diplomatic protection). And, at last, he advanced a forecast, in the sense that the direct action of the individuals at international level would be accomplished, sooner or later, because it “responds to a true necessity of international life”.9 Another criticism to the solution adopted in the matter by the Statute of the PCIJ (Article 34(1), cf. supra) was formulated by J. Spiropoulos, also in the twenties, for whom that was no impediment for conventional International Law to secure to individuals a direct action at international level (there having even been precedents in this sense in the inter-war period); if this did not occur and one would limit oneself to judicial actions at domestic law level, not seldom the State would become “judge and party” at the same time, what would be an incongruity. To the author, the international legal order can address itself directly to individuals (as exemplified by the peace treaties of the inter-war period), thereby erecting them into the condition of subjects of International Law, to the extent that a direct relationship is established between the individual and the international legal order, which renders him “directly titulaire of rights or of obligations”; thus, one cannot fail to admit the international legal personality of the individual.10 Moreover, the individual ought to be able to defend himself his rights at international level, “independently of any tutelage of his State”, and “even against his own State”.11 Without the granting to individuals of direct means of action at international level, his rights will continue “without sufficient protection”; only with such direct action before an international instance, – he added, – an effective protection of human rights will be achieved, in conformity with “the spirit of the new international order”. “Certain limits” ought to be established to the authority of the State, – he concluded, – which is not an end in itself, but rather a means for the “satisfaction of the human needs”.12 The exclusively inter-State character of the contentieux before the ICJ has not appeared satisfactory at all. At least in some cases, pertaining to the condition of individuals, the presence of these latter (or of their legal representatives), to submit, themselves, their positions, would have enriched the proceedings and facilitated the work of the Court.13 In such cases, one cannot fail to recognize that 9 10 11 12 13

Ibid., pp. 82-83 and 89-90, and cf. pp. 92 and 61. J. Spiropoulos, op. cit. supra n. (6), pp. 50-51, 25, 31-33 and 40-41. Ibid., p. 44, and cf. pp. 49 and 64-65. Ibid., pp. 51-52 and 61-62, and cf. pp. 53 and 66. One may recall, e.g., the classic Nottebohm case on double nationality (Liechtenstein versus Guatemala, 1955), the case concerning the Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands versus Sweden, 1958), the cases of the Trial of Pakistani Prisoners of War (Pakistan versus India, 1973), of the Hostages (United States Diplomatic and Consular Staff in Tehran) (United States versus Iran, 1980), of East Timor (Portugal versus Australia, 1995), of the Application

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the predominant element was precisely the concrete situation of human beings, and not mere abstract questions of exclusive interest of contending States in their relations inter se. The artificiality14 of the exclusively inter-State character of the contentieux before the ICJ15 is, thus, clearly disclosed by the very nature of certain cases submitted to its consideration. The solution adopted by the Statute of the old PCIJ, and fossilized with the passing of time in the Statute of the ICJ until the present, is still more open to criticism if we consider that, already in the first half of the XXth century, there were international law experiments which effectively granted international procedural capacity to the individuals. Examples are provided by the system of navigation of the river Rhine, the Project of an International Prize Court (1907), the Central American Court of Justice (1907-1917, a pioneering international tribunal which granted direct access to States as well as individuals), as well as, in the era of the League of Nations, the systems of minorities (including Upper Silesia) and of territories under mandate, the systems of petitions of the Aaland Islands and of the Saar, besides the practice of mixed arbitral tribunals and of mixed claims commissions, of the same epoch.16 This evolution intensified in the era of the United Nations, with the adoption of the system of individual petitions under some of the contemporary human rights treaties of universal character, and, above all, at regional level, under the European and American Conventions on Human Rights, which established

14

15

16

of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina versus Yugoslavia, 1996), as well as the cases Breard (Paraguay versus United States, 1998), LaGrand (Germany versus United States, 2001), and Avena (Mexico versus United States, 2004). For criticisms of such artificiality by a former President of the ICJ itself, cf. R.Y. Jennings, “The International Court of Justice after Fifty Years”, 89 AJIL (1995) pp. 504-505. Already in the late sixties, S. Rosenne warned that there was nothing inherent to the character of the ICJ itself that justified the entire exclusion of an individual from the procedings before it (that might be of his direct interest); cf. S. Rosenne, “Reflections on the Position of the Individual in Inter-State Litigation in the International Court of Justice”, in International Arbitration Liber Amicorum for M. Domke (ed. P. Sanders), The Hague, Nijhoff, 1967, p. 249, and cf. p. 242. – The practice of exclusion of the locus standi in judicio of the individuals concerned before the ICJ, – added Rosenne, – besides being artificial, in certain contentious cases may even produce “incongruent results”; it thus becomes “highly desirable” that such scheme be reconsidered, in a way to permit that the individuals concerned themselves can appear before the ICJ (locus standi) to present directly before this latter their arguments in contentious cases (ibid., p. 249, and cf. p. 243). For a study, cf., e.g.: A.A. Cançado Trindade, “Exhaustion of Local Remedies in International Law Experiments Granting Procedural Status to Individuals in the First Half of the Twentieth Century”, 24 Netherlands International Law Review (1977) pp. 373-392; M.St. Korowicz, Une expérience de Droit international – La protection des minorités de Haute-Silésie, Paris, Pédone, 1946, pp. 81-174; among others.

The Legal Capacity of the Individual as Subject of International Law

international tribunals (the European and Inter-American Courts, respectively) of human rights. In fact, the access of individuals to the international tribunals (European and Inter-American Courts) of human rights reveals a renewal of International Law – in the sense of its humanization:17 the individual is erected into subject of International Law, endowed with international procedural capacity. 2.

Juridical Nature and Scope of the Right of International Individual Petition

The right of individual petition, whereby to the individual is secured the direct access to justice at international level, is a definitive achievement of the International Law of Human Rights.18 It is of the essence itself of the international protection of human rights the contraposition between individual complainants and respondent States in cases of alleged violations of the protected rights. It was precisely in this context of protection that the historical rescue took place of the position of the human being as subject of the International Law of Human Rights, endowed with full international procedural capacity. Three centuries of an international legal order crystallized, as from the treaties of peace of Westphalia (1648), on the basis of the co-ordination of independent nation-States, of the juxtaposition of absolute sovereignties, led to the exclusion from that legal order of the individuals as subjects of rights. At international level, States assumed the monopoly of the condition of subjects of rights; individuals, for their protection, were left entirely at the mercy of the discretionary intermediation of their nation-States. The international legal order thus erected, – which the excesses of legal positivism attempted in vain to justify, – excluded therefrom precisely the ultimate addressee of the juridical norms: the human being. Three centuries of an international legal order thus marked by the prevalence of State sovereignties and by the marginalization of individuals were incapable to avoid the massive violations of human rights, perpetrated in all regions of the world, and the successive atrocities of the last century, including the ones that take place nowadays.19 Such atrocities awoke the universal juridical conscience to the necessity to reconceptualize the foundations themselves of the international legal order, restoring to the human being the central position from where he had been displaced. This reconstruction, on humanist foundations, took as concep17 18

19

Cf. chapter IX, supra. A.A. Cançado Trindade, “El Derecho de Petición Individual ante la Jurisdicción Internacional”, 48 Revista de la Facultad de Derecho de México – UNAM (1998) pp. 131-151. Such as the holocaust, the gulag, followed by new acts of genocide, e.g., in SouthEast Asia, in central Europe (the former Yugoslavia), in Africa (Rwanda), among others; for a recent account, cf., e.g., B. Bruneteau, Le siècle des génocides – Violences, massacres et processus génocidaires de l’Arménie au Rwanda, Paris, A. Colin, 2004, pp. 5-233.

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tual basis entirely distinct canons, such as those of the realization of superior common values and the common good, of the human being as subject of rights, and of the objective character of the obligations of protection.20 The international order of sovereignties has at last yielded to that of solidarity. This profound transformation of the international legal order, precipitated as from the Universal and American Declarations of Human Rights of 1948, has not taken place without difficulties, precisely for requiring a new mentality. It underwent, moreover, stages, some of which no longer sufficiently studied nowadays, also with regard to the consolidation of the right of individual petition. Already in the beginnings of the exercise of this right it was stressed that, although motivated by the search for individual redress, the right of petition contributed also to secure respect for the obligations of objective character incumbent upon States Parties.21 In several cases the exercise of the right of petition has gone even further, generating changes in the domestic legal order and in the practice of the public organs of the State.22 The significance of the right of individual petition can only be appropiately assessed in historical perspective.23 That transformation, proper of our times, corresponds to the recognition of the necessity that all States, in order to avoid new violations of human rights, are made responsible for the way they treat all human beings who are under their jurisdiction. This would simply not have been possible without the consolidation of the right of individual petition, amidst the recognition of the aforementioned objective character of the obligations of protection, and the acceptance of the collective guarantee of compliance with these latter. This is the real meaning of 20

21

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23

With a direct incidence of those canons in the methods of interpretation of the international norms of protection, without necessarily departing from the general rules of interpretation of treaties set forth in Articles 31-33 of the two Vienna Conventions on the Law of Treaties (of 1969 and 1986). For example, under the original Article 25 of the European Convention on Human Rights (prior to Protocol n. 11), cf. H. Rolin, “Le rôle du requérant dans la procédure prévue par la Commission européenne des droits de l’homme”, 9 Revue hellénique de droit international (1956) pp. 3-14, esp. p. 9; C.Th. Eustathiades, “Les recours individuels à la Commission européenne des droits de l’homme”, in Grundprobleme des internationalen Rechts – Festschrift für Jean Spiropoulos, Bonn, Schimmelbusch & Co., 1957, p. 121; F. Durante, Ricorsi Individuali ad Organi Internazionali, Milano, Giuff rè, 1958, pp. 125-152, esp. pp. 129-130; among others. With the development of the International Law of Human Rights, it is Public International Law itself which is enriched, in the assertion of canons and principles proper to the present domain of protection, grounded on fundamentally distinct premises from those which have guided its postulates at the level of purely interState relations. The International Law of Human Rights thus comes to affi rm the aptitude of Public International Law to secure, in the present context, compliance with the international obligations of protection on the part of States vis-à-vis all human beings under their jurisdictions. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 100-121.

The Legal Capacity of the Individual as Subject of International Law

the historical rescue of the individual as subject of the International Law of Human Rights. The assessment of the right of individual petition as a method of international implementation of human rights has necessarily to take into account the basic point of the legitimatio ad causam of the petitioners and of the conditions of the use and the admissibility of the petitions (set forth in the distinct instruments of human rights which foresee them). It has been particularly under the European Convention on Human Rights that a vast case-law on the right of individual petition at first evolved.24 Both the old European Commission [EComHR] and the European Court [ECtHR] of Human Rights understood that the concept itself of victim25 was to be interpreted autonomously under the Convention. This understanding today finds solid support in the jurisprudence constante under the Convention, to the effect that the concept of “victim” (under original Article 25) ought to be interpreted in an autonomous way and independently of concepts of domestic law such as those of the interest or quality to interpose a judicial action or to participate in a legal process.26 Thus, in the case Norris versus Ireland (1988), the ECtHR pondered that the conditions which govern individual petitions under Article 25 of the Convention “are not necessarily the same as national criteria relating to locus standi”, which may even serve purposes distinct from those contemplated in the aforementioned Article 25.27 The autonomy of the right of individual petition at international level vis-à-vis provisions of domestic law thus clearly ensues therefrom. The elements singled out in this case-law of protection apply equally under procedures of other human rights treaties which require the condition of “victim” for the exercise of the right of individual petition.28 24

25 26

27 28

It did so recognizing to this latter autonomy, distinct as it is from the substantive rights listed in title I of the European Convention. Any obstacle interposed by the State Party at issue to its free exercise would bring about, therefore, an additional violation of the Convention, parallel to other violations which become proved of the substantive rights enshrined in this latter. In the light of [original] Article 25 of the Convention. Cf. in this sense: EComHR, case Scientology Kirche Deutschland e.V. versus Germany (1997), 89 Decisions and Reports (1997) p. 170; EComHR, case Greek Federation of Customs Officials, N. Gialouris, G. Christopoulos and 3333 Other Customs Officials versus Greece (1995), 81-B Decisions and Reports (1995) p. 127; EComHR, case K. Sygounis, I. Kotsis and Police Union versus Greece (1994), 78 Decisions and Reports (1994) p. 77; EComHR, case Association of Air Pilots of the Republic, J. Mata et Al. versus Spain (1985), 41 Decisions and Reports (1985) p. 222. – According to this same case-law, to fulfi l the condition of “victim” (under Article 25) there ought to be a “sufficiently direct link” between the individual complainant and the alleged damage, resulting from the alleged violation of the Convention. ECtHR, case Norris versus Ireland, Judgment of 26.10.1988, Series A, vol. 142, p. 15, par. 31. On the evolution of the notion of “victim” (including the potential victim) in the International Law of Human Rights, cf. A.A. Cançado Trindade, “Co-existence and

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In the inter-American system of protection of human rights, the right of individual petition has constituted an effective way of facing not only individual cases but also massive and systematic violations of human rights,29 even before the entry into force of the American Convention on Human Rights (i.e., in the early practice of the Inter-American Commission on Human Rights [IAComHR]). Its importance has been fundamental, and could never be minimized. The consolidation of the right of individual petition under Article 44 of the American Convention on Human Rights was endowed with special significance. Not only was its importance, for the mechanism of the Convention as a whole, duly emphasized in the travaux préparatoires of that provision of the Convention,30 but it also represented an advance in relation to what, until the adoption of the Pact of San José in 1969, had been achieved in that respect, in the ambit of the International Law of Human Rights. The European Convention, in turn, only accepted the right of individual petition originally enshrined in an optional clause (Article 25 of the Convention), conditioning the legitimatio ad causam to the demonstration of the characterization of victim by the individual complainant, – what, in its turn, generated a remarkable jurisprudential development of the notion of “victim” under the European Convention. The American Convention, in a distinct way, rendered the right of individual petition (Article 44 of the Convention) mandatory, of automatic acceptance by the ratifying States, extending it to “any person or group of persons, or any non-governmental entity legally recognized in one or more member States” of the Organization of American States (OAS), – what discloses the capital importance attributed to it.31 This was, recognizedly, one of the great advances achieved by the American Convention, at conceptual and normative, as well as operational, levels. One has to bear always in mind the autonomy of the right of individual petition vis-à-vis

29

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31

Co-ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels)”, 202 RCADI (1987) pp. 243-299, esp. pp. 262-283. I thus regret not to be able to share the insinuation present in part of the contemporary European specialized bibliography on the matter, in the sense that the right of individual petition would perhaps not be effective in relation to massive and systematic violations of human rights. The experience accumulated from the other side of the Atlantic, in the inter-American system of protection, points exactly to the opposite sense, and thanks to the right of individual petition many lives have been saved and justice has been accomplished in concrete cases amidst generalized situations of violations of human rights. Cf. OAS, Conferencia Especializada Interamericana sobre Derechos Humanos – Actas y Documentos (San José of Costa Rica, 07-22 November 1969), doc. OAS/Ser. K/XVI/1.2, Washington D.C., OAS General Secretariat, 1978, pp. 43, 47 and 373. The other type of petition, the inter-State one, was only provided for on an optional basis (Article 45 of the American Convention, unlike the scheme of the original European Convention – Article 24 – in this particular), again stressing the great relevance attributed in particular to the right of individual petition by the American Convention.

The Legal Capacity of the Individual as Subject of International Law

the domestic law of the States. Its relevance cannot be minimized, as it may occur that, in a given domestic legal order, an individual may feel unable, by the circumstances of a legal situation, to take legal measures by himself. He will not thereby be deprived of doing it in the exercise of the right of individual petition under the American Convention, or another human rights treaty. It would thus not be justified that, after slightly over a quarter of a century of operation of the American Convention,32 one would admit to surround with restrictions the wide extent of the legitimatio ad causam, on the part of any person, under Article 44 of the American Convention. Such legitimatio is extended to every and any petitioner, who can even do without a manifestation on the part of the victim herself. The right of individual petition, thus widely conceived, has as an immediate effect the enlargement of the extent of protection, above all in cases in which the victims (e.g., those detained incommunicado, disappeared persons, among other situations) find themselves unable to act motu propio, and stand in need of the iniciative of a third party as petitioner in their behalf. Nationality disappears as a vinculum juris for the exercise of protection (differently from the discretionary diplomatic protection in the inter-State contentieux, based upon fundamentally distinct premises), sufficing that the individual complainant -irrrespective of nationality or domicile – is (even though temporarily) under the jurisdiction of one of the States Parties to the human rights treaty at issue. The denationalization of the protection and the requisites of the international action of safeguard of human rights,33 besides sensibly widening the circle of protected persons, enabled the individuals to exercise rights emanated directly from International Law (the droit des gens), implemented in the light of the aforementioned notion of collective guarantee, and no longer simply “granted” by the State. III. The Emancipation of the Individual from His Own State Each of the procedures which regulate the right of individual petition under international treaties and instruments of human rights, despite differences in their legal nature, has contributed, in its own respective way, to the gradual strengthening of the procedural capacity of the complainant at international level.34 In 32 33

34

As from its entry into force, on 18 July 1978. On the conditions of admissibility of individual petitions under human rights treaties, cf., e.g., T. Zwart, The Admissibility of Human Rights Petitions, Dordrecht, Nijhoff, 1994, pp. 1-237; A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, Cambridge, Cambridge University Press, 1983, pp. 1-472; M. Pinto, La Denuncia ante la Comisión Interamericana de Derechos Humanos, Buenos Aires, Ed. del Puerto, 1993, pp. 23-184. In an express recognition of the relevance of the right of individual petition, the Declaration and Programme of Action of Vienna, the main document adopted by the II World Conference of Human Rights (1993), called for its adoption, as an additional method of protection, by means of Optional Protocols to the Convention on

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fact, of all the mechanisms of international protection of human rights, the right of individual petition is the most dynamic one, in even granting the initiative of action to the individual himself (the ostensibly weaker party vis-à-vis the public power), distinctly from the exercise ex officio of other methods (such as those of fact-finding and reports) on the part of the international supervisory organs. It is the one which best reflects the specificity of the International Law of Human Rights, in comparison with other solutions proper to Public International Law. In the public hearings before the Inter-American Court of Human Rights [IACtHR], in distinct cases, – above all in the hearings pertaining to reparations, – a point which has particularly drawn my attention has been the observation, increasingly more frequent, on the part of the victims or their relatives, to the effect that, had it not been for the access to the international instance, justice would never have been done in their concrete cases. Without the right of individual petition, and the consequent access to justice at international level, the rights enshrined into the European and American Conventions would be reduced to a little more than dead letter. It is by the free and full exercise of the right of individual petition that the rights set forth in the aforementioned Conventions (added to the African Charter on Human and Peoples’ Rights) become effective. The right of individual petition shelters, in fact, the last hope of those who did not find justice at national level. The right of individual petition – as I have been upholding for years – is a fundamental clause (cláusula pétrea) of the human rights treaties that provide for it, upon which is erected the juridical mechanism of the emancipation of the human being vis-à-vis his own State for the protection of his rights in the ambit of the International Law of Human Rights.35 In its Judgment in the case of Castillo Petruzzi and Others versus Peru (preliminary objections, 1998), the IACtHR safeguarded the integrity of the right of individual petition (challenged by the respondent State) under the American Convention (Article 44) in the circumstances of the case.36 The indispensable and ineluctable complement of the right of international individual petition lies in the intangibility of the jurisdiction of the international tribunals of human rights.37 In this connection, it may be recalled that, shortly

35 36 37

the Elimination of All Forms of Discrimination against Women (already adopted) and to the Convenant on Economic, Social and Cultural Rights (not yet adopted); cf. Declaration and Programme of Action of Vienna of 1993, part II, pars. 40 and 75, respectively. That document moreover recommended to the States Parties to human rights treaties the acceptance of all available optional procedures of individual petitions or communications (part II, par. 90). IACtHR, case of Castillo Petruzzi and Others versus Peru (preliminary objections, 1998), Concurring Opinion of Judge A.A. Cançado Trindade, pars. 35-36. On the importance of that right, cf. in particular paragraph 77 of the Judgment. Para um estudo recente, cf. A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 17-96, esp. pp. 61-76.

The Legal Capacity of the Individual as Subject of International Law

after the Court’s Judgment in the case of Castillo Petruzzi and Others versus Peru, the respondent State (under the Presidency of Mr. A. Fujimori) announced the “withdrawal” of its instrument of acceptance of the Court’s compulsory jurisdiction, with “immediate effects”. In its two Judgments on competence of 24 September 1999, in the cases of the Constitutional Tribunal and of Ivcher Bronstein versus Peru, the IACtHR, in asserting its competence to adjudicate on those cases, declared inadmissible the intended “withdrawal” by the respondent State of its contentious jurisdiction with “immediate effects”. The Court warned that its competence could not be conditioned by acts distinct from those of its own. It added that, in recognizing its contentious jurisdiction, a State accepts the prerrogative of the Court to decide on any question affecting its competence, being unable, later on, to attempt to withdraw suddenly from it, as that would undermine the whole international mechanism of protection. The IACtHR pondered that there exist unilateral acts of the States which are completed by themselves, in an autonomous way (such as the recognition of State or government, diplomatic protest, promise, renunciation), and unilateral acts performed in the ambit of the law of treaties, governed and conditioned by this latter (such as ratification, reservations, acceptance of the clause of contentious jurisdiction of an international tribunal). The American Convention could not be at the mercy of limitations no provided for by it, imposed suddenly by a State Party for reasons of domestic order. The American Convention did not foresee the unilateral withdrawal of a clause, and even less of a clause of the importance of the one which provided for the acceptance of the contentious jurisdiction of the Court.38 The IACtHR thus proceeded with its examination of the pending contentious cases against the Peruvian State, – and it could not have been otherwise: this was a duty incumbent upon it, under the American Convention, as an autonomous judicial organ of international protection of human rights.39 The Court then decided, in conclusion, that the intended “withdrawal” of the respondent State was “inadmissible”.

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The sole possibility which the American Convention foresaw was, – the IACtHR recalled, – that of the denunciation (of the Convention as a whole), with the observance of a 12-month lapse of time, and without comprising facts prior to the denunciation. This was the same lapse of time set forth in the Vienna Convention on the Law of Treaties of 1969. Th is was an imperative of juridical security, which ought to be rigorously observed in the interest of all States Parties. The respondent State had undertaken an international engagement from which it could not, all of a sudden, withdraw in its own terms. The purported unilateral “withdrawal” with “immediate effects” of the respondent State had no juridical foundation, – neither in the American Convention, nor in the law of treaties, nor in general international law. The intended “withdrawal”, besides being unfounded, would have brought about the ruin, to the detriment of all States Parties to the American Convention, of the inter-American system of protection as a whole, constructed with so much effort along the last decades.

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With its important and historical decision in those cases the Court safeguarded the integrity of the American Convention,40 which, as the other human rights treaties, bases its application on the collective guarantee in the operation of the international mechanism of protection. In fact, the principle of effectiveness (ut res magis valeat quam pereat/effet utile) comprises both the substantive and the procedural provisions of human rights treaties, and the objective character of the obligations of protection and the notion of collective guarantee underlying those treaties have primacy over additional restrictions interposed by individual States. The Court’s aforementioned Judgments, in the cases of the Constitutional Tribunal and of Ivcher Bronstein versus Peru, contributed ultimately to enhance the foundation of its jurisdiction in contentious matters. With the subsequent change in government in the country, the Peruvian State rendered “without effects” the earlier purported “withdrawal” from the Court’s competence, and “normalized” its relations with this latter (on 09 February 2001),41 then complying with its Judgments.42 The international remedy which individuals were granted by the right of individual petition under the American Convention was likewise safeguarded: the individual’s international procedural capacity thereunder became effective beyond question. The old and discredited voluntarist conception of the international legal order had yielded to a new outlook, that of the emancipation of the individual from his own State, and of the safeguard of the rights inherent to the human person. This is what I have been sustaining for years within the IACtHR. That emancipation of the individual culminates in the consolidation of his international procedural capacity. As I have pointed out in my Concurring Opinion in the case of Castillo Petruzzi and Others (preliminary objections, 1998, pars. 42-43) and in my Separate Opinion in the case of the Gómez Paquiyauri Brothers (merits, 2004, par. 28), both concerning Peru,

40

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Cf., subsequently, to the same effect, the Court’s judgments in the cases of Hilaire, Benjamin and Constantine versus Trinidad and Tobago (preliminary objections, 2001). On that date, the Minister of Justice of Peru visited the headquarters of the Court in San José of Costa Rica, and handled to the Court’s President two notes, whereby the Peruvian State expressly recognized its international responsibility for the violation of the rights of the three dismissed Judges from the Constitutional Tribunal, as well as of Mr. B. Ivcher Bronstein (with regard to the Court’s Judgments, on the merits, of 31.01.2001, and 06.02.2001, respectively), and informed of the measures the Peruvian State was taking in order to reestablish the rights of those persons. IACtHR, Press Release CDH-CP2/01, of 09.02.2001, pp. 1-2. For a historical account of this episode, cf. A.A. Cançado Trindade, “El Perú y la Corte Interamericana de Derechos Humanos – Una Evaluación Histórica (Part I)”, in: 138 Ideele – Revista del Instituto de Defensa Legal – Lima/Peru (June 2001) pp. 108-113; A.A. Cançado Trindade, “El Perú y la Corte Interamericana de Derechos Humanos (Part II)”, in: 139 Ideele – Revista del Instituto de Defensa Legal – Lima/ Peru (July 2001) pp. 85-88.

The Legal Capacity of the Individual as Subject of International Law “This means to seek to secure, not only the direct representation of the victims or their relatives (locus standi) in the procedure before the Inter-American Court in cases already forwarded to it by the Commission (in all stages of the proceedings and not only in that of reparations), but rather the right of direct access of individuals before the Court itself (jus standi), so as to bring a case directly before it (...).43 (...) Above all, this qualitative advance would fulfi ll, in my understanding, an imperative of justice. The jus standi – no longer only locus standi in judicio, - without restrictions, of individuals, before the Inter- American Court itself, represents, – as I have indicated in my Opinions in other cases before the Court,44 – the logical consequence of the conception and formulation of rights to be protected under the American Convention at international level, to which it ought to correspond necessarily the full juridical capacity of the individual petitioners to vindicate them”.

IV. The Locus Standi of Individuals in the Procedures before International Human Rights Tribunals The prevalence of this new outlook is, in my view, in historical perspective, one of the great achievements of International Law in our times: it is materialized by means of the access of individuals to the international instances of protection of their rights and the recognition of their international procedural capacity in cases of violations of human rights. When the systems of protection under the European and the American Conventions on Human Rights were conceived, the mechanisms then adopted did not originally provide for direct representation of individuals in the procedures before the two international human rights tribunals created by the two Conventions (the ECtHR and the IACtHR). The resistances, then manifested,45 – proper of another epoch and under the spectre of State sovereignty, – to the establishment of a new international jurisdiction for the safeguard of human rights, were gradually overcome, in a reassuring evolution which can here be succintly reviewed.46

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To that end, individuals would do without the Inter-American Commission, which would, nevertheless, retain functions (like those of fact-fi nding and elaboration of reports) other than the contentious one, prerrogative of the future permanent IACtHR. Cf., in this sense, my Separate Opinions in the cases of Castillo Páez (preliminary objections, Judgment of 30.01.1996), pars. 14-17, and of Loayza Tamayo (preliminary objections, Judgment of 31.01.1996), pars. 14-17, respectively, both concerning Peru. Which led to the intermediation of the European and Inter-American Commissions of Human Rights, thereby trying to avoid or circumvent the direct access of individuals to the two regional (European and Inter-American) tribunals of human rights. For a detailed account, cf. A.A. Cançado Trindade, El Acceso Directo del Individuo..., op. cit. supra n. (37), pp. 9-104.

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1.

Developments in the European System of Protection

Already in the examination of its first contentious cases, both the ECtHR and the IACtHR manifested themselves against the artificiality of the originally adopted scheme of intermediation by the EComHR and the IAComHR, respectively, between them and the individual complainants. It may be recalled that, quite soon, since the Lawless versus Ireland case (1960), the ECtHR began to receive, by means of the delegates of the EComHR, written arguments of the individual complainant themselves, which not seldom contained criticisms in relation to the views expounded by the EComHR itself. This measure was regarded as a sensible one, as the arguments of the alleged victims did not have to coincide entirely with those of the delegates of the Commission. One decade later, during the proceedings in the so-called Vagrancy cases, concerning Belgium (1970), the ECtHR accepted the Commission’s request to give the floor to a lawyer of the three petitioners; in taking the floor, their lawyer criticized, on a given point, the opinion expressed by the EComHR in its report on the case.47 The way was paved for the subsequent developments, namely: the granting of locus standi to the legal representatives of the individual complainants before the ECtHR (by means of the reform of the Court’s Rules of Procedure of 1982, in force as from 01.01.1983) in cases lodged with it by the Commission or the States Parties,48 followed by the adoption of Protocol n. 9 (of 1990) to the European Convention (which entered into force on 01.10.1994). As pointed out by the Explanatory Report of the Council of Europe on the matter, Protocol n. 9 granted “a type of locus standi” to the individuals before the Court, undoubtedly an advance, but which did not secure them yet the “equality of arms/égalité des armes” with the respondent States and the full benefit of the utilization of the mechanism of the European Convention for the vindication of their rights.49 In any case, relations between the ECtHR and the individual complainants became direct, without counting necessarily on the intermediation of the delegates of the EComHR. This pursued a certain logic, as the roles of the complainants and of the Commission are distinct; as the ECtHR pointed out already in its

47 48

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Cf. M.-A. Eissen, El Tribunal Europeo de Derechos Humanos, Madrid, Civitas, 1985, pp. 28-36. For a detailed study, cf. P. Mahoney, “Developments in the Procedure of the European Court of Human Rights: the Revised Rules of Court”, 3 Yearbook of European Law (1983) p. 127-167. On Protocol n. 9 (adopted in 1990) to the European Convention, cf. Council of Europe, Protocol n. 9 to the Convention for the Protection of Human Rights and Fundamental Freedoms – Explanatory Report, Strasbourg, C.E., 1992, pp. 3-18; J.-F. Flauss, “Le droit de recours individuel devant la Cour européenne des droits de l’homme – Le Protocole n. 9 à la Convention Européenne des Droits de l’Homme”, 36 AFDI (1990) pp. 507-519; G. Janssen-Pevtschin, “Le Protocole Additionnel n. 9 à la Convention Européenne des Droits de l’Homme”, 2 Revue trimestrielle des droits de l’homme (1991) n. 6, pp. 199-202.

The Legal Capacity of the Individual as Subject of International Law

first case (Lawless), the Commission appeared rather as an organ auxiliary of the Court. The cases of diverging opinions between the delegates of the EComHR and the representatives of the alleged victims became frequent, and this came to be considered as rather normal, if not inevitable. Respondent States in a way acquiesced with the practice of the delegates of the old Commission to resort almost always to the assistance of a representative of the victims, or, at least, did not object to it. It is not to pass unnoticed that all this evolution was launched, in the European system of protection, gradually, by means, in those days, of the aforementioned reform of the Rules of Procedure of the ECtHR and the adoption of Protocol n. 9 to the Convention. The ECtHR determined the extent of its own powers by means of the reform of its interna corporis, affecting also the condition itself of the parties in the procedure before it. Some cases were settled under Protocol n. 9, in relation to States Parties to the European Convention which ratified the Protocol.50 As to the enhanced position of individual complainants, it may be recalled that, in the case Loizidou versus Turkey (preliminary objections, Judgment of 23.03.1995), the ECtHR furthermore discarded the possibility of restrictions – by the Turkish declarations – in relation to the key provisions of Article 25 (right of individual petition), and of Article 46 (acceptance of its jurisdiction in contentious matters) of the European Convention. To sustain another position, it added, “would not only seriously weaken the role of the Commission and Court in the discharge of their functions but would also diminish the effectiveness of the Convention as a constitutional instrument of the European public order (ordre public)”.51 With the adoption and entry into force of Protocol n. 11 to the European Convention, the reform of the mechanism of protection of the European Con50

51

Hence the co-existence of Rules of Procedure A (applicable to cases concerning States Parties to the European Convention which had not ratified Protocol n. 9) and B (applicable to cases pertaining to States Parties to the Convention which ratified Protocol n. 9) of the ECtHR. Paragraph 75; the ECtHR discarded the argument of the respondent State that one could infer the possibility of restrictions to the optional clauses of Articles 25 and 46 of the Convention by analogy with the State practice under Article 36 of the Statute of the ICJ. The ECtHR not only recalled the practice to the contrary (accepting such clauses without restrictions) of the States Parties to the European Convention, but also stressed the fundamentally distinct context in which the two tribunals operate, the ICJ being “a free-standing international tribunal which has no links to a standard-setting treaty such as the Convention” (pars. 82 and 68). The ICJ, – reiterated the ECtHR, – settles legal questions in the inter-State contentieux, distinctly from the functions of the supe_visory organs of a “normative treaty” (law-making treaty) like the European Convention. Accordingly, the “unconditional acceptance” of the optional clauses of Articles 25 and 46 of the Convention does not leave margin for analogy with the practice of States under Article 36 of the Statute of the ICJ (pars. 84-85).

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vention took place, with the establishment of a new ECtHR as sole jurisdictional organ of supervision of the Convention.52 With the advent of Protocol n. 11 (de 1994),53 on 01 November 1998, the individual was at last endowed with direct access to an international tribunal (jus standi), as a true subject – with full juridical capacity – of International Law in the present domain of protection. This became possible, above all, by virtue of a new mentality as to the protection of human rights at international level, prompted by human conscience. On the occasion of the Rome Conference of 2000 in commemoration of the 50th anniversary of the adoption of the European Convention on Human Rights, in a message I sent to the ECtHR as President of the IACtHR, bearing in mind the consolidation of the international procedural capacity of individuals in the procedures before the two Courts, I saw if fit to express my belief that “instead of threatening ‘to fragment’ International Law, our two Tribunals have helped, quite on the contrary, to achieve the aptitude of International Law to regulate efficiently relations which have a specificity of their own – at intra-State, rather than inter-State, level, opposing States to individuals under their respective jurisdictions, – and which require a specialized knowledge from the Judges. In so doing, our two international human rights Tribunals have contributed, on this eve of the XXIst century, to enrich and humanize contemporary Public International Law. They have done so as from an essentially and necessarily anthropocentric outlook,

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For a substantial study, cf. A. Drzemczewski, “A Major Overhaul of the European Human Rights Convention Control Mechanism: Protocol n. 11”, 6 Collected Courses of the Academy of European Law (1997)-II, pp. 121-244. And, for an assessment of its mechanism of application, cf. J.F. Flauss (ed.), La mise en oeuvre du Protocole n. 11: le nouveau Règlement de la Cour Européenne des Droits de l’Homme, Bruxelles, Bruylant, 2000, pp. 13-135; V. Berger et alii, La procédure devant la nouvelle Cour Européenne des Droits de l’Homme après le Protocole n. 11, Bruxelles, Bruylant, 1999, pp. 7-103. Rendering Protocol n. 9 (supra) anachronistic, though of historical interest. Each regional human rights system – conceived and operating in the frameword of the universality of human rigthts – lives a distinct historical moment. Thus, in the African system of protection, in 1998 was adopted the Protocol to the African Charter on Human and Peoples’ Rights, providing for the establishment (as it enters into force) of an African Charter of Human and Peoples’ Rights. On the travaux préparatoires of the Burkina Faso Protocol, cf., e.g., “Government Legal Experts Meeting on the Question of the Establishment of an African Court on Human and Peoples’ Rights” (Cape Town, South Africa, September 1995), 8 African Journal of International and Comparative Law (1996) pp. 493-500; and cf. comments in, e.g., M. Mubiala, “La Cour Africaine des Droits de l’Homme et des Peuples: mimetisme institutionnel ou avancée judiciaire?”, 102 Revue générale de Droit international public (1998) pp. 765780.

The Legal Capacity of the Individual as Subject of International Law as aptly foreseen, since the XVIth century, by the so-called founding fathers of the law of nations (droit des gens)”.54

With the entry into force of Protocol n. 11 to the European Convention, the total number of cases brought before the ECtHR, not surprisingly, kept on increasing considerably. The early statistical data, shortly after its entry into force, speak for themselves.55 Due to the sharp increase in the number of cases, growing considerably ever since, it was not surprising that, shortly after the adoption and entry into force of Protocol n. 11 to the European Convention, a “reform of the reform” was already being contemplated in the European human rights system to face the overload of cases.56 Such “reform of the reform” has recently seen the light of day, with the adoption, on 13.05.2004, of Protocol n. 14 to the European Convention. The Protocol aims at enhancing the ECtHR’s “filtering” methods, foreseeing “clearly inadmissible cases”, “repetitive cases” and a new admissibility criterion of applications disclosing that petitioners have not suffered a “significant disadvantage”.57 54

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A.A. Cançado Trindade, “La perspective trans-atlantique: La contribution de l’oeuvre des Cours internationales des droits de l’homme au développement du Droit international public”, in La Convention européenne des droits de l’homme à 50 ans – Bulletin d’information sur les droits de l’homme, n. 50 (special issue), Strasbourg, Council of Europe, 2000, pp. 8-9 (also published in other idioms of the Council of Europe). From the end of 1998 (year of the entry into force of Protocol n. 11) to the end of the year 2000, the number of individual applications lodged with the Court raised from 18164 to 30069; by the year 2004, that total kept on sharply increasing up to 40943. In the same period, the Court delivered 105 judgments in 1998, a total which raised up to 695 judgments in 2000 and 718 in 2004. Council of Europe/ECtHR, Survey of Activities 2004, Strasbourg, ECtHR, 2004, p. 35. Cf., on this point, e.g., L. Wildhaber, “Some Reflections on the First Year of Operation of the ‘New’ European Court of Human Rights”, in Millennium Lectures – The Coming Together of the Common Law and the Civil Law (ed. B.S. Markesinis), Oxford, Hart Publ., 2000, pp. 215-224; H. Petzold, “Epilogue: la réforme continue”, in Protection des droits de l’homme: la perspective européenne – Mélanges à la mémoire de R. Ryssdal (eds. P. Mahoney et alii), Köln/Berlin, C. Heymanns Verlag, 2000, pp. 1571-1587. Cf., for details, Council of Europe/Steering Committee for Human Rights, Collection of Texts on the Reform of the Human Rights Protection System and in Particular the Protocol n. 14 and Other Texts Adopted at the 114th Session of the Committee of Ministers (12-13.05.2004), C.E. document CDDH(2004)015 of 03.06.2004, Strasbourg, C.E., 2004, pp. 3-66; and, for a recent assessment, cf. G. Cohen-Jonathan and J.-F. Flauss (eds.), La réforme du système de contrôle contentieux de la Convention Européenne des Droits de l’Homme (Le Protocole n. 14 et les Recommandations et Résolutions du Comité des Ministres), Bruxelles, Bruylant/Nemesis, 2005, pp. 9-182; M. Eaton and J. Schokkenbroek, “Reforming the Human Rights Protection System Established by the European Convention on Human Rights: A New Protocol n. 14 to the Convention and Other Measures to Guarantee the Long-Term Effectiveness

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A new concern was expressed in the travaux préparatoires of Protocol n. 14 to the ECHR, to the effect of preserving the individual right of petition to the ECtHR in order to obtain redress, carefully developed by the ECtHR over the past 40 years,58 not to be undermined, as a basic pillar of the system of protection under the ECHR.59 Legal representatives of the victims promptly complained that the new condition of admissibility – with the aggravation that it could be decided by one sole judge, thus defying the collegiality of the Court – was contrary to the spirit of the ECHR and the jurisprudential evolution thereunder, and argued that it amounted to a hardly acceptable and undue restriction to the right of individual petition, a basic foundation of the European system of human rights protection.60 There is thus nowadays concern that the new admissibility requirement, a very controversial one, established by Protocol n. 14 to the ECHR, may undermine the pro victima approach followed thus far by the ECtHR.61 It is thereby not surprising that the new admissibility condition of Protocol n. 14 has met with strong opposition, especially from those who take a principled, rather than a pragmatic, approach, sustaining, in contradistinction to the “constitutional justice” outlook, that the right to individual petition, consonant with the “individual rights” outlook, appears as an end in itself to the extent that it contributes to the realization of justice.62

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of the Convention System”, 26 Human Rights Law Journal (2005) pp. 1-17. For criticisms of that new admissibility criterion of applications, cf. G. Cohen-Jonathan and J.-F. Flauss (eds.), La réforme du système..., cit. supra (this footnote), pp. 42-44, 59, 73, 113, 122-125, 129 and 189; P. Lemmens and W. Vandenhole (eds.), Protocol n. 14 and the Reform of the European Court of Human Rights, Antwerpen/Oxford, Intersentia, 2005, pp. 45, 50, 52-54, 59, 62, 64, 68-76 and 78-84. J. Wadham and T. Said, “What Price the Right of Individual Petition: Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights”, 2 European Human Rights Law Review (2002) pp. 170-172. G. Cohen-Jonathan and J.-F. Flauss (eds. – Various Authors), La réforme du système de contrôle contentieux de la Convention Européenne des droits de l’homme (Le Protocole n. 14 et les Recommendations et Résolutions du Comité de Ministres), Bruxelles, Bruylant/Nemesis, 2005, pp. 19, 42-44, 57-58, 77, 123 and 155, and cf. pp. 42 and 122-125. Ibid., pp. 42 and 122-125. P. Lemmens and W. Vandenhole (eds. – Various Authors), Protocol n. 14 and the Reform of the European Court of Human Rights, Antwerpen/Oxford, Intersentia, 2005, pp. 45, 49-50 and 52. Ibid., pp. 53-54, and cf. pp. 59 and 62. Protocol n. 14 ruptures with the integrity of the unrestricted right of individual petition, safeguarded thus far, and which has characterized the evolution of the European human rights system, which remains crucially important to the victims and should thus be preserved; ibid., 68-70, 7276 and 84. The new admissibility criterion of Protocol n. 14 may negatively affect the very notion of “victim” under the ECHR; it unduly suggests that some human rights violations may appear “more important” than others. In so doing, it leads to

The Legal Capacity of the Individual as Subject of International Law

2.

Developments in the Inter-American System of Protection

Insofar as the inter-American system of protection is concerned, a central and recurrent question in its agenda pertains precisely to the condition of the parties in human rights cases under the American Convention on Human Rights, and, in particular, to the legal representation or the locus standi in judicio of the alleged victims (or their legal representatives) directly before the IACtHR, in cases already submitted to it by the Commission. It is certain that the American Convention determines that only the States Parties and the Commission have the right “to submit a case” to the decision of the Court (Article 61(1)); but the Convention, for example, in providing for reparations, also refers to “the injured party” (Article 63(1)), by that meaning of course the alleged victims and not the Commission.63 In fact, the recognition of the locus standi in judicio of the victims (or their representatives) before the IACtHR64 (infra) has contributed to the “jurisdictionalization” of the mechanism of protection under the American Convention, besides putting an end to the ambiguity of the function of the IAComHR. This latter is not a “party” in the process, but rather a guardian of the correct application of the Convention. Like the experience accumulated by the ECtHR, since its first contentious case (the Lawless case, supra), the IACtHR, also in the course of examination of its first contentious cases, concerning Honduras (reparations, 1989), faced the artificiality of the initial scheme, and reacted against it; the IACtHR received briefs from the relatives and lawyers of the victims, and took note of them.65 But the really significant step was taken subsequently, in the El Amparo case (reparations, 1996), concerning Venezuela, a landmark case in this respect. In the public hearing on this case held by the IACtHR on 27.01.1996, one of its Judges, in expressing his understanding that at least in that stage of the proceedings there could be no doubt that the representatives of the victims were “the true complainant party before the Court”, at a given moment began to address questions to those representatives of the victims (rather than to the delegates of the Commission or to the agents of the respondent State), who presented their answers.66 Until then, in the procedure before the IACtHR, the legal representatives of the

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an abandonment of the generalized right to an international remedy, undermining the right to individual petition and the access of all human rights victims to international justice; ibid., pp. 79-84. Cf., for a general overview, A.A. Cançado Trindade, “Le système inter-américain de protection des droits de l’homme: état actuel et perspectives d’évolution à l’aube du XXIème siècle”, 46 AFDI (2000) pp. 547-577. In cases already submitted to this latter by the Commission. IACtHR, Godínez Cruz and Velásquez Rodríguez versus Honduras cases (Compensatory Damages), Judgments of 21.07.1989, Series C, ns. 8 and 7, respectively. Cf. the intervention of Judge A.A. Cançado Trindade, and the answers of the representatives of the victims, in IACtHR, Verbatim Records of the Public Hearing Held

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victims were integrated to the delegation of the Commission with the eufemistic designation of “assistants” to this latter.67 Shortly after that memorable public hearing in the El Amparo case, the representatives of the victims presented two briefs to the IACtHR (of 13.05.1996 and 29.05.1996).68 As from the oral proceedings in the El Amparo case, the way was paved for the clarification of the locus standi in judicio of the individual complainants before the IACtHR in its Rules of Procedure. It could hardly be denied that such locus standi would better fulfi l the imperatives of law and justice under the Convention. The previous Rules of Court of the IACtHR (of 1991) foresaw, in rather oblique terms, a timid participation of the alleged victims or their representatives in those proceedings, with the intermediation of the Commission.69 The next step, a decisive one, was taken by the new Rules of Court, adopted on 16.09.1996 (which entered into force on 01.01.1997), Article 23 of which provided that “at the stage of reparations, the representatives of the victims or of their next of kin may independently submit their own arguments and evidence”. This provision paved the way for subsequent developments in the same direction, to the effect of securing to individuals locus standi in judicio in all phases of the proceedings before the IACtHR. In effect, the new (and fourth) Rules of Procedure of the Court (adopted on 24.11.2000, and in force as from 01.06.2001) strengthened the position of individual complainants by extending their locus standi to all stages in the procedure before the Court (no longer reparations only). Article 23 of the new Rules provides that

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before the Court on 27.01.1996 on Reparations – El Amparo Case [original in Spanish], pp. 72-76 (internal circulation). This “pragmatic” solution, instead of solving the issue of the locus standi of individuals, created some ambiguities. The same occurred in the European system of protection until 1982, when the fiction of the “assistants” to the EComHR was at last overcome by the reform in that year of the Rules of Court of the ECtHR; cf. P. Mahoney and S. Prebensen, “The European Court of Human Rights”, in The European System for the Protection of Human Rights (eds. R.St.J. Macdonald, F. Matscher and H. Petzold), Dordrecht, Nijhoff, 1993, p. 630. Parallel to that, with regard to the compliance with the judgment of interpretation of the previous sentence on compensatory damages in the earlier cases of Godínez Cruz and Velásquez Rodríguez, the representatives of the victims presented likewise two briefs to the Court (dated 29.03.1996 and 02.05.1996). The first Rules of Procedure of the IACtHR (of 1980), like the fi rst Rules of the ECtHR, had been modeled modeled on the Rules of Procedure of the ICJ; but at a very early stage in their respective work, the two international human rights tribunals realized that their respective Rules of Procedure had to be adapted to bring them into line with the particular nature of contentious human rights cases. Hence the changes of their respective Rules to that end. The second Rules of Procedure of the IACtHR (of 1991) intended to rationalize the proceedings, rendering them also more expedite.

The Legal Capacity of the Individual as Subject of International Law “When the application has been admitted, the alleged victims, their next of kin or their duly accredited representatives may submit their requests, arguments and evidence, autonomously, throughout the proceeding. When there are several alleged victims, next of kin or duly accredited representatives, they shall designate a common intervenor who shall be the only person authorized to present requests, arguments and evidence during the proceedings, including the public hearings. In case of disagreement, the Court shall make the appropriate ruling”.

Thus, under the 2000 Rules of Procedure of the IACtHR, the alleged victims, or their next of kin or representatives, can autonomously present requests, arguments, and evidence at any point in proceedings before the Court.70 This landmark change introduced by the current Rules of Procedure of the IACtHR has clarified and enhanced the procedural capacity of individuals, and ensured the procedural equality of arms, in the whole procedure before the IACtHR. That enhancement is being achieved gradually, in the evolution of the Rules of Court, as well as by means of the interpretation of certain provisions in the American Convention71 and in the Court’s Statute, in light of their purpose and goals. With regard to the IACtHR’s advisory procedure, it may be pointed out that the proceedings of last decade concerning Advisory Opinion n. 16, on The Right to Information on Consular Assistance in the Framework of the Guarantees of 70

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The new Rules of Court forms part of a process of improvement and strengthening of the system of protection under the American Convention as a whole. The next step of this evolution ought to consist, as I have been sustaining for a long time, of a Protocol of Reforms to the American Convention on Human Rights (pursuant to Article 77(1) of the ACHR), preceded by ample consultations with the States Parties to the Convention, the entities of civil society and the beneficiaries of the system in general. The future Protocol ought to initially incorporate the advances of the Rules of Court already achieved. But, in my view, it ought to go beyond that. The substantive part of the Convention (pertaining to the protected rights) ought to be duly preserved, without alterations, as a growing and rich case-law of the Court is already developed thereon, being today a juridical patrimony of all countries and peoples of the region. But the part of the Convention concerning the mechanism of protection and corresponding procedures certainly requires reforms, aiming at strengthening them. A Protocol, once it comes into force, constitutes the safest way to obtain real commitments on the part of the States, without major risks of steps backwards, as to a more effective mechanism of protection of human rights. To this end I prepared, and presented to the OAS in May 2001, my Report titled Basis for a Draft Protocol to the American Convention on Human Rights, to Strengthen Its Mechanism of Protection (cf. footnote (71), infra). Namely, e.g., Articles 44, 48(1)(f), 63(1), 57 and 61 of the American Convention, and Article 28 of the Court’s Statute; cf. A.A. Cançado Trindade, Informe: Bases para un Proyecto de Protocolo a la Convención Americana sobre Derechos Humanos, para Fortalecer Su Mecanismo de Protección, vol. II, 2nd. ed., San José of Costa Rica, Inter-American Court of Human Rights, 2003, pp. 3-64.

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the Due Process of Law (1999), followed by those relating to Advisory Opinion n. 18, on the Juridical Condition and Rights of Undocumented Migrants (2003), counted both on a wide public participation both in the written phase and in the public hearings.72 Such participation dicloses the access to international jurisdiction that individuals enjoy in advisory proceedings under the American Convention, and the ordre public nature of such proceedings. As to provisional measures of protection, it may be singled out that, in two cases in the course of the year 2000 (cases of the Constitutional Tribunal and of Loayza Tamayo, both concerning Peru), the President of the Court adopted – at the request directly made by the petitioners themselves – urgent measures ex officio, for the first time in the history of the Tribunal. Such measures were confirmed by the plenary of the IACtHR, which ordered (on 14.08.2000 and 03.02.2001, respectively) provisional measures of protection, to avoid irreparable damages to the petitioners. These two episodes reveal not only the viability, but also the relevance, of the direct access of the individuals, without intermediaries, to the IACtHR, even more forcefully in a situation of extreme gravity and urgency. V.

The Individual Right of Direct Access (Jus Standi) to International Human Rights Tribunals

Further reference can be made to the African system of human rights protection, which has lately also experienced the process of “jurisdictionalization”, by means of the decision of the Burkina Fasso Protocol to the African Charter of Human and Peoples’ Rights, adopted on 10.06.1998, – and entered into force on 25.01.2004, – to set up an African Court of Human and Peoples’ Rights.73 Be72

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The proceedings of Advisory Opinion n. 16 counted on the participation of 8 intervening States, the IAComHR, 7 individuals representing four national and international human rights NGOs, 2 individuals from an NGO in support of the abolition of death penalty, 2 representatives of a national lawyers’ association, 4 University professors in their individual capacity, and 3 individuals representing a death-row inmate. And the proceedings of the Advisory Opinion n. 18 counted on an unprecedented degree of participation comprising that of 12 accredited States (among which 5 States intervening in the hearings), the IAComHR, one U.N. agency (the UNHCR), and 9 entities of civil society and academic centres of several countries of the region, besides the Central American Council of Human Rights Ombudsmen [AttorneysGeneral]. Whose Judge have recently been elected (on 22.01.2006), in pursuance of the old ideal of realization of international justice. For an account of the travaux préparatoires and adoption of the 1998 Protocol to the African Charter on Human and Peoples Rights, cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 214-220; and cf., e.g., “Government Legal Experts Meeting on the Question of the Establishment of an African Court on Human and Peoples’ Rights” (Cape Town, South Africa, September 1995), 8 African Journal of International and Comparative Law (1996) pp.

The Legal Capacity of the Individual as Subject of International Law

fore the African Court, the question of the legitimatio ad causam is governed by Article 5 of the 1998 Burkina Faso Protocol, paragraph 1 of which enables the African Commission on Human and Peoples’ Rights as well as States Parties to the African Charter to submit cases to the consideration of the Court (in addition to African intergovernmental organizations, for issues concerning them). Paragraph 3 of Article 5, drafted in the form of an optional clause, acknowledges a true jus standi in judicio, securing the direct access to the Court of individuals and certain non-governmental organizations74 to lodge cases with it. New perspectives have thus been lately opened as to the individual’s right of access to international justice in the African system of human rights protection.75 But the Protocol still needs to come into force, and States Parties have to accept the Court’s jurisdiction under the optional clause of Article 34(6) of the Protocol to the Charter.76 The African Court has also much to contribute, in the foreseeable future, in addressing the right of access to justice (also at domestic law level), particularly in view of the difficulties faced in this respect by the African Commission to date.77 All these developments and advances ought to be properly appreciated in historical perspective.

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493-500. Cf., further, Ben Kioko, The Process Leading to the Establishment of the African Court on Human and Peoples’ Rights, Addis Abeba, African Society of International and Comparative Law (X Annual Conference), 1998, pp. 5-6 (internal circulation); I.A. Badawi El-Sheikh, “Draft Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights – Introductory Note”, 9 African Journal of International and Comparative Law (1997) pp. 943-952; and cf. M. Mubiala, “La Cour Africaine des Droits de l’Homme et des Peuples: mimetisme institutionnel ou avancée judiciaire?”, 102 Revue générale de Droit international public (1998) pp. 765-780, esp. p. 768. Endowed with the status of observers before the African Commission. F. Ouguergouz, The African Charter on Human and Peoples’ Rights, The Hague, Nijhoff, 2003, pp. 723-724 and 755-756; the Protocol to the African Charter, like the American Convention (and distinctly from the European Convention), does not require the individual petitioner to be the victim of the alleged violations of human rights. Cf. F. Viljoen, International Human Rights Law in Africa, Oxford, Univ. Press, 2007, pp. 424, 435 and 438-451; M. Mubiala, “L’accès de l’individu à la Cour africaine des droits de l’homme et des peuples”, in La promotion de la justice, des droits de l’homme et du règlement des conflits par le Droit international – Liber amicorum L. Caflisch (ed. M.G. Kohen), Leiden, Nijhoff, 2007, pp. 369-378. E.g., given the regretted absence of an express provision, under the African Charter, specifically on the right to an effective remedy; cf., on this issue, G.M. Musila, “The Right to an Effective Remedy under the African Charter on Human and Peoples’ Rights”, 6 African Human Rights Law Journal (2006) pp. 442-464. For further challenges to be surmounted, cf. Association for the Prevention of Torture (APT), The African Court on Human and Peoples’ Rights – Presentation, Analysis and Commentary: The Protocol to the African Charter on Human and Peoples’ Rights, Establishing the Court (Occasional Paper), Geneva, APT, January 2000, p. 4.

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1.

Antecedents of Domestic Law: The Subjective Right, and the Direct Access (Jus Standi) to National Tribunals

It may be recalled, in the present context, that the conception of individual subjective right has already a wide historical projection, originated in particular in the jusnaturalist thinking in the XVIIth and XVIIIth centuries, and systematized in the juridical doctrine along the XIXth century. Nevertheless, in the XIXth century and the beginning of the XXth century, that conception remained in the framework of domestic public law, the subjective right having then been conceived as the prerrogative of the individual such as defined by the legal order at issue (the objective law).78 Notwithstanding, it could hardly be denied that the crystallization of the concept of individual subjective right, and its systematization, achieved at least an advance towards a better understanding of the individual as a titulaire of rights. And they rendered possible, with the emergence of human rights at international level, the gradual overcoming of positive law. In the mid-XXth century, the impossibility became clear of the evolution of Law itself without the individual subjective right, expression of a true “human right”.79 The international juridical personality of the human being crystallized itself as a limit to the discretion of State power. Human rights freed the conception of the subjective right from the chains of legal positivism. If, on the one hand, the legal category of the international juridical personality of the human being contributed to instrumentalize the vindication of the rights of the human person, emanated from International Law, – on the other hand the corpus juris of the universal human rights conferred upon the juridical personality of the individual a much wider dimension, no longer conditioned by the law emanated from the public power of the State. The remarkable assertion and expansion of the international juridical subjectivity of the human being in the last decades (supra), leave no individual (as titulaire of rights) outside this evolution; in the face of the limitations of the juridical capacity of some individuals, – such as the children, the elderly persons, the mentally ill, for example, – to exercise their rights for themselves, a legal representative is recognized to them. But independently of such limitations, the juridical personality of these latter, – as of every human being, – projects itself at international level. As it is not possible to conceive rights – emanated directly from International Law – without the prerrogative of vindicating them, the whole evolution of the matter has oriented itself towards the crystallization of the right of the individual to resort directly to the international jurisdictions.80 In sum, 78

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Ch. Eisenmann, “Une nouvelle conception du droit subjectif: la théorie de M. Jean Dabin”, 60 Revue du droit public et de la science politique en France et à l’étranger (1954) pp. 753-774, esp. pp. 754-755 and 771. J. Dabin, El Derecho Subjetivo, Madrid, Ed. Rev. de Derecho Privado, 1955, p. 64. M. Pilotti, “Le recours des particuliers devant les juridictions internacionales”, in Grundprobleme des internationalen Rechts – Festschrift für J. Spiropoulos, Bonn, Schimmelbusch & Co., [1957], p. 351, and cf. pp. 351-362; and cf. S. Séfériadès, “Le

The Legal Capacity of the Individual as Subject of International Law

capacity is closely linked to personality; even if, by any situation or circumstance, an individual does not enjoy full juridical capacity, this does not mean that he would thereby no longer be a subject of rights. 2.

Developments in International Law: The Direct Access (Jus Standi) to International Human Rights Tribunals

Solid arguments militate in favour of the recognition of the locus standi in judicio, and of the jus standi of the alleged victims in the proceedings before international human rights tribunals in cases already referred to them.81 Firstly, to the acknowledgment of rights, at national as well as international levels, corresponds the procedural capacity to vindicate or exercise them. The protection of rights ought to be endowed with the locus standi in judicio of the alleged victims (or their legal representatives), which contributes to instruct in a better way the cases at issue, and without which this latter is partly devoid of an essential element (in the search for truth and justice), besides being ineluctably mitigated and in flagrant procedural imbalance. The jurisdictionalization of the procedure greatly contributes to remedy and put an end to those insufficiencies and defficiencies, which can no longer find any justification in our days. That locus standi of the individuals concerned is the logical consequence, at the procedural level, of a system of protection purported to guarantee individual rights at international level, as it is not reasonable to conceive rights without the procedural capacity to vindicate them. Moreover, the right of freedom of expression of the alleged victims is an element which integrates the due process of law, at both national and international levels. The equity and transparency of the procedure, which are equally applicable to the international supervisory organs, are beneficial to all, including the individual complainants and the respondent States. Secondly, the right of access to justice at international level ought to be accompanied by the guarantee of the procedural equality of arms (égalité des armes) in the proceedings before international human rights tribunals, essential to any jurisdictional system of protection of human rights. Thirdly, in cases of proven violations of human rights, it is the victims themselves – the true complainant party before the Court at issue – (or their relatives or heirs) who receive

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problème de l’accès des particuliers à des juridictions internationales”, 51 RCADI (1935) pp. 23-25 and 54-60. As developed, e.g., in my Opinions in the following cases before the IACtHR: case Castillo Páez versus Peru (Preliminary Objections, Judgment of 30.01.1996), Individual Opinion, pars. 16-17; case Loayza Tamayo versus Peru (Preliminary Objections, Judgment of 31.01.1996), Individual Opinion, pars. 16-17; case Castillo Petruzzi versus Peru (Preliminary Objections, Judgment of 04.09.1998), Concurring Opinion, pars. 1-46; Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of 01.10.1999), Concurring Opinion, par. 30.

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the reparations and indemnizations: as the victims mark their presence at the beginning and at the end of the process, there is no sense in denying them presence during the process.82 Last but not least, it is through the locus standi in judicio, and the jus standi, of the alleged victims before international human rights tribunals considered herein, that human beings assert their international legal personality and full procedural capacity to vindicate their rights, whenever national instances are incapable of securing the realization of justice. The jurisdictionalization of international mechanisms of protection, particularly insofar as the operation of the method of petitions or complaints is concerned,83 leads to the consolidation84 of the international procedural capacity of individuals as the true complainant party before the international human rights tribunals at issue. At this beginning of the XXIst century, the historical reasons for the denial – in my view unjustifiable from the start – of the locus standi, and the jus standi, at international level, of the alleged victims of human rights violations, are definitively overcome.85 From the locus standi one is to evolve towards the right of direct access of individuals (jus standi) to international human rights tribunals, so as to lodge complaints directly with them.86 VI. The Right of Access Lato Sensu of Individuals to International Justice The right of access of individuals to justice, set forth expressly in certain provisions of international human rights treaties, and implicit in several others of their provisions, means, lato sensu, the right to obtain justice. Endowed with a 82

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The advances to this effect (fostering greater precision in the determination of the facts) contribute to the jurisdictionalization of the mechanism of protection; they would further require, e.g., the foreseeing of ex officio legal assistance to individual complainants, whenever they are not in condition of counting on the professional services of a legal representative. As in the inter-American system of protection. As in the European system of protection. Insofar as the inter-American human rights system is concerned, the necessary recognition of the locus standi in judicio of the alleged victims (or their legal representatives) before the IACtHR constitutes, in this line of reasoning, a most important advance, but not necessarily the final stage, of improvement of that system of protection, at least as I conceive such improvement. Cf., to this effect, A.A. Cançado Trindade, “The Procedural Capacity of the Individual as Subject of International Human Rights Law: Recent Developments”, in Les droits de l’homme à l’aube du XXIe siècle – K. Vasak Amicorum Liber, Bruxelles, Bruylant, 1999, pp. 521-544. – For this step to be taken, certain prerequisites ought to be fulfi lled, namely, universality of composition of the regime of protection (with all States concerned becoming Parties to the human rights treaties at issue), automatic compulsory jurisdiction of international human rights tribunals, endowed with adequate human and material resources to operate effectively on a permanent basis.

The Legal Capacity of the Individual as Subject of International Law

juridical content of its own, it appears as an autonomous right to the jurisdictional assistance, that is, to the very realization of justice, including due compliance with judgments. From the standpoint of the individuals, one can here visualize a true right to the Law, that is, the right to a legal order – at national as well as international levels – which effectively protects the rights inherent to the human person.87 This means, at first, that individual complainants before international human rights tribunals can plead autonomously before them, as is the case in both the European88 and the inter-American89 systems of protection. In the European system, they have, moreover, the right to bring their cases directly before the European Court (jus standi), while in the inter-American system they still have to count on the IAComHR to that end (locus standi before the Court). Be that as it may, in the framework of this latter individuals can, once their case is lodged with the IACtHR, argue also additional violations of the Convention, even if not contained in the original complaint submitted by the Commission, though they have to pertain to the facts contained in such complaint.90 This has helped to clarify the distinct procedural positions of the individual complainants (as the true substantive complaining party under the Convention) and the Commission.91 The IACtHR has correctly sustained (as in the case of the

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A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 523-524. Since Protocols ns. 9 and 11 to the European Convention (supra). Under the current Rules of Procedure of the Inter-American Court (supra). Cf., in this sense, the decision of the IACtHR in the case of the Five Pensioners versus Peru (2003, pars. 153-155), the first contentious case entirely handled under the new Rules of Court (effective as from 2001), confi rmed in the handling by the IACtHR of new contentious cases ever since (2003-2005). In taking such position, seeing to it also that the right of defence of the respondent State is preserved, the IACtHR has kept in mind the concomitant imperatives of realization of justice, and of preservation of the juridico-procedural equality and security in the procedure under the American Convention. As a “procedural” party, a kind of Ministère Public of the system of protection. Although this question has been definitively solved, with Protocol n. 11 to the European Convention, in the European system of protection, it is a matter still under discussion in the inter-American system of protection. Thus, as to the distinct role of the individual petitioners and of the IAComHR in the procedure before the IACtHR, this latter took into consideration the approaches of both the thesis of procedural law, with emphasis on the exclusive faculty of the States Parties and of the IAComHR to submit a case to the IACtHR (Article 61(1) of the American Convention), and the thesis of substantive law, – which I sustain, – with emphasis on the condition of the individuals of titulaires of the rights set forth in the Convention. In accepting that individual complainants can invoke before it additional violations of the Convention (other than the ones contained in the original complaint submitted by the Commission), the IACtHR has rightly leant in favour of the thesis of substantive law.

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Five Pensioners versus Peru, 2003),92 that the consideration which ought to prevail is that of the individuals being subjects of all rights protected by the Convention, as the true substantive complaining party, and as subjects of the International Law of Human Rights.93 As from the moment when one affi rms, in an unequivocal way, the juridico-international subjectivity of the human person, one ought to assume the legal consequences ensuing therefrom. The petitioners themselves are those who, better than anyone else, can assess which rights have presumably been violated. To pretend to impose a limit to this faculty they have would go against the right of access to justice at international level.94 As to this right, the American Convention on Human Rights requires not only the access itself to justice at the level of domestic law (Article 25), but also the realization itself of material justice. To that end, the Convention determines the observance of the juridico-procedural guarantees (Article 8), these latter taken lato sensu, encompassing the whole of procedural requisites which ought to be observed so that all individuals can adequately defend themselves from any act emanated from the State power which may affect their rights.95 This applies also to other international human rights treaties.

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And subsequently confi rmed in the case of the Gómez Paquiyauri Brothers versus Peru (merits, 2004); cf. further the Concurring Opinion (pars. 19 and 24) of Judge A.A. Cançado Trindade in the case of the Five Pensioners versus Peru (merits, 2003). Cf., in this sense, A.A. Cançado Trindade, Informe: Bases para un Proyecto de Protocolo..., op. cit. supra n. (70), pp. 3-64, esp. pp. 59, 23, 33, 40-44, 50-55 and 64; A.A. Cançado Trindade, El Acceso Directo del Individuo..., op. cit. supra n. (37), pp. 9104. Though it is certain that only the States Parties and the Commission can submit a case to the Court (Article 61(1) of the Convention), it is also certain that, in providing for reparations, and referring to “the injured party” (“la parte lesionada / a parte prejudicada / la partie lésée” – Article 63(1)), the Convention refers to the victims, and not to the Commission. The artificiality of the formula of Article 61(1) of the Convention, – which, when adopted in 1969 gave expression to a dogma of the past, – does not resist the overwhelming truth that the petitioners are the true complaining substantive party before the Court, as subjects of the International Law of Human Rights and, in my understanding, also of general International Law. Cf. my Concurring Opinion in the case of the Five Pensioners versus Peru (2003) before the IACtHR, par. 22. Cf., in this sense (wide scope of the due process): IACtHR, case of the Constitutional Tribunal versus Peru, Judgment (on the merits) of 31.01.2001, par. 69; IACtHR, case Ivcher Bronstein versus Peru, Judgment (on the merits) of 06.02.2001, par. 102; IACtHR, case Baena Ricardo and Others versus Panama, Judgment (on the merits) of 02.02.2001, pars. 125-126.

The Legal Capacity of the Individual as Subject of International Law

VII. Concluding Observations The expansion of international legal personality has had as a consequence the consolidation of the international procedural capacity of individuals in the International Law of Human Rights. This was to be expected, and is a reassuring development, as the logical consequence of the conception and formulation of internationally protected rights of individuals is necessarily the recognition of their full juridical capacity to vindicate them at international level. Contemporary international law, moved by human conscience, has, thus, conferred international legal capacity on individuals, so as not to deprive any of its subjects of such capacity, bearing in mind the abuses and atrocities committed against them in the name or in pursuance of public policies of the States. The human person is thus entitled to defend her own rights nowadays at both national and international levels. Just as it occurs with international legal personality,96 there is no impediment, juridically or epistemologically, for International Law directly to regulate the international juridical capacity of individuals. After all, individuals are, likewise, internationally responsible for the wrongs they commit, most often in pursuance of State policies.97 But we are still at an early stage of the historical evolution in this domain of international law, the impact of which is meant to put an end to impunity at national and international levels. With the consolidation of the international legal capacity of individuals, International Law pursues the realization of justice, thus responding to a basic aspiration of human beings and of humankind as a whole. The exercise by individuals of their international procedural capacity under human rights treaties has, in turn, led to an expansion of the notion of “victim” itself (including indirect and potential victims) in the International Law of Human Rights. In the European system of protection, where the condition of “victim” was required of individual petitioners, this occurred as from the early case-law under the European Convention, as I pointed out in my lectures at this Hague Academy of International Law in 1987.98 In the inter-American system of protection, where that condition is not required of individual petitioners, the notion of victim has also enlarged, by means of a jurisprudential construction of the IACtHR. In its case-law99 the IACtHR has stated that both the direct victims and their close relatives are, in the particular circumstances of the cases at issue, victims 96 97

98 99

Cf. chapter IX, supra. The rights and duties of States (cf. chapter VII, supra) are, after all, those rights exercised, or duties undertaken, by the individuals who act on their behalf, the holders of the public power of each State. Cf. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms...”, op. cit. supra n. (28), pp. 243-299, esp. pp. 262-283. Cf., e.g., its Judgments in the Blake and Bámaca Velásquez cases, followed by those in the cases of Villagrán Morales and Others versus Guatemala (the “Street Children” case, reparations, 2001) and of Myrna Mack Chang versus Guatemala (merits and reparations, 2003).

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of (distinct) violations of the protected rights. In this respect, in my Separate Opinion in the case of Villagrán Morales and Others versus Guatemala (case of the “Street Children”, Judgment on reparations of 26.05.2001), I pondered (par. 40) that also the indirect victims (the mothers and a grandmother of the five murdered children) “have suffered an irreparable loss, as their lives will never more be the same. (...) The realization of justice contributes at least to structure their psychic life, to reawake their faith and hope, and to set in order their human relations with their fellowmen. Every true jurist has, thus, the ineluctable duty to give his contribution to the realization of justice, from the perspective of the integrality of the personality of the victims”.

In that same Separate Opinion I added that “in the ambit of application of this new corpus juris, it is undoubtedly the victim who appropriately assumes the central position. (...) This development appears in conformity with the very aims of Law, the addressees of whose norms are, ultimately, the human beings” (par. 16). The major juridical revolution of contemporary legal thinking lies, in my view, in the advent and development of the International Law of Human Rights, as it is this latter that sustains that individuals, independently of circumstances of most profound adversity in which they may find themselves, can engage (as active subjects of International Law) the international responsibility of the State for violations of the rights which are inherent to them as human beings. The expansion of the international personality and procedural capacity of the human being corresponds to a true necessity of the contemporary international legal order. It ensues, from some of the considerations developed in this chapter, that the individual’s right of access to justice at international level has a wide scope, not reducing itself to a formal access, stricto sensu, to the international judicial instance. In fact, that right, set forth in international human rights treaties and implicit in several of their provisions, permeates moreover the domestic law of States Parties,100 and is endowed with a legal content of its own. It means, lato sensu, the right to obtain justice, the right to the realization itself of justice (in this sense, a true right to the Law).101 In fact, the protected rights would be illusory if they referred only to the formulation of procedural guarantees and the conduct of the contending parties, without encompassing also the implementation of judicial decisions, which – as the ECtHR observed – would hardly conform with the very notion of the rule of law (prééminence du droit). The correct administration of justice is one of the essential elements of the rule of law, which includes the execution of judgments, and even more so when these latter seek to secure the intangibility of the 100 Cf., in this sense, E.A. Alkema, “Access to Justice under the ECHR and Judicial Policy – A Netherlands View”, in Afmaelisrit pór Vilhjálmsson, Reykjavik, Bókaútgafa Orators, 2000, pp. 21-37. 101 A.A. Cançado Trindade, Tratado de Direito Internacional..., vol. III, op. cit. supra n. (87), ch. XX, par. 187, p. 524.

The Legal Capacity of the Individual as Subject of International Law

guarantees of the due process of law.102 As the ECtHR has rightly warned in its judgment in the case of Hornsby versus Greece (merits, 1997), the omission or refusal of public authorities to execute a judgment constitutes a denial of the access to justice (at both national and international levels).103 In sum, States Parties which fail to comply with the judgments of international human rights tribunals, fail to put an end to the consequences of the original violations – established by those tribunals – of the respective human rights treaties, thus incurring into an additional violation of these latter, as well as into a denial of the access to justice under those treaties. In conclusion, the assertion of the international legal personality and capacity of individuals in the present domain of protection constitutes a significant achievement of contemporary International Law. It represents the overcoming of the classic limitations of the legitimatio ad causam in International Law, which in the past so much hindered its progressive development towards the construction of a new jus gentium. An important role was here exercised by the impact of the proclamation of human rights in the international legal order, in the sense of humanizing this latter: those rights were proclaimed as inherent to every human being, irrespectively of any circumstances. The individual became recognized as subject jure suo of International Law, and to the recognition of the rights which are inherent to him corresponded ineluctably the procedural capacity to vindicate them, at national as well as international levels.

102 Like many of the judgments of international human rights tribunals. 103 Cf. ECtHR, Hornsby versus Greece case, Judgment of 19.03.1997, [Series A], n. 33, pp. 510-512, pars. 40-41 and 45 (in breach of Article 6(1) of the European Convention on Human Rights).

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I.

Humankind as a Subject of International Law

The Perception and Awareness of Common and Superior Interests of Humankind as Such

It is not suggested here that, at the present stage of evolution of International Law, humankind is replacing States as a subject of International Law. What is here asserted is that States are no longer the sole subjects of International Law; they nowadays coexist, in that condition, with international organizations and individuals and groups of individuals; and, moreover, humankind as such has also emerged as a subject of International Law. As a result, humankind coexists with States, without replacing them; and States can no longer regard the pursuance of their own interests as the sole motivation for the shaping of International Law. In fact, the pursuance of State interests has an impact on the effectiveness of International Law; but the interests of each individual State cannot make abstraction of, or prevail upon, the pursuance of the fulfi lment of the general and superior interests of the international community in matters of direct concern to this latter (such as, e.g., disarmament, human rights and environmental protection, erradication of poverty, among others).1 Experience shows that it is when such general interests are duly taken into account, and are made to prevail, by States as well as by other subjects of International Law, that this latter has progressed. It could hardly be denied that the advances of International Law in the last decades have been achieved when the general, superior interests of humankind have been properly acknowledged and given expression to (such as, e.g., in International Human Rights Law, in International Environmental Law, in the Law of the Sea, in the Law of Outer Space). States themselves have contributed to those advances, whenever they have placed basic considerations of humanity and the general interests of the international community as a whole above their own individual interests. In this connection, the ultimate aim of jus cogens is precisely that of securing the prevalence of the interests and most fundamental values of the interna-

1

A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1068, 1083 and 1094-1095.

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tional community as a whole.2 The absolute prohibitions of grave violations of human rights indicate, for example, as recalled by M. Lachs, how “mankind, or the international community, on its journey through history, found it necessary to outlaw once and for all certain actions (...). On this, the deniers and doubters have to agree, if they accept the basic premises of law and the imperative of its progress”.3

There are, in fact, international obligations pertaining to the safeguard of fundamental values of the international community itself, which are distinct from other international obligations; hence the emergence of concepts such as that of obligations erga omnes, ensuing from jus cogens, in contemporary International Law.4 The examination of humankind as a subject of International Law does not exhaust itself in the identification and assertion of its common and superior interests. It calls for the consideration of the fundamental principle of humanity and the basic considerations of humanity which nowadays mark presence in the whole corpus juris of International Law5 (with a conceptual precision), of the legal consequences of the emergence of humankind as a subject of International Law, of the relevance of the human rights framework, and, last but not least, of the question of humankind’s capacity to act and its legal representation. II.

The Fundamental Principle of Humanity

The treatment dispensed to human beings, in any circumstances, ought to abide by the principle of humanity, which permeates the whole corpus juris of International Law in general, and International Humanitarian Law in particular, conventional as well as customary. Acts which, – under certain international treaties or conventions, – were regarded as amounting to genocide, or as grave violations of International Humanitarian Law, were already prohibited even before the en2

3 4

5

B. Simma, “From Bilateralism to Community Interest in International Law”, 250 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1994) p. 289. M. Lachs, “The Development and General Trends of International Law in Our Time”, 169 RCADI (1980) p. 205. Cf. chapter XII, infra. – The classic vision of a sole and indifferentiated regime of international responsability no longer corresponds to the present stage of evolution of the matter in contemporary International Law; V. Starace, “La responsabilité résultant de la violation des obligations à l’égard de la communauté internationale”, 153 RCADI (1976) pp. 272-275, and cf. pp. 289, 297 and 308. International crimes and violations of jus cogens (entailing aggravated international responsibility), given their particular gravity, affect the basic values of the international community as a whole. C. Tomuschat, “Obligations Arising for States without or against Their Will”, 241 RCADI (1993) p. 224, and cf. p. 307. Cf. chapters XVI-XXIII, infra.

Humankind as a Subject of International Law

try into force of such treaties or conventions, by general international law. One may here invoke, in the framework of this latter, e.g., the universal recognition of the aforementioned principle of humanity.6 In the perennial lesson of a learned jusphilosopher, “if not the laws themselves, at least their content was already in force” before the perpetration of the atrocities of the XXth century, in distinct latitudes; in other words, added G. Radbruch, “those laws respond, by their content, to a Law superior to the laws (...). Whereby we see how, by the turn of a century of legal positivism, that old idea of a Law superior to the laws is reborn (...). The way to reach the settlement of these problems is already implicit in the name that the philosophy of Law used to have in the old Universities and which, after many years of not being used, comes to reemerge today: in the name and in the concept of natural law”.7

It is not to pass unnoticed that the ad hoc International Criminal Tribunal for Rwanda [ICTR] rightly pondered, in the case of J.-P. Akayesu (Judgment of 02.09.1998), that the concept of crimes against humanity had already been recognized well before the Nuremberg Tribunal itself (1945-1946). The Martens clause contributed to that effect (cf. infra); in fact, expressions similar to that of those crimes, invoking victimized humanity, appeared much earlier in human history.8 The same ICTR pointed out, in the case J. Kambanda (Judgment of 04.09.1998), that in all periods of human history genocide has inflicted great losses to humankind, the victims being not only the persons slaughtered but humanity itself (in acts of genocide as well as in crimes against humanity).9 It can hardly be doubted the content of the condemnation of grave violations of human rights, of acts of genocide, of crimes against humanity, and of other atrocities, was already engraved in human conscience, well before their tipification or codification at international level, be it in the 1948 Convention against Genocide, or in other treaties of human rights or of International Humanitarian Law. Nowadays, international crimes are condemned by general as well as conventional International Law. This development has been fostered by

6

7 8 9

In this respect, it has already been pointed out that “it is increasingly believed that the role of International Law is to ensure a minimum of guarantees and of humanity for all, whether in time of peace or in time of war”; J. Pictet, The Principles of International Humanitarian Law, Geneva, ICRC, 1966, pp. 29-30. G. Radbruch, Introducción a la Filosofía del Derecho [Vorschule der Rechtsphilosophie], 3rd. Spanish edition, Mexico, Fondo de Cultura Económica, 1965, p. 180. Paragraphs 565-566 of that Judgment. Paragraphs 15-16 of that Judgment. An equal reasoning is found in the Judgments of the same Tribunal in the aforementioned case J.P. Akayesu, as well as in the case O. Serushago (Judgment of 05.02.1999, par. 15).

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the universal juridical conscience, which, in my understanding, is the ultimate material source of all Law.10 Contemporary (conventional and general) international law has been characterized to a large extent by the emergence and evolution of its peremptory norms (the jus cogens), and a greater consciousness, in a virtually universal scale, of the principle of humanity.11 Grave violations of human rights, acts of genocide, crimes against humanity, among other atrocities, are in breach of absolute prohibitions of jus cogens.12 The feeling of humaneness – proper of a new jus gentium, of the XXIst century, – comes to permeate the whole corpus juris of contemporary International Law. I have called this development, – inter alia in my Concurring Opinion in the Advisory Opinion n. 16 (of 01.10.1999), of the Inter-American Court of Human Rights [IACtHR], on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, – a historical process of a true humanization of International Law.13 In its 1951 Advisory Opinion on the Reservations to the Convention against Genocide, the International Court of Justice [ICJ] sustained the recognition of the principles underlying that Convention as principles which are “binding on States, even without any conventional obligation”.14 In its jurisprudence constante, the IACtHR, in interpreting and applying the American Convention on Human Rights, has consistently invoked the general principles of law.15 The same has done the European Court of Human Rights [ECtHR], in its interpretation and

10

11

12

13 14 15

Cf., e.g., Inter-American Court of Human Rights [IACtHR], case of the Massacre of Plan de Sánchez versus Guatemala (merits, Judgment of 29.04.2004), Separate Opinion of Judge A.A. Cançado Trindade, par. 13; IACtHR, Advisory Opinion n. 18 (of 17.09.2003), on the Juridical Condition and Rights of Undocumented Migrants, Concurring Opinion of Judge A.A. Cançado Trindade, pars. 21-30. T.O. Elias, “New Trends in Contemporary International Law”, in Contemporary Issues in International Law (eds. D. Freestone, S. Subedi y S. Davidson), The Hague, Kluwer, 2002, pp. 11-12. Cf. M.C. Bassiouni, Crimes against Humanity in International Criminal Law, 2nd. ed. rev., The Hague, Kluwer, 1999, pp. 210-211 (with regard to crimes against humanity). Paragraph 35 of the Concurring Opinion. ICJ, ICJ Reports (1951) p. 23. Cf., inter alia, e.g., IACtHR, case of the Five Pensioners versus Peru (Judgment of 28.02.2003), par. 156; IACtHR, Advisory Opinion n. 17, on the Juridical Condition and Human Rights of the Child (of 28.08.2002), pars. 66 and 87; IACtHR, Advisory Opinion n. 16, on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of 01.10.1999), pars. 58, 113 and 128. For a study, cf. A.A. Cançado Trindade, “La Convention Américaine relative aux Droits de l’Homme et le droit international général”, in Droit international, droits de l’homme et juridictions internationales (eds. G. Cohen-Jonathan and J.-F. Flauss), Bruxelles, Bruylant, 2004, pp. 59-71.

Humankind as a Subject of International Law

application of the European Convention on Human Rights.16 Among such principles, those endowed with a truly fundamental character form the substratum of the legal order itself, disclosing the right to the Law of which are titulaires all human beings.17 In the domain of the International Law of Human Rights, the fundamental principles of the dignity of the human person and of the inalienability of the rights which are inherent to her fall under this category. In its Advisory Opinion n. 18, on the Juridical Condition of Undocumented Migrants (2003), the IACtHR expressly referred to both principles.18 The prevalence of the principle of respect of the dignity of the human person is identified with the ultimate aim itself of Law, of the legal order, both national and international. By virtue of this fundamental principle, every person ought to be respected (in her honour and in her beliefs) by the simple fact of belonging to humankind, irrespective of any circumstance.19 The principle of the inalienability of the rights inherent to the human being, in its turn, is identified with a basic assumption of the construction of the whole corpus juris of the International Law of Human Rights. As to the principles of International Humanitarian Law, it has been convincingly argued that one should consider Humanitarian Law treaties as a whole as constituting the expression – and the development – of such general principles, applicable in any circumstances, so as to secure a better protection to those victimized.20 In the Mucic et alii case (Judgment of 20.02.2001), the ad hoc International Criminal Tribunal for the Former Yugoslavia [ICTFY] (Appeals Chamber) pondered that both International Humanitarian Law and the International Law of Human Rights take as a “starting point” their common concern to safeguard human dignity, which forms the basis of their minimum standards of humanity.21 In fact, the principle of humanity can be understood in distinct ways. Firstly, it can be conceived as a principle underlying the prohibition of inhuman treatment, established by Article 3 common to the four Geneva Conventions of 1949. Secondly, the principle referred to can be invoked by reference to humankind as 16

17 18

19 20

21

Cf. L. Caflisch and A.A. Cançado Trindade, “Les Conventions Américaine et Européenne des Droits de l’Homme et le droit international général”, 108 Revue générale de Droit international public (2004) pp. 5-62. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 524-525. Par. 157 of that Advisory Opinion. In my own Concurring Opinion (pars. 1-89) in that Advisory Opinion, I made a detailed and extensive account of my own conception of the fundamental role and central position of the general principles of law in every legal system (national or international); cf. also chapter III, supra. B. Maurer, Le principe de respect de la dignité humaine et la Convention Européenne des Droits de l’Homme, Paris, CERIC/Univ. d’Aix-Marseille, 1999, p. 18. R. Abi-Saab, “Les ‘principes généraux’ du Droit humanitaire selon la Cour Internationale de Justice”, 766 Revue internationale de la Croix-Rouge (1987) pp. 386 and 389; and cf. Chapter III, supra. Paragraph 149 of that Judgment.

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a whole, in relation to matters of common, general and direct interest to it. And thirdly, the same principle can be employed to qualify a given quality of human behaviour (humaneness). In the Celebici case (Judgment of 16.11.1998), the aforementioned ICTFY (Trial Chamber) qualified as inhuman treatment an intentional or deliberate act or omission which causes serious suffering (or mental or physical damage), or constitutes a serious attack on human dignity; thus, the Tribunal added, “inhuman treatment is intentional treatment which does not conform with the fundamental principle of humanity, and forms the umbrella under which the remainder of the listed ‘grave breaches’ in the Conventions fall”.22

Subsequently, in the T. Blaskic case (Judgment of 03.03.2000), the same Tribunal (Trial Chamber) reiterated this position.23 Reference has already been made to the relevance of the Martens clause,24 which can here be reasserted. III. Humankind and Considerations of Humanity: A Conceptual Precision From the preceding considerations it can be promptly perceived that distinct meanings have been attributed to the term “humanity” in contemporary International Law, such as those found in the jurisprudential construction of the ad hoc ICTFY and the ICTR (supra). This construction is clear in associating “humanity” with the universal principle of respect for the dignity of the human person, or the sense of humaneness. The ECtHR and the IACtHR have expressed the same concern by extensively resorting to general principles of law in their converging jurisprudence constante. The ICJ has likewise resorted to “elementary considerations of humanity”, in a similar line of thinking.25 The sense of humaneness and the concern with the needed respect for human dignity have thus marked their presence in the case-law of contemporary international tribunals. When one comes, however, to consider the expansion of international legal personality, that is, the emergence of new subjects of today’s universal International Law, a conceptual precision is here rendered necessary. The expanded International Law of our days encompasses, as its subjects, apart from the States, also international organizations, and human beings, either individually or collectively, – disclosing a basic feature of what I see it fit to denominate the historical process of humanization of International Law. In the framework of this latter

22 23 24 25

Paragraph 543 of that Judgment. Paragraph 154 of that Judgment. Cf. chapter VI, supra. A.A. Cançado Trindade, “La jurisprudence de la Cour Internationale de Justice sur les droits intangibles” in Droits intangibles et états d’exception (eds. D. Prémont, C. Stenersen and I. Oseredczuk), Bruxelles, Bruylant, 1996, pp. 53-71, and cf. pp. 73-88; and cf. chapter XVI, infra.

Humankind as a Subject of International Law

and in addition to those subjects, humankind has in my view also emerged as a subject of International Law. The term “humankind” appears not as a synonym of “humanity” (supra), but endowed with a distinct and very concrete meaning: humankind encompasses all the members of the human species as a whole (including, in a temporal dimension,26 present as well as future generations). In fact, there is nowadays a growing body of international instruments (treaties, declaratory and other resolutions, among others) containing express references to “mankind” or “humankind”, and attributing rights to it. There are nowadays some conceptual constructions in course to give concrete expression, with juridical consequences, to rights attributed to humankind.27 It is likely that this conceptual development will intensify in the years to come. Up to the present, all this results from the aforementioned growing perception and awareness of common and superior interests, and of fundamental values shared by the international community as a whole. IV. The Emergence of Humankind as a Subject of International Law Along the evolution of contemporary International Law, the international legal personality, as already pointed out, became no longer the monopoly of the States. These latter, as well as international organizations and human beings (taken individually and collectively) became titulaires of rights and bearers of duties emanating directly from International Law.28 And humankind has gradually come also to appear as a subject of contemporary International Law, of the new jus gentium of the XXIst century. Although this is a recent development, its roots go back to the legal thinking of the beginning of the second half of the XXth century, or even earlier. It may be recalled that the “conscience of mankind” received judicial recognition already in the Advisory Opinion of 1951 of the ICJ on Reservations to the Convention against Genocide,29 reappearing in the Draft Articles on the International Responsibility of States (of 1976) of the U.N. International Law Commission [ILC].30 In doctrine, some of the first formulations of the common law of mankind were undertaken in the early XXth century, from the twenties31 onwards. In 26 27

28 29 30

31

Cf. chapter II, supra. Cf. chapters XII-XV, infra. – And cf. [Various Authors,] Crimes internationaux et juridictions internationales (eds. A. Cassese and M. Delmas-Marty), Paris, PUF, 2002, pp. 71, 198 and 256, and cf. pp. 24, 26 and 259-261. Cf. chapters VII-X, supra. ICJ Reports (1951) p. 23. With the inclusion of Article 19, on “international crimes” and “international delicts”; cf. United Nations, Yearbook of the International Law Commission [YILC] (1976)-II, part II, pp. 120-122 and 108-110. And cf., subsequently, provisions of the Draft Code of Offences against the Peace and Security of Mankind, of the same Commission; U.N., YILC (1986)-II, part I, pp. 56-57, and Draft Articles of 1991. Cf. chapters I, III and VI, supra.

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the late forties, Alejandro Álvarez stated that the population (as a constitutive element of statehood) had at last entered into international life, and what mattered most was the identification of the common interests of the international community as a whole; to the Chilean jurist, it was the international juridical conscience and the sentiment of justice that were to achieve the reconstruction of International Law.32 This line of thinking was to be retaken, in a systematized way, by C.W. Jenks, in 1958,33 and R.-J. Dupuy, in 1986,34 among others; and in 1966, D. Evrigenis called for a new “universal law”.35 On his turn, in a visionary article published in 1950, M. Bourquin called for the attribution to the international community of the function of “guardian of objective law”, above all in face of the threat of a “massified” civilization. The State itself acted – distinctly from the traditional conception – not solely in the pursuance of its own interest, but also as a member of such international community. The traditional voluntarist conception of International Law, “en faisant de la volonté de l’État la seule force génératrice du droit, (...) déforme le phénomène juridique; (...) elle oublie que le droit est inhérent a toute société, qu’il existe là-même où aucune organisation étatique ne participe à son élaboration”.36

The human problems which conform the contemporary international agenda have inevitably drawn increasing attention to the conditions of living of human beings everywhere, with a direct bearing in the construction of Law itself. Human beings were again to occupy a central place in the law of nations, – which led Bourquin to conclude that “ni au point de vue de son objet, ni même au point de vue de sa structure, le droit des gens ne peut se définir comme un droit inter-étatique”.37

32

33

34 35

36

37

A. Álvarez, “Méthodes de la codification du Droit international public – Rapport”, in Annuaire de l’Institut de Droit International – Session de Lausanne (1947) pp. 45-47, 50-51, 54, 63-64 and 68-70. C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 1-442; and cf. C.W. Jenks, “The New Science and the Law of Nations”, in Évolution et perspectives du droit international – Livre du centenaire de l’Institut de Droit International 18731973, Bâle, Éd. S. Karger, 1973, pp. 330-346. R.-J. Dupuy, La communauté internationale entre le mythe et l’histoire, Paris, Economica/UNESCO, 1986, pp. 11-182. D. Evrigenis, “Institutionnalisation des droits de l’homme et droit universel”, Internationales Colloquium über Menschenrechte (Berlin, Oktober 1966), Berlin, Deutsche Gesellschaft für die Vereinten Nationen, 1966, pp. 26-34. M. Bourquin, “L’humanisation du droit des gens”, La technique et les principes du Droit public – Études en l’honneur de Georges Scelle, vol. I, Paris, LGDJ, 1950, pp. 35 and 45, and cf. pp. 21-54. Ibid., p. 54, and cf. p. 38.

Humankind as a Subject of International Law

Two decades later, in face of the developments in the law of outer space, there was support in expert writing for the view that the comunitas humani generis (which reflected the “moral unity of the human kind” in the line of the thinking of Francisco de Vitoria) already presented a juridical profi le, rendering “humanity” itself a “subject of Law”, because “its existence as a moral and political unity” is an idea which “is progressively becoming reality with all the juridical implications that it entails”.38 Ever since, this line of thinking has been attracting growing attention, at least on the part of the more lucid doctrine. To S. Sucharitkul, e.g., there is no reason to impede humanity to be subject of International Law, it being possible to that effect to be represented by the international community itself; this is a conception which is to prevail, through the humanization of international law, so as “to strengthen the juridical statute of the human being as subject of law” and to save humanity from an “imminent disaster” (the nuclear threat).39 In the lucid observation of Nagendra Singh, the fact that, as time went on, concepts and norms of International Law have attained universal acceptance (in such domains as International Humanitarian Law, the law of treaties, diplomatic and consular law), independently of the multicultural composition of the international community, reveals the evolution of International Law towards universalization.40 The need to research into the status conscientiae of the States was stressed by R. Quadri, who insisted on the international juridical conscience as the material source of the international legal order wherein pluralism prevailed.41 In Italian international legal doctrine, addressing the “unity of the juridical world”, a warning is found to the effect that “il faut voir dans la conscience commune des peuples, ou conscience universelle, la source des normes suprêmes du droit international. (...) Les principes qui s’inscrivent dans la conscience universelle (...) sont à considérer comme également présents dans les ordres juridiques internes (...)”.42

38

39

40

41 42

L. Legaz y Lacambra, “La Humanidad, Sujeto de Derecho”, in Estudios de Derecho Internacional Público y Privado – Homenaje al Profesor L. Sela Sampil, vol. II, Oviedo, Universidad de Oviedo, 1970, p. 554, and cf. pp. 549-559. S. Sucharitkul, “L’humanité en tant qu’élément contribuant au développement progressif du Droit international contemporain”, L’avenir du Droit international dans un monde multiculturel (Colloque de La Haye de 1983, ed. R.-J. Dupuy), La Haye, Nijhoff/Académie de Droit International de La Haye, 1984, pp. 419 e 425-427. Nagendra Singh, “The Basic Concept of Universality and the Development of International Law”, L’avenir du Droit international dans un monde multiculturel, op. cit. supra n. (38), pp. 240-241, 246 and 256-257. R. Quadri, “Cours général de Droit international public”, 113 RCADI (1964) pp. 326, 332, 336-337, 339 and 350-351. G. Sperduti, “La souveraineté, le droit international et la sauvegarde des droits de la personne”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne, Dordrecht, Nijhoff, 1989, pp. 884-885.

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The rights of humanity transcend, by definition, reciprocity, proper of relations at the purely inter-State level.43 It has been contended that the international community should guide itself in the sense of restructuring the international system so as to secure the survival and well-being of humankind as a whole.44 The ILC, while elaborating its Draft Code of Offences against the Peace and Security of Mankind, advanced the understanding (in 1986) that it was possible to conceive a crime against humanity “in the threefold sense of cruelty directed against human existence, the degradation of human dignity and the destruction of human culture”. The individual being a guardian of basic ethical values and a custodian of human dignity, an attack that he suffered could amount to a crime against humanity to the extent that such attack came to shock “human conscience”; one could thus find, – in the outlook of the ILC, – a “natural link” between the human kind and the individual, one being “the expression of the other”, what led to the conclusion that the term “humanity” (in the expression “crime against humanity”) meant the human kind as a whole and “in its various individual and collective manifestations”.45 In fact, already in the beginnings of International Law, recourse was made to “fundamental notions of humanity” which governed the conduct of States. What subsequently was denominated “crimes against humanity” emanated, originally, from customary International Law,46 to develop conceptually, later on, in the ambit of International Humanitarian Law,47 and, more recently, in that of International Criminal Law.48 Crimes against humanity are today tipified in the Rome Statute of the permanent International Criminal Court (Article 7).49 We

43 44

45 46 47

48

49

P.-M. Dupuy, “Humanité, communauté, et efficacité du Droit”, in Humanité et Droit international – Mélanges René-Jean Dupuy, Paris, Pédone, 1991, p. 137. Ph. Allott, “Reconstituting Humanity – New International Law”, 3 European Journal of International Law (1992) pp. 219-252, esp. p. 251; and cf. Ph. Allott, Eunomia – New Order for a New World, Oxford, University Press, 1990, pp. 10 and 186. U.N., YILC (1986)-II, part I, pp. 56-57. S.R. Ratner and J.S. Abrams, Accountability for Human Rights Atrocities in International Law, Oxford, Clarendon Press, 1997, pp. 45-48. Cf. J. Pictet, Développement et principes du Droit international humanitaire, Genève/Paris, Inst. H.-Dunant/Pédone, 1983, pp. 107 and 77; C. Swinarski, Principales Nociones e Institutos del Derecho Internacional Humanitario como Sistema Internacional de Protección de la Persona Humana, San José of Costa Rica, IIDH, 1990, p. 20. Cf. D. Robinson, “Defining ‘Crimes against Humanity’ at the Rome Conference”, 93 American Journal of International Law (1999) pp. 43-57; and, for the historical antecedents, cf., e.g., H. Fujita, “Le crime contre l’humanité dans les procès de Nuremberg et de Tokyo”, 34 Kobe University Law Review (2000) pp. 1-15. Cf., e.g., R.S. Lee (ed.), The International Criminal Court – The Making of the Rome Statute, The Hague, Kluwer, 1999, pp. 30-31 and 90-102; M.C. Bassiouni, Crimes against Humanity in International Criminal Law, 2nd. rev. ed., The Hague, Kluwer, 1999, pp. 332 and 363-368.

Humankind as a Subject of International Law

are, here, in the domain of jus cogens.50 In the occurrence of such crimes victimizing human beings, humanity itself is likewise victimized. This has in fact been expressly acknowledged by the ICTFY in the Tadic case (1997), wherein it held that a crime against humanity is perpetrated not only against the victims themselves, but against humanity as a whole. Again in the Erdemovic case (1996), the Tribunal sustained that crimes against humanity “shock the collective conscience”, harm human beings and transcend them, as humanity itself becomes a victim of them.51 Significant indications pointing towards a common law of mankind can be found in several treaties in force, in distinct domains of International Law. The notion of cultural heritage of mankind, for example, can be found, e.g., in the 1972 UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage.52 In the ambit of International Environmental Law, ever since the 1972 Stockholm Declaration of the U.N. Conference on the Human Environment referred to the “common good of mankind” (Principle 18), examples in this same line have multiplied themselves, in numerous treaties whereby States Parties contracted obligations in the common superior interest of humankind.53 It so happens that mankind gradually emerges, and is acknowledged, in contemporary International Law, and increasingly so, as a subject of rights in distinct domains (such as, e.g., International Human Rights Law, International Criminal Law, International Environmental Law, international regulation of spaces, among others). A distinct aspect, – the proper treatment of which remaining still to be undertaken, – is that of its capacity to act.

50

51

52 53

M.C. Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes”, 59 Law and Contemporary Problems: Accountability for International Crimes and Serious Violations of Fundamental Human Rights (1996) pp. 67-74. J.R.W.D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd. ed., Ardsley/N.Y., Transnational Publs., 1999, pp. 111112. Preceded by, e.g., the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. E.g., examples in chapter XIII, infra. In addition, another example is found implicit in references to “human health” in some treaties of environmental law, such as, e.g., the Vienna Convention for the Protection of the Ozone Layer (of 1985), preamble and Article 2; the Montreal Protocol on Substances that Destroy the Ozone Layer (of 1987), preamble; and Article 1 of the three aforementioned Conventions on marine pollution.

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V.

Legal Consequences of the Acknowledgement of Humankind as Subject of International Law

1.

The Relevance of the Human Rights Framework

Recourse to the very notion of humankind as subject of International Law promptly brings into the fore, or places the whole discussion within, the human rights framework, – and this should be properly emphasized, it should not be left implicit or neglected as allegedly redundant. Just as law, or the rule of law itself, does not operate in a vacuum, humankind is neither a social nor a legal abstraction: it is composed of human collectivities, of all human beings of flesh and bone, living in human societies and extended in time. Just as a couple of decades ago there were questions which were “withdrawn” from the domestic jurisdiction of States to become matters of international concern (essentially, in cases pertaining to human rights protection and self-determination of peoples),54 there are nowadays global issues (such as climate change) which are being erected as common concern of mankind. Here, again, the contribution of international human rights protection and environmental protection heralds the end of reciprocity and the emergence of erga omnes obligations. The human rights framework is ineluctably present in the consideration also of the system of protection of the human environment in all its aspects; we are here ultimately confronted with the crucial question of survival of the humankind, with the assertion – in face of threats to the human environment – of the fundamental human right to live. 2.

The Question of the Capacity to Act and Legal Representation

A subject of law is generally regarded as a bearer of rights and duties conferred upon him, also endowed with the capacity to act. While it is clear today that humankind is the addressee of international norms and has emerged as a subject of International Law (the law of the comunitas humani generis), its capacity to act is still in statu nascendi; this raises the issue of its legal representation. In this connection, the most advanced form of representation achieved to date, despite its shortcomings and setbacks (supra), is that of the 1982 U.N. Convention on the Law of the Sea,55 given the degree of institutionalization achieved (through the creation of the International Seabed Authority). We are at the beginning of a conceptual construction which may still take a long time and considerable endeavours. The conception of humankind, in a time 54 55

Cf. chapter VII, supra. Cf. A. Blanc Altemir, El Patrimonio Común de la Humanidad – Hacia un Régimen Jurídico Internacional para Su Gestión, Barcelona, Bosch, 1992, pp. 37-44 and 243244; S. Paquerot, Le statut des ressources vitales en Droit international – Essai sur le concept de patrimoine commun de l’humanité, Bruxelles, Bruylant, 2002, pp. 91-92; and cf. chapter XIII, infra.

Humankind as a Subject of International Law

framework encompassing present and future generations, presents the double advantage of not neglecting the time factor56 and not isolating one generation from the others. This would lead to the difficulty, already detected in expert writing, of asserting rights of future generations, which do not yet exist and may be rather remote in time; yet, it is quite conceivable to establish, among the living, legal representation on behalf of humankind, comprising its present and future segments.57 The overriding principle of human solidarity holds the living, the present generation, accountable to the unborn (future generations, for the stewardship of the common heritage or concern of humankind, so as not to leave to those who are still to come the world in a worse condition than it found it. After all, “We all live in time. The passing of time affects our juridical condition. The passing of time should strengthen the bonds of solidarity which link the living to their dead, bringing them closer together. The passing of time should strengthen the ties of solidarity which unite all human beings, young and old, who experience a greater or lesser degree of vulnerability in different moments along their existence. (...) In a general way, it is at the beginning and the end of the existential time that one experiences greater vulnerability, in face of the proximity of the unknown (...)”.58

We are here still in the first steps, and there remains of course a long way to go in order to attain a more perfected and improved system of legal representation of humankind in International Law, so that the rights recognized to it thus far can be properly vindicated on a widespread basis. In my understanding, the present limitations of the capacity to act on behalf of humankind itself at international level in no way affect its emerging legal personality, its condition of subject of International Law. As I saw it fit to state in my Concurring Opinion in the Advisory Opinion n. 17 of the IACtHR, on the Juridical Condition and Human Rights of the Child (2002), the international juridical personality of all human beings remains intact, irrespective of the existential condition59 or limitations of the juridical capacity to exercise their rights for themselves; what ultimately matters is that they all have the right to a legal order (at domestic as well as international levels) which effectively protects the rights inherent to them (paragraph 71). And this applies to all human beings as well as to humankind as a whole.

56 57

58

59

Cf. chapter II, supra. Cf. discussion and suggestions in: [Various Authors,] Future Generations and International Law (eds. E. Agius, S. Busuttil et alii), London, Earthscan Publs., 1998, pp. 3-165. IACtHR, Advisory Opinion n. 17 (of 28.08.2002) on the Juridical Condition and Human Rights of the Child, Concurring Opinion of Judge A.A. Cançado Trindade, pars. 4-5. E.g., children, elderly persons, persons with disability, stateless persons, or any other.

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In any case, the modest and slow advances so far achieved towards a regime of legal representation of humankind, – which are bound to progress in the years to come, – added to the recognition of its condition as subject of International Law, constitute yet another manifestation of the current process of humanization of Public International Law. The original conception of totus orbis of Francisco de Vitoria in the XVIth century has ever since paved the way for the formation and crystallization of the notions of an international community as a whole and of a true universal International Law,60 having humankind as such among its subjects. That conception can and should be revived in our troubled times, in the context of the circumstances of the contemporary international scenario, if we really wish to leave a better world to our descendants.61 In my view, we have already entered into the terra nova of the new jus gentium of the early XXIst century, the International Law for humankind.

60 61

We have already reached a stage of evolution of our discipline which has surely transcended the fragmented jus inter gentes of the not too distant past. Cf. F. de Vitoria, Relecciones del Estado, de los Indios, y del Derecho de la Guerra (with an Introduction by A. Gómez Robledo), Mexico, Ed. Porrúa, 1985, pp. XLV and LXXXIV.

Part V Construction of the International Law for Humankind

Chapter XII

I.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

Introduction: Fundamental Values of the International Community

The new jus gentium of our days, the International Law for humankind, already counts on some conceptual achievements. The fact that the concepts both of the jus cogens and of the obligations (and rights) erga omnes already integrate the conceptual universe of International Law discloses the reassuring and necessary opening of this latter, in the last decades, to certain superior and fundamental values. This significant evolution of the recognition and assertion of norms of jus cogens and obligations erga omnes of protection is to be fostered, seeking to secure their full practical application, to the benefit of all human beings. In this way the universalist vision of the founding fathers of the droit des gens is being duly rescued. Other concepts have also found expression in the emerging International Law for humankind, such as, e.g., those of common heritage of mankind and common concern of mankind; and others emerge with the new jus gentium of this beginning of the XXIst century, such as that of universal jurisdiction. These new conceptions impose themselves in our days, and, of their faithful observance, will depend to a large extent the future evolution of contemporary International Law. This latter does not emanate from the inscrutable “will” of the States, but rather, in my view, from human conscience. General or customary international law emanates not so much from the practice of States (not devoid of ambiguities and contradictions), but rather from the opinio juris communis of all the subjects of International Law (States, international organizations, human beings, peoples, and humankind as a whole). Above the will stands the conscience. The fact that, despite all the sufferings of past generations, there persist in our days new forms of exploitation of man by man, – illustrated by the increasing disparities among and within nations, amidst chronic and growing poverty, uprootedness, social exclusion and marginalization, – does not mean that “regulation is lacking” or that Law does not exist to remedy or reduce such man-made imbalances. It rather means that Law is being ostensibly and flagrantly violated, from day to day, to the detriment of millions of human beings. The current process of the necessary humanization of International Law stands in reaction to that state of affairs. It bears in mind the universality and

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unity of the human kind, which inspired, more than four and a half centuries ago, the historical process of formation of the droit des gens. In rescuing the universalist vision which marked the origins of the most lucid doctrine of International Law, the aforementioned process of humanization contributes to the construction of the new jus gentium of the XXIst century, oriented by the general principles of law. This process is enhanced by its own conceptual achievements, such as, to start with, the acknowledgement and recognition of jus cogens and the consequent obligations erga omnes of protection, followed by other concepts disclosing likewise a universalist perspective of the law of nations. II.

International Jus Cogens (Peremptory Norms of General International Law)

1.

Emergence and Content of Jus Cogens

The emergence and assertion of jus cogens in contemporary International Law fulfi ll the necessity of a minimum of verticalization in the international legal order, erected upon pillars in which the juridical and the ethical are merged. The evolution of the concept of jus cogens transcends nowadays the ambit of both the law of treaties and the law of the international responsibility of the States, so as to reach general International Law and the very foundations of the international legal order.1 Jus cogens was definitively incorporated into the conceptual universe of contemporary International Law as from the inclusion, among the bases of invalidity and termination of treaties, of the peremptory norms of general International Law, in Articles 53 and 64 of the Vienna Convention of 1969 on the Law of Treaties.2 The Convention set forth the concept of jus cogens, without thereby adopting the thesis – defended in the past by A. McNair 3 – that a treaty could generate a regime of objective character erga omnes in derrogation of the classic principle

1

2

3

Inter-American Court of Human Rights (IACtHR), Advisory Opinion n. 18, on The Juridical Condition and the Rights of the Undocumented Migrants (of 17.09.2003), pars. 98-99, and Concurring Opinion of Judge A.A. Cançado Trindade, pars. 65-67. More than three decades earlier, the expression “ jus cogens” was utilized by Judge Schücking, in his well-known Separate Opinion in the Oscar Chinn case (United Kingdom versus Belgium); Permanent Court of International Justice (PCIJ), Series A/B, n. 63, 1934, pp. 148-150, esp. p. 149. One year later, in his course at the Hague Academy of International Law, Alfred Verdross also utilized the expression “ jus cogens”, and referred himself to the aforementioned Separate Opinion of Judge Schücking; cf. A. Verdross, “Les principes généraux du Droit dans la jurisprudence internationale”, 52 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1935) pp. 206 and 243. Cf. A.D. McNair, “Treaties Producing Effects ‘Erga Omnes’”, in Scritti di Diritto Internazionale in Onore di T. Perassi, vol. II, Milano, Giuff rè, 1957, pp. 23-36.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

pacta tertiis nec nocent nec prosunt.4 The concept seems to have been recognized by the Vienna Convention of 1969 as a whole; if this latter did not adopt the notion of treaties establishing “legal regimes of objective character”, on the other hand it set forth the concept of jus cogens,5 i.e., of peremptory norms of general International Law.6 The provisions on jus cogens became the object of analysis of a wide specialized bibliography.7 4

5

6

7

It may be addded that, during the travaux préparatoires of the Convention undertaken by the U.N. International Law Commission [ILC], the notion of “community interest” was made present: at first utilized by J.-M. Yepes in 1950, the idea was later to appear in the 1st. report by J.L. Brierly (the fi rst rapporteur on the subject), and in the 1st. report by H. Lauterpacht (the second rapporteur), the became absent from the reports by G. Fitzmaurice (the third rapporteur), and reappeared at last in the 2nd. report by H. Waldock (the fourth and last rapporteur on the matter); S. Rosenne, “Bilateralism and Community Interest in the Codified Law of Treaties”, in Transnational Law in a Changing Society – Essays in Honour of Ph. C. Jessup (ed. W. Friedmann, L. Henkin, and O. Lissitzyn), N.Y./London, Columbia University Press, 1972, pp. 207, 212-219 and 226-227; and cf. Ph. Cahier, “Le problème des effets des traités à l’égard des États tiers”, 143 RCADI (1974) pp. 589-736. For a historical account of the concept, going back to the old Roman law, but reappearing mainly as from the XIXth century, cf. J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties – A Critical Appraisal, Viena, Springer-Verlag, 1974, pp. 6-11 and 97-108. The term, as such, appeared for the first time in the 3rd. report by G. Fitzmaurice, and was again to appear in the 2nd. report by H. Waldock; J. Sztucki, op. cit. supra n. (5), pp. 104-105 and 108. – On the criteria for the determination of the rules of International Law which could constitute jus cogens, cf. I.M. Sinclair, “Vienna Conference on the Law of Treaties”, 19 International and Comparative Law Quarterly (1970) pp. 66-69; I.M. Sinclair, The Vienna Convention on the Law of Treaties, Manchester, University Press/Oceana, 1973, pp. 124-129, and cf. pp. 129-131. Cf., e.g., Ch.L. Rozakis, The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North Holland Publ. Co., 1976, pp. 1-194; Ch. de Visscher “Positivisme et jus cogens”, 75 Revue générale de Droit international public (1971) pp. 5-11; M. Virally, “Réflexions sur le jus cogens”, 12 Annuaire français de Droit international (1966) pp. 5-29; A. Verdross, “Jus dispositivum and Jus Cogens in International Law”, 60 American Journal of International Law [AJIL] (1966) pp. 55-63; J.A. Barberis, “La liberté de traiter des États et le jus cogens”, 30 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht [Z.f.a.o.R.u.V.] (1970) pp. 19-45; U. Scheuner, “Conflict of Treaty Provisions with a Peremptory Norm of International Law”, 27 and 29 Z.f.a.o.R.u.V. (1967 and 1969) pp. 520-532 and 28-38, respectively; H. Mosler, “Ius cogens im Völkerrecht”, 25 Schweizerisches Jahrbuch für internationales Recht (1968) pp. 1-40; K. Marek, “Contribution à l’étude du jus cogens en Droit international”, in Recueil d’etudes de Droit International en hommage à P. Guggenheim, Geneva, I.U.H.E.I., 1968, pp. 426-459; M. Schweitzer, “Ius cogens im Völkerrecht”, 15 Archiv des Völkerrechts (1971) pp. 197-223; G. Gaja, “Jus Cogens beyond the Vienna Convention”, 172 RCADI (1981) pp. 279-313; L. Alexidze, “Legal Nature of Jus Cogens in Contemporary International Law”, in ibid., pp. 227-268; and other sources referred to in notes (11), (22), (23), (29), (41), (47) and (53).

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The notion of jus cogens seems to have been recognized by the Vienna Convention as a whole, thus transcending the old exclusively bilateralist approach in its application. Even before the Vienna Conference on the Law of Treaties of 1968-1969, in the debates of 1963 and 1966 of the VIth Committee of the U.N. General Assembly, it became clear that the majority of the jusinternationalists of the developing countries and of the countries of Eastern Europe attributed great importance to the concept of jus cogens, the same occurring during the Conference, in which there was not much opposition to the concept, although the Delegations mainly of the Western countries cautiously insisted on the need of some criteria for the determination of the rules of International Law which constituted jus cogens.8 As to the evolving question of the discernible contents of jus cogens, it may be recalled that a comment of the U.N. International Law Commission [ILC], in its travaux préparatoires on the law of treaties, suggested, as being incompatible with the rules of jus cogens, treaties which contemplated the illicit use of force (contrary to the principles of the U.N. Charter), or any other criminal act under International Law (slave trade, piracy, genocide).9 And already in an Advisory Opinion of 1951, on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the ICJ pointed out that the humanitarian principles underlying that Convention were recognizedly “binding on States, even without any conventional obligation”.10 One and a half decades later, the concept of jus cogens was again set forth in the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986); in my intervention in the United Nations Conference which adopted it (debates of 12.03.1986 in Vienna), I saw it fit to warn as to the manifest incompatibility with the concept of jus cogens of the voluntarist conception of International Law,11 which appeared incapable to explain even the formation of rules of general international law and the incidence in the process of formation and evolution of contemporary Inter-

8 9

10 11

I.M. Sinclair, “Vienna Conference...”, op. cit. supra n. (6), pp. 66-69; I.M. Sinclair, The Vienna Convention..., op. cit. supra n. (6), pp. 124-129. Cit. in I.M. Sinclair, The Vienna Convention..., op. cit. supra n. (6), pp. 121-122, and cf. pp. 130-131; cf. also accounts in S.P.A. Ferrer, “Los conceptos de ius cogens y ius dispositivum y la labor de la Comisión de Derecho Internacional”, 21 Revista Española de Derecho Internacional (1968) pp. 763-780; E. Schwelb, “Some Aspects of International Ius Cogens as Formulated by the International Law Commission”, 61 AJIL (1967) pp. 946-975. ICJ, Advisory Opinion of 28 May 1951, ICJ Reports (1951) p. 23. Cf. U.N., United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations (Vienna, 1986) – Official Records, vol. I, N.Y., U.N., 1995, pp. 187-188 (intervention by the Deputy Head of the Delegation of Brazil, A.A. Cançado Trindade).

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

national Law of elements independent of the “free will” of the States.12 With the assertion of jus cogens in the two Vienna Conventions on the Law of Treaties (1969 and 1986), the next step consisted in determining in incidence beyond the law of treaties. 2.

Evolving Scope of Jus Cogens

On my part, I have always sustained that it is an ineluctable consequence of the affirmation and the very existence of peremptory norms of International Law their not being limited to the conventional norms, to the law of treaties, and their being extended to every and any juridical act.13 Recent developments point out in the same sense, that is, that the domain of the jus cogens, beyond the law of treaties, encompasses likewise general International Law.14 In my Concurring Opinion in the Advisory Opinion n. 18 (of 17.09.2003) of the Inter-American Court of Human Rights [IACtHR], on The Juridical Condition and the Rights of Undocumented Migrants, I sustained my understanding that the jus cogens is not a closed juridical category, but rather one in evolution and expansion (pars. 65-73). In sum, “(...) the domain of the jus cogens, beyond the law of treaties, encompasses likewise general international law. Moreover, the jus cogens, in my understanding, is an open category, which expands itself to the extent that the universal juridical conscience (material source of all Law) awakens for the necessity to protect the rights inherent to each human being in every and any situation. (...) The absolute prohibition of the practices of torture, of forced disappearance of persons, and of summary and extra-legal executions, leads us decidedly into the terra nova of the international jus cogens. (...)” (pars. 68-69).

And I concluded, in this respect, in the same aforementioned Concurring Opinion, that

12

13

14

A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A ReAssessment”, 59 Revue de droit international de sciences diplomatiques et politiques – Geneva (1981) pp. 201-240. Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 415-416; IACtHR, Advisory Opinion n. 18, on The Juridical Condition and the Rights of the Undocumented Migrants (of 17.09.2003), Concurring Opinion of Judge A.A. Cançado Trindade, pars. 68-73. For the extension of jus cogens to all possible juridical acts, cf., e.g., E. Suy, “The Concept of Jus Cogens in Public International Law”, in Papers and Proceedings of the Conference on International Law (Langonissi, Greece, 03-08.04.1966), Geneva, C.E.I.P., 1967, pp. 17-77.

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Chapter XII “The concept of jus cogens in fact is not limited to the law of treaties, and is likewise proper to the law of the international responsibility of the States. The Articles on the Responsibility of the States, adopted by the International Law Commission of the United Nations in 2001, bear witness of this fact. (...) In my understanding, it is in this central chapter of International Law, that of the international responsibility (perhaps more than in the chapter on the law of treaties), that the jus cogens reveals its real, wide and profound dimension, encompassing all juridical acts (including the unilateral ones), and having an incidence (including beyond the domain of State responsibility) on the very foundations of an international law truly universal” (par. 70).

Besides this horizontal expansion, jus cogens is also expanding in a vertical dimension, of the interaction between the international and national legal orders in the present domain of protection. The effect of jus cogens, in this second (vertical) level, has been in the sense of invalidating every and any legislative, administrative or judicial measure that, at the level of the domestic law of the States, attempts to authorize or tolerate torture.15 Jus cogens has further been invoked to secure the absolute prohibition of violation of fundamental rights of the human person.16 Jus cogens was thus expressly referred to – in connection with superior values shared by the international community – in the travaux préparatoires of the 1985 Inter-American Convention to Prevent and Punish Torture.17 The absolute prohibition of forced disappearance of persons was insisted upon in the preparatory work of the 1994 Inter-American Convention on Forced Disappearance of Persons.18 This reassuring development has led to the emergence of a true international legal regime against torture, forced disappearances of persons, extra-legal and arbitrary and summary executions, and illegal and arbitrary detentions.19 As far as international case-law is concerned, two international tribunals which, in recent years, have considerably contributed to the development of the material content of the international jus cogens have been the IACtHR and the ad hoc International Criminal Tribunal for the Former Yugoslavia [ICTFY]. In con15

16 17

18

19

Cf. E. de Wet, “The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law”, 15 European Journal of International Law (2004) pp. 98-99. A.A. Cançado Trindade, Tratado de Direito Internacional..., vol. II, op. cit. supra n. (13), p. 415. Cf. OAS/G.A., Asamblea General de la OEA – XV Período Ordinario de Sesiones (Cartagena, Colombia), Actas y Documentos, vol. II, part II, Washington D.C., OAS General Secretariat, 1985, p. 113. Cf. OAS/PC, Informe del Presidente del Grupo de Trabajo Encargado de Analizar el Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas, OAS doc. OEA/Ser.G/CP/CAJP-925/93/rev.1, of 25.01.1994, pp. 3-23. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, op. cit. supra n. (13), pp. 345-358.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

formity with the Judgments of the IACtHR in the cases Cantoral Benavides versus Peru (18.08.2000), Maritza Urrutia versus Guatemala (27.11.2003), Brothers Gómez Paquiyauri versus Peru (08.07.2004), and Tibi versus Ecuador (07.09.2004), the understanding is sustained that torture, inhuman treatment and extra-judicial executions are in breach of the jus cogens; furthermore, in accordance with the extensive reasoning of the IACtHR in its historical Advisory Opinion n. 18 on the Juridical Condition and Rights of Undocumented Migrants (17.09.2003), the understanding is advanced that the fundamental principle of equality and nondiscrimination has entered into the domain of the jus cogens.20 And pursuant to the decisions of the ICTFY (Trial Chambers), e.g., in the cases Furundzija (10.12.1998), Jelisic (14.12.1999), Kupreskic and Others (14.01.2000), Kunarac (22.02.2001) and Krstic (02.08.2001), the understanding is maintained that genocide, torture and attacks against civilians in armed conflicts are in breach of the jus cogens;21 the ICTFY (Trial Chamber II) reiterated its position, as to the prohibition – of conventional and customary law – of torture as being of jus cogens, in the Simic case (Judgment of 17.10.2002, par. 34). In the Furundzija case, the ICTFY (Trial Chamber) sustained that the absolute prohibition of torture, under conventional and customary International Law, – having the character of jus cogens, and generating obligations erga omnes,22 – was so absolute that it had incidence not only on actual, but also potential, violations.23 This jurisprudential assertion of prohibitions of jus cogens has taken place in pursuance of the superior and fundamental values to be protected, shared by the international community as a whole, from which no derogation or diversion is allowed. The significant jurisprudential contributions, in recent years, particularly of the IACtHR and the ICTFY on the matter at issue, are oriented in the correct direction, but there still remains of course a long way to go in the gradual determination of the material content of the jus cogens. The concept of jus cogens is in fact not limited to the law of treaties, and is likewise proper to the law of the international responsibility of the States. The Articles on the Responsibility of the States, adopted by the ILC of the United Na20

21

22 23

Paragraphs 97-101; and cf., for a recent general study, e.g., A.A. Cançado Trindade, “The Case-Law of the Inter-American Court of Human Rights: An Overview”, in Studi di Diritto Internazionale in Onore di Gaetano Arangio-Ruiz, vol. III, Napoli, Ed. Scientifica, 2004, pp. 1873-1898. Cf., e.g., F. Harhoff, “La consécration de la notion de jus cogens dans la jurisprudence des tribunaux pénaux internationaux”, in Actualité de la jurisprudence pénale internationale à l’heure de la mise en place de la Cour Pénale Internationale (eds. P. Tavernier and C. Renaut), Bruxelles, Bruylant, 2004, pp. 65-80. Paragraphs 137-139, 144 and 160, and cf. pars. 151 and 153-154. On this last point, cf. the Judgment of the European Court of Human Rights [ECtHR] in the Soering versus United Kingdom case (1989, pars. 144 and 148). – And, on the practice under the U.N. Covenant on Civil and Political Rights, cf. F. Pocar, “Patto Internazionale sui Diritti Civili e Politici ed Estradizione”, in Diritti dell’Uomo, Estradizione ed Espulsione – Atti del Convegno di Ferrara (1999) per Salutare G. Battaglini (ed. F. Salerno), Padova, Cedam, 2003, pp. 89-90.

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tions in 2001, bear witness of this fact. Among the passages of such Articles and their comments which refer expressly to jus cogens, there is one in which it is affirmed that “various tribunals, national and international, have affi rmed the idea of peremptory norms in contexts not limited to the validity of treaties”.24 To the international objective responsibility of the States corresponds necessarily the notion of objective illegality 25 (one of the elements underlying the concept of jus cogens). In our days, no one would dare to deny the objective illegality of acts of genocide, of systematic practices of torture, of summary and extra-legal executions, and of forced disappearance of persons, – practices which represent crimes against humanity, – condemned by the universal juridical conscience,26 parallel to the application of treaties. In its Judgment of 11 July 1996, in the case concerning the Application of the Convention against Genocide (Bosnia-Herzegovina versus Yugoslavia), the ICJ affirmed that the rights and obligations set forth in that Convention were “rights and duties erga omnes”.27 And, already in its Advisory Opinion of 1951 on the Reservations to the Convention against Genocide, the ICJ pointed out that the humanitarian principles underlying that Convention were recognizedly “binding on States, even without any conventional obligation”.28 Just as, in the ambit of the International Law of Refugees, the basic principle of non-refoulement was recognized as being of jus cogens,29 in the domain of the International Law of Human Rights the character of jus cogens of the fundamental principle of equality and non-discrimination was likewise recognized. The objective illegality is not limited to the aforementioned acts and practices. As jus cogens is not a closed category (supra), I understand, furthermore, that no one would dare to deny that, e.g., slave work, and the persistent denial of the most elementary guarantees of the due process, of law would likewise affront the universal juridical conscience, and effectively collide with, and are in breach of, the peremptory norms of the jus cogens. All this doctrinal evolution points to the direction of the crystallization of the obligations erga omnes of protection; without the consolidation of such obligations one will advance very little in the struggle against the violations of human rights.

24

25

26 27 28 29

J. Crawford, The International Law Commission’s Articles on State Responsibility – Introduction, Text and Commentaries, Cambridge, University Press, 2002, p. 188, and cf. pp. 246 and 127-128. In its Advisory Opinion of 21.06.1971 on Namibia, the ICJ in fact referred itself to a situation which it characterized as “illegal erga omnes”; ICJ Reports (1971) p. 56, par. 126. IACtHR, case Blake versus Guatemala (Merits), Judgment of 24.01.1998, Separate Opinion of Judge A.A. Cançado Trindade, par. 25, and cf. pars. 23-24. ICJ Reports (1996) p. 616, par. 31. ICJ, Advisory Opinion of 28 May 1951, ICJ Reports (1951) p. 23. Cf. J. Allain, “The Jus Cogens Nature of Non-Refoulement”, 13 International Journal of Refugee Law (2002) pp. 538-558.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

Manifestations of international jus cogens mark presence in the very manner whereby human rights treaties have been interpreted and applied: the restrictions, foreseen in them, to the human rights they set forth, are restrictively interpreted, safeguarding the rule of law, and demonstrating that human rights do not belong to the domain of jus dispositivum, and cannot be considered as simply “negotiable”;30 on the contrary, they permeate the international legal order itself. In sum and conclusion on the point under examination, the emergence and assertion of jus cogens evoke the notions of international public order and of a hierarchy of legal norms, as well as the prevalence of the jus necessarium over the jus voluntarium; jus cogens presents itself as the juridical expression of the very international community as a whole, which, at last, takes conscience of itself, and of the fundamental principles and values which guide it.31 3.

The Gradual Expansion of the Material Content of Jus Cogens

I shall now move on to the gradual expansion, in recent years, of the material content of jus cogens, as acknowledged by contemporary international case-law on the matter, in particular that of the IACtHR. Such expansion has covered, as we shall see next, the absolute prohibition of torture and of cruel, inhuman or degrading treatment; the basic principle of equality and non-discrimination; and the fundamental character of the right of access to justice. Attention will be drawn onto the importance of the right of access to justice as an imperative of jus cogens. The first stage of the remarkable jurisprudential evolution of the IACtHR on the matter consisted of the assertion of the absolute prohibition, of jus cogens, of torture, in every and any circumstance, followed by the same prohibition of cruel, inhuman or degrading treatment. Thus, in its Judgment of 18.08.2000, in the case of Cantoral Benavides versus Peru, the IACtHR significantly sustained that “(...) Certain acts which were qualified in the past as inhuman or degrading treatment, not as torture, could be qualified in the future in a different way, that is, as torture, since to the growing demands of protection of human rights and fundamental freedoms ought to correspond a greater fi rmness to face the infringements to the basic values of democratic societies (...)” (par. 99).

30

31

J.A. Pastor Ridruejo, “La Convención Europea de los Derechos del Hombre y el ‘Jus Cogens’ Internacional”, in Estudios de Derecho Internacional – Homenaje al Profesor Miaja de la Muela, vol. I, Madrid, Ed. Tecnos, 1979, pp. 581-590. A. Gómez Robledo, El Jus Cogens Internacional (Estudio Histórico Crítico), Mexico, UNAM, 1982, pp. 20-21, 222-223 and 226, and cf. p. 140; and cf. also R.St.J. Macdonald, “Fundamental Norms in Contemporary International Law”, 25 Annuaire canadien de Droit international (1987) pp. 133-134, 140-142 and 148.

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In the same sense, in the Judgment of 08.07.2004, in the case of the Brothers Gómez Paquiyauri versus Peru, the IACtHR pointed out that “torture is strictly prohibited by the International Law of Human Rights. The prohibition of torture is absolute and non- derrogable, even in the most difficult circumstances, such as war, threat of war, ‘fight against terrorism’ and any other delicts, state of siege or of emergency, commotion or internal confl ict, suspension of constitutional guarantees, internal political instability or other emergencies or public calamities”.

And the IACtHR clearly found that “it has been conformed an international juridical regime of absolute prohibition of all forms of torture, both physical and psychological, a regime which belongs today to the domain of the international jus cogens” (pars. 111-112). Years before these significant obiter dicta of the IACtHR, I had warned, within the Court, as to the need of the jurisprudential development of the prohibitions of jus cogens, in my Separate Opinions in the case of Blake versus Guatemala (preliminary objections, Judgment of 02.07.1996;32 merits, Judgment of 24.01.1998;33 and reparations, Judgment of 22.01.199934). In the same line of thinking, subsequently to the case of Cantoral Benavides, I reiterated my position on the matter in my Concurring Opinion in the Judgment (of 14.03.2001) in the case of Barrios Altos versus Peru,35 as well as in my Separate Opinion in the Judgment (of 01.09.2001) in the case of Hilaire versus Trinidad and Tobago;36 in my Concurring Opinion in the Judgment (of 27.11.2003) in the case of Maritza Urrutia versus Guatemala;37 in my Separate Opinion in the Judgment (of 08.07.2004) in the case of the Brothers Gómez Paquiyauri versus Peru (of 08.07.2004);38 and in my Dissenting Opinion in the cases of the Sisters Serrano Cruz versus El Salvador (Judgment on preliminary objections of 23.11.2004).39 And in its Judgment of 07.09.2004, in the case of Tibi versus Ecuador, the IACtHR again acknowledged the existence of “an international juridical regime of absolute prohibition of all forms of torture, both physical and psychological, a regime which belongs today to the domain of jus cogens. The prohibition of torture is complete and non-derogable, even in the most difficult circumstances”(par.

32 33 34 35 36 37 38 39

Pars. 11 and 14 of the Opinion. Pars. 15, 17, 23, 25 and 28 of the Opinion. Pars. 31, 40 and 45 of the Opinion. Pars. 10-11 and 25 of the Opinion. Par. 38 of the Opinion. Pars. 6, 8-9 and 12 of the Opinion. Pars. 1, 37, 39, 42 and 44 of the Opinion. Pars. 2, 32, and 39-41 of the Opinion.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

143).40 The IACtHR reiterated this obiter dictum in its Judgment of 06.04.2006 in the case of Baldeón García versus Peru (par. 121). One year earlier, the Judgment of the IACtHR (of 11.03.2005) in the case of Caesar versus Trinidad and Tobago, in the same line of reasoning of its jurisprudential construction of the jus cogens, rightly took another step forward, in sustaining the absolute prohibition, proper of the domain of jus cogens, of torture as well as other cruel, inhuman and degrading treatment. The absolute prohibition of torture, as well as of such treatment, in all and any circumstances, as a prohibition of jus cogens, forms today jurisprudence constante of the IACtHR. But the IACtHR did not limit itself to such prohibition. It went further, in expanding the material content of jus cogens in its historical Advisory Opinion n. 18 (of 17.09.2003), on the Juridical Condition and Rights of Undocumented Migrants, so as to encompass the basic principle of equality and non-discrimination (pars. 97-101 and 110-111). The IACtHR sustained that States have the duty to respect and to secure respect for human rights in the light of the general and basic principle of equality and non-discrimination, and that any discriminatory treatment in relation to the protection and exercise of such rights (including labour rights) generates the international responsability of the States. In the understanding of the Court, the fundamental principle referred to entered into the domain of jus cogens, States not being allowed to discriminate, or tolerate discriminatory situations, to the detriment of migrants, and being under the duty to guarantee the due process of law to any person, irrespective of her migratory status. States cannot subordinate or condition the observance of the principle of equality before the law and of non-discrimination to the objectives of their migratory policies, among others. On this new and highly significant jurisprudential advance I presented an extensive Concurring Opinion (pars. 1-89), in which I supported the position of the Court, acknowledging that such basic principle permeates the whole juridical 40

In my Separate Opinion in this same case Tibi, I singled out the importance of the absolute character of such prohibition, and examined the evolution of this latter in contemporary international case-law (pars. 26 and 30-32 of the Opinion). – The international regime against torture is today conformed by the U.N. Convention (of 1984, and its Protocol of 2002) and the Inter-American (1985) and European (1987) Conventions on the matter, in addition to the Special Rapporteur on Torture (since 1985) of the old U.N. Commission on Human Right (CHR), and the Working Group on Arbitrary Detention (since 1991) of the same CHR (attentive to the prevention of torture). The three aforementioned coexisting Conventions of struggle against torture are basically complementary. On its turn, the European Court of Human Rights affi rmed, in the case Soering versus United Kingdom (Judgment of 07.07.1989), that the absolute prohibition of torture (also in times of war and other national emergencies) gives expression to one of the contemporary fundamental values of democratic societies (par. 88). And the ad hoc International Criminal Tribunal for the Former Yugoslavia categorically sustained, in the case A. Furundzija (Judgment of 10.12.1998), that the absolute prohibition of torture has the character of a norm of jus cogens (pars. 137-139, 144 and 160).

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order, and drawing attention to its importance, and that of all general principles of law, wherefrom the norms and rules emanate, and without which, ultimately, there is no “juridical order” (pars. 44-46 and 65). In sum, such principles conform, in my understanding, the substratum of the legal order itself (pars. 52-58 and 72). The points which I dwelt upon, – also for the evolution of jus cogens and obligations erga omnes of protection, – I did so in the ambit of the conception of the civitas maxima gentium and of the universality of the human kind. Advisory Opinion n. 18 of the IACtHR has had a considerable impact on the American continent, and its influence is bound to extend itself to other latitudes, for its content and given the topicality and the relevance of the matter. Both the Advisory Opinion n. 18 (supra), and the Advisory Opinion n. 16 on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (of 01.10.1999),41 call for and advance the same dynamic or evolutive interpretation of the International Law of Human Rights. In the Advisory Opinion n. 16, pioneering and a source of inspiration of the international case-law in statu nascendi on the matter, the IACtHR interpreted the protecting norms of the American Convention on Human Rights in such a way as to extend them into new situations, such as that pertaining to the observance of the right to information on consular assistance.42 The same outlook was adopted by the Court in its subsequent and forwardlooking Advisory Opinion n. 18, on the rights of undocumented migrants, erected on the evolving concepts of jus cogens and of obligations erga omnes of protection. The historical trascendence of both Advisory Opinions of the IACtHR has been acknowledged in the juridical circles of the whole continent, and elsewhere. They effectively pave the way for the construction of a new jus gentium in this first decate of the XXIst century: an International Law which is no longer Statecentric, but appears rather attentive to the fulfi lment of the needs and aspirations of humankind as a whole. Since the IACtHR endorsed the understanding that also the fundamental principle of equality and non-discrimination has entered into the domain of jus cogens (supra), in successive contentious cases I have insisted on the need to enlarge further the material content of jus cogens, so as to encompass likewise the right of access to justice,43 and thus fulfi l the pressing needs of protection of the 41

42

43

On the impact and influence of this latter, cf. A.A. Cançado Trindade, “The Humanization of Consular Law: The Impact of Advisory Opinion n. 16 (1999) of the Inter-American of Human Rights on International Case-Law and Practice”, 4 Chinese Journal of International Law (2007) pp. 1-16. On the impact of Advisory Opinion n. 16 on international case-law and practice, cf. A.A. Cançado Trindade, “The Humanization of Consular Law: The Impact of Advisory Opinion n. 16 (1999) of the Inter-American Court of Human Rights on International Case-Law and Practice”, in 6 Chinese Journal of International Law (2007) n. 1, p. 1-16. Cf., in this sense, my Separate Opinions in the IACtHR’s Judgments in the cases of the Massacre of Plan de Sánchez versus Guatemala (merits, of 29.04.2004), pars. 22,

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

human person. I have done so, inter alia, in my Separate Opinion (devoted to the right of access to justice lato sensu) in the Judgment of the Court (of 31.01.2006) in the case of the Massacre of Pueblo Bello versus Colombia, drawing attention to the fundamental importance precisely of the right of access to justice, and pondering that “The interrelatedness which I sustain between Articles 25 and 8 of the American Convention (...) leads to characterize as belonging to the domain of jus cogens the access to justice understood as the full realization of this latter, that is, as belonging to the domain of jus cogens the intangibility of all judicial guarantees in the sense of Articles 25 and 8 taken jointly. There can be no doubt that fundamental guarantees, common to the International Law of Human Rights and to International Humanitarian Law,44 have a universal vocation in being applicable in all and any circumstances, conforming an imperative law (belonging to jus cogens), and bringing about obligations erga omnes of protection” (par. 64).

Shortly afterwards, in my Separate Opinion in the case of López Álvarez versus Honduras (2006), I saw it fit to insist on my understanding in the sense that the right to the Law (the access to justice lato sensu) is an imperative of jus cogens (pars. 52-55). I did likewise, in my Separate Opinion in the Judgment of the IACtHR in the case Baldeón García versus Peru (merits and reparations, of 06.04.2006).45 But it was in the case of Goiburú and Others versus Paraguay

44 45

29-33 and 35 of the Opinion; and (reparations, of 19.11.2004), pars. 4-7 and 20-27 of the Opinion; of the Brothers Gómez Paquiyauri versus Peru (of 08.07.2004), pars. 3744 of the Opinion; of Tibi versus Ecuador (of 07.09.2004), pars. 30-32 of the Opinion; of Caesar versus Trinidad and Tobago (of 11.03.2005), pars. 85-92 of the Opinion; of Yatama versus Nicaragua (of 23.06.2005), pars. 6-9 of the Opinion; of Acosta Calderón versus Ecuador (of 14.06.2005), pars. 4 and 7 of Opinion; of the Massacres of Ituango versus Colombia (of 01.07.2006), par. 47 of the Opinion; of Baldeón García versus Peru (of 06.04.2006), pars. 9-10 of the Opinion; of López Álvarez versus Honduras (of 01.02.2006), pars. 53-55 of the Opinion; of Ximenes Lopes versus Brazil (of 04.07.2006), pars. 38-47 of the Opinion. E.g., Article 75 of Protocol I (of 1977) of the Geneva Conventions (of 1949) on International Humanitarian Law. In this Separate Opinion in the Baldeón García case, in recalling the precedents of the jurisprudential construction of the prohibitions of jus cogens (cf. supra), I disagreed with the reasoning of the majority of the Court which considered that the State obligations of prevention, investigation and sanction of those responsible (for human rights violations) would be simple obligations “of means, not of results”. Distinctly from the majority of the Court, I pondered in that Separate Opinion (pars. 5-7 and 9-12), as well as in my Separate Opinion (par. 23) in the case of the Indigenous Community Sawhoyamaxa versus Paraguay (Judgment of 29.03.2006) that the obligations of the State are “of diligence and result, not only of conduct (as the adoption of insufficient and unsatisfactory legislative measures)”. In effect, the examination of the distinction between obligations of conduct and of result (in the light mainly of the work of the ILC on State Responsibility) has tended to take place at a purely

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(Judgment of 22.09.2006), pertaining to the sinister “Operation Condor” of the so-called “intelligence services” of the countries of the Southern Cone of South America (in the epoch of the dictatorships of three decades ago), that the IACtHR at last endorsed the thesis which I had been sustaining therein already for more than two years,46 in effectively enlarging even further the material content of jus cogens, so as to comprise the right of access to justice at national and international levels.47 In its aforementioned Judgment of 22.09.2006 in the case of Goiburú and Others, the Court, in establishing violations of jus cogens in the cas d’espèce, asserted that “(...) The access to justice constitutes an imperative norm of International Law, and, as such, it generates obligations erga omnes for the States to adopt the measures which are necessary not to leave in impunity those violations (...)” (par. 131).

Shortly afterwards, in its Judgment of 29.11.2006 in the case of La Cantuta versus Peru, the Court made again this same assertion (par. 160). The gradual expansion of the material content of jus cogens, encompassing lately the right of access to justice, has occurred pari passu with the recent judicial condemnation of grave violations of human rights and of massacres, which conform, in my understanding, true crimes of State.48 In my Separate Opinions in the case of Goiburú and Others,49 as

46

47

48

49

theoretical level, assuming variations in the conduct of the State, and also a succession of acts on the part of this latter (cf. A. Marchesi, Obblighi di Condotta e Obblighi di Risultato – Contributo allo Studio degli Obblighi Internazionali, Milano, Giuff rè, 2003, pp. 50-55 and 128-135), – and without taking sufficiently and duly into account a situation in which an irreparable harm to the human person suddenly occurs (e.g., the deprivation of the right to life by the lack of due diligence of the State). We are here before, definitively, “obligations of result and not of behaviour, as, otherwise, we would not be before an imperative law, and this would moreover lead to to impunity”. – More recently, I have insisted on this same point in my extensive Dissenting Opinion (pars. 1-60) in the case of the Dismissed Workers of the Congress versus Peru (Interpretation of Judgment, of 30.11.2007). Cf. the text of my Separate Opinion in this case, reproduced in: A.A. Cançado Trindade, Derecho Internacional de los Derechos Humanos – Esencia y Trascendencia (Votos en la Corte Interamericana de Derechos Humanos, 1991-2006), Mexico, Edit. Porrúa/Universidad Iberoamericana, 2007, pp. 779-804. Cf. also, in this respect, A.A. Cançado Trindade, “La Ampliación del Contenido Material del Jus Cogens”, in XXXIV Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – 2007, Washington D.C., General Secretariat of the OAS, 2008, pp. 1-15. Cf., in this respect, A.A. Cançado Trindade, “Complementarity between State Responsibility and Individual Responsibility for Grave Violations of Human Rights: The Crime of State Revisited”, in International Responsibility Today – Essays in Memory of O. Schachter (ed. M. Ragazzi), Leiden, M. Nijhoff, 2005, pp. 253-269. Pars. 62-68 of the Opinion, text in ibid., pp. 801-804.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

well as in the subsequent cases of Almonacid Arellano versus Chile (Judgment of 26.09.2006, pars. 58-60 of the Opinion), and of La Cantuta versus Peru (Judgment of 29.11.2006, pars. 49-62 of the Opinion), I stressed the considerable importance of this expansion of the material content of jus cogens. On such expansion, I sustained, in my Separate Opinion in the case of La Cantuta versus Peru (Judgment of 29.11.2006), that “In cases like the present one, in which the apparatus of the State power was unduly utilized to commit crimes of State (in a shocking distortion of the ends of the State), constituting inadmissible violations of jus cogens, and then to cover-up such crimes and maintain its agents, perpetrators of them, in impunity, and the relatives of the victims (also victimized) in the most complete desolation and desperation, – in cases such as those of La Cantuta and of Barrios Altos, in which the crimes against human rights were perpetrated in the framework of a proven criminal practice of the State, – the patient reconstitution and determination of the facts by this Court constitute, themselves, one of the forms of providing satisfaction – as a form of reparation – due to the surviving relatives of the victims (who are also victims), and of honouring the memory of the fatal victims. Jus cogens resists crimes of State, and imposes sanctions on them, as a result of the prompt engagement of the aggravated international responsibility of the State. As a consequence of such crimes, the reparations due assume the form of distinct obligations of doing, including the investigation, trial and sanction of those responsible for the crimes of State that they perpetrated (by action or omission). Law does not cease to exist by the violation of its norms, as the “realists” degraded by their ineluctable and pathetic idolatry of the established power pretend to insinuate. Quite on the contrary, imperative law ( jus cogens) promptly reacts to such violations, and imposes sanctions. During years I have insisted, within this Court, on the necessity of the recognition and the identification of jus cogens, and have elaborated, in numerous Individual Opinions (in the exercise of the functions, both contentious and advisory, of the Tribunal), the doctrinal construction of the expansion of the material content of jus cogens and of the corresponding obligations erga omnes of protection, in their dimensions both horizontal (vis-à-vis the international community as a whole) as well as vertical (encompassing the relations of the individual with the public power as well as with non-State entities and other individuals). In this way, the very notion of “victim” under the American Convention has evolved and expanded; there has been an enlargement of both the parameters of the protection due to those justiciable, as well as the circle of protected persons” (pars. 58-60).

The gradual expansion of the material content of jus cogens has occurred pari passu with the recent judicial condemnation of grave violations of human rights and of massacres, which conform, in my understanding, true crimes of States.50 50

Cf., in this respect, A.A. Cançado Trindade, “Complementarity between State Responsibility and Individual Responsibility...”, op. cit. supra n. (48), pp. 253-269.

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In my Separate Opinion in the case of Almonacid and Others versus Chile 51 I sought to demonstrate the lack of juridical validity of the so-called self-amnesties,52 incompatible with the American Convention on Human Rights, in generating the obstruction and denial of justice, and the consequent impunity of those responsible for the atrocities. I insisted on the necessity of the enlargement of the material content of the prohibitions of jus cogens (so as to secure the access to justice at both national and international levels), and I situated, at last, the conceptualization of the crimes against humanity at the confluence between the International Law of Human Rights and International Criminal Law. The meaning of this new expansion of the material content of jus cogens, by the IACtHR in its Judgment of 22.09.2006, in the case of Goiburú and Others, so as to comprise the right of access to justice, and the importance and the implications of this remarkable jurisprudential advance,53 are emphasized in my Separate Opinion (parrs. 62-68) in that case, in which, moreover, I dwelt upon the criminalization of the grave violations of human rights; the crime of State in the context of State terrorism (the aforementioned “Operation Condor”, and the cover-up by the State of the perpetrated atrocities); the international responsibility of the State agravated by the crime of State;54 and new elements of the necessary complementarity between the International Law of Human Rights and contemporary International Criminal Law. Such reassuring expansion of the material content of jus cogens acknowledges the imperative of ensuring access to justice even in situations of the most extreme adversity. The case of the Institute of Rehabilitation of Minors versus Paraguay (Judgment of 02.09.2004), for example, concerning minors under detention, again revealed, as I pointed out in my Separate Opinion (pars. 3-4), that the human being, even in the most adverse conditions, emerges as subject of the International Law of Human Rights, endowed will full international juridico-procedural capacity.55 To those, numerous others victims in situations of the most 51 52 53

54 55

The public hearings of which took place in the external session of the IACtHR of Brasília, on 29.03.2006. As exemplified by the criticized Decree-Law n. 2191, of 18.04.1978, of the Pinochet regime. Cf. A.A. Cançado Trindade, Évolution du Droit international au droit des gens – L’accès des particuliers à la justice internationale: le regard d’un juge, Paris, Pédone, 2008, pp. 1-188. Cf., on this point, A.A. Cançado Trindade, “Complementarity between State Responsibility and Individual Responsibility...”, op. cit. supra n. (48), pp. 253-269. The Court’s Judgment in this latter case duly recognized (pars. 107, 120-121 and 126) the relevance of the historical reforms introduced by the Court in its fourth Regulations (of 2000), in force as from 2001, in favour of the titularity, of the individuals, of the protected rights, granting them locus standi in judicio in all the stages of the contentious procedure before the Court. Cf., in this respect, A.A. Cançado Trindade, “El Nuevo Reglamento de la Corte Interamericana de Derechos Humanos (2000) y Su Proyección Hacia el Futuro: La Emancipación del Ser Humano como Sujeto del Derecho Internacional”, in XXVIII Curso de Derecho Internacional Organizado por

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

extreme adversity can be added, – e.g., those in infra-human conditions of detention, in forced displacement from their homes, in condition of undocumented migrants, in situation of complete defencelessness and also victims of massacres and their relatives,56 – who, despite so much adversity, have nevertheless had access to international justice. Recently, once again, the abandoned and forgotten of the world again reached an international human rights tribunal in search of justice, in the cases of the members of the Communities Yakye Axa (Judgment of 17.06.2005) and Sawhoyamaxa (Judgment of 28.03.2006), concerning Paraguay. In those two recent cases, those forcefully displaced from their homes and ancestral lands, and socially marginalized and excluded, effectively reached an international jurisdiction, before which they at last found justice. As the more lucid international legal doctrine points out, international jus cogens enlarges the ambit of operation of a true international ordre public, fulfils the higher interests of the international community as a whole, and stresses the necessity of judicial control of the observance of the peremptory norms of International Law.57 In this line of thinking, I saw it fit to ponder, in my Separate Opinion (par. 154) in the recent case of the Prison of Castro Castro versus Peru decided by the IACtHR (Interpretation of Judgment, of 02.08.2008), that “It is not surprising that if has been precisely in the domain of the protection of the fundamental rights of the human person that the material content of jus cogens is being defined.58 No one would question today, e.g., that the prohibitions of grave violations of International Humanitarian Law are effectively prohibitions of inter-

56

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el Comité Jurídico Interamericano – OEA (2001) pp. 33-92; A.A. Cançado Trindade, “Le nouveau Règlement de la Cour Interaméricaine des Droits de l’Homme: quelques réflexions sur la condition de l’individu comme sujet du Droit international”, in Libertés, justice, tolérance – Mélanges en hommage au Doyen G. Cohen-Jonathan, vol. I, Bruxelles, Bruylant, 2004, pp. 351-365. Cf., e.g., the Judgments of the IACtHR in the cases of the Massacres of Barrios Altos versus Peru (of 14.03.2001), of Plan de Sánchez versus Guatemala (of 29.04.2004), of the 19 Tradesmen versus Colombia (of 05.07.2004), of Mapiripán versus Colombia (of 17.09.2005), of the Moiwana Community versus Suriname (of 15.06.2005), of Pueblo Bello versus Colombia (of 31.01.2006), of Ituango versus Colombia (of 01.07.2006), of Montero Aranguren and Others (Retén de Catia) versus Venezuela (of 05.07.2006), of the Prison of Castro Castro versus Peru (of 25.11.2006), of La Cantuta versus Peru (of 29.11.2006). Cf., inter alia, K. Zemanek, “How to Identify Peremptory Norms of International Law”, in Völkerrecht als Wertordnung – Festschrift für C. Tomuschat (eds. P.-M. Dupuy et alii), Kehl, N.P. Engel Verlag, 2006, pp. 1108, 1114 and 1117; and cf., for a discussion, R. Kolb, Théorie du Ius Cogens International, Paris, PUF, 2001, pp. 68-83 and 172-181; cf. also, e.g., E.P. Nicoloudis, La nullité de jus cogens et le développement contemporain du Droit international public, Athens, Éd. Papazissi, 1974, pp. 41-45 and 227-228. G. Cohen-Jonathan, “Du caractère objectif des obligations internationales relatives aux droits de l’homme – Quelques observations”, in Les droits de l’homme et la Con-

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Chapter XII national jus cogens,59 which project themselves also into the domestic legal order of the States.60 The international and domestic legal orders appear here in interaction, in the struggle against violations of jus cogens”.

As I added in that same Separate Opinion, we are before “a humanized (or even a truly humanist) ordre public in which the public or general interest fully coincides with the prevalence of human rights, – what implies the recognition that human rights constitute the basic foundation, themselves, of the legal order,61 at international and national levels. Underlying the concept of jus cogens is the jusnaturalist thinking, which leads to peremptory norms as from the assertion and acknowledgment of ethical values which seek to benefit humankind as a whole” 62 (par. 155). This is thus the present state of the matter in the jurisprudential construction, on the part of the IACtHR during the period I have served it as Judge, of the material content of jus cogens. From the acknowledgment of the absolute prohibition of torture and of cruel, inhuman or degrading treatment, the IACtHR moved on to the recognition of the fundamental character of the principle of equality and non-discrimination, belonging to the domain of jus cogens. And lately, the IACtHR further stressed the significance of the right of access to justice lato sensu, – properly understood as the right to realization of material justice, – as an imperative of jus cogens. The fact that the right of access to justice (judicial protection and judicial guarantees) is not formally ranked by certain human rights treaties among nonderogable rights cannot, in my view, be invoked against the jurisprudential construction situating it as belonging to the domain of jus cogens. Firstly, any restrictions to the exercise of the protected rights are to be restrictively interpreted, in the light of the object and purpose of the human rights treaties at issue; secondly, States are here bound by obligations of result,63 and cannot at all invoke deroga-

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stitution – Études en l’honneur du Prof. G. Malinverni (eds. A. Auer et alii), Genève/ Zurich/Bâle, Schulthess, 2007, pp. 130-133. Cf. L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law – Historical Development, Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus/ Finnish Lawyers’ Publ. Co., 1988, pp. 605-606 and 621, and cf. pp. 602-604 and 607608. Cf. E. de Wet, “The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law”, 15 European Journal of International Law (2004) pp. 98, 100, 105, 112 and 120-121. A.A. Cançado Trindade, O Esgotamento de Recursos Internos no Direito Internacional, 2nd. ed., Brasília, Edit. University of Brasília, 1997, pp. 265-266. Cf. M. Ragazzi, “Alexidze on Jus Cogens (Selected Considerations”, in Theory and Practice of Contemporary International Law – Essays in Honour of Prof. L. Alexidze on the 80th Birthday Anniversary, Tbilisi, Inovatia, 2007, pp. 35 and 38. As I have sought recently to demonstrate in my lengthy Dissenting Opinion (pars. 160) in the case of the Dismissed Workers of the Congress versus Peru (Interpretation

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

tions to evade the obligation to secure the right of access to justice; and thirdly, States can only avail themselves of permissible and temporary derogations to the extent that they are not incompatible with their other obligations under International Law and do not involve any form of discrimination.64 Here, the imperative character of the right of access to justice renders such incompatibility evident.65 It would indeed be inconceivable to deny to any person the right of access to justice. We can here visualize a true right to the Law, that is, the right to a legal order which effectively safeguards the rights inherent to the human person. This is an imperative of jus cogens. In effect, without the right of access to justice, there is in reality no true legal system. Without the right to the Law, there is no rule of law, there is ultimately no Law at all. The evolution of the aforementioned jurisprudential construction ought to be appreciated in a wider dimension. In the domain of the International Law of Human Rights, moved by considerations of international ordre public, we are before common and superior values, underlying it, and which appear as truly fundamental and irreducible. We are before a humanized (or even truly humanist) international ordre public in which the public interest or the general interest coincides fully with the prevalence of human rights,66 – implying the recognition that human rights constitute the basic foundation, themselves, of the legal order. We can here visualize a true right to the Law, that is, the right to a legal order which effectively safeguards the rights inherent to the human person. Th is evolution, with the recognition of the direct access of individuals to international justice, discloses, at this beginning of the XXIst century, the advent of the new primacy of the raison d’humanité over the old raison d’État, to inspire the historical process of humanization of International Law.67

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of Judgment, of 30.11.2007). As clarified, e.g., by paragraphs 2 and 1, respectively, of Article 27 of the American Convention on Human Rights. As I sustained in my recent Separate Opinion (pars. 156-157) in the case of the Prison Castro Castro versus Peru (Interpretation of Judgment, of 02.08.2008). In this sense, the emergence of a truly jus commune of human rights at international level has been suggested; cf. M. de Salvia, “L’élaboration d’un ‘ jus commune’ des droits de l’homme et des libertés fondamentales dans la perspective de l’unité européenne: l’oeuvre accomplie par la Commission et la Cour Européennes des Droits de l’Homme”, in Protection des droits de l’homme: la dimension européenne – Mélanges en l’honneur de G.J. Wiarda (eds. F. Matscher and H. Petzold), 2nd. ed., Köln/Berlin, C. Heymanns Verlag, 1990, pp. 555-563; G. Cohen-Jonathan, “Le rôle des principes généraux dans l’interprétation et l’application de la Convention Européenne des Droits de l’Homme”, in Mélanges en hommage à L.E. Pettiti, Bruxelles, Bruylant, 1998, pp. 168-169. For a general study of this historical process, cf. A.A. Cançado Trindade, A Humanização do Direito Internacional, Belo Horizonte/Brazil, Edit. Del Rey, 2006, pp. 3-409.

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4.

Jus Cogens as a Pillar of the New Jus Gentium, the International Law for Humankind

Jus cogens, nowadays established well beyond the law of treaties, is a conceptual construction which occupies a central position in the new jus gentium, the International Law for humankind. It has met with judicial recognition of contemporary international tribunals, and in greater depth in the case-law of the IACtHR and of the ICTFY (cf. supra). Jus cogens appears indeed as a pillar of the new jus gentium, the International Law for humankind. Jus cogens, identified with general principles of law of material order,68 serves the superior interests of the international community as a whole;69 such interests, in turn, find expression in the peremptory norms of International Law (jus cogens), emanating from the universal juridical conscience in each historical moment, and paving the way for the construction of a new jus gentium, the International Law for humankind. Jus cogens exists indeed for the benefit of human beings, and ultimately of humankind. Throughout the years, this has been acknowledged in different parts of the world and distinct cultural milieux, pointing to the construction of a universalist International Law, the new jus gentium of our times. Thus, to the late Cuban jurist M.A. D’Estéfano Pisani, for example, the concept of jus cogens, rooted in natural law, reflects the juridical achievements of humankind; it warns States as to the need to abide by fundamental principles and peremptory norms, depriving of legitimacy any act or situation (ensuing from the law of treaties or customary law) incompatible with them.70 In a similar line of reasoning, the Chinese jurist Li Haopei criticized positivists for having attempted to base International Law on a mere assumption, State consent, which was nothing but a “layer of loose sand”, for, if it were really so, International Law would cease to be effective whenever States withdrew their consent. He further criticized the attitude of positivists of intentionally ignoring or belittling the value of general principles of law, and held that peremptory norms of International Law have emerged to confer an ethical and universal dimension to International Law and to serve the common interests of the international community as a whole and, ultimately, of all mankind.71

68 69

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Cf. chapter III, supra. G.M. Danilenko, “International Jus Cogens: Issues of Law-Making”, 2 European Journal of International Law (1991) p. 45, and cf. pp. 48-49 and 59-65 on the possibility of the incidence of jus cogens in the elaboration itself of drafts of international instruments. M.A. D’Estéfano Pisani, Derecho de Tratados, 2nd. ed., Havana/Cuba, Edit. Pueblo y Educación, 1986 [reprint], pp. 97 and 165-166. Li Haopei, “Jus Cogens and International Law”, in Selected Articles from Chinese Yearbook of International Law, Beijing/China, Chinese Society of International Law, 1983, pp. 47-48, 57, 59, 61-64 and 74.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

It can hardly be denied that general principles of law, proper to any legal system, at either national or international level,72 do enjoy universal acceptance or recognition. Such principles guide all legal norms, including those endowed with a peremptory character; it is thus not surprising that one trend of juridical thinking has identified them with the domain of jus cogens,73 standing above the will of States and of other subjects of International Law. Emanating, in my view, from human conscience, they rescue International Law from the pitfalls of State voluntarism and unilateralism, incompatible with the foundations of a true international legal order. Those principles reflect the idea of an objective justice, are consubstantial with the national or international legal system itself, embodying, as they do, superior values, which can fulfi l the aspirations of humankind as a whole.74 Their continued validity is beyond question, and their relevance becomes evident in the construction, in our days, of a new jus gentium, the international law for humankind. Jus cogens brings to the fore, furthermore, the relevance of international public order, conformed by the respect for the dignity of the human person; nor surprisingly, most cases of incidence of jus cogens pertain to the position of the individual as subject of rights.75 The consolidation of erga omnes obligations of protection (infra), ensuing from peremptory norms of International Law, overcomes the pattern erected in the past upon the autonomy of the will of the State, which can no longer be invoked in view of the existence of norms of jus cogens. Nothing is more antithetical to jus cogens than the insistence or reliance on individual State consent. States are nowadays faced with a dilemma which should have been overcome a long time ago: either they return to the old voluntarist conception of International Law, abandoning the hope in the primacy of Law over power politics, or they retake and realize the ideal of construction of a more cohesive and institutionalized international community in the light of the imperatives of the rule of law and the realization of justice, moving resolutely from jus dispositivum to jus cogens.76

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Such as, e.g., bona fides and pacta sunt servanda. R. Kolb, Théorie du jus cogens international, Paris, PUF, 2001, pp. 98-100, 105, 110 and 112. Cf. chapter III, supra. As the norms at issue normally exist for his protection, as once pointed out by rapporteur G. Fitzmaurice in the ILC; cf. A. Orakhelashvili, Peremptory Norms in International Law, Oxford, University Press, 2008, pp. 246, 508, 512 and 578-579, and cf. pp. 492-493. And always bearing in mind that the protection of fundamental rights places us precisely in the domain of jus cogens.

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III. Obligations Erga Omnes of Protection 1.

Emergence and Scope of the Obligations

It is widely recognized, in our days, that the peremptory norms of jus cogens effectively bring about obligations erga omnes. In a well-known obiter dictum in its Judgment in the case of the Barcelona Traction (Second Phase, 1970), the ICJ determined that there are certain international obligations erga omnes, obligations of a State vis-à-vis the international community as a whole, which are of the interest of all the States; “such obligations derive, for example, in contemporary International Law, from the outlawing of acts of aggression, and of genocide, and also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law (...); others are conferred by international instruments of a universal or quasi- universal character”.77

The prohibitions mentioned in this obiter dictum are not exhaustive. To them new prohibitions have been added in the more recent case-law of some contemporary international tribunals (infra), clearly indicating that jus cogens is not a closed category. In the construction of the international legal order of the new century, we witness, with the gradual erosion of reciprocity, the emergence pari passu of superior considerations of ordre public, reflected in the conceptions of the peremptory norms of general International Law (the jus cogens) and of the obligations erga omnes of protection (owed to everyone, and to the international community as a whole). Jus cogens, in bringing about obligations erga omnes, characterizes them as being endowed with a necessarily objective character, and thereby encompassing all the addressees of the legal norms (omnes), both those who integrate the organs of the public power as well as private individuals.

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ICJ, Judgment of 05 February 1970, ICJ Reports (1970) p. 32, pars. 33-34 (emphasis added). – It has not passed unnoticed that the ICJ, from the start, appears to have used the concepts jus cogens and obligations erga omnes somewhat interchangeably (cf. [Various Authors,] The Fundamental Rules of the International Legal Order – Jus Cogens and Obligations Erga Omnes (eds. C. Tomuschat and J.-M. Thouvenin), Leiden, Nijhoff, 2006, pp. 7-8, 36, 310 and 418-419), while they are in fact distinct, the former belonging to the domain of material or substantive law, and the latter to that of procedural law. The ICJ has concentrated rather on the effects of jus cogens (obligations erga omnes), and has still a long way to go on the elaboration of the material content of jus cogens itself (cf. [Various Authors,] Quel droit international pour le 21e. siècle? (ed. Y. Sandoz, Colloque de Neuchâtel de 2007), Bruxelles, Bruylant, 2007, pp. 117, 129, 131, 133-134, 141 and 153), as well as on the juridical consequences of its breaches.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

In my understanding, the concrete and specific purpose of the development of the legal regime of the obligations erga omnes of protection can be well served by the identification of, and compliance with, the general obligation of guarantee of the exercise of the rights of the human person, – set forth in treaties on human rights protection as well as Humanitarian Law,78 – that is, the obligation to respect, and to ensure respect for, the norms of protection, in all circumstances. It can contribute to the consolidation of the obligations erga omnes of protection of the rights of the human person in any circumstances, in times both of peace and of armed conflict. It appears somewhat surprising that neither doctrine, nor case-law, has developed this point sufficiently and satisfactorily up to now. It is about time, at this beginning of the XXIst century, to develop systematically the contents, scope and juridical effects or consequences of the obligations erga omnes of protection in the present domain of protection, bearing in mind the great potential of application of the underlying notion of collective guarantee, responsible for some advances already achieved in this domain. The concept of obligations erga omnes has already marked presence in the international caselaw,79 as illustrated, in so far as the ICJ is concerned, by its Judgments in the cases of the Barcelona Traction (1970), of the Nuclear Tests (1974), of Nicaragua versus United States (1986), of East Timor (1995), and of Bosnia-Herzegovina versus Yugoslavia (1996), and by the arguments of the parties in the cases of the Northern Cameroons (1963) and of South West Africa (1966), as well as by its Advisory Opinion on Namibia (1971) and the (written and oral) arguments pertaining to the two Advisory Opinions on Nuclear Weapons (1994-1995).80 Nevertheless, in spite of the distinct references to the existence of obligations erga omnes in the case-law of the ICJ, this latter has not yet extracted the consequences of the affirmation of the existence of such obligations, nor of their violations, and has not defined their legal regime either. The ICJ had a unique occasion to do it in the East Timor case (Portugal versus Australia, Judgment of 30.06.1995), having regrettably wasted such opportunity, in relating the erga omnes obligations (in respect of the right of self-determination of peoples) to something antithetical to them: the consent of a third State (Indonesia) as basis of the exercise of its jurisdiction in contentious matters.

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That general obligation is set forth, e.g., in Article 1(1) of the American Convention on Human Rights as well as in Article 1 of the Geneva Conventions of International Humanitarian Law and in Article 1 of the Additional Protocol I (of 1977) to the Geneva Conventions; cf. notes ns. (88) and (89), infra. Including with a reference to them in the tenth Advisory Opinion (of 1989) of the IACtHR, on the Interpretation of the American Declaration on the Rights and Duties of Man (par. 38). Cf. M. Ragazzi, The Concept of International Obligations Erga Omnes, Oxford, Clarendon Press, 1997, pp. 12-13; C. Annacker, “The Legal Regime of Erga Omnes Obligations in International Law”, 46 Austrian Journal of Public and International Law (1994) pp. 132-133, and cf. 131-166.

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In fact, nothing could be more incompatible with the very existence of the erga omnes obligations than the positivist-voluntarist conception of International Law and the emphasis on the State consent as basis of the exercise of international jurisdiction.81 Pursuing a bilateralist and voluntarist approach,82 the ICJ thus failed, unfortunately, to extract the consequences of the existence of such obligations erga omnes. Shortly after the ICJ decision in the East Timor case, B. Simma remarked critically that “it is ironic that the very Court that spelled out the concept in the first place has now subjected it to the procedural rigours of traditional bilateralism”.83 No less critical was S. Rosenne, in commenting that in the cas d’espèce the ICJ “paid no overt attention to the situation in East Timor itself, although it was certainly aware of it”; to him, with the advent of obligations erga omnes, “it seems that something needs to be done to bring international procedural law into line with that. (...) International judicial procedure, although it has developed very remarkably especially since 1945, is still cast in a XIXth century mould, and the strict bilateralism of international litigation is one of its hall-marks”.84

More recently, in its Advisory Opinion of 09.07.2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ asserted the right erga omnes of peoples to self-determination,85 and added that “the obligations violated by Israel include certain obligations erga omnes. (...) The obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination, and certain of its obligations under international humanitarian law. (...) All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory (...). In addition, all the States Parties to the Geneva Convention Relative to the Protection of Civilian Persons in Time of War of (...) 1949 are under an obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention”.86 81

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A.A. Cançado Trindade, “O Caso do Timor-Leste (1999): O Direito de Autodeterminação do Povo Timorense”, 1 Revista de Derecho de la Universidad Católica del Uruguay (2000) pp. 73-74. Cf. ICJ, East Timor case (Portugal versus Australia), ICJ Reports (1995) pp. 90-106. B. Simma, “From Bilateralism to Community Interest in International Law”, 250 RCADI (1994) p. 298. S. Rosenne, “Decolonisation in the International Court of Justice”, 8 African Journal of International and Comparative Law (1996) pp. 567, 571 and 576. For further criticisms, cf. J. Dugard, “1966 and All That – The South West Africa Judgment Revisited in the East Timor Case”, in ibid., pp. 551, 557-558 and 560-563. ICJ Reports (2004) p. 172, par. 88. ICJ Reports (2004) pp. 199-200, pars. 155 and 159.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

Even if, on the one hand, one has not yet succeeded to reach the opposability of an obligation of protection to the international community as a whole, on the other hand the International Law of Human Rights nowadays provides elements for the consolidation of the opposability of obligations of protection to all the States Parties to human rights treaties (obligations erga omnes partes87). Thus, several treaties, of human rights protection88 as well as of International Humanitarian Law,89 provide for the general obligation of the States Parties to guarantee the exercise of the rights set forth therein and their observance. Thus, parallel to the obligations of all the States Parties to those treaties to protect the rights enshrined therein, and to guarantee their free and full exercise to all the individuals under their respective jurisdictions, there exists the obligation of the States Parties inter se to secure the integrity and effectiveness of such treaties. That general duty of protection (the collective guarantee) is of direct interest of each State Party, and of all of them jointly (obligation erga omnes partes). Endeavours to develop the legal regime of obligations erga omnes (with the determination of their contents, scope and juridical effects or consequences of their violation) can surely count, in my view, on the potentialities of application of treaty law in the domain of protection of the rights inherent to the human person, and in particular of application of the collective guarantee underlying all human rights treaties, and responsible for some considerable advances already achieved in this domain. As correctly pointed out by the Institut de Droit International, in a resolution adopted at the session of Santiago of Compostela of 1989, such obligation is applicable erga omnes, as each State has a legal interest in the safeguard of human rights (Article 1).90 This general obligation of protection (the collective guarantee) is of direct interest of each State Party, and of all of them

87

88

89

90

On the meaning of the obligations erga omnes partes, opposable to all States Parties in certaing treaties or to a given community of States, cf. M. Ragazzi, op. cit. supra n. (80), pp. 201-202; and cf. C. Annacker, op. cit. supra n. (80), p. 135. Cf., e.g., American Convention on Human Rights, Article 1(1); U.N. Covenant on Civil and Political Rights, Article 2(1); U.N. Convention on the Rights of the Child, Article 2(1). Article 1 common to the four Geneva Conventions on International Humanitarian Law of 1949, and Article 1 of the Additional Protocol I of 1977 to the Geneva Conventions of 1949. Cf. I.D.I., 63 Annuaire de l’Institut de Droit International (1989)-II, pp. 286 and 288289.

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jointly (obligation erga omnes partes). And this is valid in times of peace91 as well as of armed conflict.92 Some human rights treaties, moreover, establish a mechanism of petitions or communications which comprises, parallel to the individual petitions, also the inter-State petitions; these latter constitute a mechanism par excellence of action of collective guarantee. The fact that they have not been used frequently93 suggests that the States Parties have not yet disclosed their determination to construct an international ordre public based upon the respect for human rights. But they could – and should – do so in the future, with their growing awareness of the need to achieve greater cohesion and institutionalization in the international legal order, above all in the present domain of protection. Obligations erga omnes are nowadays by no means limited to the domain of the international protection of the rights inherent to the human person. They also mark their presence in other domains of contemporary International Law, such as, e.g., in environmental protection and in disarmament and arms control. As pertinently recalled by K. Zemanek, the 1987 (amended) Montreal Protocol on Substances that Deplete the Ozone Layer, as well as the 1992 Framework Convention on Climate Change and its 1997 Kyoto Protocol, establish obligations which “are not created for the benefit of individual Contracting Parties but in the interest of all of them, as a community. (...) Arms control and disarmament treaties are in some way similar, because they do not establish reciprocal rights and obligations between the Parties. (...) Instruments such as the Non-Proliferation Treaty (NPT, 1968), the Biological Weapons Convention (1972), the Chemical Weapons Convention (CWC, 1993), or the Comprehensive Nuclear Test-Ban Treaty (CTBT, 1996) are salient examples of this particular type of erga omnes obligations”.94

It has been, however, particularly in the domain of the international safeguard of basic human rights, that obligations erga omnes have been most discussed by contemporary doctrine thus far. In any case, there could hardly be more elabo91

92

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Cf. the arguments of Ireland before the ECtHR, in the Ireland versus United Kingdom case, in: ECtHR, Ireland versus United Kingdom case (1976-1978), Pleadings, Oral Arguments and Documents, Strasbourg, 1981, vol. 23-II, pp. 21-23 and 27, and vol. 23-III, pp. 17-19 and 21-26. Irrespective of a State Party being involved or not in a given armed conflict; L. Condorelli and L. Boisson de Chazournes, “Quelques remarques à propos de l’obligation des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances’”, in Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (ed. C. Swinarski), Genève/ La Haye, CICR/Nijhoff, 1984, pp. 29 and 32-33. Cf. S. Leckie, “The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Th inking?”, 10 Human Rights Quarterly (1988) pp. 249-301. K. Zemanek, “New Trends in the Enforcement of Erga Omnes Obligations”, 4 Max Planck Yearbook of United Nations Law (2000) p. 6.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

rate examples of mechanisms for application of the obligations erga omnes of protection (at least in the relations of the States Parties inter se) than the methods of supervision foreseen in the human rights treaties themselves, for the exercise of the collective guarantee of the protected rights.95 In other words, the mechanisms for application of the obligations erga omnes partes of protection already exist, and what is urgently need is to develop their legal regime, with special attention to the positive obligations and the juridical consequences of the violations of such obligations. 2.

Horizontal and Vertical Dimensions of the Obligations

As I had the occasion to hold in my Concurring Opinion in the IACtHR’s Advisory Opinion n. 18, on the Juridical Condition and Rights of Undocumented Migrants (of 17.09.2003), obligations erga omnes have two dimensions, namely: a) a horizontal dimension, in the sense that they are owed to the international community as a whole,96 to all subjects of International Law (supra); and b) a vertical dimension, in the sense that they bind everyone, both the organs and agents of the State, of public power, as well as the individuals themselves (including in inter-individual relations, where grave breaches of International Law and of human rights can occur and have indeed occurred). For the conformation of this vertical dimension, the advent and evolution of the International Law of Human Righs have contributed decisively. Obligations erga omnes of protection, pertaining, in a horizontal dimension, to the protection of the human beings due to the international community as a whole, in the framework of conventional International Law bind all the States Parties to human rights treaties (obligations erga omnes partes), and in the ambit of general International Law bind all States which compose the organized international community, whether or not they are Parties to those treaties (obligations erga omnes lato sensu). In a vertical dimension, the obligations erga omnes of protection bind both the organs and agents of (State) public power, and the individuals themselves (in the inter-individual relations). For the conformation of this vertical dimension have decisively contributed the advent and the evolution of the International Law of Human Rights. But it is surprising that, until now, these distinct horizontal and vertical dimensions of the obligations erga omnes of protection have passed virtually unnoticed from contemporary legal doctrine. Nevertheless, I see them clearly shaped in the legal regime itself of the American Convention on Human Rights. Thus, for example, as to the vertical dimension, the general obligation, set forth in Article 1(1) of the American Convention, to respect and to ensure respect for the free exercise of 95

96

Y. Dinstein, “The Erga Omnes Applicability of Human Rights”, 30 Archiv des Völkerrechts (1992) pp. 16 and 22, and cf. 16-37; and cf. M. Ragazzi, op. cit. supra n. (80), pp. 135 and 213; M. Byers, op. cit. infra n. (100), pp. 234-235. Cf., earlier, IACtHR, case Blake versus Guatemala (Merits), Judgment of 24.01.1998, Separate Opinion of Judge A.A. Cançado Trindade, par. 26, and cf. pars. 27-30.

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the rights protected by it, generates effects erga omnes, encompassing the relations of the individual both with the public (State) power as well as with other individuals (particuliers).97 In their turn, the obligations erga omnes partes, in their horizontal dimension, find expression also in Article 45 of the American Convention, which foresees the mechanism (virtually unexplored so far), of inter-State complaints or petitions. This mechanism98 constitutes not only a mechanism par excellence of action of collective guarantee, but also a true embryo of actio popularis in International Law, in the framework of the American Convention. In any case, these dimensions, both horizontal and vertical, reveal the wide scope of the obligations erga omnes of protection. The crystallization of the obligations erga omnes of protection of the human person represents, in reality, the overcoming of a pattern of conduct erected on the alleged autonomy of the will of the State, from which International Law sought gradually to liberate itself in giving expression to the concept of jus cogens.99 By definition, all the norms of jus cogens generate necessarily obligations erga omnes. While jus cogens is a concept of material law, the obligations erga omnes refer to the structure of their performance on the part of all the entities and all the individuals bound by them. In their turn, not all the obligations erga omnes necessarily refer to norms of jus cogens. One ought to secure a follow-up to the endeavours of greater doctrinal and jurisprudencial development of the peremptory norms of International Law (jus cogens) and of the corresponding obligations erga omnes of protection of the human being,100 moved above all by the opinio juris as a manifestation of the uni-

97

Cf., in this respect, in general, the resolution adopted by the Institut de Droit International (I.D.I.) at the session of Santiago de Compostela of 1989 (Article 1), in: I.D.I., 63 Annuaire de l’Institut de Droit International (1989)-II, pp. 286 and 288289. 98 As I pointed out in my Concurring Opinion (par. 3) in the case of the Community of Peace of San José of Apartadó (Provisional Measures of Protection of 18.06.2002) before the IACtHR. 99 Cf. A.A. Cançado Trindade, “The International Law of Human Rights at the Dawn of the XXIst Century”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacional – Castellón (1999) pp. 207-215. 100 On the relationship between jus cogens and erga omnes obligations of protection, cf.: M. Ragazzi, The Concept of International Obligations Erga Omnes, op. cit. supra n. (80), pp. 135, 201-202 and 213; Y. Dinstein, “The Erga Omnes Applicability...”, op. cit. supra n. (95), pp. 16-37; A.J.J. de Hoogh, “The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective”, 42 Austrian Journal of Public and International Law (1991) pp. 183-214; C. Annacker, “The Legal Regime of Erga Omnes Obligations...”, op. cit. supra n. (80), pp. 131-166; M. Byers, “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules”, 66 Nordic Journal of International Law (1997) pp. 211-239, esp. pp. 234-235 and 239; J. Juste Ruiz, “Las Obligaciones ‘Erga Omnes’ en Derecho Internacional Pú-

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

versal juridical conscience, to the benefit of all human beings.101 By means of this conceptual development one will advance in the overcoming of the obstacles of the dogmas of the past and in the creation of a true international ordre public based upon the respect for, and observance of, human rights. Such development will contribute, thus, to a greater cohesion of the organized international community (the civitas maxima gentium), centred on the human person. The general obligation, set forth in Article 1(1) of the American Convention, to respect and to ensure respect for the free exercise of the rights protected by it, has a character erga omnes.102 I have seen it fit to point this out in several of my Separate and Concurring Opinions in the Inter-American Court, outlining that this is endowed with particular relevance at both conceptual and operative levels.103 In my understanding, the obligations erga omnes partes are not to be minimized at the conceptual level, as, by means of the exercise of collective guarantee, such obligations can pave the way for the crystallization, in the future, of the obligations erga omnes lato sensu, owed to the international community as a whole. And, at the operative level, obligations erga omnes partes under human rights treaties assume special importance, in face of the current diversification of the sources of violations of the rights enshrined into the Convention, which requires the clear recognition of the effects of the conventional obligations visà-vis third parties (the Drittwirkung), encompassing also inter-individual relations.104

101

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blico”, in Estudios de Derecho Internacional – Homenaje al Profesor Miaja de la Muela, vol. I, Madrid, Tecnos, 1979, p. 228. IACtHR, case Blake versus Guatemala (Merits), Judgment of 24.01.1998, Series C, n. 36, Separate Opinion of Judge A.A. Cançado Trindade, par. 28; IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999, Series C, n. 48, Separate Opinion of Judge A.A. Cançado Trindade, par. 40. Cf., in this sense, the resolution adopted by the Institut de Droit International (I.D.I.) at the session of Santiago de Compostela of 1989 (Article 1), in: I.D.I., 63 Annuaire de l’Institut de Droit International (1989)-II, pp. 286 and 288-289. Cf., to this effect, e.g., my Separate Opinions in the cases of Las Palmeras (Preliminary Objections, 2000, pars. 13-14), and of the Massacre of Mapiripán (Merits, 2005, pars. 2-3 and 5), both concerning Colombia, and in my Concurring Opinions in the case of the Community of Peace of San José of Apartadó (Provisional Measures of Protection, 18.06.2002, pars. 2-9) and in the case of the Communities of the Jiguamiandó and of the Curbaradó (Provisional Measures of Protection, 06.03.2003, pars. 4-6), concerning Colombia, and in the case of the Prison of Urso Branco (Provisional Measures of Protection, 07.07.2004, pars. 2-3 and 6-9), concerning Brazil. Cf., on this point, e.g., D. Spielmann, L’effet potentiel de la Convention Européenne des Droits de l’Homme entre personnes privées, Bruxelles, Bruylant/Nemesis, 1995, pp. 17-89; A. Clapham, Human Rights in the Private Sphere, Oxford, Clarendon Press, 1996 (reed.), pp. 1-356; E.A. Alkema, “The Third-Party Applicability or ‘Drittwirkung’ of the European Convention on Human Rights”, in Protecting Human Rights: The European Dimension – Studies in Honour of G.J. Wiarda (eds. F. Matscher and H. Petzold), Köln/Berlin, C. Heymanns, 1988, pp. 33-45; J. De Meyer, “The

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The State is bound by the corpus juris of the international protection of human rights, which protects every human person erga omnes, in any condition or circumstance. The State cannot avail itself of the fact of not being a Party to a given treaty of human rights to evade the obligation to respect, and to ensure respect for, fundamental human rights, acknowledged also in general International Law, and belonging to the domain of jus cogens, thus transcending the ambit of the law of treaties. IV. Obligations Erga Omnes and the Emergence of Actio Popularis The aforementioned inter-State petitions under certain human rights treaties may, furthermore, prove to be the embryo of a future actio popularis in the present domain of protection of the human person. Although those petitions may disclose some resemblance with petitions lodged by individuals under certain human rights treaties, the rationale of the latter appears somewhat distinct from the former. Thus, individual complaints, even when interposed on behalf of the members of a whole community or human collectivity, seem to be closer to a form of class action than to actio popularis, however desirable the emergence of this latter may admittedly be, for the construction of a true international ordre public on the basis of full respect for the rights of all human beings. Be that as it may, the general duty to respect, and to ensure respect for, the protected rights, is of the utmost importance in the present context. It may be recalled that that duty, as formulated in common Article 1 of the four Geneva Conventions on International Humanitarian Law, was originally meant to “expand the binding effect” of the State’s acceptance of the Conventions “to the entire population”.105 That general duty, also enshrined in some human rights treaties,106 was to disclose a considerable potential for protection: it soon formed object of a vast case-law (mainly of the IACtHR and the ICTFY) which gave precision to its wide scope, also vis-à-vis third parties, in inter-individual relations, on the basis of the objective international responsibility of the State. The theoretical construction of positive obligations of States (to respect, and ensure respect for, the protected rights) has lent support to this development. The whole jurisprudence constante of the IACtHR on the matter has oriented

Right to Respect for Private and Family Life, Home and Communications in Relations between Individuals, and the Resulting Obligations for States Parties to the Convention”, in Privacy and Human Rights (ed. A.H. Robertson), Manchester, University Press, 1973, pp. 255-275. 105 F. Kalshoven, “The Undertaking to Respect and Ensure Respect in All Circumstances: from Tiny Seed to Ripening Fruit”, 2 Yearbook of International Humanitarian Law (1999) p. 27, and cf. pp. 48, 54-55 and 60. 106 Such as, e.g., the U.N. Covenant on Civil and Political Rights, the U.N. Convention on the Rights of the Child, the American Convention on Human Rights; cf. n. (50), supra.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

itself in this direction. The ICTFY (Trial Chamber), in the case of A. Kupreskic and Others (2000), for example, pointed out that “as a consequence of their absolute character, these norms of International Humanitarian Law do not pose synallagmatic obligations, i.e., obligations of a State vis-àvis another State. Rather (...) they lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a ‘legal interest’ in their observance and consequently a legal entitlement to demand respect for such obligations”.107

This refers to what I have termed the horizontal dimension of erga omnes obligations, which, in a vertical dimension, bind everyone, those who hold public office as well as private individuals (supra). In fact, the rights protected under Humanitarian Law and human rights treaties are indeed applied and opposable erga omnes, what in certain circumstances may enhance the access to justice and foster the conception of an international ordre public in the present domain of protection; the mechanism of inter-State petitions under certain human rights treaties bears witness of considerations of such ordre public. As for the mechanism of individual petitions, although it is the alleged wrong suffered by individuals that provides the material basis for their right of individual petition, there is also a general interest of States Parties to human rights treaties (providing for that mechanism) in seeing to it the such right of individual petition is endowed with effectiveness. In this sense, in relation to the European Convention on Human Rights, for example, I wrote, in a book published over two decades ago, that “in the general framework of the Convention, the right of individual petition, possessing a judicial character, rests upon the objective character of the engagements undertaken by the High Contracting Parties to the Convention, as its exercise contributes also to the fulfi lment of the general interest in having the Convention respected”.108

There is here a convergence between the individual and the collective interests, and this brings us closer to the actio popularis, which seems to emerge or flourish from the very concept of obligations erga omnes. If it is conceded that actio popularis, as in Roman law, admits that the complainant is seeking to safeguard not only the collective interest but also his own (affected) individual interest, there is epistemologically nothing that would render its application not viable in International Law. On the contrary, it would become a suitable remedy to uphold predominantly collective or common interests; it would, in this way, also 107 ICTFY (Trial Chamber), case of A. Kupreskic and Others (case n. IT/95/16/T), Judgment of 14.01.2000, par. 517. 108 A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, Cambridge, University Press, 1983, p. 17.

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foster the access to international justice, the control of international legality (e.g., protecting common spaces beyond national jurisdictions), and the protection of whole human communities.109 The shortcomings of the South West Africa cases (1966) are surely overcome in our days; they were proper of a mentality which regrettably hindered for some time the development of International Law, but which has been discarded by universal juridical conscience. Examples of possible application could be found in the domains of human rights protection, of application of International Humanitarian Law, of environmental protection (particularly in relation to the so-called “global commons”). In the domain of the safeguard of human rights, the objective character of the obligations of protection, the character of ordre public of the operation of the mechanisms of protection, the convergence on individual and collective interests in certain cases, are altogether elements bringing us closer to the actio popularis, as from the concept of obligations erga omnes.110 Actio popularis would be called for, in certain cases of violations of International Law, to secure the protection of members of whole human collectivities.111 It would have a scope broader than that of class actions.112 In sum, it is nowadays widely acknowledged that the general duty to ensure respect for the protected rights, wide in scope, is applicable erga omnes, comprising all measures necessary to secure the exercise or enjoyment of those rights. Ultimately, from the perspective here advocated, all human rights and Humanitarian Law obligations are applicable erga omnes. The rights inherent to the human person are surely opposable erga omnes. When the legal regime of obligations erga omnes (encompassing the juridical consequences of their violation) consolidates itself beyond question, within a more coherent international community, the actio popularis at international level may hopefully be also acknowledged without uncertainties. And it may become a legal means to secure compliance with obligations erga omnes lato sensu (and not only erga omnes partes). But this will ultimately depend on the conscientization of the pressing need to construct a more institutionalized international community. V.

Concluding Observations

In its development in the last decades, jus cogens has evolved – and ought to certainly keep on evolving – well beyond the law of treaties. It has had its scope 109 Cf., in this sense, F. Voeff ray, L’actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales, Paris/Genève, PUF/IUHEI, 2004, pp. 16, 229, 235-236, 322, 366-368 and 384. 110 In this sense, cf. F. Voeff ray, L’actio popularis..., op. cit. supra n. (109), pp. 157-158, 168, 176-179, 209, 245 and 261. 111 Cf. ibid., pp. 282 and 386. 112 Cf. IACtHR, case of the Indigenous People of Sarayaku versus Ecuador (Provisional Measures of Protection, Resolution of 17.06.2005), Concurring Opinion of Judge A.A. Cançado Trindade, pars. 3-33).

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

widened. Thus, the absolute prohibition of grave violations of fundamental human rights (starting with the fundamental right to life) extends itself, in my view, well beyond the law of treaties, incorporated, as it is, likewise, in contemporary customary International Law. Such prohibition gives prominence to the obligations erga omnes, owed to the international community as a whole. These latter clearly transcend the individual consent of the States,113 definitively burying the positivist-voluntarist conception of International Law. Obligations erga omnes of protection can be fostered and enhanced by the general obligation to respect and ensure respect for the rights of the human person, underlying treaties on human rights protection and on Humanitarian Law. As to its material content, international jus cogens, in my understanding, is an open category, which expands itself to the extent that the universal juridical conscience (the material source of all Law) awakens for the necessity to protect the rights inherent to each human being in every and any situation. It heralds the advent of a new international legal order committed to the prevalence of superior common values, and to moral and juridical imperatives, such as that of the protection of the human being in any circumstances, in times of peace as well as of armed conflict. For more than three decades, the concept of obligations erga omnes has marked presence in international case-law; however, such case-law has not yet extracted the juridical consequences of the affirmation of the existence of such obligations, nor of their violations, and has not defined sufficiently their legal regime either. But if, on the one hand, one has not yet succeeded to reach the opposability of an erga omnes obligation of protection, owed to the international community as a whole, on the other hand the International Law of Human Rights provides nowadays elements conducive to the consolidation of the opposability of obligations of protection to all the States Parties to human rights treaties (obligations erga omnes partes). In the consideration of the evolving jus cogens, there has been general acknowledgement of its expanding material content. The absolute prohibition of grave violations of fundamental human rights – starting with the rights to life and to the integrity of the person – extends itself, in my view, well beyond the law of treaties. Such absolute prohibition, likewise consolidated in contemporary customary International Law (indeed in general International Law as a whole), gives prominence to the obligations erga omnes of protection, owed to the international community. These obligations clearly transcend the individual consent of States, and herald the advent of a new international legal order, committed to the prevalence of superior common values. The material content of jus cogens also comprises today the principle of equality and non-discrimination,114 as well

113 C. Tomuschat, “Obligations Arising for States Without or Against Their Will”, 241 RCADI (1993) p. 365. 114 Pursuant to, e.g., the holdings to that effect in the recent case-law of the IACtHR, particularly its Advisory Opinion n. 18, of 2003 (cf. supra).

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as the access (lato sensu) to justice and the guarantees of the due process of law, taken necessarily together, and generating obligations erga omnes.115 Erga omnes obligations are owed to the international community as a whole, which, in my view, comprises all States as well as other subjects of International Law. One cannot possibly approach those obligations from a strictly inter-State perspective or dimension, which would no longer reflect the new structure of the contemporary international legal order. The current phenomenon of the expansion of the international legal personality and capacity116 is a response to a true need of the international community of our days. Not only States, but all other subjects of International Law,117 are bound by erga omnes obligations (as evidenced by the current and unfortunate diversification of the sources of violations – on the part of State as well as non-State agents – of the rights of the human person), owed to the international community as a whole. The task before us is essentially that of the determination of the legal regime of obligations erga omnes, with particular attention to the positive obligations of States and the juridical consequences of violations of erga omnes obligations. Although jus cogens generates always obligations erga omnes but not all such obligations are generated by jus cogens, the two concepts are ineluctably intertwined. Obligations erga omnes have been taking shape in areas of direct concern to humankind as a whole, such as human rights protection, environmental protection, disarmament and arms control, to name a few. Jus cogens and obligations and rights erga omnes can be properly addressed in the context of the considerable transformations of International Law in the last decades, – which have conferred upon it a necessary and inescapable ethical dimension, – and of the current historical process – as I perceive and sustain – of humanization of International Law. Ultimately, the beneficiaries of the compliance with, and due performance of, obligations erga omnes are all human beings (rather than the States). And not only States, but all other subjects of International Law, are bound by erga omnes obligations, which are owed not only to States, but also to the international community as a whole, as well as to human beings. Here, again, it clearly appears that the purely inter-State dimension of International Law has long been surpassed. There is pressing need today – as I see it, – to overcome the strictly inter-State approach in addressing obligations and rights erga omnes. Even if an inter-State approach is still – however inadequately – adopted, one cannot elude taking into account the human person as subject of International Law. This being so, it seems to me that the rights and duties of all subjects 115 Cf. A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 29-96; M. El Kouhene, Les garanties fondamentales de la personne en droit humanitaire et droits de l’homme, Dordrecht, Nijhoff, 1986, pp. 97, 145, 148, 161 and 241. 116 Cf. chapters VIII-XI, supra. 117 To me, it is impossible here not to take into account the other subjects of International Law, including the human person.

Conceptual Constructions: Jus Cogens and Obligations Erga Omnes

of International Law (including human beings, the ultimate beneficiaries of compliance with erga omnes obligations) should be taken into account in the determination of the legal regime of obligations erga omnes, and in particular of the juridical consequences of violations of such obligations. As it becomes accepted that individuals also have rights erga omnes and that obligations erga omnes are incumbent upon them, there remains no cogent reason for proceeding to the determination of the juridical consequences of violations of those obligations on a strictly inter-State basis. There appears to be, in fact, nothing new under the sun. Already in the midXVIIIth century, in his Institutiones Juris Naturae et Gentium (originally published in 1750), C. Wolff sustained the existence of universal obligations, wherefrom there ensued a universal law (droit universel). He further referred to the “universal justice”, which was that which “rend au prochain son droit par rapport à toutes les actions, en tant qu’elles regardent les autres”.118

Over two and a half centuries later, obligations erga omnes (in their horizontal and vertical dimensions), as well as jus cogens, are theoretical constructions of the jus gentium of our days, the International Law for humankind. In my personal experience of serving for more than one decade as Judge of an international human rights tribunal (and of being its President for half a decade), I can report many instances in which the Court has been faced with situations which disclosed an unfortunate diversification of the sources of violations – on the part of State as well as non-State agents – of the rights of the human person. This required a clear recognition of the effects of the conventional obligations also vis-à-vis third parties (the Drittwirkung), including individuals (identified and unidentified ones). Hence the importance of the general obligation of States to respect, and to ensure respect for, the protected rights, in all circumstances.119 It is my view that this general duty can assist in the vindication of compliance with erga omnes obligations, as, by means of the collective guarantee of humanitarian treaties, one may at least secure compliance with the general duty of protection of human beings (obligation erga omnes partes). One cannot overlook the possibilities of action, particularly under human rights treaties, to that effect. In the case-law of the IACtHR, I have, on successive occasions, insisted on this particular point.120 118 In his assertion, “une obligation universelle c’est ce à quoi tout homme est tenu, parlà même qu’il est homme”; C. Wolff, Principes du droit de la nature et des gens, vol. I, Amsterdam, Ed. M. Michel Rey, 1758 [reprint], p. 59, and cf. pp. 1-2. 119 Set forth in the 1949 Geneva Conventions on International Humanitarian Law (and the 1977 Additional Protocol I) as well as in several human rights treaties (cf. notes (41), (51) and (52), supra). 120 In my Separate Opinion in the case of Las Palmeras concerning Colombia (Preliminary Objections, Judgment of 04.02.2000), as well as in my Concurring Opinions

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Jus cogens, in generating obligations erga omnes, endows them with a necessarily objective character, encompassing all the addressees of the legal norms (omnes), – States, international organizations, peoples and individuals, and humankind; and, as to individuals, both the ones who hold offices of the public power as well as those who act in their private capacity. In my understanding, obligations erga omnes incorporate common and superior interests, as well as fundamental values. Compliance with them is required not only of States, but also of other subjects of International Law (including international organizations as well as peoples and individuals). Related to jus cogens, such obligations bind everyone. Furthermore, the acknowledgement of grave breaches of erga omnes obligations is certainly necessary, as it has been precisely the absolute prohibition of grave violations of International Law and of fundamental human rights that have given prominence to the obligations erga omnes of protection; these latter, owed to the international community, and transcending the individual consent of States, appear instrumental in the construction of the International Law for humankind.

in the Provisional Measures of Protection ordered by the Inter-American Court in the cases of the Community of Peace of San José of Apartadó (of 18.06.2002, pertaining to Colombia), of the Communities of the Jiguamiandó and of the Curbaradó (of 06.03.2003, also against Colombia), of the Indigenous People Kankuamo (of 05.07.2004, pertaining likewise to Colombia), of the Indigenous People of Sarayaku (of 06.07.2004, fi led against Ecuador), of the Prison of Urso Branco (of 07.07.2004, concerning Brazil), and of the Television Broadcasting Company ‘Globovisión’ (of 04.09.2004, pertaining to Venezuela).

Chapter XIII

I.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

Introduction

The challenges facing humankind today could hardly be faced on the basis of the traditional postulates of reciprocity or mutual interests on a strictly interState dimension. The protection of present and future generations1 and the very survival of humankind, require proper responses with the mobilization of all subjects of International Law. To face such challenges, newly emerged and interrelated concepts have been propounded, such as common heritage of mankind, common concern of mankind, global commons, sustainable development, intergenerational equity. The akin concepts, specifically, of common heritage and of common concern of mankind disclose a spatial and temporal dimensions, and call for special attention and world-wide cooperation, with the corresponding rights and duties pertaining to present and future generations, bearing in mind the needs and aspirations of humankind. II.

The Content and Significance of the Concept of Common Heritage of Mankind

The construction of the concept of common heritage of mankind in distinct domains of Public International Law (infra) emerged from the acknowledgement of common interests, in pursuance of the common good, of mankind. The concept stretched over time, comprising, as beneficiaires, present as well as future generations. Explanatory theories of the concept, – such as those of res communis (peaceful utilization by all, freedom of access and equitable sharing by all, on behalf of all), of the international public domain (utilization by all with gestion under public law, not open to private appropriation), of public trust (protection and control of a common good for transmission of one generation into another, on behalf of the whole international community, with States as “trustees” of natural resources in the general interest), – disclosed as a common denominator the identification of common interests, distinct from, and standing above, interests 1

E.g., against ozone layer depletion, environmental deterioration, arms race and trade, social marginalization and exclusion, among others.

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of individual States, as well as the utilization and control of resources on behalf of humankind, in a temporal dimension. The concept at issue was soon to fi nd expression, in the second half of the XXth century, in domains such as those of the international law of outer space, the law of the sea, the international law of bioethics, international environmental law (infra). In his thoughtful Hague Academy lectures of 1982 on the subject, Alexandre-Charles Kiss argued that, under the concept of common heritage of mankind, there existed a universal solidarity not only in space (among peoples) but also in time (among successive generations), and added: “Cette législation internationale qui consacre certains intérêts supérieurs en cherchant à protéger les être humains au-delà des objectifs immédiats des États – et même parfois contre eux – n’est pas isolé dans le droit international contemporain. (...) Cette notion d’intérêt commun est aussi le fondement du patrimoine commun de l’humanité (...). Aucune des dispositions conventionnelles imposant des obligations aux États dans ces domaines n’a de contrepartie immédiate”.2

Thus, each generation is at a time user and guardian of our common natural and cultural heritage, and should thus leave it to future generations in no worse conditions than it received it. Hence the principle of intergenerational equity (conservation of options, of quality, and of access), lucidly developed by E. Brown Weiss, as well as the need to protect systems of sustainability of life, ecological processes, environmental conditions and cultural resources necessary to the survival of humankind, and the need to preserve a healthy human environment.3 Underlying the concept of common heritage of mankind, one finds not only the notion of common good or interest (bien commun) of humankind, by also an expansion of the circle of beneficiaires (encompassing future generations). Here, the idea of solidarity at universal level is manifest, in its spatial and temporal dimensions.4 It is generally recognized that certain basic principles have oriented the construction of the new concept of common heritage of mankind, 2

3

4

A.Ch. Kiss, “La notion de patrimoine commun de l’humanité”, 175 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1982) pp. 113 and 229231. Moreover, the temporal dimension assumes particular importance in the construction of this new concept, taking into account also future generations: “c’est cet élargissement du cercle des bénéficiaires aux générations à venir qui donne ses véritables dimensions au concept de patrimoine commun de l’humanité”; ibid., pp. 240 and 243. Cf., in particular, E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, Tokyo/Dobbs Ferry N.Y., U.N.U./Transnational Publs., 1989, pp. 1-291. On the basis of this understanding, “on peut jouir des bénéfices de la nature et de ses ressources mais on doit en assurer la transmission à l’humanité à venir. On peut rappeler à cet égard la célèbre formule: nous ne sommes pas les héritiers de nos ancêtres, mais les débiteurs de nos enfants et de nos petits-enfants”; A.Ch. Kiss, “La nature, patrimoine commun de l’humanité”, 91 Naturopa (1999) p. 11.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

namely: the principles of non-appropriation and of exclusion of State sovereignty, of peaceful uses and purposes, of freedom of access and scientific investigation, and of rational gestion of the resources (of the heritage) and equitable sharing to the benefit of all mankind. 1.

In the Domain of the International Law of Outer Space

The concept of common heritage of mankind was initially asserted in the domain of the International Law of Outer Space, e.g., in the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Article 11(1)). The Agreement, also known as the Moon Treaty, in fact proclaims the moon and its resources as the common heritage of mankind (Article 11(1)). Elements of the concept had also been enshrined into the earlier 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies,5 which determined the whole of outer space as being “the province of all mankind” (Article 1(1)),6 “not subject to national appropriation by claim of sovereignty” (Article 2). Although expert writing has not been conclusive as to whether common heritage of mankind and “province of all mankind” are or not to be equated7, the fact remains that both formulations have jointly contributed to the general awareness prevailing nowadays that respect for the principles underlying them and for the outer space environment is beneficial to the whole of humankind. In fact, in the course of the last decades, the law-making process in the domain of the Law of Outer Space has determined the rights and obligations – some of these latter of general character, erga omnes – of the States engaged in activities in the outer space;8 this law-making process was from the start inspired by the conscience of the existence of superior common interests.9 The intense normative activity in the formation of the legal regime of the outer space, mainly of COPUOS and its Legal Subcommittee, in the decades of the seventies and eighties and at the beginning of the nineties, has, however, more recently, experienced a certain slowing down, parallel to the tendency of a commercialization of certain uses of the outer space,10 and amidst the necessity 5

6 7 8 9 10

The 1967 Outer Space Treaty, a framework treaty on the matter, setting forth basic principles on the exploration and use of outer space, was preceded by the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, where the notion of common interest can already be found. In the light of international law and the U.N. Charter (Article 3). Cf., e.g., D. Tan, “Toward a New Regime for the Protection of Outer Space as the ‘Province of All Mankind’”, 25 Yale Journal of International Law (2000) pp. 162-163. M. Lachs, The Law of Outer Space, Leiden, Sijthoff, 1972, pp. 113, 123 e 137-138. J.E.S. Fawcett, Outer Space – New Challenges to Law and Policy, Oxford, Clarendon Press, 1984, pp. 3-4, and cf. p. 6. Already two decades ago, J.E.S. Fawcett warned that the beginning of the engagement of private enterprises in space activities appeared “ambiguous as well as com-

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of an adequate regulation of specific areas of the legal regime of the outer space.11 Yet, the understanding had already been formed that the scientific-technological advances ought necessarily to revert to the benefit of humankind as a whole.12 In this line of thinking, the crystallization is nowadays undeniable, in the domain of the International Law of the Outer Space, of the general principles of non-appropriation, of peaceful uses and purposes, and of the extension of the benefits of space exploration to the whole of mankind.13 The concepts of common heritage of mankind and of “province of all mankind” have surely contributed to this general awareness. The 1972 Convention on International Liability for Damage Caused by Space Objects recognized, in its preamble, the “common interest of all mankind” in furthering the exploration and use of outer space for peaceful purposes. On its turn, the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space invoked “sentiments of humanity” in its preamble; earlier on, the 1967 Outer Space Treaty conceptualized astronauts as “envoys of mankind in outer space” (Article 5). And the 1976 Convention on Registration of Objects Launched into Outer Space also recognized in its preamble the “common interest of all mankind” in furthering the use of outer space for peaceful purposes. In recent years, the question of the character and utilization of the geostationary orbit was object of attention of the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space (COPUOS), which, in 2000-2001, reached a consensus among participating Delegations, in the light of the principle of equity.14 The understanding was in the sense that the access to the geostationary orbit ought to take place in an equitable way (the orbits of satellite and the spectrum of radio frequency being “limited natural resources”15); thus, the country which had already attained such access ought to take “all the practicable measures” to render it possible for other countries (including developing countries) also to have it.16

11 12

13

14

15 16

petitive”; ibid., p. 119, and cf. p. 116. Cf. E.W. Ploman, Space, Earth and Communication, London, F. Pinter Publs., 1984, pp. 160-165. Cf., e.g., [Various Authors,] Ethics, Law, Science, Technology and International Cooperation (Proceedings of the Córdoba Seminar of 1984), Córdoba, Council of Advanced International Studies, 1987, pp. 29-188. R.G. Steinhardt, “Outer Space”, in The United Nations and International Law (ed. Chr.C. Joyner), Cambridge, University Press/ASIL, 1999 [reprint], pp. 338-341 and 344-349. U.N./Committee on the Peaceful Uses of Outer Space [COPUOS], Report of the Legal Subcommittee (XL Session, Vienna, April 2001), U.N. doc. A/AC.105/763, of 24.04.2001, p. 10. In conformity with Article 44 of the ITU Constitution. U.N./COPUOS, Report of the Legal Subcommittee (XXXIX Session, Vienna, March/ April 2000), U.N. doc. A/AC.105/738, of 20.04.2000, Annex III, pp. 21-22.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

The U.N. General Assembly, in its resolutions 55/122, of 08.12.2000,17 and 56/51, of 10.12.2001,18 both on the international cooperation in the peaceful uses of outer space, took note “with satisfaction” of the consensus referred to reached by the Legal Subcommittee, and endorsed by COPUOS, on the question of the character and utilization of the geoestationary orbit. Thus, both COPUOS and the International Telecommunication Union (ITU) contributed to reaching the recognition that the geostationary orbit is a limited natural resource, and that all countries ought to be able to count on the possibility of access to that orbit, for it not to be regarded as a privilege for a given number of satellites which are already placed in it. The aforementioned U.N. General Assembly resolutions 55/122 and 56/51 stated in their preambles (2nd. considerandum) the belief in “the common interest of mankind in promoting and expanding the exploration and use of outer space for peaceful purposes”, as well as in “continuing efforts to extend to all States the benefits derived therefrom”. The two resolutions supported the expansion of the scope of international cooperation relating to “the social, economic, ethical and human dimension in space science and technology applications”.19 2.

In the Domain of the Law of the Sea

Over the last two decades, it became generally recognized that, of the expressions the concept of common heritage of mankind has found in distinct domains of International Law (supra), the most elaborate has been the one in the Law of the Sea, endowed as it is with an institutionalized framework (infra). The saga of such concept, – enshrined into the 1982 Montego Bay Convention (Article 136), – in the domain of the Law of the Sea, goes back to the 1967 address by Ambassador Arvid Pardo, of Malta, at the U.N. General Assembly. The Maltese proposal, – which had antecedents in the Law of the Sea,20 – resulted in the adoption, three years later, of the General Assembly’s declaration that the seabed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, as well as the resources of the so-called Area, were the common heritage of mankind.21 In 1975 17 18 19 20

21

Paragraph 4; resolution reproduced in: U.N. document A/RES/55/122, of 27.02.2001, p. 2. Paragraph 4; resolution reproduced in: U.N. document A/RES/56/51, of 15.02.2002, p. 2. Paragraphs 44 and 48, respectively. Such as the consideration, by the U.N. International Law Commission, in the fi fties, of the idea of reserving the seabed and ocean floor and their resources for the use of the international community, as well as the proposal of several Delegations, at the I U.N. Conference on the Law of the Sea (1958), that the continental shelf should be exploited in the interests and for the benefit of mankind as a whole; U.N./Office of Legal Affairs, The Law of the Sea – Concept of the Common Heritage of Mankind..., op. cit. infra n. (24), pp. 1-2, and cf. p. 8. Cf. U.N. General Assembly resolution 2749, of 17.12.1970.

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the concept was incorporated into the Informal Single Negotiating Text of the III U.N. Conference of the Law of the Sea [UNCLOS], and was at last enshrined into the 1982 U.N. Convention on the Law of the Sea.22 A well-documented account of the legislative history of the concept of common heritage of mankind, published in 1996 by the U.N. Office of Legal Affairs (Division for Ocean Affairs and the Law of the Sea), discloses the intense common search (aiming at universality) of general principles concerning the peaceful and equitable uses of the seabed and the ocean floor, and the subsoil thereof, beyond the areas of national jurisdiction.23 The aforementioned account acknowledged difficulties in tracing back all the antecedents, at doctrinal level, of the concept at issue: “It is difficult to say exactly when the concept of the common heritage of mankind first arose in human consciousness. The idea, in one form or another, could probably be traced to ancient times. (...) Suffice it to point out that in the 1830sa Latin American jurist, Andrés Bello, argued that those things which could not be held by one nation without detriment to the others ought to be considered by the international community as ‘common patrimony’. In 1898, A.G. de Lapradelle, a French jurist, advanced the idea that the oceans should be ‘le patrimoine de l’humanité’”.24

As advanced in the course of the III UNCLOS (1973-1982), the concept of common heritage of mankind can be associated with the creation of an international regime for the regulation and management of the seabed and ocean floor beyond the limits of national jurisdiction on behalf of the entire international community.25 As originally propounded in the present domain, the new concept sought the overcoming of unilateralisms, and heralded the advent of a new outlook and paradigm of International Law itself, turning attention to humankind as a whole (endowed with international subjectivity) as well as to the imperative of international distributive justice. It was not surprising that, in this new outlook, the International Seabed Authority, created by the 1982 Montego Bay Convention and endowed with international legal personality (Article 176), had been conceived so as to operate to the benefit of humankind as a whole. The insertion, into the Montego Bay Convention, of the concept of common heritage of mankind, was not meant only to provide the framework for clauses concerning the structure of the future Authority, its financing, transfers of technology, and the like; it went much further than that, in giving expression to a basic principle orienting the new conventional regime, opposable also to States which

22 23 24

25

Part XI, esp. Articles 136-145 and 311(6). Cf. ibid., pp. 28, 95, 126, 219, 387 and 431. U.N./Office of Legal Affairs, The Law of the Sea – Concept of the Common Heritage of Mankind (Legislative History of Articles 133 to 150 and 311(6) of the U.N. Convention on the Law of the Sea), N.Y., U.N., 1996, p. 1, and cf. p. 3. Cf. ibid., pp. 92-93.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

were not to ratify the 1982 Convention,26 on behalf of mankind. It had in mind the seabed and its subsoil beyond the limits of national jurisdiction precisely because they were the ones most exposed to the ambitions of some States; their resources – as common heritage of mankind – were meant to belong to humankind, forming part of a truly universal regime.27 After all, the principle of liberty of exploitation (of the traditional International Law of the Sea) appeared no longer satisfactory, calling for the common heritage of mankind. This latter set forth the component principles of non-appropriation (of resources) and peaceful utilization and exploration in the interest of mankind as a whole; as originally conceived, the new universal regime was to be endowed with a mechanism of its own.28 But as progress, in this and other areas of International Law, has not taken place in a linear way, the International Seabed Authority experienced vicissitudes even after the Montego Bay Convention was concluded, – as illustrated by the Agreement of 1994 for the Implementation of Part XI of the Convention referred to. The Agreement of 1994 much emptied the concept of common heritage of mankind of its original content, largely depriving it of great part of its purpose of distributive justice, and bringing it closer to the old notion of Roman law of res communis omnium. With that, the function of the International Seabed Authority appeared weakened. It is not surprising that the 1994 Agreement has been received with a critical spirit by part of the more enlightened legal doctrine, which characterized it as a “step backwards”, for representing a victory of the pretensions of a very reduced number of States endowed with technological capacity to explore on their own the resources of the international seabed, over the aspirations of the great majority of States, which sought the establishment of a new international economic order, with more distributive justice and solidarity.29 It appeared as tipping the balance in favour of technologically advanced States, whose interests prevailed over the ideal of an equitable distribution of benefits bearing in mind the needs of the international community as a whole.30 The ideal of universal solidarity, coupled with social responsibility, as emerged around the res communis humanitatis, was regrettably set aside in fa26

27 28 29

30

G. de Lacharrière, “La réforme du droit de la mer et le rôle de la Conférence des Nations Unies”, in Le nouveau Droit international de la mer (eds. D. Bardonnet and M. Virally), Paris, Pédone, 1983, p. 31. M. Bennouna, “Les droits d’exploitation des ressources minérales des océans”, in Le nouveau Droit..., op. cit. supra n. (26), pp. 122-123 and 128-129. C. Douay, “Le droit de la mer et la préservation du mileu marin”, in Le nouveau Droit..., op. cit. supra n. (26), pp. 238-240. J.A. Pastor Ridruejo, “Le Droit international à la veille du vingt et unième siècle: normes, faits et valeurs – Cours général de Droit international public”, 274 RCADI (1998) pp. 264-265. Cf., e.g., J.M. Pureza, O Património Comum da Humanidade: Rumo a um Direito Internacional da Solidariedade?, Porto, Ed. Afrontamento, 1998, p. 247, and cf. p. 242.

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vour of the old so-called “free” and “liberal” competition.31 This corresponded to the distorted view of “universality” of the regime of the 1982 Law of the Sea Convention espoused by the technologically advanced States,32 which was precisely what the concept of common heritage of mankind purported to overcome. Although technologically advanced States reinterpreted the concept of common heritage of mankind as implying freedom of access to the Area for all participating States for seabed mining (on an equal footing under a licensing system), the fact remains that the concept entered into the vocabulary of the law of the sea implying distributive justice and international cooperation with preferential treatment for the poorer countries; this was the understanding espoused by most participants at the III UNCLOS.33 As pointed out by M.C.W. Pinto, “It was an inspiring vision offered to a world at a time when it seemed feasible to establish a ‘new international economic order’ founded on distributive justice and cooperation that would replace an old order of exploitative relationships based essentially on power disparities and competition”.34

From the beginning, when it emerged in the ambit of the law of the sea, the concept of common heritage of mankind overcame some resistance. In fact, those who participated in the prolonged negotiatory process of the Montego Bay Convention of 1982 did not fail to express their concern with the threats of a breaking down – mainly in the ninth session, in 1980, of the III UNCLOS – of the consensus formed as to the concept of common heritage of mankind.35 But the concept survived, and found expression in the 1982 Law of the Sea Convention. After the adoption of the Convention, it was regarded by some as a rather “philosophical” concept, with “the potential to emerge and crystallize as a legal norm”.36 31

32

33

34 35

36

Cf. S. Paquerot, Le statut des ressources vitales en Droit international – Essai sur le concept de patrimoine commun de l’humanité, Bruxelles, Bruylant, 2002, pp. 85103. Cf., for an account, e.g., E.D. Brown, “The 1994 Agreement on the Implementation of Part XI of the U.N. Convention on the Law of the Sea: Breakthrough to Universality?”, 19 Marine Policy (1995) n. 1, pp. 5-20. M.C.W. Pinto, “‘Common Heritage of Mankind’: From Metaphor to Myth, and the Consequences of Constructive Ambiguity”, in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 256 and 265-266. Ibid., p. 267. On the occasion, the Group of 77 warned for the risk of destruction of the whole negociatory process, and stood against what it regarded as the “illegality” of unilateral national legislations contrary to the concept of common heritage of mankind, seen as endowed with an imperative character; cf. account of J.-P. Lévy, La Conférence des Nations Unies sur le Droit de la Mer – histoire d’une négotiation singulière, Paris, Pédone, 1983, pp. 98-99. C.C. Joyner, “Legal Implications of the Concept of the Common Heritage of Mankind”, 35 International and Comparative Law Quarterly (1986) p. 199.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

It is generally recognized nowadays that the formation of the concept of common heritage of mankind has been influenced by the movement in favour of the establishment of a new international economic order, which gained ground mainly in the seventies.37 In my view, the ideal of construction of an international legal order with more distributive justice and solidarity at universal scale is bound to keep on evolving, to the extent that the human spirit is refined in approaching and fostering the equitable application of international norms, to States which are juridically equal but remain factually marked by profound inequalities, if not iniqüities. Just as advances do not take place in a linear form, nor do the steps backwards appear irreversible. The ideal of common “heritage” or “concern” of mankind is surely alive, having managed to permeate the very evolution of some domains of International Law in the last decades. This is illustrated, e.g., by a recent document (of 2002) issued by the International Seabed Authority on the protection of the biological biodiversity in the deep seabed,38 which insists on marine scientific research39 to be undertaken to the benefit of mankind as a whole, pursuant to the concept of common heritage of mankind.40 Another illustration lies in the treatment which continues to be dispensed to the concept of common heritage of mankind, both before and after the Agreement of 1994 referred to. Even those who appeared somewhat complacent as to the circumstances of the celebration of the aforementioned Agreeement, recognized and anticipated that the normative content of the provisions on common heritage of mankind appeared as “important precedents” to “force States which have never felt any obligation to share” the wealth that they control in order to promote international distributive justice.41 At doctrinal level, underlying the concept of common heritage of mankind subsists the belief that the advances in International Law are linked to the recognition of the necessity of interdependence, solidarity and assertion of ethical

37

38

39

40 41

The triumphalism of the heralds of the so-called “free market” led to exagerations, such as that of suggesting a “requiem” for the new international economic order; T.W. Wälde, A Requiem for the ‘New International Economic Order’ – The Rise and Fall of Paradigms in International Economic Law, Dundee, Univesity of Dundee (Discussion Paper DP8), 1997, pp. 1-57. International Seabead Authority, Deep Seabed Mineral Development, Bio-Prospecting and the Protection of Biological Diversity in the Deep Seabed and on the High Seas, April 2002, pp. 1-14. In the “Area” – such as defi ned in Article 1 of the Montego Bay Convention of 1982 – which encompasses the marine and ocean floors and their subsoil beyond the limits of national jurisdiction. And also in the terms of Article 143(1) of the Montego Bay Convention. K. Baslar, The Concept of the Common Heritage of Mankind in International Law, The Hague, Nijhoff, 1998, p. 242, and cf. pp. 222-229.

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values in the conduction of international relations.42 As pertinently remarked by J.A. Carrillo Salcedo, the concept of common heritage of mankind, “qui appartient à l’imaginaire des nations, (...) pourra servir, à l’avenir, de fondement à des constructions juridiques qui reconnaîtront et organiseront la destination universelle des biens, empêcheront leur exploitation au seul profit des riches et des puissants et permetront la répartition plus équitable de leurs fruits”.43

The realization of the ideal to which the common heritage of mankind gives expression, leaves no room for distortions of that concept. The universality it originally aimed at was motivated by international distributive justice, in the light of equity, rather than by the subsequent search for profit. 3.

In the Domain of the International Law of Bioethics

The concept of common heritage of mankind has likewise found expression in the evolving International Law of Bioethics. As from the mid-XXth century, human genetics emerged in the scientific developments of the epoch to establish itself as a new disciplina touching upon the essence and foundation of humanity, raising issues concerning both life and death and the fi nite nature of human beings,44 for which Law has not yet provided clear and conclusive answers.45 On 11 November 1997 the XXIX General Conference of UNESCO adopted the Universal Declaration on the Human Genome and Human Rights,46 Article 1 of which provides that

42

43

44 45

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J.-A. Carrillo-Salcedo, “Contribution de la notion d’humanité au renforcement de la dimension idéologique du droit international”, in K. Vasak Amicorum Liber – Les droits de l’homme à l’aube du XXIe. siècle, Bruxelles, Bruylant, 1999, pp. 115-126; B. Conforti, “Humanité et renouveau de la production normative”, in Humanité et Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991, pp. 113-120; G. Abi-Saab, “‘Humanité’ et ‘communauté internationale’ dans la dialectique du Droit international”, in ibid., pp. 10-12; R.-J. Dupuy, “Droit de la mer et communauté internationale”, Mélanges offerts à P. Reuter – Le Droit international: unité et diversité, Paris, Pédone, 1981, pp. 223 and 229-230. J.-A. Carrillo Salcedo, “Le concept de patrimoine commun de l’humanité”, in Ouvertures en Droit international – Hommage à R.-J. Dupuy, Paris, SFDI/Pédone, 2000, p. 62. J.-F. Mattei, “Introduction”, in Ethical Eye: the Human Genome (ed. J.-F. Mattei), Strasbourg, Council of Europe, 2001, pp. 11-13. Cf., e.g., Council of Europe, Law and Moral Dilemmas Affecting Life and Death (Proceedings of the Glasgow Colloquy on European Law of 1990), Strasbourg, C.E., 1992, pp. 11-34. Endorsed one year later by the U.N. General Assembly itself (resolution A/ RES/53/152), coinciding with the cinquentenary of the 1948 Universal Declaration of Human Rights.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind “The human genome underlies the fundamental unity of all members of the human family, as well as the recognition of their inherent dignity and diversity. In a symbolic sense, it is the heritage of humanity”.

The provision was intended to draw attention to the rights and duties of every human being over his “genetic heritage”, and to stress that any improvement in the knowledge of the human genome should result in the benefit, without discrimination, of humankind as a whole; the protection of the human genome was thus turned to the safeguard of the integrity of the human species as such and of the dignity of all individuals as its members.47 In the present domain, at regional level reference can also be made to the 1996 Council of Europe’s Convention on Human Rights and Biomedicine, which, in its preamble, asserts the dignity of the individual as such and in his belonging to the human species, and the need to secure that advances in biology and medicine benefit humankind as a whole, encompassing present and future generations. In the preparatory work of the 1997 UNESCO Universal Declaration on the Human Genome and Human Rights, the International Bioethics Committee of UNESCO was engaged in the drafting of a clear and strong provision on the concept of the common heritage of mankind to be set forth in Article 1; subsequently, however, the concept was, – according to an account of its final drafting, – unfortunately “watered down by government representatives”, by considering the human genome only “in a symbolic sense” to be the “heritage of humanity”. According to that account, “Indeed, the International Bioethics Committee had embraced the ‘common heritage of humanity’ concept, but certain government representatives designated to study and approve the Committee’s final draft declaration understood the common heritage concept as mandating possible appropriation by international conglomerates and thus a risk to State sovereignty. Others disliked the community aspect. Ironically, other members of the Bioethics Committee, fearful of possible State sovereignty, preferred to protect the human genome at the level of the individual. Finally, the French translation of heritage as ‘patrimony’ also created difficulties since it would be seen as having an economic meaning. Hence, the adoption of the expression ‘symbolic of the heritage of humanity’”.48

Be that as it may, despite such vicissitudes of the drafting of the aforementioned Declaration, this latter characterizes the human genome as constitutive of the

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H. Gros Espiell, “Genética y Derechos Humanos – El Anteproyecto de Declaración de la UNESCO sobre la Protección del Genoma Humano”, in Scritti in Onore di G. Gerin, Milano, CEDAM, 1996, pp. 217 and 221-222. B.M. Knoppers, “The Human Genome: Individual Property or Common Heritage?”, in Ethical Eye: the Human Genome (ed. J.-F. Mattei), Strasbourg, Council of Europe, 2001, p. 115.

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singularity of human beings49 and affirms the responsibility of the international community as a whole for the preservation of the human species; by resorting to the concept of common “heritage of humanity”, the 1997 Universal Declaration “se situe dans le prolongement de la prise de conscience accrue du destin commun de l’humanité et des responsabilités qui en découlent (...). Dans la Déclaration, la mise en oeuvre de la notion de patrimoine commun vise à assurer la protection la plus large du génome humain contre les atteintes susceptibles de mettre en danger la pérennité même de l’humanité. Enfi n, la notion de patrimoine recouvre les connaissances accumulées par l’homme sur lui-même, comme formant un potentiel de progrès pour l’humanité”.50

UNESCO itself has clarified that the basic idea underlying the reference to the common “heritage of humanity” in Article 1 of its Universal Declaration on the Human Genome and Human Rights is that research on the human genome and the applications flowing therefrom, – which may affect both individuals and the human species, – are the responsibility of the international community as a whole, an ethical imperative of humankind. Human dignity is the cardinal principle orienting the safeguard of the integrity of the individual and the human species through the protection of the human genome.51 It should not pass unnoticed that Article 3 of the 1997 Universal Declaration, in referring to the “mutations” undergone by the human genome in each individual’s natural and social environment, and living conditions (including health, nutrition and education), stands against “genetic determinism”.52 It may well be that we are here approaching the frontiers of humanity.53 The present and emerging domain of International Law gives pride of place to the individual as such and to his belonging to the human species. The principle of the dignity of the human person as subject of International Law occupies a central position

49 50

51 52 53

That is, it applies the concept of human genome to the genome of an individual as well as to the genomes of all human beings altogether. G.B. Kutukdjian, “Le génome humain: patrimoine commun de l’humanité”, in Personne humaine et Droit international – H. Gros Espiell Amicorum Liber, vol. I, Bruxelles, Bruylant, 1997, p. 609, and cf. pp. 606-607. UNESCO, Birth of the Universal Declaration on the Human Genome and Human Rights, Paris, UNESCO, 1999, pp. 3 and 99-100. That is, the false assumption that an individual would be genetically “programmed” from the beginning of his existence. As pointed out in this connection, “we are all made from the same matter, but we are still very, very different. (...) Our main difference in category (...) is metabiological, metaphysical and spiritual”; J. Reich, “At the Frontiers of Humanity”, in Ethical Eye: the Human Genome (ed. J.-F. Mattei), Strasbourg, Council of Europe, 2001, p. 127. The 1997 Universal Declaration thus refutes the strictly genetic conception of humankind and the mistaken view that an individual would amount to the sum total of his genes; J.-F. Mattei, “Conclusion”, in ibid., pp. 131 and 135.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

herein. Its outlook is essentially universalist, ineluctably transcending a strictly inter-State dimension. It discloses a conception of the human being, in the societas gentium and ultimately in the universe itself, which appears remindful of the original foundations of the droit des gens. 4.

In the Domain of International Environmental Law

It is widely acknowledged nowadays that international life has been dramatically marked by the pressures of two major challenges of our times, namely, the necessities and requirements of protection of the human person as well as of the environment. Environmental issues, such as, inter alia, climate change and biological diversity, have disclosed a truly global dimension, transcending the strictly inter-State level and requiring a universal approach. It is thus not surprising to find reiterated references to “mankind” in various international instruments on preservation of the environment and on sustainable development, and on protection of the cultural heritage,54 – on behalf of present and future generations, – indicating that contemporary International Law can no longer be adequately approached from an exclusively State-oriented perspective, and also significantly heralding the advent of a new International Law for humankind. The 1972 Stockholm Declaration on the Human Environment expressly refers to the “common good of mankind” (Principle 18). Rules on the protection of the environment are adopted, and obligations to that effect are undertaken, in the common superior interest of mankind. This has been expressly acknowledged in some treaties in the field of the environment;55 it is further implicit in references to “human health” in some environmental law treaties.56 Such acknowledgement, in addition to that also found in the international law of the outer space and the

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The notion of cultural heritage of mankind can be found, e.g., in the Conventions for the Protection of Cultural Property in the Event of Armed Conflict (1954) and for the Protection of the World Cultural and Natural Heritage (1972) (cf. infra). E.g., preambles of the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof; the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction; the 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques; the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter; the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources; the 1972 Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft; the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage. E.g., the 1985 Vienna Convention for the Protection of the Ozone Layer, preamble and Article 2; the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, preamble; Article 1 of the three aforementioned marine pollution Conventions.

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law of the sea57 (supra), calls for a reconsideration of the basic postulates of International Law bearing in mind the superior common interests of humankind. Despite semantic variations in international instruments on environmental protection when referring to mankind, a common denominator underlying them all appears to be the common interests of humankind. There seems to be occurring lately, in the present domain of international environmental law, an evolution from the notion of common heritage of mankind (as emerged in the contexts of the law of the sea and space law) to that of common concern of mankind. The U.N. General Assembly resolution 43/53, of 1988, introduced the recognition that climate change was a “common concern” of mankind, since (in the wording of its first operative paragraph) climate was “an essential condition which sustains life on earth”. Such essential or fundamental condition is inextricably linked to the new idea of “commonness”. The newly-proposed notion is inspired in considerations of international ordre public. It appears as a derivative of the earlier “common heritage” approach, meant to shift emphasis from the sharing of benefits from exploitation of environmental wealths to fair or equitable sharing of burdens in environmental protection, and the needed concerted actions to that effect with a social and a temporal dimensions. It could hardly be doubted, as UNEP itself has acknowledged, that environmental protection is “decisively linked” to the “human rights issue”.58 References to the common heritage of mankind are likewise found in other instruments of the present domain of international law. Thus, e.g., the 1966 UNESCO Declaration on Principles of International Cultural Cooperation proclaims that “all cultures form part of the common heritage of mankind” (Article 1(3)). The constitutive charter of UNESCO itself advances the notion of universal heritage (formed by books, works of art, and other monuments of historical or scientific interest – Article 1(2)(c)). In its turn, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict warns in its preamble that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”.59 And the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage states in its preamble that “parts of the cultural or natural heritage are of outstanding interest and therefore need to be preserved as part of the world heritage of mankind as a whole”;60 the Convention sets forth the responsibility and duty of the “international community as a whole” in the present 57

58 59 60

Cf. N.J. Schrijver, “Permanent Sovereignty over Natural Resources versus the Common Heritage of Mankind: Complementary or Contradictory Principles of International Economic Law?”, in International Law and Development (eds. P. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff/Kluwer, 1988, pp. 95-96, 98 and 101. UNEP, doc. UNEP/ELIU/WG.1/1/2, pp. 1-2, par. 4, and cf. pp. 4-5, pars. 8-9. 2nd considerandum. Preamble, 6th considerandum.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

domain.61 Most parts of the cultural or natural heritage are, however, under the jurisdictions of the States; as exclusion of their sovereignty does not occur in this specific area, international cooperation grows here in importance, so that the cultural and natural heritage can be preserved and transmitted to future generations. On 02 November 2001, the General Conference of UNESCO adopted the Universal Declaration on Cultural Diversity, expressing the aspiration to “greater solidarity on the basis of recognition of cultural diversity, of awareness of the unity of humankind”.62 The UNESCO Declaration erects cultural diversity, – or “plurality of the identities of the groups and societies making up humankind”, – as “common heritage of humanity”.63 The universal concern with the needed preservation of the world cultural heritage became manifest in the case of the destruction of the Buddhas of Bamiyan in March 2001. Even before the confirmation of the demolition of the Buddhas, the U.N. General Assembly adopted resolution 55/243 (of 09.03.2001)64 warning as to “the need to respect the common heritage of humankind”.65 After the demolition of the Buddhas, the General Assembly of the States Parties to the 1972 UNESCO Convention for the Protection of the World Cultural and Natural Heritage, likewise, adopted another resolution, on 31.10.2001, condemning the “wilful destruction of the cultural heritage of Afghanistan by the Taliban forces” as a crime “against the common heritage of humanity”. These manifestations acknowledged the “universal interest” in the preservation of the world cultural heritage in the light of the 1972 UNESCO Convention, generating obligations erga omnes partes of protection.66 Later on, the General Conference of UNESCO adopted, on 17.10.2003, the Declaration concerning the Intentional Destruction of Cultural Heritage, in which it characterized such “intentional destruction” as

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Preamble, 7th considerandum, and Article 6(1). Preamble, 8th considerandum. The 2001 Declaration stated that “culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of a society or a social group”, and that “it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs”; preamble, 5th considerandum. Article 1. – It determined that “the defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity” (Article 4). Moreover, it supported the “pre-eminence of public policy”, as “market forces alone cannot guarantee the preservation and promotion of cultural diversity” (Article 11). In which it stated it was “deeply concerned and appalled by the Taliban edict of 26.02.2001, ordering the destruction of all statues and non-Islamic shrines of Afghanistan”, a destruction which would be “an irreparable loss for humanity as a whole”; preamble, 4th and 6th consideranda. Preamble, 2nd considerandum. R. O’Keefe, “World Cultural Heritage: Obligations to the International Community as a Whole?”, 53 International and Comparative Law Quarterly (2004) pp. 190 and 196-197, and cf. pp. 208-209.

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Chapter XIII “a violation of International Law or an unjustifiable offence to the principles of humanity and dictates of public conscience, in the latter case in so far as such acts are not already governed by fundamental principles of International Law”.67

The 2003 UNESCO Declaration further expressed “serious concern about the growing number of acts of intentional destruction of cultural heritage”, and recalled “the tragic destruction of the Buddhas of Bamiyan that affected the international community as a whole”.68 On its part, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, also adopted in 2003, sought the protection of the intangible cultural heritage,69 – and conceptualized this latter as “the practices, representations, expressions, knowledge, skills (...) that communities, groups and, in some cases, individuals recognize as part of their cultural heritage”.70 Subsequently, the Executive Board of UNESCO approved (at its 167th session) the establishment of the International Coordination Committee for the Safeguarding of the Cultural Heritage of Iraq, which held its first plenary session at UNESCO headquarters in Paris on 24-25 May 2004. Its final report began by recalling “the tragic conditions of the Iraqi cultural heritage since beginning of the embargo and especially since April 2003”, and stressed the need to safeguard that heritage for the “sake of the whole humanity”.71 The report next warned that the long history of Iraq’s intangible heritage72 was being “threatened by destruction and looting because of the recent war and more than ten years of embargo, and will be lost if no prompt action is taken to safeguard it”.73 The aforementioned report concluded by stressing the “important role of intangible heritage” not only in “rebuilding societies” but also “as a main source of cultural diversity, and as a cornerstone in the identity of groups, communities and individuals”.74 The General Conference of UNESCO had, accordingly, – it recalled, – adopted the aforementioned 2003 Convention for the

67 68

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Operative part, section II, paragraph 2. Preamble, 1st and 2nd consideranda. – The Declaration further called upon States to “take all appropriate measures to prevent, avoid, stop and suppress acts of intentional destruction of cultural heritage, wherever such heritage is located”; operative part, section III, paragraph 1. Invoking to this effect the international instruments of human rights. Preamble and Article 2(1). UNESCO/International Coordination Committee for the Safeguarding of the Cultural Heritage of Iraq, Final Report (1st. plenary session, Paris, 24-25 May 2004), p. 2, and cf. pp. 3-7 and 10-11. Namely, “five civilizations, five religions in five thousand years of human experiences, (...) history, poetry, arts, literature, (...) and intangible culture”; UNESCO, op. cit. supra n. (71), p. 2. Ibid., pp. 12-13. Ibid., p. 13.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

Safeguarding of the Intangible Cultural Heritage. The report finally formulated recommendations and identified responsibilities.75 Shortly afterwards, the Committee held the I Cultural Forum for Iraq on 26-27 May 2004, wherein it was further recalled that all wars cause devastation that destroy the soul and desfigure the memory of the cultural identity of a people; in the case of the armed attack on Iraq (2003) and the chaos following it, eight thousand years of human history were now hanging in the balance. The Forum’s final document, adopted by UNESCO in the form of an “Appeal” on 27.05.2004, expressed the determination to preserve the (tangible and intangible) cultural heritage of Iraq.76 On its part, the U.N. Security Council, in resolution 1546(2004), of 08.06.2004, inter alia stressed the need for all parties “to respect and protect Iraq’s archaeological, historical, cultural, and religious heritage”.77 The recent 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted (on 20.10.2005) after prolonged debates,78 reiterated the conception of cultural diversity as common heritage of mankind, pondering that “culture takes diverse forms across time and space” and this diversity is incorporated “in the uniqueness and plurality of the identities and cultural expressions of the peoples and societies making up humanity”.79 The Convention added that cultural diversity can only be protected and promoted by means of the safeguard of human rights.80 The projection of the notion of common heritage of mankind to cultural and natural heritage acknowledges the configuration of the general interest of humankind in its protection and conservation. These latter grow in importance, given the fact that most parts of the corresponding heritage remain under the respective State jurisdictions (with no exclusion of sovereignty), there being thus an even greater need to secure that they are preserved and duly transmitted, as common heritage, to the future generations.81 Furthermore, the universal ju75 76

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Cf. ibid., pp. 14-17. Cf. operative paragraph 1, and sections B and C; and cf. UNESCOPRESS, Press Release n. 2004/47, of 29.05.2004, p. 1. – In the same line of concern, and with regard to the recent invasion and occupation of Iraq, the U.N. Secretary General (K. Annan), while deploring, in April 2003, “the catastrophic losses to Iraq’s cultural heritage” that had just occurred, expressed the determination to join forces with UNESCO in preventing trade in “stolen Iraqi objects”, and further noted that “Iraq’s cultural treasures bear witness to an invaluable legacy for all humanity, and their loss is a wound inflicted on all humankind”; U.N./SG, Press Release of 15.04.2003, p. 1. Preamble, 9th considerandum. Cf., e.g., UNESCO/General Conference, document 33-C/23, del 04.08.2005, pp. 1-16, and Annexes; and cf. G. Gagné (ed.), La diversité culturelle: vers une Convention internationale effective?, Montréal/Québec, Éd. Fides, 2005, pp. 7-164. Preamble, consideranda 1, 2 and 7 of the Convention of 2005. Article 2(1) of the Convention of 2005. A. Blanc Altemir, El Patrimonio Común de la Humanidad – Hacia un Régimen Jurídico Internacional para Su Gestión, Barcelona, Bosch, 1992, pp. 167-172 and 246-247.

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ridical conscence has evolved towards the clear recognition of the relevance of cultural diversity to the universality of human rights, and vice-versa, as well as towards the humanization of International Law, and the configuration of a new jus gentium at this beginning of the XXIst century, of an International Law for humankind. And the aforementioned triad of the UNESCO Conventions of 1972, 2003 and 2005 affords, in my perception, one of the many contemporary manifestations of the awakening of human conscience to this effect. III. The Content and Significance of the Concept of Common Concern of Mankind 1.

The Emergence of the New Concept

The two concepts of common heritage and of common concern of mankind transcend the level of strictly inter-State relations, focusing on the needs and aspirations of humankind as a whole, encompassing present and future generations. Conflicting interpretations and controversies surrounding the earlier concept of common heritage of mankind (in such distinct domains as the Law of the Sea and Space Law) have led to the subsequent adoption of a derivative concept, that of common concern of mankind (in, e.g., International Environmental Law). The emphasis of this latter falls upon concerted actions in equitable sharing of burdens (in environmental protection), rather than on the pursuance of benefits from exploitation of natural resources.82 At a time when the outcome of the 1992 U.N. Conference on Environment and Development (UNCED, Rio de Janeiro) could not yet be predicted, a Group of Legal Experts was convened by the United Nations Environmental Program (UNEP), in Malta, on 13-15 December 1990, in order to lay down the normative basis for the ongoing negotiating process preparatory to the 1992 U.N. World Conference. The report of the Group,83 stressing the need to relate preventive to corrective measures, pondered that corrective measures were being approached from an intra-generational perspective, while preventive measures were so from an inter-generational perspective. In addition, there was special emphasis on the need, in the present domain, to balance the rights of States with the interests of the international community, an issue which brought to the fore the equitable sharing of burdens (costs and benefits) in environmental protection.84

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Cf. UNEP, The Meeting of the Group of Legal Experts to Examine the Concept of the Common Concern of Mankind in Relation to Global Environmental Issues (ed. D.J. Attard – Malta, 13-15 December 1990), Nairobi/Kenya, UNEP, 1991, pp. 19-47. Co-rapporteurs, A.A. Cançado Trindade and D.J. Attard. Cf. “Report on the Proceedings of the Meeting, Prepared by Co-Rapporteurs A.A. Cançado Trindade and D.J. Attard”, in The Meeting of the Group of Legal Experts to Examine the Concept of the Common Concern of Mankind..., op. cit supra n. (82), pp. 21-23, and cf. pp. 19-26.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

The aforementioned UNEP Malta Meeting of 1990, in focussing the debates on the origin, contents, rationale and implications of the concept of common concern of mankind, recalled that “in the past the notion of international concern had been resorted to in the practice of U.N. organs in dealing with cases pertaining to the protection of human rights and self-determination of peoples, thus operating a reduction of the domain of domestic jurisdiction of States. (...) The present concept of common concern of mankind, which found expression in U.N. General Assembly Resolution 43/53 of December 1988, wherein climate change was so characterized, went much further, disclosing a pronounced temporal and social dimension (...), and focusing on issues which were truly fundamental to all mankind”.85

Being devoid of proprietary connotations, and of controversies on exploitation of resources, the more recent concept of common concern of mankind appeared more suitable to address global environmental issues, with due emphasis on the element of protection. The constitutive elements of common concern were, besides the sharing of burdens of environmental protection (supra), the engagement of all countries and all societies and of all peoples within countries and societies, and the long-term temporal dimension, encompassing present as well as future generations. Lastly, the 1990 Malta Meeting acknowledged the relevance of the human rights framework also for environmental protection, with emphasis on social dimension and participation, once again transcending the strict and purely inter-State dimension.86 The UNEP Group of Experts reconvened shortly later, in Geneva, on 20-22 March 1991. By then a “growing interest of States” in the concept of common concern of mankind particularly “within the context of negotiations on legal instruments on climate change and conservation and sustainable use of biological diversity” could be identified. It was, however, stressed on the occasion that “the common concern concept was not meant to substitute the concept of common heritage”.87 It was agreed on the occasion that “more attention by the international community would be required with respect to environmental protection of global commons. The provision of a life of dignity to all in a clean, safe and healthy environment should be a matter of common concern of mankind”.88 85 86 87

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Ibid., p. 20. Ibid., pp. 24-25. Cf. “Report of the II Meeting of the UNEP Group of Legal Experts to Examine the Implications of the ‘Common Concern of Mankind Concept’ in Relation to Global Environmental Issues (Geneva, 20-22 March 1991)”, reproduced in A.A. Cançado Trindade, Direitos Humanos e Meio Ambiente: Paralelo dos Sistemas de Proteção Internacional, Porto Alegre/Brazil, S.A. Fabris Ed., 1993, pp. 282-283. Ibid., p. 284.

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The last meeting of the UNEP Group of Experts, before the holding of UNCED in Rio de Janeiro in 1992, took place in Beijing, on 12-14 August 1991. The summary report of the Group89 indicated that “the recently emerged concept of common concern of mankind was sufficiently flexible to warrant its general acceptance as providing a broad basis for the consideration of global environmental issues. (...) The concept of common concern of mankind should relate both to environment and to development”.90

At last, the U.N. Framework Convention on Climate Change and the Convention on Biological Diversity, adopted by UNCED in Rio de Janeiro in 1992, lent express support, in their respective preambles, to the new concept of common concern of mankind. The former set forth, among its principles, that the parties should protect the climate systems for “the benefit of present and future generations of humankind”, on “the basis of equity” and in accordance with their “common but differentiated responsibilities and respective capabilities” (Article 3(1)). 2.

The Contribution of the New Concept

While the concept of common concern of mankind has lately been utilized in the particular domain of international environmental law, the concept of common heritage of mankind has been invoked, for a longer time, bearing in mind distinct objects (as perspicatiously pointed out by K. Baslar and J.M. Pureza), namely: resources in areas beyond national jurisdiction (sharing of benefits), or preservation of the global environment (sharing of burdens or responsibilities), or natural resources and cultural heritages situated within the jurisdiction of States (functional concept of trusteeship of resources).91 As it is hard to have a 89 90

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Co-rapporteurs, A.A. Cançado Trindade and A. Malhotra. UNEP, Beijing Symposium on Developing Countries and International Environmental Law (Beijing/China, 12-14 August 1991), Nairobi, UNEP, 1992, p. 4. On this last point, the report added that “the environmental problems of developing countries were often a reflection of the inadequacy of development”; it accordingly propounded an “equitable sharing of burdens”, with the “main responsibility for cleaning up the environment” being incumbent upon those countries primarily responsible for the “current emission of pollutants into the environment”, namely, the developed countries. Lastly, the Beijing report acknowledged the “linkages between the domain of environmental protection and that of human rights”; ibid., pp. 4 and 6-8. On such linkages, cf. A.Ch. Kiss and A.A. Cançado Trindade, “Two Major Challenges of Our Time: Human Rights and the Environment”, in Human Rights, Sustainable Development and Environment (Brasilia Seminar of 1992, ed. A.A. Cançado Trindade), 2nd. ed., Brasilia/San José of Costa Rica, IIDH/BID, 1995, pp. 289-290. K. Baslar, The Concept of the Common Heritage of Mankind..., op. cit. supra n. (41), pp. 277-279, and cf. pp. 107-108; the author further points out that the concept of common heritage of mankind and the principle of permanent sovereignty over natural resources are not contradictory, but rather complementary to each other, as the

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

uniform theoretical framework applicable to all such situations, resort has been made to the term “concern” instead of “heritage” in the ambit of International Environmental Law; yet, both concepts share the same notion of commonness and they both invoke mankind, pursuant to the same universalist outlook. The more recent concept of “common concern of mankind” has deliberately avoided proprietary connotations, already referred to, and has proved particularly suitable to address global environmental issues (e.g., depletion of the ozone layer and global climate changes). The term common (notion of commonness), in both concepts, has brought to the fore the notion of obligations erga omnes, engaging all countries and societies, and all peoples within them; the term concern has suggested a primary focus on the causes of problems and conflicts, the preventive character of regimes of protection and the general obligation of due diligence; and the term mankind, again in both concepts, has disclosed the long-term temporal dimension (encompassing present as well as future generations).92 In fact, the interests of future generations, and the responsibilities towards these latter, nowadays not only attract increasing attention on the part of expert writing,93 but also recognizedly underlie some international conventions, such as, e.g., the 1992 U.N. Framework Convention on Climate Change, the 1997 Kyoto Protocol to the U.N. Framework Convention on Climate Change, the 1985 Vienna Convention for the Protection of the Ozone Layer, the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer.94 In addition, the General Conference of UNESCO adopted, on 12 November 1997, the Declaration on the Responsibilities of the Present Generations Towards Future Generations, so as “to ensure that the present generations are fully aware of their responsibilities towards future generations”, on the basis of a spirit of intra-generational and inter-generational “solidarity for the perpetuation of humankind”.95 The 1997 Declaration added, inter alia, that “the present generations should strive to ensure the maintenance and perpetuation of humankind with due respect for the dignity of the human person” (Article 3).

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former starts where the latter ends (ibid., pp. 135 and 138). And cf. also J.M. Pureza, O Património Comum da Humanidade..., op. cit. supra n. (30), pp. 286-288, and cf. pp. 258-263. UNEP, The Meeting of the Group of Legal Experts to Examine the Concept of the Common Concern of Mankind..., op. cit. supra n. (82), pp. 20-22. Cf. E. Brown Weiss, In Fairness to Future Generations..., op. cit. supra n. (3), pp. 1291; E. Agius and S. Busuttil et alii (eds.), Future Generations and International Law, London, Earthscan Publ., 1998, pp. 3-197. Already in 1959, the U.N. Declaration on the Rights of the Child, e.g., stated in its preamble (5th considerandum) that “mankind owes to the child the best it has to give”. Preamble, 5th, 6th, 9th, 10th and 11th consideranda; and Article 1; cf. also Articles 2, 7 and 8. The Declaration acknowledged the current threats to “the very existence of humankind and its environment”; preamble, 4th considerandum.

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3.

The Co-existence between Common Heritage and Common Concern of Mankind, and Their Legacy to International Law

The concept of common concern of mankind, however, has by no means superseded that of common heritage of mankind. The two seem to coexist in contemporary International Law. Both are invoked in international treaties and practice. The concept of common concern of mankind, as I well recall from the debates of the UNEP Group of Experts (in Malta, 1990; Geneva, 1991; and Beijing, 1991) on the matter, purported to rid itself of the controversies around the element of exploitation of resources (e.g., of the seabed and ocean floors beyond national jurisdiction), associated with, and often surrounding, the earlier expression of “common heritage of mankind”. It was never meant to replace this latter. In fact, as both concepts – those of common heritage and of common concern of mankind – emerged and entered into the lexicon of contemporary Public International Law, they have contributed decisively, each one in its own way, to conceiving and propounding humankind as titulaire of rights,96 a conception which has undergone a significant evolution in recent years. Common heritage and common concern of mankind, despite their differences of approach, are akin concepts, which nowadays co-exist. This is, in a way, to be expected, since, as already pointed out, it would be unlikely that one sole concept could be uniformly applied always, in any context whatsoever, even when one or more of its constitutive principles or elements would be missing. The concept of common concern of mankind has given its contribution to the survival of the basic rationale underlying the earlier concept of common heritage of mankind, when this latter appeared weakened or undermined by the storm of so-called “free-market” voluntarism in the mid-nineties. Furthermore, even if the concept of common concern of mankind might appear somewhat abstract when compared with that of common heritage of mankind, there is nothing that epistemologically would impede the former to be endowed, like the latter, with the acknowledgement of concrete legal obligations, and institutions or mechanisms to instrumentalize compliance with such obligations. This would bring common concern closer to common heritage of mankind. In my view, there is here no antagonism between the two concepts, which can in fact reinforce each other. After all, they share a common quest for the prevalence of superior common values shared by the international community as a whole, over the interests of an individual State or a small group of States, the technologically more advanced ones. Both concepts have been constructed to respond to the needs and aspirations of humankind. In the co-existence between common heritage and common concern of mankind, there is another aspect of significance at conceptual level, which could not pass unnoticed here. Both concepts have flourished in the same line of international legal thinking, with natural law roots. In their respective substantial doctoral theses on the common heritage of mankind, José Manuel Pureza and 96

Cf. chapter XI, infra.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

Kemal Baslar converge in rightly situating the matter in the realm of natural law, as an emanation of the universal juridical conscience, moving it away from legal positivism and protecting the State against its own weaknesses and shortsightedness.97 The natural law origin of the both concepts of common heritage of mankind and common concern of mankind bears witness of the overcoming of the classic inter-State dimension of International Law and heralds the advent of a universalist outlook of International Law. Such universalist approach is one which legal positivism has appeared incapable to conceive or promote, as its outlook is ineluctably fragmented into sovereign units. The conceptions of common heritage and of common concern of mankind embody universal solidarity and social responsibility (rather than competitiveness), emanate from human conscience (rather than from the free “will” of States), reflect basic values of the international community as a whole (rather than State interests), and strengthen the notion of an international ordre public (rather than a fragmented contractual vision). They do so in order to face the new global challenges to the international community as a whole, and indeed to all humankind, and to provide adequate and satisfactory responses to them, which the systems of positive law by themselves simply cannot do. Furthermore, they disclose the shortsightedness of legal positivism, liberal mercantilism and political “realism”. They rescue the thinking of the founding fathers of International Law,98 and, under the influence of the impact of the International Law of Human Rights,99 bear witness of the revival of natural law (apprehended by sound human reason) and of the ideal of civitas maxima gentium. They further bear witness of the reassuring evolution of International Law from a State-centric international legal system into a true International Law for humankind, as the new jus gentium of our times. There will of course always be those who, out of their professed “realism”, will argue that, as such concepts of common heritage and of common concern of mankind have not yet reached their plenitude, they are utopian, and will never serve their purpose. Those skeptics are, however, oblivious of the fact that those concepts, against “realist” projections of a few years ago, have become part of contemporary conventional international law. Those skeptics are equally oblivious of the strength of ideas, so brilliantly portrayed by Stefan Zweig. In his biography of Erasmus of Rotterdam (1467-1536), S. Zweig, one of the more lucid writers of the XXth century, singled out, in the precious legacy of the great humanist, 97

98 99

Cf. J.M. Pureza, O Património Comum da Humanidade..., op. cit. supra n. (30), pp. 95-98, 101-102, 117-118 and 286-288; K. Baslar, The Concept of the Common Heritage of Mankind..., op. cit. supra n. (41), pp. 8-11, 20-23, 26, 71, 354, 357, 367-368 and 379380. Cf. chapter I, supra. Cf. A.A. Cançado Trindade, “The Contribution of International Human Rights Law to Environmental Protection, with Special Reference to Global Environmental Change”, in Environmental Change and International Law: New Challenges and Dimensions (ed. E. Brown Weiss), Tokyo, U.N.U. Press, 1992, pp. 244-312.

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the tolerance, – and I would here add distributive justice, – and the end, without violence, to the conflicts which divide human beings and peoples. Although the ideal of Erasmus has not been accomplished until now, it is not thereby devoid of value. In the penetrating words of S. Zweig, “An idea which does not come to be materialized is, for that reason, invincible, since it is no longer possible to prove its falseness; (...) only the ideals which have not become worn-out and committed by the realization continue acting in each generation as an element of moral impulse. Only the ideas which have not been complied with return eternally. (...) What Erasmus (...) left to us as legacy (...) was not anything else but the (...) very old wish of all the religions and myths of a future and continued humanization of humanity and of a triumph of reason (...), that renews faithfully, in the heart of humankind, the idea of a future age of a higher human feeling”.100

IV. Concluding Observations It is not at all surprising that, even in a classic domain of International Law such as that of regulation of spaces, humankind has also emerged as a subject of International Law,101 initially through the acknowledgement, in the domains of the law of outer space and of the law of the sea, of the concept of common heritage of mankind (cf. supra). Announced by successive U.N. General Assembly resolutions102 (the most significant one having been General Assembly resolution 2749 (XXV) of 17.12.1970103), the concept entered into conventional international law by consensus, enshrined as it was in such treaties as the 1979 Treaty on Outer Space Including the Moon and Other Celestial Bodies and the 1982 Law of the Sea Convention. The basic principles are always present, informing and conforming the international instruments at issue, and orienting their interpretation and application: be it the International Seabed Area (principles of non-appropriation, sharing of benefits of deep seabed mining, peaceful uses, international management through the Authority, and protection of the seas for future generations), be it the outer space and celestial bodies (principles of non-appropriation, peaceful uses, freedom of access and of scientific research), what is here envisaged are not the interests of individual States, but rather the general concern to secure the benefits for all humankind, in a spirit of conservation of resources and their 100 S. Zweig, Triunfo y Tragedia de Erasmo de Rotterdam, 5th. ed., Barcelona, Ed. Juventud, 1986, pp. 205-207; S. Zweig, Érasme – Grandeur et décadence d’une idée, Paris, Grasset, 2002 (reed.), pp. 183-185. 101 Cf. chapter XI, supra. 102 Cf. C.-A. Colliard, “Espace extra-atmosphérique et grands fonds marins”, in Humanité et Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991, p. 104. 103 Containing the Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, approved by 108 votes to zero, with 14 abstentions.

Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind

transmission, in no worse condition, to future generations. A deeper awareness of the temporal dimension of International Law is here manifest. The rationale of the concept of common heritage of mankind is clear, inspired in human solidarity, and oriented by the principles of non-appropriation, peaceful uses and purposes and rational utilization, and equitable sharing of benefits by all. This last principle, that of the equitable sharing of benefits, is the one which, in practice, was to become the bone of contention in controversies between developing and developed countries as to the proper implementation of the concept of common concern of mankind. Thus, despite its conceptual clarity, the concept of common heritage of mankind, as set forth in the 1982 U.N. Convention on the Law of the Sea,104 suffered a setback with the renegotiation – under pressure of the United States – of Part XI of the Convention of Montego Bay, modified by the Agreement of 1994, which favoured the technologically more advanced States in the exploitation of resources of the seabed and ocean floor beyond the limits of national jurisdiction.105 But the concept at issue has survived. Yet, it is not surprising that one of the terms of the concept of common heritage of mankind – that of “heritage” – has, in the ambit of international environmental law, been replaced by another term, leading to the distinct formulation of common concern of mankind. The intention was to make this latter devoid of the connotation of exploitation and sharing of resources or benefits.106 Six constitutive elements of the concept of common concern of mankind have been identified, namely: first, the concentration of the concept – devoid of proprietary connotations – in truly fundamental questions for all humankind, pursuant to the notion of commonness; second, the necessary engagement, in the treatment of such questions of common interest, of all countries, all societies and all the social segments within the countries and the societies; third, – as already pointed out (cf. supra), – the long-term temporal dimension (underlying the term humanity), to encompass both the present and the future generations; fourth, the emphasis on the element of protection, on the basis of considerations of humanity and of ordre public, transcending reciprocity; fifth, the attention primarily to the causes of the problems (both for their prevention and for the responses to be given); and sixth, the equitable sharing of responsibilities as an instrumental principle in the application of the concept of common concern of mankind. It should not pass unnoticed, – and it should perhaps be stressed, – that, in this conceptual construction, what was kept in mind was not the sharing of resources or benefits, but rather of responsibilities. Despite its formulation, in such a way as to overcome the controversies around the element of exploitation of resources which had surrounded the parallel concept of common heritage of 104 Part XI, especially Articles 136-145 and 311(6). 105 J.A. Pastor Ridruejo, “Le Droit international à la veille du vingt et unième siècle...”, op. cit. supra n. (29), pp. 264-265. 106 Framework Convention on Climate Change (of 1992), preamble and Article 3(1); Convention on Biological Diversity (of 1992), preamble; and cf. Protocol (of 1991) on Environmental Protection to the Antarctica Treaty, preamble.

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mankind, there has persisted a varying terminology in international legal instruments. As to its object, the concept of common heritage of mankind has appeared as a particularly rich and multifaceted one. It was initially applied as to material resources (so as to avoid State or group appropriations and save them for mankind), then also to cultures,107 and more recently expanded in also applying in bioethics to the human genome.108 In retrospect, the oscillations of the concept of common heritage of mankind seem to suggest that the concept at issue has perhaps been misunderstood. It was assumed that it referred to the sharing, or partition, of benefits or resources (cf. supra), when it would have been more adequate to have linked it clearly and expressly to the conservation, or transmission, of the “common heritage” from one generation to another. Perhaps it would have been more fruitful if the concept of common concern had preceded that of common heritage, taking the latter as a materialization of the former.109 As precisely the opposite occurred, the concept of “common concern” has at least succeeded, in a way, in “saving” that of “common heritage” of the misunderstandings that were to surround it. The concept of common concern of mankind came to stress universally shared values. This conceptual development – which certainly requires further elaboration – serves as a warning to the obstacles to be overcome in the construction, in a larger dimension (not only spatial but also temporal) and pursuant to the same universalist outlook, of the new International Law for humankind, at this beginning of the XXIst century.

107 As from the 1966 UNESCO Declaration of Principles of International Cultural Cooperation. 108 Cf. H. Gros Espiell, “The Common Heritage of Humanity and the Human Genome”, 3 Law and the Human Genome Review (1995) pp. 89-101, esp. pp. 97-100; M. Bedjaoui, “Le génome humain comme patrimoine commun de l’humanité, ou la génétique de la peur à l’espérance”, in Federico Mayor Amicorum Liber, vol. II, Bruxelles, Bruylant, 1995, pp. 913-915, and cf. pp. 905-912. 109 Cf. A.Ch. Kiss, “The Common Heritage of Mankind: Utopia or Reality?”, 40 International Journal (1985) p. 440.

Chapter XIV

I.

Conceptual Constructions: The Right to Peace and the Right to Development

The Formulation of the Right to Peace in International Law

The search for peace, and the construction of the right to peace, have historical roots that become notorious with the projects of perpetual peace of the XVIIIth century, such as those of Saint-Pierre (1712) and of I. Kant (1795). Yet, such projects proved incapable to date to accomplish their common ideal, precisely for laying too heavy an emphasis, in their endeavours to restrict and abolish wars, specifically on inter-State relations, overlooking the bases for peace within each State1 and the role of non-State entities. It may appear somewhat surprising that the search for peace has not yet sufficiently related domestic and international levels, this latter going beyond a strictly inter-State dimension. Recent attempts to elaborate on the right to peace have, however, displayed a growing awareness that its realization is ineluctably linked to the achievement of social justice within and between nations.2 1.

Elements of the Right to Peace in International Law

The conceptual construction of the right to peace in International Law has antecedents in successive initiatives taken, in distinct contexts at international level, along the XXth century.3 Elements provided by Public International Law of relevance for the acknowledgement of the right to peace can be found in the 1928 1

2 3

The project of Kant (cf. I. Kant, Sobre la Paz Perpetua [1795], 4th. ed., Madrid, Tecnos, 1994, pp. 3-69) at least sought to establish a link between inter-State and the internal constitution of each State. On the insufficiencies of the classic endeavours to abolish wars sic et simpliciter, cf. G. del Vecchio, El Derecho Internacional y el Problema de la Paz (Spanish edition of the original Il Diritto Internazionale e il Problema della Pace), Barcelona, Bosch, 1959, pp. 51-52, 62-64, 67 and 121-123. Cf. ibid., pp. 52, 63-64 and 151; A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, p. 1062. Cf., generally, D. Uribe Vargas, El Derecho a la Paz, Bogotá, Universidad Nacional de Colombia, 1996, pp. 1-250; D. Uribe Vargas, “El Derecho a la Paz”, in Derecho Internacional y Derechos Humanos/Droit international et droits de l’homme (eds. D.

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General Treaty for the Renunciation of War (the so-called Briand-Kellog Pact);4 in Articles 1 and 2(4) of the United Nations Charter,5 complemented by the 1970 U.N. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States,6 the 1970 Declaration on the Strengthening of International Security,7 and the 1974 Definition of Aggression;8 in the Code of Offences against the Peace and Security of Mankind, drafted by the U.N. International Law Commission; and in resolutions of the U.N. General Assembly pertaining to the right to peace,9 relating it to disarmament. The 1974 Charter on Economic Rights and Duties of States in fact acknowledged the States’ duty to coexist in peace and to achieve disarmament.10 Other international instruments have done the same.11 It has been argued that the right to peace entails as a corollary the right to disarmament; attention has in this respect been drawn to the fact that limitations to, or violations of, the rights of the human person have often been associated with the outbreak of conflicts, the process of militarization and the expenditure of arms (especially nuclear weapons and other weapons of mass destruction),12 which have often led to arbitrary deprivation of human life in large scale. International Law, moved ultimately by

4

5

6 7 8 9

10 11 12

Bardonnet and A.A. Cançado Trindade), The Hague/San José of Costa Rica, IIDH/ Hague Academy of International Law (1995 External Session), 1996, pp. 177-195. Endeavouring to overcome the dangerous system of the equilibrium of forces by condemning war as an means of settlement of disputes and an instrument of foreign policy, and heralding the new system of collective security and the emergence of the right to peace; J. Zourek, L’interdiction de l’emploi de la force en Droit international, Leiden/Genève, Sijthoff/Inst. H.-Dunant, 1974, pp. 39-48. The relevant U.N. provisions. together with the 1928 General Treaty for the Renunciation of War, became major sources – the legal nature of which was unchallenged by States – of limitations of resort to force by States; I. Brownlie, International Law and the Use of Force by States, Oxford, Clarendon Press, 1963 (reprint 1981), pp. 83 and 91. U.N. General Assembly resolution 2625 (XXV), of 24.10.1970. U.N. General Assembly resolution 2374 (XXV), of 16.12.1970. U.N. General Assembly resolution 3314 (XXIX), of 14.12.1974. U.N. General Assembly resolution 33/73, “Declaration on the Preparation of Society to Live in Peace”, of 15.12.1978; U.N. General Assembly resolution 39/11, “Declaration on the Right of Peoples to Peace”, of 12.11.1984; cf. also U.N. General Assembly resolution 34/88, of 1979. Articles 26 and 15, respectively. For example, references to the right to peace and disarmament can be found in the 1982 World Charter for Nature (preamble, par. 4(c), and Principles 5 and 20). A.A. Tikhonov, “The Inter-relationship between the Right to Life and the Right to Peace; Nuclear Weapons and Other Weapons of Mass-Destruction and the Right to Life”, The Right to Life in International Law (ed. B.G. Ramcharan), Dordrecht, Nijhoff/Kluwer, 1985, pp. 97-113; Ph. Alston, “Peace, Disarmament and Human Rights”, Armement, développement, droits de l’homme, désarmement (Colloque à l’UNESCO, 1982) (ed. G. Fischer), Paris/Bruxelles, Bruylant, 1984, pp. 325-330.

Conceptual Constructions: The Right to Peace and the Right to Development

the universal juridical conscience, has reacted to that, in prohibiting the threat or use of all weapons of mass destruction, including nuclear weapons.13 2.

Recent Developments in the Formulation of the Right to Peace

The antecedents of the right to peace also comprise the long-standing tradition of UNESCO of sponsoring studies to foster a culture of peace.14 Within the framework of such tradition, UNESCO launched the initiative, in 1997, of the formulation of the human right to peace. To that end, the then Director-General of UNESCO (F. Mayor) convened a Group of Legal Experts (acting in their individual capacity)15 which, at the end of their meetings of Las Palmas Island (February 1997) and Oslo (June 1997), produced the Draft Declaration on the Human Right to Peace. Its preamble16 read that “Peace, a common good of humanity, is a universal and fundamental value to which all individuals and all peoples, and in particular the youth of the world, aspire”.

The right to peace was duly inserted into the framework of human rights,17 which was taken into account to assert peace as a right and a duty. It was asserted as a right inherent in all human beings, embodying demands of the human person and of peoples to the ultimate benefit of humankind. The Draft Declaration called upon all subjects of international law (States, international organizations and individuals) to promote and implement that right as the foundation of a genuine culture of peace. The document was prepared as a contribution of UNESCO to the 50th anniversary (in 1998) of the Universal Declaration of Human Rights. After the Las Palmas and Oslo meetings, UNESCO launched consultations with member States, 42 of which having replied a letter of the Director-General until the end of October 1997.18 The Draft Declaration became object of much attention when revised by governmental experts from 117 member States, at UNESCO headquarters in Paris, in March 1998. The document, as submitted to 13 14

15

16 17

18

Cf. chapter XVII, infra. Cf., e.g., inter alia, F. Mayor, The New Page, Paris/Aldershot, UNESCO/Dartmouth, 1995, pp. 1-10 and 59-67; J. Symonides and K. Singh, “Constructing a Culture of Peace: Challenges and Perspectives – An Introductory Note”, in From a Culture of Violence to a Culture of Peace, Paris, UNESCO, 1996, pp. 9-30. The Group was composed of A. Aguiar, M. Bedjaoui, R. Ben Achour, A.A. Cançado Trindade, A. Eide, H. Gros Espiell, G. Guerin, I. Nguema, R. Ranjeva, E. Roucounas, J. Symonides, K. Vasak (rapporteur) and C. Zanghi. Seventh considerandum. A.A. Cançado Trindade, “The Right to Peace and the Conditions for Peace”, 21 Diálogo – The Human Right to Peace: Seed for a Possible Future – UNESCO/Paris (June 1997) pp. 20-21. UNESCO/General Conference (29th Session, Paris), Report by the Director-General on the Human Right to Peace, document 29 C/59, of 29.10.1997, p. 5.

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them, affirmed that “violence in all its forms is intrinsically incompatible with the right of every human being to peace”,19 and added categorically that peace ought to be based upon “the intellectual and moral solidarity of mankind”.20 At the end of the debates, three main positions of the participants were discernible: those fully in support of the recognition of the right to peace as a human right, those who regarded it rather as a “moral right”, and those to whom it was an “aspiration” of human beings.21 The main difficulty, as acknowledged by the Report of the Paris meeting, was its official recognition as a legal right.22 While there was general agreement in regarding peace as a universal value and a common good of humankind, some governmental representatives expressed difficulties in reckoning the existence of true human right to peace and its legal consequences.23 Thus, at the close of the XXth century, it so appeared that some governments were not yet prepared to assume legal obligations ensuing from the formulated right to peace... This was surely regrettable, though perhaps not so surprising, given the turmoiled world in which we live. States seem to be oversensitive, perhaps more than human beings, particularly when what they realize to be at stake is not the well-being of the human beings they represent and are supposed to protect, but rather what they regard – in their often incongruous practice – as being their own vital interests, in the perception of power-holders. Be that as it may, the aforementioned UNESCO exercise of formulation of the right to peace is rightly oriented towards an international law for humankind. It is a conceptual construction which is helpful to the formation of a new jus gentium, responsive to the needs and aspirations of human beings and peoples. Other relevant elements to the attainment of peace can be found in the domain of disarmament.24 In recent years the recognition of the right to peace has been fostered by the advent and evolution of the International Law of Human Rights25 19 20

21

22 23

24 25

Operative part I, paragraph 4. Considerandum 12 of preamble, and operative part I, paragraph 1. It further recalled the responsibilities of present generations towards future generations, to leave them a better world, with respect for International Law and human rights; considerandum 14 of preamble. UNESCO/Executive Board, Report by the Director-General on the Results of the International Consultation of Governmental Experts on the Human Right to Peace (Final Report), document 154 EX/40, of 17.04.1998, p. 10. Cf. ibid., pp. 2 and 10. Cf. A. Aguiar, “Perfi les Éticos y Normativos del Derecho Humano a la Paz”, in B. Boutros-Ghali Amicorum Discipulorumque Liber – Paix, Développement, Démocratie, vol. II, Bruxelles, Bruylant, 1998, pp. 884-894, and cf. pp. 878-884. Cf. chapter XVII, infra. In fact, as early as in 1968 the Final Act of the I World Conference on Human Rights of the United Nations (held in Teheran) contained several references to the relationship between the observance of human rights and the maintenance of peace; cf. U.N., Final Act of the International Conference on Human Rights (1968), U.N. doc.

Conceptual Constructions: The Right to Peace and the Right to Development

and of International Environmental Law; the conception of sustainable development, as endorsed by the 1992 U.N. Conference on Environment and Development, e.g., points to the ineluctable relationship between the rights to peace and to development. II.

The Formulation of the Right to Development in International Law

Somewhat distinctly, the conceptual construction of the right to development has attained, at this beginning of the XXIst century, a degree of consensus reflected in international instruments (such as the final documents of the recent U.N. World Conferences)26 which does not yet appear to have been achieved to the same extent by the parallel construction of the right to peace. Yet, the two appear ineluctably intertwined, and both the rights to peace and to development have in recent years drawn attention, in the domain of International Law, to the needs of humankind. 1.

Elements of the Right to Development in International Law

From the international legal thinking of the second half of the XXth century a distinction emanates between the international law of development and the right to development. The former, with its various components,27 emerged as an objective international normative system regulating the relations among juridically equal but economically unequal States, and aimed at the transformation of those relations on the basis of international cooperation (U.N. Charter, Articles 55-56) and considerations of equity, so as to redress imbalances among States and to give them all – particularly the developing countries – equal opportunities to attain development.28 This trend of the international law of development was erected upon a predominantly inter-State basis.

26 27

28

A/CONF.32/41, N.Y., U.N., 1968, pp. 4, 6, 9, 14 and 36. And the U.N. General Assembly, on its turn has constantly been attentive to address the requirements of survival of humankind as a whole. Cf. chapter XXVI, infra. Right to economic self-determination, permanent sovereignty over natural wealth and resources, principles of non-reciprocal and preferential treatment for developing countries and of participatory equality of developing countries in international economic relations and in the benefits from science and technology. Cf., e.g., M. Virally, “Vers un droit international du développement”, 11 Annuaire français de droit international (1965) pp. 3-12; H. Gros Espiell, Derecho Internacional del Desarrollo, Valladolid, Universidad de Valladolid, 1975, pp. 11-47; P. BuiretteMaurau, La participation du tiers-monde à l’élaboration du droit international, Paris, LGDJ, 1983, pp. 131-137, 160-167 and 185-202; M. Bulajic, Principles of International Development Law, Dordrecht, Nijhoff, 1986, pp. 39-77; A. Pellet, Le droit international du développement, 2nd. ed., Paris, PUF, 1987, pp. 3-124.

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Distinctly, the right to development, as proclaimed in the 1986 U.N. Declaration on the Right to Development,29 addressed the matter from the perspective of human beings and peoples,30 without excluding States from its construction. It appeared, as propounded by the 1986 Declaration,31 as a subjective human right, embodying demands of the human person and of peoples which ought to be respected, to the benefit, ultimately, of humankind. The aforementioned Declaration contained elements already embodied, mutatis mutandis, both in the International Law of Human Rights and in sources of International Development Law.32 Not surprisingly, the conceptual construction of the right to development went well beyond the strictly inter-State dimension. This new and significant trend was in a way heralded, at normative level, by the 1981 African Charter on Human and Peoples’ Rights, in providing for the right of all peoples to their economic, social and cultural development (Article 22). Five years later, the 1986 U.N. Declaration on the Right to Development not only placed the human person as the “central subject of development”,33 but also qualified the right to development as an inalienable human right of “every human person and all peoples”, by virtue of which they are “entitled to participate in, and 29

30 31

32

33

Adopted by the U.N. General Assembly resolution 41/128, of 04.12.1986, with 146 votes in favour, one against and 8 abstentions, and containing a preamble with 17 paragraphs and 10 Articles in its operative part. Finding inspiration in such provisions as Article 28 of the 1948 Universal Declaration of Human Rights and Article 1 of both U.N. Covenants on Human Rights. Cf., e.g., M.M. Kenig-Witkowska, “The U.N. Declaration on the Right to Development in the Light of Its Travaux Préparatoires”, in International Law and Development (eds. P. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff, 1988, pp. 381-388; G. Abi-Saab, “Le droit au développement”, 44 Annuaire suisse de droit international (1988) pp. 9-24; A.A. Cançado Trindade, “Environment and Development: Formulation and Implementation of the Right to Development as a Human Right”, 3 Asian Yearbook of International Law (1994) pp. 15-40; J. Álvarez Vitta, Derecho al Desarrollo, Lima, Cult. Cuzco Ed., 1988, pp. 8-108. And cf., even before the 1986 Declaration, K. M’Baye, “Le droit au développement comme un droit de l’homme”, 5 Revue des droits de l’homme/Human Rights Journal (1972) pp. 505-534; J.A. Carrillo Salcedo, “El Derecho al Desarrollo como Derecho de la Persona Humana”, 25 Revista Española de Derecho Internacional (1972) pp. 119-125. Such as, e.g., the 1974 Charter of Economic Rights and Duties of States, the 1974 Declaration (and Programme of Action) on the Establishment of a New International Economic Order, and relevant U.N. General Assembly resolutions; cf., e.g., J. Castañeda, “La Charte des droits et devoirs économiques des États”, 20 Annuaire français de droit international (1974) pp. 31-77; P.J.I.M. de Waart, “Permanent Sovereignty over Natural Resources as a Cornerstone for International Economic Rights and Duties”, 24 Netherlands International Law Review (1977) pp. 304-322; A. Eide, “Maldevelopment and ‘the Right to Development’: A Critical Note with a Constructive Intent”, in Le Droit au développement au plan international (Colloque – Académie de droit international de La Haye, 1979), The Hague, Sijthoff/Nijhoff, 1980, pp. 400-410. Article 2(1), and preamble.

Conceptual Constructions: The Right to Peace and the Right to Development

contribute to, and enjoy economic, social, cultural and political development”, in which all human rights “can be fully realized” (Article 1). It is clear from the 1986 U.N. Declaration that the active subjects or beneficiaries of the right to development are the human beings and peoples, and the passive subjects are those responsible for the realization of that right,34 with special emphasis on the obligations conferred upon the States, individually and collectively. The measures envisaged for that realization extend to both national and international levels.35 The major significance of this trend lies in the recognition or assertion of the right to development as an “inalienable human right”.36 The 1986 U.N. Declaration on the Right to Development saw it fit to underline that, in order to promote development, equal and urgent attention should be given to the implementation of civil, political, economic, social and cultural rights (given their indivisibility and interdependence), and the observance of certain human rights cannot thus justify denial of others; likewise, all aspects of the right to development are indivisible and interdependent and each of them is to be considered in the context of that right as a whole.37 The recognition of the right to development as a human right by the U.N. Declaration can only come to reinforce other previously formulated human rights.38 In fact, in the context of development initiatives, the right to development reinforces existing rights, and renders it unwarranted to invoke so-called requirements of material development in order to try to justify restrictions to the exercise of guaranteed human rights. The right to development was meant to enhance, never to restrict, pre-existing rights. This is so, given the complementary nature of all human rights. All aspects of the right to development, in their turn, are likewise interdependent and to be taken into account in the context of the whole.39 The formulation of the right to development could only have been undertaken in the light of the conceptual unity and indivisibility of all human rights. It was at last understood that economic development was not an end in itself, but rather a means to achieve wider social objectives as imperatives of social justice. The right to development as a human right has emerged and crystallized to serve this purpose. In this framework, economic, social and cultural rights became deserving of special attention; as warned in the work of the U.N. Working Group on 34 35 36 37 38

39

Mainly States but also human beings – cf. Articles 3(1) and (3), 4(1), 2(2) and 8. Articles 3(1), 4, 8 and 10. On the identification of obstacles to overcome, cf. Articles 5 and 6(3) and Preamble. Article 1(1). Articles 6(2) and 9(1), and Preamble. Moreover, it has contributed to focus on the promotion and protection of the rights pertaining at a time to individuals and to members of human collectivities as well as on the priority search for solutions to generalized gross and flagrant violations of human rights. Thus, a denial of the right to development is bound to entail adverse consequences for the exercise of civil and political as well as economic, social and cultural rights.

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the Right to Development, the State cannot simply abandon its responsibility in this domain to the forces of the market. There is urgent need to put an end to the tendency to separate economic development from social development, macroeconomic policies (aiming at economic growth) from the social objectives of development; the concepts contained in the 1986 Declaration on the Right to Development should be incorporated into the policies and programs of all agencies and organs of the U.N. system, including the Bretton Woods institutions (World Bank and International Monetary Fund).40 2.

Crystallization of the Right to Development as a Human Right

The crystallization of the right to development as a human right is to a large extent due to the universalist perspective pursued by the United Nations, prompted by the fundamental changes undergone, and challenges41 faced, by the international community. When, in 1990, the U.N. Global Consultation on the Right to Development as a Human Right was held at the U.N. Palais des Nations in Geneva, the right to development appeared, as I well remember, already incorporated to the lexicon of International Law. An aspect which was particularly emphasized in the U.N. Global Consultation42 was the relevance of participation of all individuals (and particularly of those coming from the most vulnerable sectors of societies) and the much-needed equality in the distribution or sharing of the benefits of development.43 In my intervention at that U.N. Global Consultation, while referring to the temporal dimension of the right to development, I saw it fit to alert inter alia that “the requirements of material development could not be invoked to justify restrictions to the exercise of guaranteed human rights; this is so given the interaction between human rights and development (...) and the [1986] Declaration’s warning that all aspects of the right to development are also indivisible and interdependent and to be taken into account in the context of the whole”.44

40 41

42 43 44

U.N., document E/CN.4/AC.45/1994/L.4/Rev.1, of 14.10.1994, pp. 1-26. Inter alia, decolonization, erradication of chronic poverty, imperatives of social justice, safeguard of human rights, disarmament, environmental sustainability, reshaping of the world scenario in the post-cold war era. Which counted on five thematic rapporteurs (os distinct aspects of the subject), namely, G. Abi-Saab, A.A. Cançado Trindade, V. Kartashkin, A. Pellet and D. Türk. U.N. Centre for Human Rights, The Realization of the Right to Development, N.Y., U.N., 1991, pp. 25, 33-38, 44-47 and 53. A.A. Cançado Trindade, Legal Dimensions of the Right to Development as a Human Right: Some Conceptual Aspects, U.N. doc. HR/RD/1990/CONF.36, of 1990 (U.N. Global Consultations on the Right to Development as a Human Right), pp. 1-17, esp. p. 13. And, for a detailed account of the aforesaid U.N. Global Consultation, cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo Horizonte, Belo Horizonte/Brazil, Ed. Del Rey, 2003, pp. 409-442.

Conceptual Constructions: The Right to Peace and the Right to Development

In fact, in the decade following that of the formulation of the 1986 Declaration, the right to development found significant endorsements in the final documents adopted by the U.N. World Conferences of the nineties,45 which have brought it into the conceptual universe of contemporary International Law. In any case, this seemed to have been the understanding of the U.N. General Assembly decision 48/141 (of 20.12.1993),46 which, in its preamble, reaffirmed inter alia that “the right to development is a universal and inalienable right which is a fundamental part of the rights of the human person”. The implementation of the right to development as a human right can be considered appropriately within the universe of International Human Rights Law, as the U.N. Declaration itself refers in its preamble to the relevant instruments of the United Nations and its specialized agencies.47 3.

The Conceptual Construction of Human Development

It is significant that, four years after the formulation of the right to development as a human right in the 1986 U.N. Declaration on the matter, the United Nations Development Program (UNDP) started working on the elaboration of the concept of human development, in the framework of a reassessment of the guidelines of the three previous United Nations Decades for Development. The turning point was its first Human Development Report, of 1990, which, questioning the propriety of statistical indicators such as the gross national product (GNP) to measure development adequately, turned attention to other aspects through the adoption of a new index, called human development index (HDI).48 It was asserted that any measure of development should not be limited to the search for economic growth (GNP) only, but should be much more comprehensive, combining indicators of education, health and income. It was soon 45 46 47

48

Cf. chapter XXVI, infra. On the creation of the post of United Nations High Commissioner for Human Rights. For the implementation of this right one could thus consider the utilization of mechanisms developed in the field of human rights, such as, e.g., the reporting system, the monitoring (by a working group or a special rapporteur) of situations manifestly resulting from the condition of underdevelopment (directly affecting the realization of the right to development), the undertaking of in-depth studies (identifying problems concerning some economic and social rights, for example, pertaining to health, housing, education). A.A. Cançado Trindade, Legal Dimensions of the Right to Development..., U.N. doc. HR/RD/1990/CONF.36, of 1990, op. cit. supra n. (44), pp. 1-17. It comprised three key components – longevity (life expectancy), knowledge (education) and income (decent living standards), – so as to provide a more comprehensive measurement of human progress; cf. UNDP, Human Development Report 1990, New York, UNDP, 1990, pp. 1-113. The UNDP started from the premises that human beings ought to be at the centre of all development, and that human development is “a process of enlarging people’s choices”; ibid., pp. III, 1, 6 and 11.

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realized that to the new HDI index other indicators of human progress should be added, such as human freedom and the advances in the cultural domain: hence the proposed new index of political freedom, so as to evaluate the situation of this latter in the light of human rights.49 The concept of human development propounded by the UNDP was directly linked also to the issue of the observance of human rights.50 In the fourth Human Development Report, of 1993, the UNDP centered attention on the basic theme of people’s participation, warning that “although the achievements in human development have been significant during the past three decades, the reality is continuing exclusion. More than a billion of the world’s people still languish in absolute poverty, and the poorest fi fth find that the richest fi fth enjoy more than 150 times their income”.51

Earlier UNDP Reports concentrated on the components of development of the people (investing in human capabilities) and for the people (ensuring that economic growth is distributed widely and fairly), whereas the 1993 Report approached development by the people (giving everyone a chance to participate).52 The implications of placing people at the centre of politico-economic changes53 are considerable, and do challenge traditional concepts: one moves, e.g., from national to people’s security (food, health, employment, safe environment), from old models of development to new models of sustainable human development, 49

50

51

52 53

Cf. PNUD, Desarrollo Humano: Informe 1991, Bogotá, PNUD/Tercer Mundo Ed., 1991, pp. 51-57, and cf. pp. 17-235. – The UNDP next called for the establishment of a network – at international level – of social security for those in need, and of global consultations conducive to a new “international covenant” on human development placing people in the centre of national policies and international cooperation for development; cf. PNUD, Desarrollo Humano: Informe 1992, Bogotá, PNUD, 1992, pp. 25, 30 and 35, and cf. pp. 21 and 85-112. Human development, besides not limiting itself to certain social sectors (such as education or health), stresses the necessity to develop human capacities; freedom itself – in a democracy – constitutes a vital component of human development. In the understanding of UNDP, the sources of information should not be limited to the “negative aspects” (such as human rights violations), but should also encompass the responses and achievements of each country in this area. Human development and freedom and political participation are closely related, but in this wide outlook one is equally to consider the situation of economic and social rights (cf. ibid., pp. 39, 69-72, 77 and 83-84, and cf. p. 64). UNDP, Human Development Report 1993, N.Y./Oxford, Oxford University Press, 1993, p. 1. The UNDP pondered that the new motivation in our times ought to be the rebuilding of societies around genuine human needs and the fight against “global poverty”, as “poverty anywhere is a threat to prosperity everywhere”; ibid., pp. 1 and 8-9. Here, again, poverty was seen as a “formidable barrier to participation, whether within or between nations”; ibid., pp. 27 and 21. Ibid., p. 3. As recent U.N. World Conferences have rightly done; cf. chapter XXVI, infra.

Conceptual Constructions: The Right to Peace and the Right to Development

from outmoded forms of international cooperation to new forms of international cooperation directly focused on people’s needs.54 The new emphasis placed on people’s empowerment and the strengthening of democracy has a direct bearing on human rights protection.55 Subsequently, the UNDP came to focus on the new dimensions of human security as a universal concern, no longer related to the territory of nation-States, but rather to people, to their needs in daily life (e.g., protection from the threats of hunger, disease, unemployment, crime, social conflicts, political repression, environmental hazards).56 It further pointed out that the paradigm of the concept of sustainable human development values the quality of human life as an end in itself, rather than wrongfully seeing human beings as merely the means of producing material goods.57 Human development challenges for the XXIst century, in the view of the UNDP, include providing basic services to all deprived people, accelerating job-led growth, reducing population growth, and making global compacts for fighting poverty and improving the physical environment. Empowering people, the UNDP argued, “is a sure way to link growth and human development”, and this latter discloses a “holistic development paradigm” embracing “both productivity and equity, both economic and social development”, placing people at the centre of its concerns.58

54 55

56 57 58

Cf. ibid., pp. 1-8. Democratic practices cannot in fact be confined within national borders; they are to be followed at international level by all countries, and international fi nancial agencies, in assuming responsibility to prevent economic recession and unemployment and their negative impact upon economic, social and cultural rights. – For a study, cf., e.g., A.A. Cançado Trindade, “Democracia y Derechos Humanos: Desarrollos Recientes, con Atención Especial al Continente Americano”, Federico Mayor Amicorum Liber – Solidarité, Égalité, Liberté, Bruxelles, Bruylant, 1995, pp. 371-390. UNDP, Human Development Report 1994, N.Y./Oxford, Oxford University Press, 1994, pp. 22 and 24, and cf. pp. 22-40. Ibid., pp. 13 and 17. Ibid., pp. 122-123. People are regarded “not merely as the beneficiaries of economic growth but also as the real agents of every change in society – whether economic, political, social or cultural. To establish the supremacy of people in the process of development – as the classical writers always did – is not to denigrate economic growth. It is to rediscover its real purpose”; ibid., p. 124. And cf., generally, A.A. Cançado Trindade, “Human Development and Human Rights in the International Agenda of the XXIst Century”, in Compilation – Human Development and Human Rights Forum (August 2000), San José of Costa Rica, UNDP/Inter-American Court of Human Rights, 2001, pp. 23-38.

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4.

Lessons from the Crystallization of the Right to Development

The links between human development and human rights hardly require any demonstration.59 Development is now seen as encompassing social justice and the strengthening of democratic institutions (public participation). Within this framework, the centrality of people in all development strategies or process is beyond question. Likewise, the whole construction of the right of development in the framework of inter-State relations has yielded to the formulation of the right to development as a human right. Here, again, the anthropocentric framework has come to prevail. The wide acknowledgement of the right to development has contributed to the earned centrality of human beings, of humankind, in contemporary International Law. The 1990 U.N. Global Consultation on the Right to Development (supra) drew attention to the need for “greater transparency in negotiations and agreements between States and international financial and aid institutions” and for democratization of intergovernmental financial agencies.60 Its final report significantly warned that “prevailing models of development have been dominated by financial rather than human considerations”; these models “largely ignore the social, cultural and political aspects of human rights and human development, limiting the human dimension to questions of productivity. They foster greater inequalities of power and control of resources among groups and lead to social tensions and conflicts. (...) The growing burden of indebtedness and structural adjustment falls heaviest on the poorest and weakest sectors of society and has clear human rights implications. (...) The prevailing terms of trade, monetary policy, and certain conditions tied to bilateral and multilateral aid, which are all perpetuated by the non-democratic decision-making processes of international economic, fi nancial and trade institutions, also frustrate the full realization of the right to development as a human right”.61

The 1986 Declaration, the follow-up endeavours of the U.N. Working Group on the Right to Development, and the final documents of the recent U.N. World Conferences convened in the nineties and the beginning of the XXIst century have been attentive to conditions of life, and, more particularly, to the condition of vulnerable groups, in special need of protection. Given the current phenomenon of aggravation of poverty, which affects a considerable part of humankind, International law cannot be indifferent to the current search for new models of development conducive to the eradication of poverty and the attainment of sus59

60 61

A.A. Cançado Trindade, “Human Development and Human Rights in the International Agenda of the XXIst Century”, in Compilation..., op. cit. supra n. (58), pp. 23-38. U.N. Centre for Human Rights, The Realization of the Right to Development, N.Y., U.N., 1991, pp. 50-51. Ibid., p. 48.

Conceptual Constructions: The Right to Peace and the Right to Development

tainable development. There still remains a long way to go in order to achieve the full realization of the right to development, but its conceptual construction as a human right has succeeded in introducing ethical considerations in the conduct and assessment of the contemporary practice of International Law. In humanizing the conception and process of development itself, the right to development has brought about the need to devise some form of its institutionalized implementation in the years to come. The experience in International Human Rights Law and in International Development Law can assist in that purpose, as it has not been confined to meeting basic human needs, but has in fact gone much further, towards empowerment, in the civil, political, economic, social and cultural domains. Meeting basic needs and achieving people’s empowerment go hand in hand. The concern with living conditions everywhere has come at last to permeate the present-day international legal system, corresponding to a new ethos of our times. The international agenda of this beginning of the XXIst century has, with the crystallization of the right to development as a human right, continued to expand considerably, besides rescuing the central position of human beings in the universe of the law of nations, pursuant to a necessarily anthropocentric outlook, which points towards the emergence of the new jus gentium, the International Law for humankind.62

62

A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 412-420.

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I.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

Introduction

Recent international case-law in the domain of human rights protection has brought to the fore the recurrent theme of the complementarity between the international responsibility of the State and the international criminal responsibility of the individual. The subject at issue has gained momentum in the light of recent developments in the law on the international responsibility of the State as well as in International Criminal Law. The co-existence and complementarity of the international responsibility of States and the international criminal responsibility of individuals is related to the current trend towards the criminalization of grave violations of human rights, as well as the relationship between State responsibility and the struggle against impunity and the endeavours towards the realization of justice. The conceptualization of the crime of State, its configuration and the relationship of that notion with the superior interests of the international community, deserve closer attention from contemporary international legal doctrine, as much as the juridical consequences of the crime of State, and the principle of universal jurisdiction. II.

The International Responsibility of the State and of the Individual: Recent Developments

The complementarity of the international responsibility of the State and of the individual for grave violations of human rights has clearly ensued from successive cases of massacres recently lodged with the Inter-American Court of Human Rights [IACtHR], – such as the cases of Myrna Mack Chang (2003) and of the Massacre of Plan de Sánchez (2004) concerning Guatemala, of the 19 Tradesmen (2004) and of the Massacre of Mapiripán (2005) concerning Colombia, and of the Moiwana Community versus Suriname (2005). Such cases cannot pass unnoticed in the examination of the theme of the co-existence and complementarity of the international responsibility of States and the international criminal responsibility of individuals. In its Judgment on the merits and reparations in the case of Myrna Mack Chang versus Guatemala, of 25 November 2003, the IACtHR established that the

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violation of the right to life of Myrna Mack Chang occurred in aggravating circumstances, as it resulted from “a covered-up operation of military intelligence undertaken by the Presidencial Office (Estado Mayor) and tolerated by several authorities and institutions”, amidst “a pattern of selective extrajudicial executions launched and tolerated by the State itself”, and a “climate of impunity”.1 Moreover, the Court established that the aforementioned operation of military intelligence of the Presidencial Office (Estado Mayor) “sought the hiding of the facts and the impunity of those responsible for them, and, to that end, under the tolerance of the State, resorted to all types of measures, among which were found hostilities, threats and murders of those who collaborated with justice”, affecting the independence of the Judiciary.2 That this case was one of aggravated international responsibility of the State was further evidenced by the aforementioned facts and the abusive invocation of the so-called “secret of State” leading to an obstruction of justice.3 In the case of the Massacre of Plan de Sánchez (2004), the IACtHR established Guatemala’s responsibility for grave human rights violations under the American Convention on Human Rights. As demonstrated in the case, the crimes committed in the course of the execution, by military operations, of a State policy of “tierra arrasada”, including the massacre of Plan de Sánchez perpetrated on 18 July 1982, were intended to destroy wholly or in part the members of indigenous Maya communities. The respondent State accepted its international responsibility under the American Convention for the grave human rights violations resulting from the massacre of Plan de Sánchez. In its Judgment on the merits of the case, of 29 April 2004, the IACtHR determined that those violations “gravely affected the members of the mayaachí people in their identity and values”, and, insofar as they occurred within a “pattern of massacres”, they had “an aggravated impact” in the establishment of the international responsibility of the State.4 In turn, earlier on, the Guatemalan Commission for the Historical Clarification, in its report Guatemala – Memoria del Silencio, had established the occurrence of 626 massacres committed by the forces of the State during the armed conflict, mainly the Army, supported by paramilitary structures.5 In the view of the Guatemalan Truth Commission, the 1 2 3

4 5

Paragraphs 138-139, 150, 154 and 157 of the Judgment. Paragraph 215 of the Judgment. Cf. pars. 174-181 of the Judgment; and cf. also, on the matter, CEH, Guatemala, Memoria del Silencio – Informe de la Comisión para el Esclarecimiento Histórico, vol. VI, Annex I, Guatemala, 1999, pp. 242 and 244. Paragraph 51 of the Judgment. 95 of them had been perpetrated between 1978 and 1984 (with violence intensified in 1981-1983), and in this period 90 had been executed in areas inhabited predominantly by the Maya people. The acts of extreme violence, in the assessment of that Commission, disclosed the characteristics of “acts of genocide”, – specifically against members of the peoples maya-ixil, maya-achi, maya-k’iche’, maya-chuj and maya-q’anjob’al, in four regions of the country; Comisión para el Esclarecimiento

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

grave and massive human rights violations engaged both the individual responsibility of the “intellectual or material authors” of the “acts of genocide” as well as the “responsibility of the State”, as most of those acts were the product of a State “policy preestablished by a superior command to its material authors”.6 In the recent case of the massacre of the Moiwana Community, the IACtHR ordered (Judgment of 15.06.2005) distinct measures of reparations to the surviving, and forcefully displaced, members of that Surinamese community, so as also to preserve their cultural identity.7 And in the likewise recent case of the Massacre of Mapiripán (Judgment of 15.09.2005), Colombia accepted international responsibility before the Court, specifically for the acts of its own agents, but the IACtHR went further, in determining the responsibility of the State for the deaths of 49 persons perpetrated by the so-called paramilitary (as “third parties”), who counted in the cas d’espèce on the tolerance, acquiescence or collaboration of the armed forces of the State.8 III. State Responsibility, the Criminalization of Grave Violations of Human Rights and the Realization of Justice The process of criminalization of grave violations of human rights and of International Humanitarian Law 9 has effectively accompanied pari passu the evolution of contemporary International Law itself: the establishment of an international

6 7

8 9

Histórico, Guatemala – Memoria del Silencio, vol. III, Guatemala, CEH, 1999, pp. 316-318, 358, 375-376, 393, 416 and 417-423. Ibid., p. 422. In my lengthy Separate Opinion in that case, I dwelt upon the legal subjectivity of peoples in International Law, the reaction of the universal juridical conscience to the projection of suffering in time, the duties of the living towards their dead in the origins and development of International Law, and the reparations for damages to what I deemed it fit to term the “project of life as well as of post-life”, bearing in mind the cultural manifestations of the victimized members of the Moiwana Community (pars. 1-93 of my Separate Opinion). Paragraphs 96.30-39, 96.43 and 116 of the Judgment. Cf. G. Abi-Saab, “The Concept of ‘International Crimes’ and Its Place in Contemporary International Law”, in International Crimes of State – A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (eds. J.H.H. Weiler, A. Cassese and M. Spinedi), Berlin, W. de Gruyter, 1989, pp. 141-150; B. Graefrath, “International Crimes – A Specific Regime of International Responsibility of States and Its Legal Consequences”, in ibid., pp. 161-169; P.-M. Dupuy, “Implications of the Institutionalization of International Crimes of States”, in ibid., pp. 170-185; M. Gounelle, “Quelques remarques sur la notion de ‘crime international’ et sur l’évolution de la responsabilité internationale de l’État”, in Mélanges offerts à P. Reuter – Le droit international: unité et diversité, Paris, Pédone, 1981, pp. 315-326; L.C. Green, “Crimes under the I.L.C. 1991 Draft Code”, 24 Israel Yearbook on Human Rights (1994) pp. 19-39; S.R. Ratner and J.S. Abrams, Accountability for Human Rights Atrocities in International Law, Oxford, Clarendon Press, 1997, pp. 11, 13-15 and 22-23.

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criminal jurisdiction10 is regarded in our days as an element which strengthens International Law itself, overcoming a basic lack and its insufficiencies of the past as to the incapacity to judge and punish those responsible for grave violations of human rights and of International Humanitarian Law. In fact, the travaux préparatoires of the Statute of Rome of 1998 on the International Criminal Court [ICC] led to the prompt acknowledgment, in the ambit of its application,11 of the international criminal responsibility of the individual for the most serious international crimes. Such initiative has given a new impetus to the struggle of the international community against impunity, as a violation per se of human rights;12 by means of the affirmation and crystallization of the international criminal responsibility of the individual for international crimes, it has thus sought to prevent future crimes.13 In the ambit of the inter-American system of human rights, in the case Paniagua Morales and Others versus Guatemala (Judgment of 08.03.1998), the IACtHR had the occasion to formulate a clear warning as to the duty of the State to fight impunity.14 The IACtHR affirmed the duty of the State15 to “organize the public power to guarantee to persons subject to its jurisdiction the free and full exercise of human rights”, a duty which – the Court significantly added – “applies irrespectively of whether those responsible for the violations of those rights are agents of the public power, private individuals, or groups of them” (par. 174).

10

11

12 13

14 15

Comprising the establishment by the U.N. Security Council of the ad hoc Tribunals for former Yugoslavia in 1993, and for Rwanda in 1994, and the adoption of the 1998 Rome Statute of the permanent International Criminal Court. Attention is to be drawn to the superior universal values which underlie the whole theme of the creation of an international criminal jurisdiction, with a permanent basis. It may be recalled that the 1998 Rome Statute of the ICC succeeded in setting forth general principles of criminal law, notwithstanding the conceptual differences between the Delegations of countries of droit civil and those of countries of common law. W.A. Schabas, “Sentencing by International Tribunals: A Human Rights Approach”, 7 Duke Journal of Comparative and International Law (1997) pp. 461-517. Cf., on the matter, e.g., D. Thiam, “Responsabilité internationale de l’individu en matière criminelle”, in International Law on the Eve of the Twenty-First Century – Views from the International Law Commission / Le droit international à l’aube du XXe siècle – Réflexions de codificateurs, N.Y., U.N., 1997, pp. 329-337. Furthermore, the criminalization of grave violations of human rights and of International Humanitarian Law has found expression in the establishment, in our time, of the principle of universal jurisdiction; cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, Porto Alegre/Brazil, S.A. Fabris Ed., vol. III, 1st. ed., 2003, p. 413, and ibid., vol. II, 1st. ed., 1999, pp. 385-400 and 404-412. Since “impunity fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives” (IACtHR, Series C, n. 37, par. 173). Under Article 1(1) of the American Convention on Human Rights.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

The recognition of the State’s duty to fight impunity16 nowadays finds expression in the jurisprudence constante of the IACtHR. While an international tribunal of human rights (such as the European and Inter-American Courts, and, more recently, the African Court) cannot determine the international criminal responsibility of the individual, and an international criminal tribunal (such as the ad hoc International Criminal Tribunals for the Former Yugoslavia [ICTFY] and for Rwanda [ICTR], and the ICC) cannot determine the responsibility of the State, impunity is most likely bound to persist, being only partially santioned by one and the other. The international responsibility of the State contains elements of both civil and penal nature, in the present stage of evolution of International Law. Such responsibility of the State is neither exclusively civil (as suggests the duty of reparation for damages), nor exclusively penal (as suggests the legitimacy of a sanction). It appears as a collective responsibility of the State, parallel to the international criminal responsibility of the individual. Reparations can be endowed with a sanctioning or repressive character,17 so as to secure the realization of justice and put an end to impunity (cf. infra). The fulfi lment of the exemplary or dissuasive purposes can – and must – be sought by means not only of indemnizations, but also of other (non pecuniary) forms of reparation. One ought to, moreover, keep in mind that, while the reparation (material and moral) benefits directly the injured party, the sanction (or repressive action against the transgressing State), in turn, benefits the international community itself as a whole; not to admit that would amount to consent that the State responsible for the violation subtracts itself from the Law.18 Already by the mid-XXth century there was doctrinal support for the coexistence of the international responsibility both of individuals (physical persons) and of States (juridical persons), as International Law binds them all (as their subjects). In the case of the States, their responsibility is collective, and H. Kelsen, for example, admitted that a State, in incurring into a grave violation of International Law, commits a delict or a crime.19 In warning that the individual responsible for such violation acted in the name of the State, H. Kelsen also ad-

16

17 18 19

Those considerations by the IACtHR were reiterated by it in new obiter dicta in the Judgments on reparations in the cases Loayza Tamayo (1998, par. 170), Castillo Páez (1998, par. 107), Blake (1999, par. 64), Villagrán Morales and Others (2001, par. 100), Cesti Hurtado (2001, par. 63), Cantoral Benavides (2001, par. 69), Bámaca Velásquez (2002, par. 64), Trujillo Oroza (2002, par. 97), – to which other obiter dicta in the same sense may be added in its recent Judgments in the cases Juan Humberto Sánchez (2003, par. 143) and Bulacio (2003, par. 120). M. Gounelle, “Quelques remarques sur la notion de ‘crime international’...”, op. cit. supra n. (9), pp. 317-318. H. Lauterpacht, op. cit. infra n. (29), pp. 355-357. Cf. H. Kelsen, Principles of International Law, N.Y., Rinehart & Co. Inc., 1952, pp. 9, 11-13, 97-100, 104-105, 107 and 114-117.

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mitted that the responsibility of the State can be both objective and absolute, as, in given circumstances, it can also have as basis the fault or culpa.20 In fact, even if one admits the principle of the objective or absolute responsibility of the State (as did the IACtHR in the case of “The Last Temptation of Christ”, concerning Chile, Judgment of 05 February 2001), this does not mean that the responsibility based on fault or guilt is entirely dismissed in every and any hypothesis or circumstance. There are cases, – such as the aforementioned cases of Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the 19 Tradesmen, of the Massacre of Mapiripán, of the Moiwana Community, – in which the intention of the State to cause the damage or its negligence in avoiding it can be demonstrated; the fault or guilt (intent) becomes, here, the indispensable basis of the responsibility of the State,21 aggravated by this circumstance. IV. Complementarity between the International Responsibility of States and the International Criminal Responsibility of Individuals The international responsibility of the State and the international criminal responsibility of the individual do not exclude, but rather complement, each other. This is so because a public agent operates on behalf of the State, and both the State and its agent answer for the acts or omissions imputable to both. The international tribunals of human rights pronounce on the international responsibility of the State, and the ad hoc international criminal tribunals (for the former Yugoslavia and for Rwanda), and the ICC on that of the individuals at issue. Neither the former, nor the latter, encompass the totality of the matter in its present stage of evolution. Yet, there does not appear to be any juridical impediment for the concomitant determination of the international responsibility of the State and the international criminal responsibility of the individuals, – despite the insufficient development of the matter, reflected in the persistent compartmentalized approach to the international responsibility of the State and the international criminal responsibility of individuals. The evolution of the law on international responsibility should not yield to the rigid compartmentalization between civil and criminal responsibility found in the national legal systems. Nothing seems to impede that it contains elements of one and the other, both conforming the international responsibility. This latter is endowed with a specificity of its own. A State can be internationally responsible for a crime, imputable both to its agents who committed it, and to the State itself as juridical person of International Law. To deny this would be to create an obstacle to the development of International Law in the present domain of the international responsibility. Even those who sustain that criminal responsibility falls only upon the individuals who commit the crimes and not upon the collective persons (the States), as societas delinquere non potest, admit, nevertheless, the existence and evolu20 21

Ibid., pp. 122-123. Cf., in this sense, H. Lauterpacht, op. cit. supra n. (29), pp. 359-361 and 364.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

tion nowadays of forms of criminal responsibility of juridical persons in the domestic law of distinct countries.22 The engagement of the criminal responsibility of the juridical person (e.g., in environmental protection) results from the very capacity to act and the necessity to preserve superior social and common values. The State, juridical person (although of abstract quality) and subject of International Law, has rights and duties governed by this latter; its conduct is directly and effectively foreseen and regulated by the law of nations (droit des gens).23 The State, as well as its agents, ought, thus, to be accountable for the consequences of their acts or omissions. In a situation such as the one aforementioned, the determination of the international criminal responsibility of the individual is not, thus, sufficient, as the State, in whose name its agents committed a crime, contributed itself, as a juridical person of International Law, to the perpetration or occurrence of such crime. In the recent cases of Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the 19 Tradesmen, of the Massacre of Mapiripán, of the Moiwana Community, the crimes of State were materialized both by the execution (planned as from the highest rank of the public power) of the crimes, as well as by the subsequent cover-up of the facts, the prolonged obstruction of justice, and the impunity of those responsible for it, thus generating an aggravated responsibility. At conceptual level, it is surely difficult not to admit the occurrence of a crime of State in general International Law, above all insofar as there is intention (fault or guilt), or tolerance, acquiescence, negligence, action or omission, on the part of the State in relation to grave violations of human rights and of International Humanitarian Law perpetrated by its agents, in pursuance of a State policy. In such circumstances, societas delinquere potest. In the domain of Law, every person constitutes a centre or unity of imputation. In the case of the physical person, one is before the concrete and living unit of each human being, while the juridical person, which is a creation or construction of Law, also constitutes a centre or unit of imputation for conducts attributed to individuals who act on their own behalf, and for the consequences for which the juridical person itself, as well as its agents, ought to be accountable. In sum, the juridical personality of a collective entity (such as the State) is a construction of the Law, and constitutes a unit of imputation of its conducts, undertaken by the individuals who compose such collective entity and act on its behalf; thus, both the juridical person as well as those individuals ought to be accountable for the consequences of their acts or omissions,24 particularly when they bring about grave violations of human rights and of International Humanitarian Law. In my 22 23

24

Cf. J. Barboza, “International Criminal Law”, 278 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1999) pp. 82 and 96. Cf., e.g., G. Arangio-Ruiz, Diritto Internazionale e Personalità Giuridica, Bologna, Coop. Libr. Univ., 1972, pp. 9-19; J.A. Barberis, Los Sujetos del Derecho Internacional Actual, Madrid, Tecnos, 1984, pp. 26-35. In this sense, L. Recaséns Siches, Tratado General de Filosofía del Derecho, 16th ed., Mexico, Ed. Porrúa, 2002, p. 272.

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view, the international responsibility of the State and the international criminal responsibility of the individual do not exclude each other, but, quite on the contrary, they appear complementary to each other and ineluctably intertwined. V.

Some Considerations on the Crime of State Revisited

1.

Configuration of the Crime of State

This leads me to the consideration of the typology of culpability, and, in the framework of this latter, of the configuration of the crime of State. In his masterly monograph The Problem of Guilt, the jusphilosopher Karl Jaspers distinguished four types of culpability, namely, the criminal, political, moral and metaphysical ones.25 After addressing the distinct consequences of those modalities of culpability,26 K. Jaspers persuasively concluded that “there are crimes of State, which are always and at the same time crimes of given individuals”; if such crimes were always judged by the international community, – he added, – “Humanity would be united in an ethos comprehensible to all. What we have ourselves suffered would no longer be repeated (...)”.27

In the same line of thinking, another jusphilosopher, Paul Ricoeur, in his essay La mémoire, l’histoire, l’oubli, in evoking the thought of K. Jaspers, referred likewise to the culpability for State policies of criminal responsibility, and expressly utilized the term “crime of State”.28

25

26

27 28

The criminal one resulted from acts which objectively breached unequivocal laws, and which were demonstrable before a tribunal; the political one resulted from actions of the governors, of the State, of which the governed ones were co-responsible, as “every person is co-responsible of how he is governed”; the moral one resulted from the actions of each individual, having by judge the conscience itself; and the metaphysical one, whereby “there is a solidarity between men (...) which makes each one responsible for (...) the crimes which take place in their presence or with their knowledge”. K. Jaspers, El Problema de la Culpa, Barcelona, Ed. Paidós/Universidad Autónoma de Barcelona, 1965 [reed. in Spanish, 1998], pp. 53-54. Namely: the criminal one leading to sanction or punishment; the political one to responsibility; the moral one to regret and renovation; and the metaphysical one to “a transformation of the human conscience of himself before God”; ibid., p. 57. Ibid., p. 131. P. Ricoeur, La mémoire, l’histoire, l’oubli, Paris, Éd. du Seuil, 2000, pp. 423, 434 and 609. Such political culpability “résulte de l’appartenance de fait des citoyens au corps politique au nom duquel les crimes ont été commis. (...) Cette sorte de culpabilité engage les membres de la communauté politique indépendamment de leurs actes individuels ou de (...) leur degré d’acquiescement à la politique de l’État. Qui a bénéficié des bienfaits de l’ordre public doit d’une certaine façon répondre des maux créés par l’État dont il fait partie”; ibid., pp. 615 and 620.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

Also in the more lucid doctrine of International Law one can find elements conducive to the configuration of the crime of State. Thus, already in 1937, Hersch Lauterpacht warned that the traditional respect for State sovereignty refrained the development of the law of the international responsibility, particularly where it marked more presence, namely, as to the consequences of responsibility. Thus, the traditional theory limited responsibility only to the reparation for damages (material and moral), without it being possible for States, as a result of their sovereignty, to be punished. This vision, however, in exempting the State from the consequences of its own violations of the Law, appeared entirely arbitrary, limiting the action of justice at international level.29 This being so, – argued that author with vehemence and against the then prevailing doctrine, – “la violation du droit international peut être telle qu’elle nécessite, dans l’intérêt de la justice, une expression de désapprobation dépassant la réparation matérielle. (...) Abolir ces aspects de la responsabilité entre les États serait adopter, du fait de leur souveraineté, un principe que répugne à la justice et qui porte en lui-même un encouragement à l’illegalité. Ce serait permettre aux individus, associés sous la forme d’État, d’acquérir, quant aux actes criminels commis (...), un degré d’immunité qu’ils ne possèdent pas agissant isolément; c’est une immunité couvrant des actes qui, parce qu’ils sont collectifs et aidés par la puissance presque infi nie de l’État moderne, jouissent d’un pouvoir de destruction virtuellement illimité. C’est la personnification courante de l’État, impliquant une distinction artificielle entre l’association et les membres qui la composent, qui a contribué a suggérer ce principe anarchique d’irresponsabilité morale et juridique. (...) Il ne peut guère y avoir d’espoir pour le droit international et la morale si l’individu, agissant comme l’organe de l’État peut, en violant le droit international, s’abriter effectivement derrière l’État impersonnel et métaphysique; et si l’État, en cette capacité, peut éviter le châtiment en invoquant l’injustice de la punition collective”.30

As well pointed out by C.Th. Eustathiades in a substantial and pioneering study half a century ago, States and individuals are subjects of International Law, and one cannot pretend that the international criminal responsibility of the individual replaces or “eliminates” that of the State; the responsibility of this latter can also be engaged by an international delict, bringing about sanctions in international law which have a “repressive function”.31 The individual and the State responsibility can perfectly cumulate.32 In our days, the consolidation of the specificity of crimes against humanity seems to point into the same direction. Such crimes, purporting to humiliate and 29 30 31 32

H. Lauterpacht, “Règles générales du droit de la paix”, 62 RCADI (1937) pp. 339 and 349-350. Ibid., pp. 350-352. C.Th. Eustathiades, “Les sujets du droit international et la responsabilité internationale – nouvelles tendances”, 84 RCADI (1953) pp. 415, 417, 448, 604 and 607-608. Ibid., p. 603.

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“dehumanize” the victims and thus affecting humanity itself, are particularly grave, and are not committed by individuals acting in isolation or on their own. On the contrary, more often than not, they are perpetrated collectively, they pursue discriminatory and criminal policies, in a complex, organized and coldly planified way;33 as they, thus, quite often amount to State policies, they are true crimes of State, surrounded by attempts to secure impunity and by obstructions of justice. The 1998 Rome Statute of the ICC lists a series of acts, amounting to crimes against humanity, when “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7). To the extent that such acts conform systematic practices of grave violations of human rights as part of a State policy, they are true crimes of State (crimes d’État).34 The determination of the responsibility of the State for them fulfils a legitimate concern of the international community as a whole.35 Furthermore, the succession of genocides perpetrated along the XXth century36 stands as a serious warning that massive violations of the rights of the human person have been accompanied by a State policy of “dehumanization” of the victims, so as to pretend to act in pursuance of an alleged “right of the State to persecute or to massacre”;37 or, in other words, to perpetrate a true crime of State. These are not “abstractions”, as part of the legal doctrine insists on portraying them, so as to elude consideration of the matter. It is well-known that many crimes of the kind have been surrounded by public campaigns of propaganda or “dehumanization” of the victims, added to other strategies, depriving them of their homes, their property, their agriculture of subsistence, their nationality, their cultural identity, their modus vivendi itself, – for the final perpetration of crimes of State. Moreover, it should not pass unnoticed that reiterated and considerable difficulties have been encountered when it comes to “demobilizing”, or putting an end to, the mounted State apparatus of extermination38 of various kinds (whether it be composed of secret police, so-called “intelligence” services, death squads, so-called paramilitary, police battalions, or whatever). 33

34 35

36 37 38

Y. Jurovics, Réflexions sur la spécificité du crime contre l’humanité, Paris, LGDJ, 2002, pp. 14-15, 21-23, 52-53, 72-73, 92-93, 132-133, 183, 192, 198-199, 228-229, 279, 283, 329, 331, 335, 360-361, 375-376, 405 and 439, and cf. pp. 440. Cf. J. Verhaegen, Le Droit international pénal de Nuremberg: acquis et régressions, Bruxelles, Bruylant, 2003, pp. 10-11, 22, 51-53, 62 and 86. Cf., v.g., R. Besné Mañero, El Crímen Internacional – Nuevos Aspectos de la Responsabilidad Internacional de los Estados, Bilbao, Universidad de Deusto, 1999, pp. 7879, 186, 215, 218, 221 y 230-231. Armenia, Soviet Rusia, the Holocaust, Cambodia, former Yugoslavia, Rwanda. B. Bruneteau, Le siècle des génocides – Violences, massacres et processus génocidaires de l’Arménie au Rwanda, Paris, A. Colin Éd., 2004, pp. 222 and 233. For the historical example of denazification, cf., e.g., J.H. Herz, “An Historical Perspective”, in State Crimes – Punishment or Pardon (1988 Conference Papers), Queenstown/Maryland, Aspen Institute, 1989, pp. 11-22.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

2.

The Crime of State in Relation to the Fundamental or Superior Interests of the International Community

There is another aspect to be singled out in relation to the configuration of the crime of State, linked to the protection of the fundamental or superior interests of the international community itself as a whole.39 Thus, from this perspective, the crime of State appears as a grave violation of peremptory International Law (jus cogens), which affects directly its principles and foundations, and which concerns the international community as a whole, not having to be dealt with by analogy with categories of domestic criminal law. In any case, the concept of crime of State ought to be studied in depth, and not to be avoided. The crime of State appears, in sum, as a particularly grave violation of International Law bringing about an aggravated responsibility (amidst aggravating circumstances, thus evoking a category of criminal law); the gravity of the violation affects directly the fundamental values of the international community as a whole.40 The detractors of the concept of crime of State, instead of keeping in mind such values, were to relate that concept to a mistaken analogy with criminal law in the sense that it is endowed with in domestic law. It was necessary to wait for years for new doctrinal developments to pave the way for a certain “criminalization” of the relationship of responsibility, reducing the space occupied earlier by State voluntarism. A former rapporteur of the U.N. International Law Commission [ILC] on the theme of the International Responsibility of the State, Roberto Ago, established, beyond the previous theoretical schemes, a gradation of violations of the State obligations, therefrom emerging, in 1976, his well-known proposal of Article 19 of the Draft on the Responsibility of the States, incorporating the concept of “international” crime and distinguishing it from “international delict”.41 The acts of “particularly serious nature” would correspond to “international crimes” affecting the fundamental values of 39

40

41

Cf., e.g., J. Barboza, “International Criminal Law”, op. cit. supra n. (22), p. 97; J. Quigley, “The International Law Commission’s Crime-Delict Distinction: A Toothless Tiger?”, 66 Revue de droit international de sciences diplomatiques et politiques – Genève (1988) pp. 119-120. A. Pellet, “Can a State Commit a Crime? Defi nitely, Yes!”, 10 European Journal of International Law (1999) pp. 426-427; C. Tomuschat, “International Crimes by States: An Endangered Species?”, in International Law: Theory and Practice – Essays in Honour of Eric Suy (ed. K. Wellens), The Hague, M. Nijhoff, 1998, pp. 253 and 265. The ILC itself, in its commentary on the matter, compared the adoption of the formulation which recognized the distinction between the two concepts (international crimes and delicts) in the codification of the law on the international responsibility of the State with the setting forth of the category of jus cogens in the law of treaties; U.N., Yearbook of the International Law Commission [YILC] (1976)-II, part II, par. 73, p. 122. With the proposed Article 19 of the aforementioned Draft of the ILC, two regimes of responsibility would be formed: one for non-compliance of obligations of fundamental importance to the international community as a whole, and another for non-compliance with of obligations of minor or less general importance.

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the international community, and the others – not revealing the same degree of gravity – would amount to “international delicts”.42 A new vision of the law on international responsibility began to emerge, taking into account the basic values and the needs of the international community as a whole. Nevertheless, the advances in this area have taken place not in a steady way, but rather – as it often so occurs – moving back and forth, like a pendulum. The fact that the final Draft Articles on the Responsibility of the States, adopted by the ILC in 2001, entered into details on the so-called “countermeasures” (which reflect what there is of most primitive in International Law, that is, the use of reprisals in a new version), and discarded and fi led, somewhat lightly, the concept of international crime or “crime of State”, is a reflection of the world in which we live. Ubi societas, ibi jus. The relatively summary treatment dedicated by the Articles on the Responsibility of the States (2001) of the ILC to the grave violations – and their consequences – of obligations under peremptory norms of general International Law (essentially in Articles 40-41),43 reveals the insufficient conceptual development of the matter until our days, in an international community which is still in search of a greater degree of cohesion and solidarity. As well recalled by G. Abi-Saab, an analogy with domestic criminal law was not what Roberto Ago had in mind in advancing in 1976 the concept of international crime or crime of State in the well-known Article 19 of the Draft Articles on the Responsibility of the State of the ILC. The distorted analogy with domestic criminal law ignores the specificity of the crime of State in International Law, and regrettably minimizes the recognition of the fundamental or superior interests of the international community, the emergence – in its wide dimension – of jus cogens in the domain of the international responsibility of the States, and the necessity to establish an aggravated regime of the international responsibility of the State.44 And the main purpose of this regime is precisely “to defend the normative integrity of the legal system itself against patterns of behaviour which go against its most fundamental principles and thus undermine its regular functioning and credibility. (...) It can legitimately be feared that setting aside the dual regime of responsibility would be widely perceived as a reversal of the evolution of general International Law from a community-oriented system back to a purely intersubjective one”.45

42 43 44

45

Cf. comments and examples in ibid., pp. 95-122. Cf. comments in J. Crawford, The International Law Commission’s Articles on State Responsibility, Cambridge, University Press, 2002, pp. 242-253. The establishment of such regime was precisely the purpose of the aforementioned Article 19 of the Draft Articles on the Responsibility of the State of the ILC; G. AbiSaab, “The Uses of Article 19”, 10 European Journal of International Law (1999) pp. 339-351. Ibid., pp. 350-351.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

The reaction to the grave and systematic violations of human rights and of International Humanitarian Law came to constitute in our days a legitimate concern of the international community as a whole.46 This takes place even more forcefully when the victims are vulnerable and defenceless (as in the aforementioned cases), and when the structure of public power is distorted and comes to be utilized to breach the rights inherent to the human person. As from the moment when the international community starts to profess certain fundamental and superior values, one has to accept the consequence of the establishment of a special regime of aggravated responsibility (corresponding to the crime of State) whenever there is an attempt against those values or a violation of the norms which protect them.47 One ought to definitively rescue the outlook of the matter which bears in mind the fundamental or superior interests of the international community, which has led to the configuration of the crime of State, endowed with a specificity of its own in International Law. VI. Juridical Consequences of the Crime of State The aggravated responsibility is, precisely, that which corresponds to a crime of State. The crime of State becomes evident when the State’s intention (fault or culpa) to cause the damage, or its negligence to avoid, can be demonstrated, as in the aforementioned recent cases of Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the 19 Tradesmen, of the Massacre of Mapiripán, and of the massacre of the Community Moiwana; the responsibility of the State is aggravated by that circumstance. The well-known Article 19 of the Draft on the Responsibility of the State (1976) of the ILC (supra), in providing on “international crimes”, had in mind precisely the establishment of an aggravated degree of responsibility, for given violations of International Law.48 It did not intend at any moment at all to suggest an analogy with categories of domestic criminal law. Once accepted the aggravated responsibility, one ought to determine its juridical consequences. Already in 1939, well before being rapporteur of the ILC on the International Responsibility of the States, Roberto Ago pondered that one same material fact can be apprehended by distinct rules of a same legal order, attributing to it legal circumstances also distinct, generating the obligation to repair or legitimating the application of a sanction.49 Thus, either the obligation of reparation, or the application of a sanction, or both at the same time can be conformed; to R. Ago, 46

47

48 49

A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, Porto Alegre/Brazil, S.A. Fabris Ed., vol. I, 2nd. ed., 2003, p. 244; ibid., vol. III, 1st. ed., 2003, p. 415. G. Abi-Saab, “The Concept of ‘International Crimes’ and Its Place in Contemporary International Law”, in International Crimes of State..., op. cit. supra n. (9), pp. 144145. I. Sinclair, “State Responsibility: Lex Ferenda and Crimes of State”, in International Crimes of State..., op. cit. supra n. (9), p. 242. Roberto Ago, “Le délit international”, 68 RCADI (1939) pp. 424 and 426.

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“sanction and reparation can thus subsist one beside the other, with effects of the same delict”.50 A same legal fact can, thus, generate distinct consequences, such as reparation and sanction. For a particularly grave wrongfulness (e.g., a grave violation of human rights or of International Humanitarian Law), the compensatory reparation (for the victim or her relatives) may not be sufficient, the punitive reparation (e.g., investigation of the facts and punishment of those responsible for them) being also necessary. Both may appear necessary for the realization of justice. In 1958, the Cuban jurist F.V. García Amador, rapporteur of the ILC on the Responsibility of the States, observed that certain forms of reparation have a clear and distinctly punitive purpose (punitive damages/dommages-intérêts punitifs), implying the imputation of responsibility of a penal character to the State for violation of certain international obligations, – in particular, grave violations of fundamental human rights, similarly to the crimes against humanity.51 Thus, the duty itself “to provide reparation” (with a connotation initially of civil law) varies in accordance with “the character and role of the reparation” in given cases; in this way, the reparation not always assumes the same form, and not always has the same purpose, and, insofar as punitive damages are concerned (cf. infra), it contains a penal element of responsibility.52 The whole chapter of the reparations for violations of human rights requires a greater conceptual and jurisprudential development, as from the recognition of the close relationship between the right to reparation and the right to justice. Such development is imperative, particularly in face of the grave and systematic violations of human rights, which, in turn, require a firm disapproval of the illicit conduct of the State, and reparations of a dissuasive character, so as to guarantee the non-repetition of the harmful facts, bearing in mind both the expectations of the relatives of the victim as well as the superior needs and interests of the social milieu. In fact, one cannot deny the close link between the reparation and the struggle against impunity, as well as the guarantee of non-repetition of the harmful facts, always and necessarily from the perspective of the victims. The true reparatio, linked to the realization of justice, requires the overcoming of the hindering of the duties of investigation and sanction of those responsible for the facts, and the end to the impunity. That is, reparations can perfectly be endowed with a character both compensatory and sanctioning, with the purpose of putting an end to impunity and of securing the realization of justice, – this being perfectly in accordance with the current stage of evolution of International Law.53

50 51 52 53

Ibid., pp. 428-429. F.V. García Amador, “State Responsibility – Some New Problems”, 94 RCADI (1958) pp. 396-398. Ibid., p. 409. The ample terms of Article 63(1) of the American Convention on Human Rights, e.g., have in fact opened to the IACtHR a wide horizon in the matter of reparations.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

Reparations with exemplary or dissuasive purposes, corresponding to an aggravated responsibility, can assist in the guarantee of non-repetition of the harmful facts, and in the struggle against impunity. In my several years of experience as Judge of the IACtHR, I have been able to verify that States have less difficulty in complying with pecuniary reparations than with reparations pertaining to the duty of investigating and sanctioning those responsible for the violations of human rights, that is, ultimately, to the realization of justice. Non-pecuniary reparations are often much more important than what one could prima facie assume, even for putting an end to the violations and removing their consequences, in the terms of Article 63(1) of the American Convention. Although the figure of the “punitive damages” is not strange to the comparative national case-law, nor to the international arbitral case-law,54 it is not my purpose here to invoke it in the sense in which it has been utilized – in other contexts – of exemplary reparation of a necessarily pecuniary character (implying considerable amounts55). Far from it. In the present context of protection, endowed with a specificity of its own, other forms of reparation, of non-pecuniary character, have been commonly identified as “obligations of doing”, once again suggesting a reductionist analogy with solutions proper of civil law. These forms of reparation can be perfectly considered as endowed with a character at a time compensatory and sanctioning56 (containing elements of both civil and penal nature). They have exemplary or dissuasive purposes, in the sense of preserving the memory of the violations occurred, of providing satisfaction (a sense of realization of justice) to the relatives of the victim, and of contributing to guaranteeing the non-repetition of those violations (also by means of the education and in-training in human rights).57 “Punitive damages” can also be conceived in 54

55 56

57

Cf., e.g., inter alia, R.W. Hodgin and E. Veitch, “Punitive Damages Reassessed”, 21 International and Comparative Law Quarterly (1972) pp. 119-132; and cf. examples of (national and international) practice in D. Shelton, Remedies in International Human Rights Law, Oxford, University Press, 2000, pp. 74-75 and 288-289. And there are those who behold a tendency to a clear recognition of punitive damages in international law; cf., e.g., N.H.B. Jorgensen, “A Reappraisal of Punitive Damages in International Law”, 68 British Year Book of International Law (1997) pp. 247-266. And, for a project of doctrinal construction, cf. G. Arangio-Ruiz, “Second Report on State Responsibility”, in U.N., YILC (1989)-II, part I, pp. 31-35, 40-43 and 47-54. And bringing about the risk of a “commercialization” of justice. Whether those reparations are termed “exemplary”, or else “punitive damages”, their basic purpose remains the same, in recognizing the gravity of the facts, sanctioning the State at issue for the grave violations incurred into, recognizing and alleviating the great suffering of the survivors, and seeking the guarantee of non-repetition of the breaches; in providing adequate redress, they purport to reconstruct the harmed social milieu. IACtHR, case of the Massacre of Plan de Sánchez (reparations, 2004), Separate Opinion of Judge A.A. Cançado Trindade, par. 25. To these effects were the reparations ordered by the IACtHR in the case of Myrna Mack Chang concerning Guatemala (Judgment of 25.11.2003).

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this sense, resembling “obligations of doing” of both compensatory as well as sanctioning character (thus overcoming the dichotomy between civil and penal, proper of the regime of responsibility in domestic law). Reparations of the kind have effectively a character at a time compensatory and sanctioning; thus understood, “punitive damages” in reality are already been applied, for a long time, in the domain of the international protection of human rights,58 – a practice remindful of the evocation of the expression of the well-known character of Molière, Monsieur Jourdain, qui parlait la prose sans le savoir 59... . In contemporary International Law in evolution, “punitive damages” lato sensu 60 (beyond the purely pecuniary outlook inadequately attributed to them) can appear as an appropriate response or reaction of the international legal order against the crime of State.61 Truth Commission reports published in recent years62 disclose the systematic occurrence of crimes of State, resulting from the execution of State policies, devised at the highest level, of torturing, murdering, and forcefully disappear-

58

59

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61 62

From the rich case-law of the IACtHR in the matter of reparations, for example, some significant examples may be recalled. In the case of Aloeboetoe versus Suriname (Judgment of 10.09.1993), the Court ordered the reopening of a school and the creation of a foundation to assist the beneficiaries. In the case of Villagrán Morales and Others versus Guatemala (case of the “Street Children”, Judgment of 26.05.2001), the IACtHR ordered the designation of an educative centre with a name referring to the victims of the case; likewise, in the case of Trujillo Oroza versus Bolivia (Judgment of 27.02.2002), the Court again ordered the designation of an educative centre with the name of the victim. In the case of Cantoral Benavides versus Peru (Judgment of 03.12.2001), the IACtHR ordered the State to provide a scholarship of University studies to the victim. In the case of Barrios Altos concening Peru (Judgment of 30.11.2001), the IACtHR ordered reparations in educative services and the payment of expenses of health services. And in the case of Durand and Ugarte versus Peru (Judgment of 03.12.2001), the Court again ordered the payment of expenses of health assistance or services and psychological support. M. Jourdain: – “(...) Il y a plus de quarante ans que je dis de la prose, sans que j’en susse rien, et je vous suis le plus obligé du monde de m’avoir appris cela”. Molière, Oeuvres Complètes (Le bourgeois gentilhomme, 1670, act II, scene V), Paris, Éd. Seuil, 1962, p. 515. It ought not to pass unnoticed that, e.g., the Declaration adopted by the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, 2001), in foreseeing measures of reparation, compensation, indemnization and of other kinds for the human sufferings and the “tragedies of the past” (pars. 98-106), and the corresponding Programme of Action, in providing for reparations and indemnizations (pars. 165-166), utilize a language which discloses affinities with the conception of “punitive damages” lato sensu. N.H.B. Jorgensen, The Responsibility of States for International Crimes, Oxford, University Press, 2003, pp. 231 and 280. Such as, e.g., those of Peru, Guatemala, Chile, Argentina, among others.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

ing persons.63 They warn against responding to crimes committed by non-State entities (including terrorist groups) with crimes perpetrated by the State itself: the results are invariably the disruption of the rule of law (État de droit), social decomposition, killings of innocent people, impunity and corruption.64 In those reports, there is provision for punitive damages, of the aforementioned kind; for example, in its Final Report (adopted on 27.08.2003), the Commission on Truth and Reconciliation of Peru, in referring to “reconciliation by means of the education in values”,65 recommended a series of educational measures and courses of “humanistic formation”, so as to achieve “the most integral formation of the person”.66 Such measures, conceived as a form of reparation, disclosed a wider dimension, being also measures of prevention against violence and abuses victimizing the human person, and revealing a temporal dimension. They bear witness of the acknowledgement that, in the mid- and long run, many of the challenges to human rights protection can be faced with efficacy only through education. VII. The Principle of Universal Jurisdiction The study of responsibility for grave violations of international law necessarily encompasses the principle of universal jurisdiction. This latter has a long history, which dates back to the thinking of the founding fathers of the law of nations. Throughout the history of the discipline, jurisdictional powers have been asserted and exercised on the basis mainly of certain basic principles, namely, those of territoriality,67 of nationality or active personality,68 of passive personality,69 and of protection;70 in addition, that of universal jurisdiction, with its variations 63 64

65 66 67

68 69 70

G. Citroni, L’Orrore Rivelato – L’Esperienza della Commissione della Verità e Riconciliazione in Perù: 1980-2000, Milano, Giuff rè, 2004, pp. 1-163. Cf., e.g., Comisión de la Verdad y Reconciliación [CVR], Informe Final – Conclusiones Generales, Lima/Peru, CVR, 2003, pp. 11-20, 30 and 34-43, and cf. pp. 24 and 26-29; and for a recent evaluation, cf. Defensoría del Pueblo [DP], A Dos Años de la Comisión de la Verdad y Reconciliación, Lima/Peru, DP/Informe Defensorial n. 97, 2005, pp. 17-333. Paragraph 4.2.7 of the Report. Informe Final de la Comisión de la Verdad y Reconciliación, Lima, 27.08.2003, pp. 133-134. Although widely applied in traditional International Law, for facts occurred in the State’s territory, the principle is not an absolute one, co-existing with the other principles. When the alleged wrongs were committed by nationals of the State at issue. For facts attributed to non-nationals of the State, perpetrated outside the State’s territory, whenever the victims are its nationals. For facts occurred outside the State’s territory, irrespective of the nationality of the authors, when the alleged wrongs affect the State’s interests or the exercise of its prerrogatives.

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in history, has been resorted to for sanctioning mainly grave violations of International Humanitarian Law and International Human Rights Law.71 There is an interplay among such principles, in the struggle against impunity. The assertion of the principle of universal jurisdiction for sanctioning those grave violations discloses the understanding that these latter affect not only the victims and their communities, but the international community as a whole.72 Attentive and responsive to the gravity of the crimes perpetrated, the principle of universal jurisdiction bears witness of shared core values of the international community as a whole, pursuant to a universalist approach on the basis of concepts of natural law.73 It is a principle proper to the International Law for humankind. The principle of universal jurisdiction was initially admitted in cases of piracy,74 and later in cases of war crimes, as well as slave trading;75 in relation to such crimes it became regarded as part of the jus gentium. The duty aut dedere aut judicare (to extradite or to exercise jurisdiction) came to be further applied in crimes against internationally protected persons.76 The international practice on the matter is not wholly uniform, presenting variations, from certain national jurisdictions which also seek to base themselves on the principle of universal ju71 72

73

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76

The nationality of the perpetrators, and the State territory where the alleged wrongs were committed, become thus immaterial. M. Itsouhou Mbadinga, “Le recours à la compétence universelle pour la répression des crimes internationaux: étude de quelques cas”, 81 Revue de droit international de sciences diplomatiques et politiques (2003) pp. 286-287; A. Remiro Brotons, “La Responsabilidad Penal Internacional por Crímenes Internacionales y el Principio de Jurisdicción Universal”, in Creación de una Jurisdicción Penal Internacional (ed. C. Escobar Hernández), Madrid, Escuela Diplomática (Colección n. 4), 2000, pp. 204-205. M.Ch. Bassiouni, “The History of Universal Jurisdiction and Its Place in International Law”, in Universal Jurisdiction – National Courts and the Prosecution of Serious Crimes under International Law (ed. S. Macedo), Philadelphia, Univ. of Pennsylvania Press, 2004, pp. 42-43. Cf., nowadays, on the repression of piracy on the high seas or in any other place outside the jurisdiction of any State, the 1982 U.N. Convention on the Law of the Sea, Articles 100-101. Both the 1928 Bustamante Code and the 1940 Montevideo Treaty on International Penal Law, for example, provided universal jurisdiction over slave trading; cf. Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation (ch. II: The History of Universal Jurisdiction), London, A.I., 2001, pp. 2, 10-11, 18 and 28, and cf. pp. 32-33. Cf., e.g., the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons Including Diplomatic Agents, the 1979 International Convention against the Taking of Hostages, the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. And cf. also, in the same line, the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

risdiction,77 to contemporary international tribunals – such as the ad hoc ICTFY and ICTR, and the ICC, – which envisage to operate on the basis of that principle in a complementary way with national jurisdictions (principle of complementarity).78 Yet, a clear evolution can here be perceived: as from the 1948 Convention against Genocide (providing for territorial jurisdiction, with competence of the forum commissi delicti), a step forward was taken, a quarter of a century later, by the 1973 U.N. Convention against Apartheid, moving from territoriality to an optional exercise of universal jurisdiction; and one decade later, yet another step forward was taken, by the 1984 U.N. Convention against Torture, which sets forth the duty to try those responsible for acts of torture, thus enhancing the principle aut dedere aut judicare.79 On their turn, the 1949 Geneva Conventions on International Humanitarian Law, in acknowledging grave breaches of their corpus juris (I Convention, Article 49; II Convention, Article 50; III Convention, Article 129; IV Convention, Article 146) and the corresponding needed universal repression of such breaches,80 contributed to the aforementioned evolution. The need for such repression of those breaches was reasserted by Protocol I of 1977 (Article 85)81 to the Geneva Conventions, in the same line of evolution of the matter. The opinio juris communis on universal jurisdiction is still in the process of formation, which is a steady process, with the decay of the static outlook of the legal positivism of the past; that process advances in face of crimes which affect the “essence of humanity” and call for repression and justice, in an international legal order determined to ensure a minimum of ordre public.82 Universal juris77

78 79

80 81

82

For a comparative study, cf., e.g., [Various Authors,] El Principio de Justicia Universal, Madrid, Ed. Colex, 2001, pp. 103-158; and, for a case-study, cf., e.g., J. Lagos Erazo, El ‘Caso Pinochet’ ante las Cortes Británicas, Santiago, Edit. Jur. de Chile, 1999, pp. 17-336. Cf. the 1998 Rome Statute of the ICC, preamble, par. 10, and Articles 12-14. A. Peyró Llopis, La compétence universelle en matière de crimes contre l’humanité, Bruxelles, Bruylant, 2003, pp. 17, 23, 25 and 28; for the suggestion that the principle of universal jurisdiction would be a corollary of the obligations erga omnes, cf. ibid., pp. 43-44. And cf., in relation to the prevalence of jus cogens, K. Parlett, “Universal Civil Jurisdiction for Torture”, 4 European Human Rights Law Review (2007) p. 402; M.T. Kamminga, “Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses”, 23 Human Rights Quarterly (2001) p. 949; M. Henzelin, Le principe de l’universalité..., op. cit. infra n. (85), pp. 438-439. Cf., e.g, C. Swinarski, A Norma e a Guerra, Porto Alegre/Brazil, S.A. Fabris Ed., 1991, pp. 43-44. Cf. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 08 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, ICRC/Nijhoff, 1987, pp. 989-1004. Ibid., pp. 2-4, 9, 34, 38 and 130-131. Cf. also M.C. Bassiouni and E.M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, Dordrecht, Nijhoff, 1995, pp. XIII and 24.

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diction responds to the universal need to sanction and prohibit grave violations of International Law, of International Humanitarian Law, and International Human Rights Law, and to fight impunity 83 anywhere, irrespective of territorial or national links with the crimes perpetrated. Legal reasoning in support of the application of the principle of universal jurisdiction has invoked fundamental ethical values shared by the international community,84 recta ratio,85 and the conscience of humankind,86 and has, furthermore, related such application of that principle to the contemporary development of international justice itself. Moreover, the application of the principle of universal jurisdiction, ineluctable in cases of crimes that shock the conscience of humankind, moves us closer to the ideal of the civitas maxima. According to this latter, above consent (the will), is the right use of reason; it is the recta ratio which guides the will of States, and is conducive to the necessary, rather than voluntary, law of nations,87 holding all of them together, bound in conscience, in the civitas maxima gentium, the legal community of the whole of humankind. This ideal, pursued notably by Christian Wolff in the XVIIIth century, has its historical roots in the Stoics in ancient Greece, has survived to date, and has been recalled from time to time.88 It repeals all that shocks the universal juridical conscience. In the conceptual construction of the civitas maxima gentium, nations need each other’s assistance to repress grave crimes (wherever they may occur) and to promote the common good (commune bonum promovere),89 pursuant to the dictates of the right reason.90 If this understanding is hopefully constantly pursued, the principle of universal jurisdiction is to be applied universally, in all corners of the world, without selectivity.91 83

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85 86 87 88 89 90 91

To this end, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, e.g., recognizes the need “to secure its universal application” (preamble, 7th considerandum). C. Keith Hall, “Universal Jurisdiction: New Uses for an Old Tool”, in Justice for Crimes against Humanity (eds. M. Lattimer and Ph. Sands), Oxford/Portland, Hart, 2007 [reprint], pp. 55-56. M. Henzelin, Le principe de l’universalité en droit pénal international, Genève/Munich/Bruxelles, Univ. Genève/Helbing & Lichtenhahn/Bruylant, 2000, pp. 82-83. A. Bailleux, La compétence universelle au carrefour de la pyramide et du réseau, Bruxelles, Bruylant, 2005, p. 137. Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum (1764 – Series The Classics of International Law, ed. J. Brown Scott), Prolegomena, p. 2, par. 4. Cf., e.g., over half a century ago, W. Schiffer, The Legal Community of Mankind, N.Y., Columbia University Press, 1954, pp. 63-78. C. Wolff, Jus Gentium..., op. cit. supra n. (87), p. 5, pars. 12-13. Ibid., p. 7, par. 21. As Christian Wolff furthermore upheld in 1764, since all persons are by nature equal, so all nations too are by nature equal one to the other (gentes etiam omnes natura inter se aequales sunt); cf. ibid., p. 6, par. 16.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

On the basis of concepts of natural law, the principle of universal jurisdiction acknowledges that grave violations of International Law and of the rights of the human person do affect the international community as a whole, and that, therefore, one ought to go well beyond the classic principles of territoriality and nationality in their sanction and erradication, and in the pursuance of values shared by the international community as a whole.92 Indications to that effect are found not only in doctrine, but also in contemporary international case-law. Thus, in that respect, the ICTFY, for example, has stressed the significance of the advances of the principle of universal jurisdiction in the D. Tadic case; in its decision of 02.10.1995 on the cas d’espèce, the ICTFY (Appeals Chamber) pondered that “one cannot but rejoice at the thought that, universal jurisdiction being nowadays acknowledged in the case of international crimes, a person suspected of such offences may finally be brought before an international judicial body (...)”.93 Earlier on, in the same D. Tadic case, the ICTFY (Trial Chamber), in its decision of 10.08.1995, stated that “the crimes which the International Tribunal has been called upon to try are not crimes of a purely domestic nature. They are really crimes which are universal in nature, well recognized in International Law as serious breaches of International Humanitarian Law, and transcending the interest of any one State. (...) In such circumstances, the sovereign rights of States cannot and should not take precedence over the right of the international community to act appropriately as they affect the whole of mankind and shock the conscience of all nations of the world. There can therefore be no objection to an international tribunal properly constituted trying these crimes on behalf of the international community”.94

Yet another reference to the “collective conscience” was made by the ICTFY (Trial Chamber), in its judgement of 29.11.1996, in the Erdemovic case, where it added that crimes against humanity are characterized essentially by the concept of “humanity as victim”.95

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The principle of universal jurisdiction thus gives concrete expression to common or fundamental values of the international community as a whole; the fundamental principle of the dignity of the human person requires the absolute prohibition of grave violations of International Law, as well as the fight against impunity of such breaches which affect humankind as a whole. [Various Authors,] Crimes internationaux et juridictions internationales (eds. A. Cassese and M. Delmas-Marty), Paris, PUF, 2002, pp. 21, 63, 71, 198, 256 and 260-261, and cf. pp. 24, 26 and 259-261. This calls for a victim-oriented approach to the exercise of universal jurisdiction; L. Reydams, Universal Jurisdiction – International and Municipal Legal Perspectives, Oxford, University Press, 2004 [reprint], pp. 26-27, 77 and 221-222. Paragraph 62. Paragraph 42. Paragraphs 27-28.

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The principle of universal jurisdiction, in sum, entails the non-applicability of statutory limitations in relation to crimes which affect humanity itself, thus transcending the traditional principle of territoriality of criminal law; universal jurisdiction is in a way shared by all States, and any of them can prosecute those responsible for such crimes, as member of the international community. Thus, in the struggle against impunity, it is the entire international community itself that responds and takes action, and the principle of universal jurisdiction prevails over norms of domestic law, to avoid the application of these latter leading to impunity.96 In the struggle against impunity, the IACtHR was the first international tribunal to declare null and void – lacking legal effects – provisions of domestic law (laws of self-amnesty) incompatible with the American Convention on Human Rights, in its Judgment of 14.03.2001 in the case of Barrios Altos, concerning Peru. The IACtHR stated that “all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-judicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by International Human Rights Law”.97

Subsequently, in the same line of reasoning, in its Judgment of 18.09.2003 in the Bulacio versus Argentina case, the IACtHR added that “In accordance with the conventional obligations assumed by the States, no provision or institute of domestic law, among which the prescription, could be opposed to the compliance with the decisions of the Court as to the investigation and sanction of those responsible for violations of human rights. If it were otherwise, the rights set forth in the American Convention [on Human Rights] would be deprived of an effective protection. This understanding of the Court is in conformity with the letter and the spirit of the Convention, as well as the general principles of law; one of those principles is that of pacta sunt servanda, which requires that to the provisions of a treaty the effet utile is secured at the level of the domestic law of the States Parties”.98

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[Various Authors,] Crímen Internacional y Jurisdicción Universal (El Caso Pinochet) (eds. M. García Arán and D. López Garrido et alii), Valencia, Ed. Tirant lo Blanch, 2000, pp. 52, 64-65, 67, 71-72, 76 and 85. Paragraph 41. Paragraph 117.

Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction

VIII. Concluding Observations The reaction to the grave and systematic violations of human rights and of International Humanitarian Law constitutes nowadays a legitimate concern of the international community as a whole; such reaction imposes itself even more forcefully when the victims are vulnerable and defenceless,99 and the structure of public power is deformed and put at the service of repression and not of the search for the common good. The international criminal responsibility of the individual does not exempt that of the State; the two kinds of responsibility coexist, an acknowledgement of this being of crucial importance to the erradication of impunity. Both the State and its agents are direct addressees of norms of contemporary international law; the conduct of both is foreseen and regulated by this latter; thus, both the State and its agents are to be held accountable for the consequences of their acts and ommissions. All of us who have had the experience and responsibility to work with dedication in the international contentieux of human rights know that the crimes of State effectively do exist, and we know what that means. The international criminal responsibility of the individual does not exempt that of the State. We are still in the beginning of a long process of evolution in this area, in which the recent establishment of the ICC constitutes a point of major relevance in the struggle against impunity, but not the culminating point in what pertains to the international responsibility of the States. This latter falls outside the ambit of competence of the ICC. The determination of the international responsibility of the States is rather of the competence of the international tribunals of human rights, which, in their turn, cannot determine the international criminal responsibility of individuals. This compartmentalized conception of international responsibility – of States and of individuals – leads, in one case and the other, to the erradication of impunity only in a partial way. For such erradication to be total, integral, one ought to affirm and determine, concomitantly, the responsibility both of the State and of the individual (the State agent), complementary as they are. The crime of State is much more than a possibility, it is a reality, as disclosed by the facts, e.g., of the aforementioned recent cases of Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the 19 Tradesmen, of the Massacre of Mapiripán, and of the Moiwana Community. The contemporary doctrine of International Law should not keep on attempting to elude the question. If the expression “crime of State” may appear to many international lawyers (apparently petrified by the spectre of State sovereignty) objectionable for suggesting an inadequate analogy with juridical categories of domestic criminal law, this does not mean that the crime of State does not exist. The facts of the aforementioned recent 99

As in the cases of Myrna Mack Chang (2003) and of the Massacre of Plan de Sánchez (2004) concerning Guatemala, of the 19 Tradesmen (2004) and of the Massacre of Mapiripán (2005) concerning Colombia, and of the Moiwana Community versus Suriname (2005), recently decided by the IACtHR.

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cases provide a clear evidence that it does indeed exist. Even if one keeps on searching for it another denomination, this does not thereby mean that the crime of State ceases to exist. While it keeps on intending to elude the question, the contemporary doctrine of international law will be succumbing to the spectre of State sovereignty, and withholding the evolution itself of the law of nations in the present domain in our days. While it keeps on denying the existence of the crime of State, it will be depriving the human person, ultimate titulaire of the rights inherent to her, – and which precede, and are superior to, the State, – of the safeguard and the exercise of such rights, starting with the right to justice; it will, moreover, be depriving the human person of the proper reparations for the violations of those rights. While the existence of the crime of State keeps on being denied by the contemporary doctrine of international law, this latter will be depriving the State, – hostage of a deformed structure of repression and impunity, – of its proper end, the realization of the common good. While it keeps on denying the existence of the crime of State, it will be depriving Law itself of its ultimate end, precisely the realization of justice. While it keeps on intending to elude the question, the treatment dispensed to the central chapter of the law on the international responsibility of the State will keep on being juridically unconvincing and conceptually incomplete. It will thereby be regrettably postponing the construction and consolidation of a true rule of law, and, in the framework of this latter, of a true right to the Law, that is, the right to a legal order which effectively safeguards the fundamental rights of the human person. The current acknowledgement of the universal need to prohibit and sanction grave violations of human rights and International Humanitarian Law has brought about a revitalization of the principle of universal jurisdiction. This revitalization has disclosed the awareness of the international community as a whole of that pressing need of prohibition and sanction to international crimes, given their gravity.100 This awakening of conscience in a universal scale is occurring on the basis of concepts of natural law, taking up the struggle against impunity well beyond the confines of the classical principles of territoriality and nationality. This is yet another development disclosing common and superior values shared by the international community as a whole, and heralding the advent of a new jus gentium, the International Law for humankind.

100 Cf., e.g., A. Oriolo, La Responsabilità Penale Internazionale degli Individui: tra Sovranità Statale e Giurisdizione Universale, Napoli, Ed. Scient. Italiane, 2008, pp. 88-89 and 147.

Part VI Humanization of International Law

Chapter XVI

I.

Basic Considerations of Humanity in the Corpus Juris of International Law

Introduction: The Relevance of Basic Considerations of Humanity

Indications of the emergence of a new jus gentium at this beginning of the XXIst century, the International Law for humankind, can be found not only in the conceptual constructions previously reviewed,1 but also in the basic considerations of humanity permeating distinct chapters of International Law, to which I shall turn attention now. Such considerations of humanity, which begin to attract increasing attention in our days, have perhaps not yet been given the weight they deserve, and call for, by contemporary international legal doctrine. They grow in importance in a historical moment like the one we live, of indiscriminate use of force and profound crisis of International Law, which reflects a yet deeper crisis of values. Some of the most lucid thinkers who have purported to identify the lessons to be extracted from the XXth century (B. Russell, K. Popper, I. Berlin, A. Toynbee, among others) coincide in one capital point: never as in the XXth century has there been so much progress in science and technology accompanied tragically by so much destruction and cruelty;2 never as in the last decades has there occurred so much growth in prosperity accompanied in an equally tragic way by so much increase – statistically proven – of socio-economic disparities and extreme poverty. Our times have witnessed a panorama of unprecedented scientific and technological progress accompanied by human sufferings hard to describe.3 1 2

3

Cf. chapters XII-XV, supra. Cf. Bertrand Russell, “Knowledge and Wisdom”, Essays in Philosophy (ed. H. Peterson), N.Y., Pocket Library, 1960 (2nd. printing), pp. 498-499 and 502; K. Popper, The Lesson of This Century, London, Routledge, 1997, pp. 53 and 59; I. Berlin, “Return of the Volksgeist: Nationalism, Good and Bad”, in At Century’s End (ed. N.P. Gardels), San Diego, Alti Publ., 1996, p. 94. In a luminous essay published slightly over half a century ago, in the same year of the adoption of the Universal Declaration of Human Rights, a learned historian, questioning the very bases of what is understood by civilization, – that is, quite modest advances at social and moral levels, – regretted that the command achieved by man over non-human nature unfortunately did not extend itself to the spiritual

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Along that century of tragic contradictions, of the divorce between wisdom and specialized knowledge, of the antinomy between the domain of sciences and the lack of control of human impulses, of the oscillations between advances and steps backwards, the function of International Law gradually transformed itself, as a corpus juris no longer of regulation but above all of liberation. As I had the occasion to state at the turn of the century, just as “it is certain that the XXth century was the stage, apart from the extraordinary scientific and technological advances of our time, of cruelties perpetrated against the human person in an unprecedented scale, it is also certain that this has generated a reaction – likewise unprecedented – against those abuses, as a manifestation of the awakening of the universal juridical conscience to the urgent needs of protection of the human being”.4

It is thus not surprising, to find in the evolution of International Law increasingly concerned with the fate of the human person and of humankind as a whole, the constant presence of the expression of basic considerations of humanity. This has, in turn, contributed to expand and enrich its corpus juris. In fact, such basic considerations of humanity appear ineluctable and indispensable in any domain of human knowledge and activity. International Law is no exception to that. In a world such as ours, marked by intensified violence in multiplied conflicts in different latitudes, of unscrupulous recourse to force, of merciless concentration of income with increased social marginalization and exclusion in distinct continents, it becomes imperative to rescue those basic considerations of humanity, which – it should be kept in mind – have, for more than half a century, marked their constant presence in international case-law, in the more lucid doctrine, as well as in international practice (both of States and of international organizations). More attention should be given to them nowadays by those devoted to International Law, so as to draw the consequences ensuing therefrom, to the benefit of humankind as a whole.

4

level; A.J. Toynbee, Civilization on Trial, Oxford, University Press, 1948, pp. 262 and 64. Another historian, E. Hobsbawn, nowadays portrays the XXth century as a period of history marked above all by the crimes and madness of mankind; E. Hobsbawm, Era dos Extremos – O Breve Século XX, São Paulo, Cia. das Letras, 1996, p. 561. It is wholly unjustifiable that abuses and crimes have been committed in the name of public power, especially if one keeps in mind that the State was originally conceived as promoter and guarantee of the common good; J. Maritain, The Person and the Common Good, Notre Dame, University of Notre Dame Press, 1966 (reprint 1985), pp. 11-105. A.A. Cançado Trindade, “The International Law of Human Rights at the Dawn of the XXIst Century”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacional / Bancaja Euromediterranean Courses of International Law – Castellón/Spain (1999) p. 213, and cf. p. 212.

Basic Considerations of Humanity in the Corpus Juris of International Law

II.

The Omnipresence of Basic Considerations of Humanity

1.

Illustrations of International Case-Law

Basic considerations of humanity are, in fact, omnipresent in the whole corpus juris of contemporary International Law.5 Such considerations have met with recognition in international case-law. Thus, it may be recalled that, in the Corfu Channel case (1949), the International Court of Justice [ICJ] referred to obligations based not on a treaty,6 but rather on “certain general and well-recognized principles, namely, elementary considerations of humanity, even more exacting in peace than in war”.7

Two years later, in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951), the ICJ, referring to the “special characteristics” of the Convention against Genocide, stated that “the principles underlying the Convention are principles which are recognized (...) as binding on States, even without any conventional obligation. (...) The Convention was manifestly adopted for a purely humanitarian and civilizing purpose. (...) In such a Convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention. Consequently, in a Convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties”.8

Subsequently, in the Nicaragua versus United States case (1986), the ICJ again evoked the “elementary considerations of humanity”,9 pondering that there are obligations incumbent upon the States that derive not only from treaty law (e.g., the 1949 Geneva Conventions on International Humanitarian Law), but also from the “general principles of humanitarian law” to which that treaty law gives concrete expression. That treaty law is in some respect the expression, and in others a development, of those general principles of humanitarian law.10

5 6 7 8 9 10

Chapters XVII-XXIII, infra. In the cas d’espèce, not on the Hague Convention n. VIII, of 1907, applicable in time of war. ICJ, Corfu Channel case (United Kingdom versus Albania), ICJ Reports (1949) p. 22. ICJ, Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports (1951) p. 23. ICJ, Nicaragua versus United States case, ICJ Reports (1986) pp. 112-114, pars. 215 and 218. Ibid., p. 114, par. 220, and p. 113, par. 218, respectively.

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On its part, the International Tribunal for the Law of the Sea, in the M/V Saiga case (1999), also evoked basic considerations of humanity. In considering, within the framework of the applicable rules of international law, the force used by Guinea in the arrest of the ship Saiga, it was of the view that although the 1982 U.N. Convention on the Law of the Sea did not contain express provisions on the use of force in the arrest of ships, “International Law, which is applicable by virtue of Article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of International Law. These principles have been followed over the years in law enforcement operations at sea. (...)”.11

The inter-State character of certain disputes (as illustrated, e.g., by the Corfu Channel and the Nicaragua versus United States cases), has not hindered an international tribunal such as the ICJ to evoke and take into account basic considerations of humanity. These latter have been associated with general principles of law (encompassing the principles of International Law), taken into account to avoid the non liquet and to disclose the ethical foundations of International Law.12 Likewise, the specialized nature of an international tribunal such as that for the Law of the Sea has not hindered it from taking into account basic considerations of humanity, applicable in that chapter as well as in other areas of International Law. Such considerations have, not surprisingly, been consistently kept in mind by international human rights tribunals. Two recent and pioneering Advisory Opinions issued by the Inter-American Court of Human Rights [IACtHR] can in fact be properly regarded as two Opinions for humankind, namely, Advisory Opinion n. 16 (of 01.10.1999), on The Right to Information on Consular Assistance in the Ambit of the Guarantees of the Due Process of Law, and Advisory Opinion n. 18 (of 17.09.2003), on the Juridical Condition and the Rights of Undocumented Migrants. In the former, the IACtHR linked the right to information on consular assistance (set forth in Article 36 of the 1963 Vienna Convention on Consular Re-

11

12

ITLS, M/V Saiga (n. 2) case (Saint Vincent and the Grenadines versus Guinea), Reports of Judgments, Advisory Opinions and Orders (1999) pp. 61-62, pars. 155-156. In the cas d’espèce, the Tribunal found that “Guinea used excessive force and endangered human life before and after boarding the Saiga, and thereby violated the rights of Saint Vincent and the Grenadines under International Law”; ibid., p. 63, para. 159. Here, inspiration has thus been found more in the opinio juris than in the practice of States; cf., to this effect, P.-M. Dupuy, “Les ‘considérations élémentaires de l’humanité’ dans la jurisprudence de la Cour Internationale de Justice”, in Mélanges en l’honneur de N. Valticos – Droit et justice (eds. R.J. Dupuy and L.A. Sicilianos), Paris, Pédone, 1999, pp. 125-127 and 130.

Basic Considerations of Humanity in the Corpus Juris of International Law

lations) to the guarantees of the due process of law under Article 8 of the American Convention on Human Rights. The Court added that that subjective right has crystallized throughout the years, being titulaire of it every human being deprived of his liberty abroad. By virtue of that right, every person ought to be immediately informed by the receiving State that it can count on the assistance of the consul of the country of origin.13 The Opinion gave judicial recognition to the indissoluble links between the right to information on consular assistance and the guarantees of the due process of law, and, in cases of death penalty, to the right to life itself. Subsequently, in its Opinion n. 18, the IACtHR sustained that States have the duty to respect and ensure respect for human rights in the light of the general and basic principle of equality and non-discrimination, and that any discriminatory treatment in relation to the protection and exercise of such rights (including labour rights) generates the international responsibility of the States. In the understanding of the IACtHR, the fundamental principle referred to has enterred into the domain of jus cogens, the States not being entitled to discriminate, or to tolerate discriminatory situations, to the detriment of migrants, and being under the duty to secure the due process of law to any person, irrespective of her migratory status. States cannot subordinate or condition the observance of the principle of equality before the law and non-discrimination to the objectives of their migratory policies, among others. Both Opinions (ns. 16 and 18) of the IACtHR pursue a dynamic or evolutive interpretation of the International Law of Human Rights, the latter having been erected upon the evolving concepts of jus cogens and erga omnes obligations of protection, as indicated in my Concurring Opinions thereto. The historical transcendence of both Opinions, which benefit numerous human beings, has been properly acknowledged in contemporary international legal doctrine:14 they both effectively pave the way for the continuing construction of a new jus gentium at this beginning of the XXIst century, no longer State-centric, but turned rather to the fulfilment of the needs of protection and aspirations of human beings and humankind as a whole.

13

14

Before making any declaration (incriminating himself) before the local police authority. As to the detainees condemned to death, the Court added that, in case of imposition and execution of death penalty, without the prior observance of the right to information on consular assistance, this non-observance affects the guarantees of the due process of law, and a fortiori it violates the right itself not to be deprived of life arbitrarily (in the terms of Article 4 of the American Convention and Article 6 of the U.N. Covenant on Civil and Political). Cf. chapter XXII, infra.

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2.

Illustrations of International Legal Doctrine

For many years the more lucid international legal doctrine (which unfortunately by no means represents the views of the majority of international lawyers) has been warning as to the need to bear in mind basic considerations of humanity to ensure the evolution of International Law in such a way as to enable this latter to fulfil effectively the needs and aspirations of the international community. In 1958, for example, C. Wilfred Jenks wrote that international law could no longer be adequately or reasonably described as the law governing the mutual relations of States in the light of their interests only; in the second half of the XXth century, – he added, – it should be able to adjust conflicting interests so as to provide organised support to “a universal community”, in the form of a true “common law of mankind”.15 Likewise, in his lectures at the Hague Academy of International Law of 1965, A. Truyol y Serra endorsed the universalist conception of the law of nations (diritto della umanità) bearing in mind the notion of social justice; to his mind, “Le droit international ne peut plus se contenter de délimiter entre elles les compétences étatiques; il doit aff ronter l’établissement d’un ordre communautaire (...), dont l’objectif primordial et immédiat n’est autre qu’une promotion équilibrée et harmonieuse du développement dans l’ensemble de l’humanité considérée comme un tout”.16

He regarded the resolutions of the U.N. General Assembly on decolonization of that time as reflecting “la conscience juridique de l’humanité contemporaine en cette matière”.17 This substantial change of mentality and of outlook of International Law has a historical explanation. Paul de Visscher, who conceived Law as incorporating ethical values, pondered, in his general course of 1972 at the Hague Academy, that the decolonization process and the “revolt of the consciences in face of the horrors of the war”, contributed jointly to “exiger que des barrières objectives, directement inspirées par les idées d’humanité, de justice et de solidarité, soient dressées contre l’omnipotence de la raison d’État sur le plan interne et contre l’omnipotence des volontés communes sur le plan international”.18

15 16

17 18

C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 58 and 85. A. Truyol y Serra, “L’expansion de la société internationale aux XIXe. et au XXe. siècles”, 116 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1965) pp. 169 and 151-152, and cf. pp. 170-171. Ibid., p. 161. P. de Visscher, “Cours général de Droit international public”, 136 RCADI (1972) pp. 103-104, and cf. p. 111.

Basic Considerations of Humanity in the Corpus Juris of International Law

One decade later, in a Colloquy organized by the Hague Academy (1983), R.-J. Dupuy observed that as mankind made its entry into the domain of international law, it came to be superimposed to the conception of international community, which, on its turn, had made its constant appearance in International Law texts by the end of the sixties. There was no redundancy, as this latter gathered together contemporaries, while mankind has a temporal dimension and encompasses “not only those who are present but also those who will come”. And he added: “This new cultural system of superimposition can be analyzed out of the juridical products it prompted, as the United Nations launched them under the impulsion of the word ‘mankind’ without studying its content thoroughly. Th is is why this entry of mankind in jus gentium is not coupled with coherent conducts and sees its summit value itself being challenged”.19

This is the task ahead of the new generations of international law scholars, namely, the construction of what I see it fit to call the new jus gentium of our times, the International Law for humankind. This may require clarifications as to the contents and legal effects of newly-emerging concepts to that end,20 as I endeavoured to indicate in the preceding four chapters. But this demands, above all, a new mentality, conducive to a new awareness that International Law can no longer, and does no longer, operate upon a strictly inter-State basis, – a new mentality conducive to the international community assuming its responsibility for securing the survival as well as the welfare of humankind as a whole. III. Concluding Observations The cultivation of basic considerations of humanity, as an early step in the construction of a new jus gentium restoring to human beings and humankind the central position that is theirs, is bound gradually to equip International Law so as to be able to respond to contemporary challenges that it is faced with. International Law has a role to play in seeking that science and technology together are no longer used for destruction and cruelty. International Law has a role to play in curbing arms trade, and extracting the juridical consequences of the illegality of all weapons of mass destruction, including nuclear weapons. International Law has a role to play in seeing to it that the growth of prosperity of some is no longer followed tragically by the alarming growth of socio-economic disparities and extreme and chronic poverty, within nations and among them. International Law has a role to play in the regulation of a new international order, going beyond the classic Westphalian model of a strictly inter-State dimension. 19

20

R.-J. Dupuy, “Conclusions du Colloque / Conclusions of the Workshop”, in L’avenir du Droit international dans un monde multiculturel (Colloque de novembre 1983, ed. R.-J. Dupuy), The Hague, Nijhoff/Académie de Droit International de La Haye/ Université des Nations Unies, 1984, pp. 480-481, and cf. p. 482. Cf. chapters XII-XV, supra.

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This is the task ahead, for the new generations of international law scholars, like the ones gathered here, in this summer of 2005, at the Hague Academy of International Law. It has been in moments of deep crisis, as the one we experience today, that qualitative advances have been achieved. The horrors of the II world war did not impede the emergence and growth of the International Law of Human Rights. The horrors of contemporary genocides have not hindered the advances of International Criminal Law, and the establishment of a permanent international criminal jurisdiction. The frequent and successive abuses against human beings in different latitudes have not impeded the construction and expansion of the vast and significant case-law of the European and Inter-American Courts of Human Rights, a case-law of the emancipation of human beings from their own State. Despite the recurrence of atrocities in the last decades, human conscience has reacted in fostering the current process of humanization of International Law. Basic considerations of humanity, nowadays permeating the whole of its corpus juris, constitute yet further indications of the path to follow.

Chapter XVII

I.

Basic Considerations of Humanity in Relation to Disarmament

Introduction

It was in Hiroshima and Nagasaki that the limitless insanity of man heralded the arrival of a new era, the nuclear one (with the detonation of the atomic bombs in Hiroshima on 06.08.1945 and in Nagasaki on 09.08.1945), which, after six decades, – having permeated the whole cold war period, – remains a stalemate which continues to threat the future of humankind. Ever since the outcry of humankind began to echo around the world as to the pressing need for International Law to outlaw all weapons of mass destruction, starting with nuclear weapons: this is the task which still remains before us today. Endeavours towards general and complete disarmament, in their distinct aspects (infra), have indeed been permeated with basic considerations of humanity. II.

The Search for Peace: The Creation of Zones of Peace

1.

The Attainment of Peace and Human Security: A Permanent Goal

In 1999, on the occasion of the celebration of the centennial of the I Hague Peace Conference, the Hague Agenda for Peace and Justice for the XXIst Century,1 adopted on the occasion, included among its main topics those of disarmament and human security, and of prevention of conflicts. The document recalled the long quest of humankind for peace, and the recurring protest against the use of nuclear weapons on the ground that “their effects allegedly cannot be limited to legitimate military targets and that they are thus by nature indiscriminate, and on the ground of excessive cruelty (heat and radiation)”.2

1 2

U.N. document A/54/98/Annex, reproduced in op. cit. infra n. (2), pp. 419-454. F. Kalshoven (ed.), The Centennial of the First International Peace Conference – Reports and Conclusions, The Hague, Kluwer, 2000, p. 52 (remark by H. Blix).

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The aforementioned Hague Agenda warned emphatically as to the dangers of all weapons of mass destruction, and, as part of a universal effort to abolish them, called upon all States to ratify the existing Conventions against Biological Weapons and against Chemical Weapons (cf. infra) and to adopt national measures of implementation. It further called upon all States to “negotiate and conclude within five years” a Convention against Nuclear Weapons, which would prohibit their production, use and threat, and would provide for “verification and enforcement of their destruction”.3 The document well pondered that “The continued existence of nuclear weapons and their threat or use by accident, miscalculation or design threaten the survival of all humanity and life on earth”.4

Weapons of mass destruction continue to constitute a grave threat to the survival of humankind. Comparing with biological weapons and cheminal weapons, the risks raised by nuclear weapons are further aggravated by the virtually total lack of control over their effects (of radioactive fall-out, thermal radiation, and ionizing radiation) in time. For ionizing radiation, in particular, the consequences may extend for days, weeks or years, before the appearance of symptons of ill-health; it may precipitate certain diseases (some terminal ones), and delay the healing of other injuries.5 The same reasons which have led to the express prohibition of other weapons of mass destruction, and weapons that cause unnecessary and cruel suffering with indiscriminate effects, apply likewise – and even more forcefully – to nuclear weapons, the most inhumane of all weapons.6 The damage caused by them has a temporal dimension, which can extend for years and years, distinguishing them from other weapons for their extreme cruelty, and causing a suffering which can simply not be measured. This should be kept in mind by all international lawyers, who have, in my view, a duty to sustain their utter illegality in contemporary International Law, particularly if they bear in mind – as they ought to – not only the States, but also – and above all – humankind as a whole. In any case, any consideration of the matter cannot fail to start from the general principle, enunciated in the Hague Conventions of 1899 and 1907,7 that the choice, by belligerents, of means and methods of combat is not unlimited, as well as from the principle – also set forth in those Conventions – of the prohibition of any weapons and methods of combat that may cause unnecessary 3 4 5

6 7

Ibid., pp. 450 and 452 (items 48 and 44 of the Hague Agenda), and cf. pp. 426-427. Ibid., p. 450 (item 44). International Committee of the Red Cross [ICRC], Weapons that May Cause Unnecessary Suffering or Have Indiscriminate Effects (Report on the Work of Experts), Geneva, ICRC, 1973, pp. 20-21. S. Glaser, L’arme nucléaire à la lumière du droit international, Paris, Pédone, 1964, pp. 34, 36-37 and 51. Article 22 of the II Hague Convention of 1899, and of the IV Hague Convention of 1907.

Basic Considerations of Humanity in Relation to Disarmament

suffering,8 with indiscriminate effects.9 The persistence of the arsenals of such weapons nowadays, and the dangers of their proliferation, despite decades of endeavours towards general and complete disarmament frustrated to a large extent by the oscillations of the politics of the great powers,10 have drawn attention in our days to what has been termed human security. Just as the logic of development has developed from the past framework of inter-State relations into the new conception of human development, so has the logic of security: conceived in the past to apply in inter-State relations (including in the renewed scheme of collective security under the U.N. Charter), it nowadays transcends that dimension to shift attention to human security. In one and the other contexts, the central concern is no longer with States11 properly, but rather, and more appropriately, with human beings, “within and across State borders”, thus replacing the old State-centric approach of the matter by an anthropocentric one.12 The concern is, ultimately, with humankind as a whole, pointing, once again, to the new jus gentium of our days, the international law for humankind. In order to develop a new approach to the whole subject of security, the United Nations determined the creation, in the framework of the Millennium Summit (2000), of its Commission on Human Security. In its Report of 2003, the Commission reaffirmed the importance of multilateralism and categorically rejected unilateral action for the peaceful settlement of disputes. Its approach was based on rights and “humanitarian strategies”, on “human security”,13 thus clearly avoiding to refer to the concept of security of the State. Moreover, it called for the necessary control of weapons, in order to guarantee the “security of the persons”.14 In a similar line of thinking, another international document, the Declaration on Security in the Americas, adopted in Mexico City by the Special Conference on Security, of the Organization of American States [OAS], of October 2003, singled out the “multidimensional character” of security, invoked the principles 8 9 10 11

12

13

14

Article 23(e) of the aforementioned Hague Conventions. ICRC, Weapons that May Cause Unnecessary Suffering..., op. cit. supra n. (5), p. 11; S. Glaser, L’arme nucléaire..., op. cit. supra n. (6), pp. 45-46. Cf., e.g., M.-F. Furet, Le désarmement nucléaire, Paris, Pédone, 1973, p. 9. An outlook of sad memory to those victimized by the invocation of “State security” by the power-holders in order to try to “justify” abuses and human rights violations, in dictatorships and in authoritarian regimes, such as the ones in some South American countries, mainly between the mid-sixties and early eighties. Cf., e.g., S. Ogata and J. Cels, “Human Security – Protecting and Empowering the People”, 9 Global Governance – A Review of Multilateralism and International Organizations (2003) n. 3, pp. 274-275. Expressly referring to the three branches of the International Law of Human Rights, of the International Law of Refugees and of International Humanitarian Law; U.N./ Commission on Human Security, Human Security Now – Protecting and Empowering People, N.Y., U.N., 2003, pp. 12, 27 and 49. Ibid., p. 134.

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of the U.N. Charter and of the OAS Charter, emphasized the “human dimension” of the issue, and affirmed its commitment with multilateralism.15 In sum, it can thus be fairly concluded, on this particular point, that human security is nowadays conceived – mainly at U.N. level – not at all to allow for unwarranted “humanitarian intervention” at inter-State level, nor for any manifestation of undue unilateralism, but rather, quite on the contrary, to strengthen multilateralism, so as to find common and generally accepted solutions to current needs of security of human beings, and, ultimately, of humankind. 2.

The Initiative of Zones of Peace

In order to avoid the proliferation of weapons of mass destruction, and to put an end to the existing arsenals of those weapons, multilateral mechanisms of their control and prohibition, as well as their destruction, have been conceived, and created by international conventions, which ought to be applied and strengthened, towards world disarmament.16 In the same line of thinking, the initiative was taken of establishing zones of peace in distinct continents, to give concrete expression to the emerging right to peace. In the mid-eighties, the issue occupied an important place in the international agenda, with the proposal to set up zones of peace, like the one in the Indian Ocean, as well as in the Mediterranean and in South-East Asia,17 and the one envisaged in 1990 for the whole of South America.18 In fact, the concept of zones of peace (sometimes used interchangeably with that of nuclear-weapon-free zones) appears intermingled with that of right to peace.19 The concepts of zones of peace (found, e.g., in the 1971 U.N. Declaration of the Indian Ocean as a Zone of Peace, not to speak of the 1959 Antarctic Treaty

15 16

17 18

19

Preamble, and items II(2), I(1), II(4)(e), and II(4)(z), respectively. It is not to pass unnoticed that the Latin American countries (and not the great powers) were the ones which constituted the first – and densily inhabited – region of the world to declare itself a nuclear-weapon-free zone, by means of the adoption of the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (1967), which served as inspiration for other regions of the world, thus contributing to the formation of a universal conscience as to the pressing need of world disarmament. Cf. OPANAL/UNIDIR, Las Zonas Libres de Armas Nucleares en el Siglo XXI, N.Y., U.N., 1997, pp. 8-19 and 46-47; W. Epstein, “The Making of the Treaty of Tlatelolco”, 3 Journal of the History of International Law / Revue d’histoire du Droit international (2001) pp. 153-177. S. Szurek, “Zones exemptes d’armes nucléaires et zones de paix dans le tiers-monde”, 88 Revue générale de Droit international public (1984) pp. 123-128 and 151-156. Comisión Sudamericana de Paz (CSP), Proyecto de Tratado de Zona de Paz (Grupo de Trabajo de Juristas), Santiago de Chile, CSP, 21.06.1990, pp. 1-9 (internal circulation). Cf. chapter XIV, supra.

Basic Considerations of Humanity in Relation to Disarmament

itself20), as well as of nuclear-weapon-free zones (finding expression in such instruments as the treaties creating the current four nuclear-weapon-free zones – infra), were advanced for curbing the geographical spread of the weapons race.21 When the U.N. General Assembly proclaimed in 1971 the Indian Ocean as a zone of peace,22 and the States of the region took the initiative of assuming primary collective responsibility for the preservation of peace therein, the concept of zone of peace was devised as one which would free the region from great power rivalry or confrontation, would exclude the setting up of military bases therein, and would furthermore lead to measures of arms control and disarmament and of promotion of peace.23 It was, thus, a general concept. Although invoked interchangeably, the concept of zones of peace (such as those proclaimed by the United Nations in the Indian Ocean and in the South Atlantic) is not exactly the same as that of nuclear-weapon-free zones. These latter are based on treaties, while the zones of peace, in turn, give expression to an essentially political conception; although based on non-binding instruments, they reflect a consensus, emerging out of debates at the U.N. General Assembly, which cannot be overlooked or ignored, in the endeavours to secure the total absence of all weapons of mass destruction, including nuclear weapons, in the respective zones of peace.24 III. The Establishment of Nuclear-Weapon-Free Zones The establishment, in the second half of the XXth century, of nuclear-weaponfree zones, surely responded to the needs and aspirations of humankind, so as to rid the world of the threat of nuclear weapons; furthermore, it gave expression to the growing disapproval of nuclear weapons by the international community. The 20

21

22 23

24

For an account, cf., e.g., E. Fujita, The Prevention of Geographical Proliferation of Nuclear Weapons: Nuclear-Weapon-Free Zones and Zones of Peace in the Southern Hemisphere, N.Y., U.N./UNIDIR, 1989, pp. 1-40. Reference could also be made to relevant resolutions of the U.N. General Assembly, such as the 1988 Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field; to this latter one can add other resolutions of the U.N. General Assembly, such as resolution 44/21, of 1989, on enhancing international peace, security and international cooperation in all its aspects in accordance with the U.N. Charter; B. Boutros-Ghali, An Agenda for Peace, 2nd. ed., N.Y., U.N., 1995, p. 52. U.N. General Assembly resolution 2832 (XXVI), of 16.12.1971. International Peace Academy, Regional Colloquium on Disarmament and Arms Control (New Delhi, 12-17.02.1978), New Delhi/Bombay/Calcutta, I.P.A., 1978, pp. 23-25 and 78-80. J.C. Carasales, “El Cambiante Valor de las Zonas Libres de Armas Nucleares: La Experiencia de Tlatelolco y Rarotonga”, in XVI Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano (1989), Washington D.C., Secretaría General de la OEA, 1991, p. 89.

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pioneering initiative in this domain was that of Latin America,25 which resulted in the adoption of the 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean and its two Additional Protocols. This initiative, which was originally prompted by a reaction to the Cuban missiles crisis of 1962, was followed by four others of the kind, in distinct regions of the world, conducive to the adoption of the 1985 South Pacific (Rarotonga) Nuclear-Free Zone Treaty, the 1995 Treaty on the Southeast Asia (Bangkok) Nuclear-Weapon-Free Zone Treaty, the 1996 African (Pelindaba) Nuclear-Weapon-Free Zone Treaty,26 and, more recently, the 2006 Central Asia (Semipalatinsk) Nuclear-Weapon-Free Zone Treaty (cf. infra). Basic considerations of humanity have surely been taken into account for the establishment of those nuclear-weapon-free zones. By the time of the creation of the first of them with the adoption in 1967 of the Treaty of Tlatelolco, it was pointed out that it came as a response to humanity’s concern with its own future (given the threat of nuclear weapons), and in particular with “the survival of the humankind”.27 Its reach transcended Latin America (and the Caribbean), as evidenced by its two Additional Protocols,28 and the obligations set forth in its legal regime were wide in scope: “Le régime consacré dans le Traité n’est pas simplement celui de non-prolifération: c’est un régime d’absence totale d’armes nucléaires, ce qui veut dire que ces armes seront interdites à perpétuité dans les territoires auxquels s’applique le Traité, quel que soit l’État sous le contrôle duquel pourraient se trouver ces terribles instruments de destruction massive”.29

In fact, besides the Treaty of Tlatelolco, also the Rarotonga, Bangkok, Pelindaba and Semipalatinsk Treaties purport to extend the obligations enshrined therein, by means of their respective Protocols, not only to the States of the regions at issue, but also to nuclear States, as well as States which are internationally responsible, de jure or de facto, for territories located in the respective regions. The veri25

26 27

28

29

On the initial moves in the U.N. to this effect, by Brazil (in 1962) and Mexico (taking up the leading role from 1963 onwards), cf. Naciones Unidas, Las Zonas Libres de Armas Nucleares..., op. cit. infra n. (26), pp. 116, 20 and 139. Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, N.Y./Geneva, U.N.-OPANAL/UNIDIR, 1997, pp. 9, 25, 39 and 153. A. García Robles, “Mesures de désarmement dans des zones particulières: le Traité visant l’interdiction des armes nucléaires en Amérique Latine”, 133 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1971) p. 99, and cf. p. 102. The first one concerning the States internationally responsible for territories located within the limits of the zone of application of the Treaty, and the second one pertaining to the nuclear-weapon States. A. García Robles, “Mesures de désarmement dans des zones particulières...”, op. cit. supra n. (27), p. 103, and cf. p. 71.

Basic Considerations of Humanity in Relation to Disarmament

fication of compliance with the obligations regularly engages the International Atomic Energy Agency [IAEA]; the Treaty of Tlatelolco has in addition counted on its own regional organism to that end, the Organism for the Prohibition of Nuclear Weapons in Latin America [OPANAL]. Each of the five aforementioned treaties (Tlatelolco, Rarotonga, Bangkok, Pelindaba and Semipalatinsk) creating nuclear-weapon-free zones has distinctive features, as to the kinds and extent of obligations and methods of verification,30 but they share the same ultimate goal of preserving humankind from the threat of nuclear weapons. The second nuclear-weapon-free zone, established by the Treaty of Rarotonga (1985), with its three Protocols, came as a response31 to long-sustained regional aspirations, and increasing frustration of the populations of the countries of the South Pacific with incursions of nuclear-weapons States in the region, “including French testing at Moruroa, U.S. nuclear-armed ship visits, and threats of nuclear waste-dumping”.32 The Rarotonga Treaty encouraged the negotiation of a similar zone, by the 1995 Bangkok Treaty, in the neighbouring region of Southeast Asia, and confirmed the “continued relevance of zonal approaches” to the goal of disarmament33 and the safeguard of humankind from the menace of nuclear weapons.34 The third of those treaties, that of Bangkok, of 1995 (with its Protocol), was prompted by the initiative of the Association of South-East Asian Nations [ASEAN] to insulate the region from the policies and rivalries of the nuclear powers. The Bangkok Treaty, besides covering the land territories of all ten Southeast Asian States, is the first treaty of the kind also to encompass their territorial sea, 200-mile exclusive economic zone and continental shelf.35 The fourth such treaty, that of Pelindaba, of 1996, in its turn, was prompted by the continent’s reaction to nuclear tests in the region (as from the French nuclear tests in the Sahara in 1961), and the desire to keep nuclear weapons out of the region.36 In fact, as early 30

31 32

33

34 35

36

Cf. J. Goldblat, “Zones exemptes d’armes nucléaires: une vue d’ensemble”, in Le droit international des armes nucléaires (Journée d’études, ed. S. Sur), Paris, Pédone, 1998, pp. 35-55. Upon the initiative of Australia. M. Hamel-Green, “The South Pacific – The Treaty of Rarotonga”, in Nuclear Weapons-Free Zones (ed. R. Thakur), London/N.Y., MacMillan/St. Martin’s Press, 1998, p. 59, and cf. p. 62. As to this latter, the States Parties to the NPT decided in 1995 to extend its duration indefinitely and to adopt the document on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament”. M. Hamel-Green, op. cit. supra n. (32), pp. 77 and 71. This extended territorial scope has generated resistance on the part of nuclearweapon States to accept its present form; A. Acharya and S. Ogunbanwo, “The Nuclear-Weapon-Free Zones in South-East Asia and Africa”, in Armaments, Disarmament and International Security – SIPRI Yearbook (1998) pp. 444 and 448. Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. supra n. (26), pp. 60-61.

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as in 1964 the former Organization of African Unity [OAU] (nowadays African Union) had adopted the “Declaration on the Denuclearization of Africa”, – a goal which was thus deeply-rooted in African thinking.37 The Pelindaba Treaty38 (with its three Protocols), which has entered into force on 15 July 2009, appears to have served the purpose to erradicate nuclear weapons from the African continent.39 The fifth such treaty, that of Semipalatinsk, of 2006, was motivated by Central Asia’s determination to join the four other nuclear-weapon-free zones (Latin America and the Caribbean, the South Pacific, South-East Asia, and Africa). Shortly after the entry into force, on 21 March 2009, of the Semipalatinsk Treaty, the U.N. Secretary-General (Ban Ki-moon), in welcoming such entry into force of the new Treaty, further pointed out that this latter was “significant” also because it set up “the first nuclear-weapon-free zone requiring Parties to comply fully with the Comprehensive Nuclear-Test-Ban Treaty (CTBT)”.40 This is not, however, the end of the story, as debates continue, up to the present (September 2009), at the U.N. General Assembly, in the consideration of the creation of other nuclear-weapon-free zones in the future.41 The five treaties at issue, though containing loopholes (e.g., with regard to the transit of nuclear-weapons), have as common denominator the practical value of arrangements that transcend the non-proliferation of nuclear weapons.42 The establishment of the nuclear-weapon-free zones has fulfilled the needs and aspirations of peoples living under the fear of nuclear-victimization.43 Their purpose has been served, also in withholding or containing nuclear ambitions, to the ultimate benefit of humankind as a whole. Nowadays, the first four aforementioned nuclear-weapon-free zones are firmly established in densely populated areas, covering most (almost all) of the landmass of the southern hemisphere land 37 38

39

40

41

42 43

Cf. J.O. Ihonvbere, “Africa – The Treaty of Pelindaba”, in Nuclear Weapons-Free Zones, op. cit. supra n. (32), pp. 98-99 and 109. As the outcome of the initiative from such African States as South Africa (having dismantled its nuclear programme), Egypt and Nigeria; ibid., pp. 109 and 107, and cf. p. 114. On the legislative history of the Pelindaba Treaty, cf. O. Adeniji, The Treaty of Pelindaba on the African Nuclear-Weapon-Free Zone, Geneva, UNIDIR, 2002, pp. 1-169. Central Asia thereby became the fi rst nuclear-weapon-free zone of the northern hemisphere. U.N., “[Press Conference:] Ban Welcomes Central Asia’s Decision to Renounce Nuclear Weapons”, in U.N. News Service, N.Y., U.N., 20.03.2009, p. 1. Cf., e.g., U.N./G.A., Establishment of a Nuclear-Weapon-Free Zone in the Region of the Middle East – Report of the I Committee, U.N. doc. A/63/386, of 06.11.2008, pp. 1-5; and cf., on the same topic, G.A. resolution A/RES/63/38, of 02.12.2008, pp. 1-3. J. Enkhsaikhan, “Nuclear-Weapon-Free Zones: Prospects and Problems”, 20 Disarmament – Periodic Review by the United Nations (1997) n. 1, p. 74. Cf., e.g., H. Fujita, “The Changing Role of International Law in the Nuclear Age: from Freedom of the High Seas to Nuclear-Free Zones”, in Humanitarian Law of Armed Conflict: Challenges Ahead – Essays in Honour of F. Kalshoven (eds. A.J.M. Delissen and G.J. Tanja), Dordrecht, Nijhoff, 1991, p. 350, and cf. pp. 327-349.

Basic Considerations of Humanity in Relation to Disarmament

areas (while excluding most sea areas),44 and the fifth zone being located in the northern hemisphere. The adoption of the 1967 Tlatelolco Treaty, the 1985 Rarotonga Treaty, the 1995 Bangkok Treaty, the 1996 Pelindaba Treaty, and the 2006 Semipalatinsk Treaty have disclosed the shortcomings and artificiality of the posture of the so-called political “realists”,45 which insisted on the suicidal policy of nuclear deterrence, in their characteristic subservience to power politics. The fact that the international community counts today on five nuclear-weapon-free zones, in relation to which States that possess nuclear weapons do have a particular responsibility, reveals an undeniable advance of right reason, of the recta ratio in the foundations of International Law. Moreover, the idea of nuclear-weapon-free zones46 keeps on clearly gaining ground. In recent years proposals have been examined for the setting up of new denuclearized zones of the kind,47 as well as of the so-called single-State zone.48 Another proposal49 has been the expansion of the concept of nuclear-weapon-free zones so as to encompass also other weapons (chemical and biological) of mass destruction.50 The five treaties establishing nuclear-weapon-free zones foresee cooperation schemes with the IAEA; furthermore, the great majority of States Parties to those five treaties have also ratified the Comprehensive Nuclear-TestBan Treaty [CTBT].51 All these developments reflect the increasing disapproval by the international community of nuclear weapons, which, for their hugely destructive capability, represent an aff ront to right reason (recta ratio).

44

45 46 47 48

49 50

51

J. Prawitz, “Nuclear-Weapon-Free Zones: Their Added Value in a Strengthened International Safeguards System”, in Tightening the Reins – Towards a Strengthened International Nuclear Safeguards System (eds. E. Häckel and G. Stein), Berlin/Heidelberg, Springer-Verlag, 2000, p. 166. Cf. Naciones Unidas, Las Zonas Libres de Armas Nucleares..., op. cit. supra n. (26), pp. 27, 33-38 and 134. For a general study, cf., e.g., M. Roscini, Le Zone Denuclearizzate, Torino, G. Giappichelli Ed., 2003, pp. 1-420. E.g., in Central and Eastern Europe, in the Middle East (cf. note (40), supra), in North-East and South Asia, and in the whole of the southern hemisphere. E.g., Mongolia; cf. A. Acharya and S. Ogunbanwo, op. cit. supra n. (35), p. 443; J. Enkhsaikhan, op. cit. supra n. (41), pp. 79-80. – Mongolia in effect declared its territory as a nuclear-weapon-free zone (in 1992), and in February 2000 adopted national legislation defining its status as a nuclear-weapon-free State. Which has retained the attention in particular of the Middle East countries. M. Shaker, “Zones exemptes d’armes nucléaires et zones exemptes d’armes de destruction massive”, in Le droit international des armes nucléaires (Journée d’études, ed. S. Sur), Paris, Pédone, 1998, pp. 57-63. E. Vargas Carreño, Una Conferencia Internacional de los Estados Partes de las Zonas Libres de Armas Nucleares (ZLANs), Mexico City, OPANAL, doc. C/DT/55/Rev.1, of 03.10.2002, pp. 5-8.

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IV. The Endeavours towards General and Complete Disarmament At a time when only the nuclear-weapon-free zone established by the Treaty of Tlatelolco existed and the possibility was considered of creation of other zones of the kind (supra), the Conference of the Committee on Disarmament presented in 1975 a study on the matter, requested by the U.N. General Assembly in 1974 and undertaken by an ad hoc Group of Experts. The study indicated that the creation of future nuclear-weapon-free zones was to take place in conformity with International Law, the principles of the U.N. Charter and the fundamental principles of International Law that govern mutual relations among States; the effective guarantees of security which nuclear States were to provide to the States which were to create those zones ensued from the general principle of prohibition of the threat or use of force.52 The study added that the establishment of such zones was not to be regarded as an end in itself, but rather as a means to achieve the wider aims of “general and complete disarmament” and international peace and security.53 In the preparation of the study it was recalled that other international instruments on disarmament, with which those zones were to coexist in the search for greater protection to the international community, were conceived to the benefit of humankind;54 it was argued that such zones had “a fundamentally humanitarian purpose”.55 In fact, it would go almost without saying that the aforementioned nuclear-weaponfree zones, herein envisaged under basic considerations of humanity in relation to territory, are to be duly related to the long-standing endeavours of general and complete disarmament (including non-proliferation of weapons of mass destruction). Non-proliferation of weaponry is but one aspect of the whole matter; thus, the 1968 Treaty on the Non-Proliferation of Nuclear Weapons [NPT] belongs to the kind of treaties which aim to restrict the spread of weaponry, without however proscribing or limiting the weapons capability of those States which already possess the specified weapons.56 Furthermore, the techniques of verification regarding disarmament have not proven wholly satisfactory to date, and it has rightly been warned that they should be strengthened in the context of the

52

53 54 55 56

Naciones Unidas, Amplio Estudio de la Cuestión de las Zonas Libres de Armas Nucleares en Todos Sus Aspectos – Informe Especial de la Conferencia del Comité de Desarme, U.N. doc. A/10027/Add.1, N.Y., Naciones Unidas, 1976, p. 50. Ibid., p. 50. Ibid., pp. 18 and 34. Ibid., p. 31. And, in this respect, a parallel was suggested with demilitarized zones foreseen in humanitarian norms of the law of armed conflicts; ibid., p. 31. A. Chayes and D. Shelton, “Commentary”, in Commitment and Compliance (ed. D. Shelton), Oxford, University Press, 2000, pp. 522-523. – Although those treaties have contributed to disarmament, but have not escaped the criticism of being discriminatory, in pursuance of their goals.

Basic Considerations of Humanity in Relation to Disarmament

faithful compliance with international treaties on the basis of the equilibrium of rights and duties between States Parties.57 Other treaties, in turn, have gone further, in properly purporting to abolish given categories of weaponry: it is the case, e.g., of the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, and of the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.58 The preamble of the 1993 Convention, besides invoking the principles of International Law and of the U.N. Charter, states that the complete banning of the use of chemical weapons is for the sake and benefit of all humankind. Two decades earlier, in the same line of thinking, the preamble of the 1972 Convention expressed likewise the determination to exclude completely the use of bacteriological (biological) weapons, for the sake of all mankind, as their use “would be repugnant to the conscience of mankind”.59 The preamble further asserted the determination of the States Parties to the 1972 Convention to achieve general and complete disarmament, “including the prohibition and elimination of all types of weapons of mass destruction” (among which the bacteriological [biological] weapons).60 The fact that there have been advances in arms control and reduction in recent years does not mean that disarmament has ceased to be a priority goal. The U.N. General Assembly adopted the CTBT on 10 September 1996.61 Ever since its adoption, the U.N. General Assembly has been attentive to foster the entry into force of the CTBT; a Conference convened to that end in November 2001 counted on the participation of more than one hundred States.62 Periodic Conferences have been held, aiming at the entry into force of the CTBT, to be en57

58

59 60 61

62

S. Sur, “Vérification en matière de désarmement”, 273 RCADI (1998) pp. 96-102. On the nature of disarmament treaties, cf., e.g., G. Lysén, “The Adequacy of the Law of Treaties to Arms Control Agreements”, in Avoidance and Settlement of Arms Control Disputes – Arms Control and Disarmament Law (ed. J. Dahlitz), vol. II, N.Y./Geneva, U.N., 1994, pp. 123-147. On the legislative history and the operation of the mechanism of implementation of the 1993 Convention, in force since 1997, cf., e.g., [Various Authors,] The Chemical Weapons Convention: Implementation, Challenges and Opportunities (eds. R. Thakur and E. Haru), Tokyo, U.N. Univ. Press, 2006, pp. 1-184. Last considerandum of the preamble. First considerandum of the preamble. Which is to enter into force 180 days after 44 States deposit their instruments of ratification. Cf. Preparatory Commission for the CTBT Organization, Advancing the Entry into Force of the Comprehensive Nuclear-Test-Ban Treaty, Vienna, CTBTO, 2001, pp. 1-14. E. Vargas Carreño, “El Futuro de la No Proliferación Nuclear con Especial Énfasis en América Latina”, in Seminario Regional sobre el Protocolo Adicional de Salvaguardias Nucleares (Lima/Peru, 04-07.12.2001), Lima, [OPANAL], 2001, pp. 5-6 (restricted circulation).

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dowed with a comprehensive verification (monitoring and inspections) system. The CTBT is, moreover, meant to be a cornerstone of the over-all disarmament regime,63 together with the NPT; this latter, on its part, has, in its application in recent years, counted on Review Conferences (such as those of 1995, 2000 and 2005); as the results have not been entirely satisfactory to all, attention has been turned also to the much-awaited entry into force of the CTBT.64 In the post-cold war period, the U.N. Conference on Disarmament65 has endeavoured to redefine its role, still reckoning that complete disarmament remains a continuing necessity of humankind. The Conference contributed decisively to the successful conclusion of the 1993 Convention against Chemical Weapons as well as of the CTBT in 1996. Yet, it has to endeavour to maintain its relevance, as the risks to humankind entailed by weapons of mass destruction remain, the dangers of arms trade likewise persist, and the need to put a definitive end to nuclear tests is still felt; the ultimate aim of the international community cannot be other than the “total elimination” of all weapons of mass destruction, including nuclear weapons.66 In the early nineties, at the beginning of the post-cold war period, the NPT counted on the accession of 189 States, and in its Review Conference of 1995 its duration was prorrogated indefinitely and unconditionally; on the whole, in the domain of disarmament and arms limitation, there remained in force 11 multilateral treaties at global level,67 14 multilateral agreements at regional level, and 16 bilateral agreements between the United States and the Russian Federation (the former USSR).68 In addition to the indefinite extension of the NPT achieved in 1995, the Review Conference of 2000 attained further commitments in the 63

64

65 66 67

68

For detailed accounts of its negotiating history, cf. J. Ramaker, J. Mackby, P.D. Marshall and R. Geil, The Final Test – A History of the Comprehensive Nuclear-Test-Ban Treaty Negotiations, Vienna, PrepCom CTBT Secr., 2003, pp. 1-265; K.A. Hansen, The Comprehensive Nuclear-Test-Ban Treaty – An Insider’s Perspective, Stanford, Univ. Press, 2006, pp. 1-86. H. Blix, Why Nuclear Disarmament Matters, Cambridge/Mass., MIT Press, 2008, pp. 5-7, 18, 46-47, 63-65 and 93; G. Perkovich and J.M. Acton, Abolishing Nuclear Weapons, London, IISS (Adelphi Paper n. 396), 2008, pp. 8, 69, 109, 111 and 113. Originally set up by the I Special Session on Disarmament in 1978 as the single multilateral forum of the international community for negotiating disarmament. B. Boutros-Ghali, Nouvelles dimensions..., op. cit. infra n. (69), p. 14, and cf. pp. 3-4, 6, 8, 12-13 and 16-17. Among which the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof, and the 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. Among which the 1972 Treaty on the Limitation of the Systems of Anti-Ballistic Missiles (the ABM Treaty), the Agreements reached pursuant to the Strategic Arms Limitation Talks (SALT-I and II, 1972 and 1977, respectively); for an account of the negotiation of these latter, cf., e.g., M.-F. Furet, op. cit. supra n. (10), pp. 203-226; and cf. [Various Authors,] Regional Colloquium on Disarmament and Arms Control

Basic Considerations of Humanity in Relation to Disarmament

implementation of the Treaty (Article VI). Yet, there remains a long way to go in the present domain (e.g., the prevention of the acquisition of nuclear weapons by private groups). In a report on the matter, a former U.N. Secretary-General, calling for a “concerted effort” towards complete disarmament, rightly pondered that “Dans le monde d’aujourd’hui, les nations ne peuvent plus se permettre de résoudre les problèmes par la force. (...) Le désarmement est l’un des moyens les plus importants de réduire la violence dans les relations entre États”.69

This still remains a difficult goal to be achieved. It remains a challenge to the international community, affecting humankind as a whole. There is nowadays, at least, a widespread conscientization of the pressing need to keep on struggling to achieve complete disarmament. The arms race and the multiplication of the arsenals of weapons of mass destruction were promptly denounced – it may be recalled nowadays – by some of the great thinkers of the XXth century (such as Karl Jaspers and Bertrand Russell, among others) as a formidable challenge to the future of humankind as a whole and to its survival; their warnings70 remain as valid, penetrating and cogent today as they were when formulated half a century ago. After all, “Le péril ne vient pas de l’environnement (...), mais de l’homme lui-même. (...) Il faut que nous nous rendions compte que la haine, (...) la création d’engins de destruction, la crainte du mal que nous pouvons nous faire mutuellement, le risque quotidien et permanent de voir la fin de tout ce que l’homme a réalisé, sont le produit de la folie humaine. (...) C’est dans nos coeurs que réside le mal, c’est de nos coeurs qu’il doit être extirpé”.71

V.

The Illegality of Nuclear Weapons

On the occasion of the centennial celebration (1999) of the I Hague Peace Conference, it was pondered that the threat or use of nuclear weapons

69

70

71

(New Delhi, February 1978), Bombay/Calcutta, International Peace Academy, 1978, pp. 42-56. B. Boutros-Ghali, Nouvelles dimensions de la réglementation des armements et du désarmement dans la période de l’après-guerre froide – Rapport du Secrétaire Général, N.Y., Nations Unies, 1993, pp. 21-22. K. Jaspers, Die Atombombe und die Zukunft des Menschen, München, R. Piper & Co. Verlag, 1958, pp. 17-501; B. Russell, L’homme survivra-t-il?, Paris, Éd. J. Didier, 1963, pp. 7-189. B. Russell, op. cit. supra n. (70), pp. 105 and 162-163.

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Chapter XVII “is protested both on the ground that their effects allegedly cannot be limited to legitimate military targets and that they are thus by nature indiscriminate, and on the ground of excessive cruelty (heat and radiation)”.72

The opinio juris communis as to the prohibition of nuclear weapons, and of all weapons of mass destruction, has gradually been formed.73 Yet, despite the clarity of the formidable threat that nuclear weapons represent, their formal and express prohibition by conventional international law has most regrettably remained permeated by ambiguities,74 due to resistances on the part of the socalled “realists” of Realpolitik, always at the service of power rather than Law. On two occasions attempts were made, by means of contentious cases, to obtain a pronouncement of the International Court of Justice [ICJ], – in the Nuclear Tests (1974 and 1995),75 – and on both occasions the ICJ assumed a rather evasive posture, avoiding to pronounce clearly on the substance of a matter pertaining to the very survival of humankind. One aspect of those contentious proceedings may be here briefly singled out, given its significance in historical perspective. It should not pass unnoticed that, in the first Nuclear Tests case (Australia and New Zealand versus France), one of the applicant States contended, inter alia, that the nuclear testing undertaken by the French government in the South Pacific region violated not only the right of New Zealand that no radioactive material enter its territory, air space and territorial waters and those of other Pacific territories but also

72

73

74

75

F. Kalshoven, “Introduction”, in UNITAR, The Centennial of the First International Peace Conference – Reports and Conclusions (ed. F. Kalshoven), The Hague, Kluwer, 2000, p. 52. Cf., e.g., G.E. do Nascimento e Silva, “A Proliferação Nuclear e o Direito Internacional”, in Pensamiento Jurídico y Sociedad Internacional – Libro-Homenaje al Prof. A. Truyol y Serra, vol. II, Madrid, Universidad Complutense, 1986, pp. 877-886; C.A. Dunshee de Abranches, Proscrição das Armas Nucleares, Rio de Janeiro, Livr. Freitas Bastos, 1964, pp. 114-179. For example, in preparing the Draft Code of Offences against the Peace and Security of Mankind (first version), the U.N. International Law Commission considered, in 1954, the inclusion of nuclear weapons in the reformulation of a list of weapons to be restricted or limited; the polemics generated rendered it impossible to the Commission to determine whether the use of nuclear weapons constituted or not a crime against the peace and security of mankind; in the end, the Commission, following a minimalist approach, excluded from the relation of international crimes the use of nuclear weapons. J.S. Morton, The International Law Commission of the United Nations, Columbia/South Carolina, University of South Carolina Press, 2000, pp. 46 and 51. Cf. ICJ Reports (1974) pp. 63-455, and criticisms in: P. Lellouche, “The Nuclear Tests Cases: Judicial Silence versus Atomic Blasts”, 16 Harvard International Law Journal (1975) pp. 614-637; and cf. ICJ Reports (1995) pp. 4-23, and the position of three dissenting Judges in ibid., pp. 317-421.

Basic Considerations of Humanity in Relation to Disarmament “the rights of all members of the international community, including New Zealand, that no nuclear tests that give rise to radioactive fall-out be conducted”.76

Thus, over three decades ago, the perspective of the application by New Zealand (of 1973) went clearly – and correctly so – beyond the purely inter-State dimension, as the problem at issue pertained to the international community as a whole. The outcome of the case, however, was quite disappointing: even though the ICJ issued orders of interim measures of protection in the case in June 1973 (requiring France to cease testing), subsequently, in its judgments of 1974,77 in view of the announcement of France’s voluntary discontinuance of its atmospheric tests, the ICJ found that the claims of Australia and New Zealand no longer had “any object” and it was therefore not called upon to give a decision thereon.78 The dissenting Judges in the case rightly pointed out that the legal dispute between the parties, far from having ceased, still persisted, since what Australia and New Zealand sought was a declaratory judgment of the ICJ stating that atmospheric nuclear tests were contrary to International Law.79 The reticent position of the ICJ in that case was even more regrettable if one recalls that the applicants, in referring to the “psychological injury” caused to the peoples of the South Pacific region through their “anxiety as to the possible effects of radio-active fall-out on the well-being of themselves and their descendants”, as a result of the atmospheric nuclear tests, ironically invoked the notion of erga omnes obligations as propounded by the ICJ itself in its landmark obiter dicta in the Barcelona Traction case only four years earlier.80 As the ICJ reserved itself the right, in certain circumstances, to reopen the 1974 case, it did so two decades later, upon an application instituted by New Zealand versus France. But in 76 77 78 79

80

ICJ, Application Instituting Proceedings (of 09.05.1973), Nuclear Tests case (New Zealand versus France), pp. 8 and 15-16, cf. pp. 4-16. For a critical parallel between the 1973 orders and the 1974 judgments, cf. P. Lellouche, op. cit. supra n. (75), pp. 615-627 and 635. ICJ Reports (1974) pp. 272 and 478, respectively. ICJ, Nuclear Tests case, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock, ICJ Reports (1974) pp. 319-322, 367-369, 496, 500, 502504, 514 and 520-521; and cf. Dissenting Opinion of Judge De Castro, ibid., pp. 386390; and Dissenting Opinion of Judge Barwick, ibid., pp. 392-394, 404-405, 436-437 and 525-528. – It was further pointed out that the ICJ should thus have dwelt upon the question of the existence of rules of customary international law prohibiting States from causing, through atmospheric nuclear tests, the deposit of radio-active fall-out on the territory of other States; ICJ, Nuclear Tests case, Separate Opinion of Judge Petrén, ICJ Reports (1974) pp. 303-306 and 488-489. – It was the existence or otherwise of such customary rules that had to be determined, – a question which unfortunately was left largely unanswered by the Court in that case. As recalled in the Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock, ICJ Reports (1974) pp. 362, 368-369 and 520-521; as well as in the Dissenting Opinion of Judge Barwick, ibid., pp. 436-437.

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its Order of 22.09.1995, the ICJ dismissed the complaint, as it did not fit into the caveat of the 1974 Judgment, which concerned atmospheric nuclear tests; here, the complaint was directed against the underground nuclear tests conducted by France since 1974.81 Be that as it may, having lost the historical opportunities, in both contentious cases, to clarify the key point at issue (nuclear tests), the Court was, more recently, in the mid-nineties, seized, in the exercise of its advisory function, of a directly related issue, that of nuclear weapons. The U.N. General Assembly and the World Health Organization (WHO) opened those proceedings before the Court, by means of requests for an Advisory Opinion: such requests no longer referred to nuclear tests (as in the aforementioned contentious cases), but rather to the question of the threat or use of nuclear weapons in the light of international law, for the determination of their illegality or otherwise. The Court, in the Advisory Opinion of 08.07.199682 on the Legality of the Threat or Use of Nuclear Weapons, affirmed that neither customary international law nor conventional international law authorizes specifically the threat or use of nuclear weapons; neither one, nor the other, contains a complete and universal prohibition of the threat or use of nuclear weapons as such; it added that such threat or use which is contrary to Article 2(4) of the U.N. Charter and does not fulfil the requisites of its Article 51, is illicit; moreover, the conduct in armed conflicts should be compatible with the norms applicable in them, including those of International Humanitarian Law; it also affirmed the obligation to undertake in good will negotiations conducive to nuclear disarmament in all its aspects.83 In the most controversial part of its Opinion (resolutory point 2E), the Hague Court stated that the threat or use of nuclear weapons “would be generally contrary to the rules of International Law applicable in armed conflict”, mainly those of Humanitarian Law; however, the Court added that at the present stage of International Law “it cannot conclude definitively if the threat or use of nuclear weapons would be licit or illicit in an extreme circumstance of self defence in which the very survival of a State would be at stake”.84 With seven dissenting opinions, this point was adopted with the casting vote of the President of the

81

82

83 84

Cf. ICJ Reports (1995) pp. 288-308; once again, there were Dissenting Opinions (cf. ibid., pp. 317-421). – Furthermore, petitions against the French nuclear tests in the atoll of Mururoa and in that of Fangataufa, in French Polinesia, were lodged with the European Commission of Human Rights (EComHR); cf. EComHR, case N.N. Tauira and 18 Others versus France (appl. n. 28204/95), decision of 04.12.1995, 83-A Decisions and Reports (1995) p. 130. In response only to one of the petitions, that of the U.N. General Assembly, as the ICJ understood that the WHO was not competent to deal with the question at issue, – despite the purposes of that U.N. specialized agency and the devastating effects of nuclear weapons over human health and the environment... ICJ Reports (1996) pp. 226-267. Ibid., p. 266.

Basic Considerations of Humanity in Relation to Disarmament

Court, who, in his Separate Opinion, pointed out that the Court limited itself to record the existence of a legal uncertainty.85 In fact, it did not go further than that, and the Opinion was permeated with evasive ambiguities, not avoiding the shadow of the non liquet, in relation to a question which affects, more than each State individually, the whole of humankind. The Advisory Opinion made abstraction of the implications of the basic distinction between the jus ad bellum and the jus in bello, and of the fact that International Humanitarian Law applies likewise in case of self defence, safeguarding always the principle of proportionality (which nuclear weapons simply ignore).86 The Opinion, on the one hand, recognized that nuclear weapons cause indiscriminate and durable suffering, and have an enormous destructive effect,87 and that the principles of Humanitarian Law (encompassing customary law) are “intransgressible”;88 nevertheless, these considerations did not appear sufficient to the Court to discard the use of such weapons also in self defence, thus eluding to tell what the Law is89 in all circumstances. The Opinion minimized90 the resolutions of the United Nations General Assembly which affirm the illegality of nuclear weapons91 and condemn their use as a violation of the U.N. Charter and as a crime against humanity. Instead, it took note of the “policy of deterrence”, which led it to find that the members of the international community continued “profoundly divided” on the matter, what rendered impossible to it to determine the existence of an opinio juris in this respect.92 It was not incumbent upon the Court to resort to the “policy of deterrence”, devoid of any legal value for the determination of the formation of the rules of customary law prohibiting the use of nuclear weapons; as rightly regretted, the Court did not help at all in the struggle for non-proliferation and

85 86

87 88 89

90 91 92

Cf. ibid., pp. 268-274, esp. p. 270. L. Doswald-Beck, “International Humanitarian Law and the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons”, 316 International Review of the Red Cross (1997) pp. 35-55; H. Fujita, “The Advisory Opinion of the International Court of Justice on the Legality of Nuclear Weapons”, in ibid., pp. 56-64. Paragraph 35. Paragraph 79. E. David, “The Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons”, 316 International Review of the Red Cross (1997) pp. 2134. Paragraph 68. Notably resolution 1653(XVI) of 24.11.1961. Paragraph 67.

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prohibition of nuclear weapons,93 and, in relying on “deterrence”94 – a division in its view “profound” – between an extremely reduced group of nuclear powers on the one hand, and the vast majority of the countries of the world on the other, it ended up by favouring the former, by means of an inadmissible non liquet.95 The Court, thus, lost yet another opportunity to consolidate the opinio juris communis in condemnation of nuclear weapons. It considered the survival of a hypothetical State, rather than that of humankind formed by human beings of flesh and bone (and those still to come). It erroneously minimized the whole doctrinal construction on the right to life in the ambit of the International Law of Human Rights, and seemed to have forgotten that the survival of a State cannot have primacy over the right to survival of humankind as a whole.96 Without humankind there is no State whatsoever; one cannot simply have in mind the States, apparently forgetting humanity. The position of the Court leaves it quite clear that a matter which concerns the whole of humankind, such as that of the threat or use of nuclear weapons, can no longer be appropriately dealt with from a purely inter-State outlook of international law, which is wholly surpassed in our days. The Court took note of the treaties which nowadays prohibit, e.g., chemical and bacteriological (biological) weapons,97 and weapons which cause excessive

93

94 95

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W.M. Reisman, “The Political Consequences of the General Assembly Advisory Opinion”, in International Law, the International Court of Justice, and Nuclear Weapons (eds. L. Boisson de Chazournes and Ph. Sands), Cambridge, University Press, 1999, pp. 473-487. The Court did not solve the issue raised before it by the U.N. General Assembly, leaving the “debate open”; S. Sur, “Les armes nucléaires au miroir du Droit”, in Le droit international des armes nucléaires, op. cit. supra n. (30), pp. 9-25, esp. pp. 12, 16 and 24. Paragraph 73. L. Condorelli, “Nuclear Weapons: A Weighty Matter for the International Court of Justice – Jura Novit Curia?”, 316 International Review of the Red Cross (1997) pp. 920. The Opinion is not conclusive and provides no guidance; J.-P. Queneudec, “E.T. à la C.I.J.: méditations d’un extra-terrestre sur deux avis consultatifs”, 100 Revue générale de Droit international public (1996) 907-914, esp. p. 912. The language utilized in the Opinion is ambiguous, lending itself to most distinct interpretations (including that whereby in self defence military necessity could have primacy over Humanitarian Law), dangerous for the prevalence of Law; M.-P. Lanfranchi and Th. Christakis, La licéité de l’emploi d’armes nucléaires devant la Cour Internationale de Justice, Aix-Marseille/Paris, Université d’Aix-Marseille III/Economica, 1997, pp. 111, 121 and 123; S. Mahmoudi, “The International Court of Justice and Nuclear Weapons”, 66 Nordic Journal of International Law (1997) pp. 77-100. Cf. M. Mohr, “Advisory Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons under International Law – A Few Thoughts on Its Strengths and Weaknesses”, 316 International Review of the Red Cross (1997) pp. 92-102. The Geneva Protocol of 1925, and the Conventions of 1972 and 1993 against Biological and Chemical Weapons, respectively.

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damages or have indiscriminate effects.98 But the fact that there does not yet exist a similar general treaty, of specific prohibition of nuclear weapons, does not mean that these latter are permissible (in certain circumstances, even in self defence).99 In my understanding, it cannot be sustained, in a matter which concerns the future of humankind, that what is not expressly prohibited is thereby permitted (a classic postulate of positivism). This posture would amount to the traditional – and surpassed – attitude of the laisser-faire, laisser-passer, proper of an international legal order fragmented by State voluntarist subjectivism, which in the history of Law has invariably favoured the most powerful ones. Ubi societas, ibi jus... Nowadays, at this beginning of the XXIst century, in an international legal order in which one seeks to affirm common superior values, amidst considerations of international ordre public, as in the domain of the International Law of Human Rights, it is precisely the reverse logics which ought to prevail: that which is not permitted, is prohibited.100 Even if there was a “gap” in relation to nuclear weapons, – which there is not (cf. infra), – it would have been possible to fi ll it by resorting to a general principle of law. The Court surprisingly resorted to that of self-defence of a hypothetical individual State, instead of having developed the rationale of the Martens clause, the purpose of which is precisely that of filling gaps101 in the light of the “laws of humanity” and the “dictates of public conscience” (terms of the wise premonition of Friedrich von Martens,102 formulated in the I Hague Peace Conference of 1899).103 It cannot be denied that nuclear weapons are intrinsically indiscriminate, incontrolable, that they cause severe and durable damage and in a wide scale, that 98

99

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Paragraph 76; the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects. The Roman-privatist influence – with its emphasis on the autonomy of the will – had harmful consequences in traditional International Law; in the public domain, quite on the contrary, conscience stands above the will, also in the determination of competences. A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, p. 1099. J. Salmon, “Le problème des lacunes à la lumière de l’avis ‘Licéité de la menace ou de l’emploi d’armes nucléaires’ rendu le 8 juillet 1996 par la Cour Internationale de Justice”, in Mélanges en l’honneur de N. Valticos – Droit et justice (ed. R.-J. Dupuy), Paris, Pédone, 1999, pp. 197-214, esp. pp. 208-209; R. Ticehurst, “The Martens Clause and the Laws of Armed Conflict”, 317 International Review of the Red Cross (1997) pp. 125-134, esp. pp. 133-134; A. Azar, Les opinions des juges dans l’avis consultatif sur la licéité de la menace ou de l’emploi d’armes nucléaires, Bruxelles, Bruylant, 1998, p. 61. Which was intended to extend juridically the protection to the civilians and combatants in all situations, even if not contemplated by the conventional norms. It is not merely casual that the States militarily powerful have constantly opposed themselves to the influence of natural law in the norms applicable to armed conflict,

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they are prohibited by International Humanitarian Law (Articles 35 and 48 of the Additional Protocol I of 1977 to the 1949 Geneva Conventions on International Humanitarian Law), and are inhuman as weapons of mass destruction.104 States are bound to respect, and ensure respect for International Humanitarian Law in any circumstances; “intransgressible” principles of Humanitarian Law (encompassing customary law) belong to the domain of jus cogens, wherein no derogation is permitted, in any circumstances.105 As to the aforementioned Advisory Opinion of 1996 of the ICJ, the relevance of the Martens clause in the present context was properly emphasized by two dissenting Judges,106 while another dissenting Judge singled out the jus cogens character of International Humanitarian Law in prohibition of nuclear weapons.107 The well-known resolution 1653 of 1961, of the U.N. General Assembly, containing the Declaration of the Prohibition of the Use of Nuclear and Thermonuclear Weapons, considered the use of such weapons not only in violation of the U.N. Charter, of International Law and of the “laws of humanity”, but also a “crime against humanity and civilization”. While various States endorsed the resolution as a result of the “indiscriminate suffering” caused by such weapons, others (mainly the nuclear powers) attempted to minimize their importance for not having been adopted by an overwhelming majority:108 55 votes to 20, with 26 abstentions.109

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109

even if they base themselves on natural law to judge war criminals (as in Nuremberg). R. Ticehurst, op. cit. supra n. (101), pp. 133-134. J. Burroughs, The (Il)legality of Threat or Use of Nuclear Weapons, Münster, Lit Verlag/International Association of Lawyers against Nuclear Weapons, 1997, p. 84. – For the inference of the prohibition of nuclear weapons from the express prohibition, by Article 35 of Additional Protocol I (of 1977) to the 1949 Geneva Conventions on International Humanitarian Law, of weapons that cause “superfluous damage” or “unnecessary suffering” (paragraph 2), and which cause or intend to cause “extensive, durable and severe damage to the natural environment” (paragraph 3), cf., e.g., J.A. Pastor Ridruejo, Curso de Derecho Internacional Público y Organizaciones Internacionales, 6th. ed., Madrid, Tecnos, 1996, pp. 680 and 683-684; and cf. comments in Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (eds. Y. Sandoz, C. Swinarski and B. Zimmermann), Geneva, ICRC/Nijhoff, 1987, pp. 389-420 and 597-600. V. Coussirat-Coustère, “La licéité des armes nucléaires en question”, in Le droit international des armes nucléaires, op. cit. supra n. (30), p. 109. Cf. the Dissenting Opinions of Judge Shahabuddeen (pp. 386-387, 406, 408, 410-411 and 425, and of Judge Weeramantry (pp. 477-478, 481, 483, 486-487, 490-491, 494, 508 and 553-554). Dissenting Opinion of Judge Koroma, pp. 573-574 and 578. A. Cassese, “The Prohibition of Indiscriminate Means of Warfare”, in Declarations on Principles – A Quest for Universal Peace (eds. R.J. Akkerman et alii), Leyden, Sijthoff, 1977, pp. 176-182. With the negative votes coming from NATO member States and other allies of the United States.

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However, the several subsequent resolutions which reaffirmed the resolution 1653 referred to, were adopted by increasingly expressive majorities, such as resolution 46/37D of 1991, which called upon the elaboration of a convention prohibiting the use of nuclear weapons (by 122 votes to 16, with 22 abstentions). The non-nuclear States, which form the overwhelming majority of members of the international community, came to sustain that the series of resolutions in condemnation of the use of nuclear weapons as illegal under general international law, together with the fact the 1968 Treaty on Non-Proliferation of Nuclear Weapons (NPT) is in force, and the establishment of regional nuclear-weaponfree zones (cf. supra), among other developments, evidenced the emergence of a prohibition of customary law of the use of such weapons.110 Still in the ambit of the United Nations, the Human Rights Committee (under the Covenant on Civil and Political Rights) has affirmed that “the production, the tests, the possession, the proliferation and the use of nuclear weapons” constitute “crimes against humanity”.111 The Human Rights Committee, stressing that the right to life is a fundamental right which does not admit any derogation not even in time of public emergency, related the current proliferation of weapons of mass destruction to “the supreme duty of States to prevent wars”. The Committee characterized that danger as one of the “greatest threats to the right to life which confronts mankind today”, which created “a climate of suspicion and fear between States, which is in itself antagonist to the promotion of universal respect for and observance of human rights” in accordance with the U.N. Charter and the U.N. Covenants on Human Rights.112 The Committee, accordingly, “in the interest of mankind”, called upon all States, whether Parties to the Covenant or not, “to take urgent steps, unilaterally and by agreement, to rid the world of this menace”.113 It may be recalled that, already in 1969, all weapons of mass destruction were condemned by the Institut de Droit International. In the debates of its Edinburg session on the matter, emphasis was placed on the need to respect the principle of distinction (between military and non-military objectives), and the terrifying effects of the use of nuclear weapons were pointed out, – the example of the atomic bombing of Hiroshima and Nagasaki having been expressly recalled.114 In its resolution of September 1969 on the matter, the Institut began by 110 J. Burroughs, The (Il)legality of Threat or Use of Nuclear Weapons, op. cit. supra n. (104), p. 27. 111 ‘General Comment’ n. 14 (of 1984) of the Human Rights Committee, text in: United Nations, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, doc. HRI/GEN/1/Rev.3, of 15.08.1997, p. 19, par. 6. 112 U.N. Report of the Human Rights Committee, G.A.O.R. – 40th Session (1985), suppl. n. 40 (A/40/40), p. 162. 113 Ibid., p. 162. 114 Cf. Annuaire de l’Institut de Droit International – Session d’Edimbourg (1969)-II, pp. 49-50, 53, 55, 60, 62-63, 66, 88-90 and 99.

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restating, in the preamble, the prohibition of recourse to force in International Law, and the duty of protection of civilian populations in any armed conflict; it further recalled the general principles of International Law, customary rules and conventions, – supported by international case-law and practice, – which “clearly restrict” the extent to which the parties engaged in a conflict may harm the adversary, and warned against “the consequences which the indiscriminate conduct of hostilities and particularly the use of nuclear, chemical and bacteriological weapons, may involve for civilian populations and for mankind as a whole”.115

In its operative part, the aforementioned resolution of the Institut stressed the importance of the principle of distinction (between military and non-military objectives) as a “fundamental principle of international law” and the pressing need to protect civilian populations in armed conflicts,116 and added, in paragraphs 4 and 7, that: “Existing International Law prohibits all armed attacks on the civilian population as such, as well as on non-military objects, notably dwellings or other buildings sheltering the civilian population, so long as these are not used for military purposes (...). Existing International Law prohibits the use of all weapons which, by their nature, affect indiscriminately both military objectives and non-military objects, or both armed forces and civilian populations. In particular, it prohibits the use of weapons the destructive effect of which is so great that it cannot be limited to specific military objectives or is otherwise uncontrollable (self-generating weapons), as well as of ‘blind’ weapons”.117

The absence of conventional norms stating that nuclear weapons are prohibited in all circumstances does not mean that they would be allowed in a given circumstance. The Martens clause safeguards the integrity of Law (against the permissiveness of a non liquet) by invoking the “laws of humanity” and the “dictates of the public conscience”. Thus, that absence of a conventional norm is not conclusive,118 and is by no means the end of the matter, – bearing in mind also customary International Law. The evolution of International Law119 points, in our days, in my understanding, towards the construction of the International Law for 115 Text in: Annuaire de l’Institut de Droit International – Session d’Edimbourg (1969)II, pp. 375-376. 116 Paragraphs 1-3, 5-6 and 8, in ibid., pp. 376-377. 117 Text in ibid., pp. 376-377. 118 S. Glaser, op. cit. supra n. (6), pp. 15, 24-25 and 41. 119 If, in other epochs, the ICJ had likewise limited itself to verify a situation of “legal uncertainty” (which, anyway, does not apply in the present context), most likely it would not have issued its célèbres Advisory Opinions on Reparations for Injuries (1949), on Reservations to the Convention on the Prevention and Punishment of the

Basic Considerations of Humanity in Relation to Disarmament

humankind and, within the framework of this latter, to the outlawing by general International Law of all weapons of mass destruction. If weapons less destructive than the nuclear ones have already been expressly prohibited by their names, it would be nonsensical to argue that, those which have not, by positive conventional international law, and which, like nuclear weapons, have long-lasting devastating effects, threatening the existence of the international community as a whole, would not be illicit in certain circumstances.120 A single use of nuclear weapons, irrespective of the circumstances, may today ultimately mean the end of humankind itself.121 The criminalization of the threat or use of such weapons is even more forceful than that – already established by conventional International Law – of less destructive weapons. This is what ineluctably ensues from an international legal order the ultimate source of which is the universal juridical conscience. From the outlook of the emerging International Law for humankind, the conclusion could not be otherwise. Had the ICJ made decidedly recourse in great depth to the Martens clause, it would not have lost itself in a sterile exercise, proper of a legal positivism déjà vu, of a hopeless search of conventional norms, frustrated by the finding of what it understood to be a lack of these latter as to nuclear weapons specifically, for the purposes of its analysis. The existing arsenals of nuclear weapons, and of other weapons of mass destruction, are to be characterized by what they really are: a scorn and the ultimate insult to human reason, and an aff ront to the juridical conscience of humankind. VI. Final Observations In the course of the proceedings (written and oral phases) before the ICJ (19941995) pertaining to the aforementioned requests for an Advisory Opinion (of 1996) on the question of the legality (or rather illegality) of nuclear weapons (supra), Japan, the one country whose population has been victimized by the use of those weapons, consistently argued that, because of “their immense power to cause destruction”, the death of, and considerable injury to human beings, “the use of nuclear weapons is clearly contrary to the spirit of humanity that gives International Law its philosophical foundation”.122 Crime of Genocide (1951), and on Namibia (1971), which have so much contributed to the evolution of International Law. 120 Ibid., pp. 53 and 21, and cf. p. 18. 121 Nagendra Singh, Nuclear Weapons and International Law, London, Stevens, 1959, p. 242. 122 Government of Japan, Written Statement of the Government of Japan [on the Request for an Advisory Opinion to the ICJ by the World Health Organization], 10.06.1994, p. 2 (internal circulation); Government of Japan, Written Statement of the Government of Japan [on the Request for an Advisory Opinion to the ICJ by the United Nations General Assembly], 14.06.1995, p. 1 (internal circulation); Government of

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In its oral statement before the ICJ in the public sitting of 07.11.1995, Japan further asserted that “with their devastating power, nuclear weapons can in an instant take a tremendous toll in human life and deprive people of their local community structures; they can also cause the victims who survive an attack itself indescribable and lasting suffering due to atomic radiation and other lingering effects”.123 All this has been duly demonstrated in documents collected by the prefectures of the cities of Hiroshima and Nagasaki,124 which coincide with the concerns of the international community as a whole nowadays. In the aforementioned pleadings (of 1995) before the ICJ, other States were as clear and uncompromising as Japan in their arguments. To recall but a couple of examples, Australia invoked the Martens clause, and argued that the principles of humanity and the dictates of public conscience are not static, an permeate the whole of International Law in its evolution, calling for the prohibition of nuclear weapons for all States. Australia further recalled the final preambular paragraph of the Convention against Biological Weapons, pondering that its warning that those weapons are “repugnant to the conscience of mankind” applies likewise to nuclear weapons, and that the use of them all would be contrary to general principles of humanity.125 On its turn, New Zealand stated that the rationale of the 1968 Nuclear NonProliferation Treaty is that “nuclear weapons are too dangerous for humanity and must be eliminated”.126 And Egypt asserted that the threat or use of nuclear weapons as weapons of mass destruction is prohibited by International Humanitarian Law; the Additional Protocol I of 1977 to the 1949 Geneva Conventions establishes the prohibition of unnecessary suffering (Article 35) and imposes the differentiation between civilian population and military personnel (Article 48). Thus, by their effects, nuclear weapons, being weapons of indiscriminate mass destruction, infringe International Humanitarian Law, which contain precepts of jus cogens, as recalled by successive resolutions of the U.N. General Assembly; those precepts are the opinio juris of the international community.127

123 124

125 126 127

Japan, The Oral Statement by the Delegation of Japan in the Public Sitting Held at the Peace Palace, The Hague, 07.11.1995, p. 1 (internal circulation). Government of Japan, The Oral Statement..., op. cit. supra n. (122), pp. 1-2 (internal circulation). Cf. accounts: Committee of Japanese Citizens, Days to Remember – An Account of the Bombings of Hiroshima and Nagasaki, Hiroshima/Nagasaki, Hiroshima-Nagasaki Publishing Committee, 1981, pp. 1-37; Hiroshima Peace Memorial Museum (HPMM), Atomic Bomb Tragedy – The Spirit of Hiroshima, Hiroshima, HPMM, pp. 1-128; Kenzaburô Ôé, Notes de Hiroshima, Paris, Gallimard, 1996, pp. 17-230; T. Ogura, Letters from the End of the World – A Firsthand Account of the Bombing of Hiroshima, Tokyo, Kodansha International, 2001 [reed.], pp. 15-192; N. Shohno, The Legacy of Hiroshima – Its Past, Our Future, Tokyo, Kösei Publ. Co., 1987 [reed.], pp. 13-136. ICJ, loc. cit., pleadings of Australia (1995), pp. 45, 60 and 63, and cf. p. 68. ICJ, loc. cit., pleadings of New Zealand (1995), p. 33. ICJ, loc. cit., pleadings of Egypt (1995), pp. 37-41 and 44.

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In historical perspective, the lack of common sense of still trying to approach the challenges facing international law from an exclusively inter-State outlook is today manifest, and has in the past led to some rather awkward situations, to say the least. A pertinent illustration is afforded by the outcome of the case Shimoda and Others versus Japan. On 07 December 1963, a Japanese domestic court, the District Court of Tokyo, delivered a decision regarding claims against the Japanese State advanced by five injured survivors of the atomic bombings of Hiroshima and Nagasaki. They claimed compensation from the Japanese government for damages suffered as a result of the atomic blasts. Japan, and not the United States, was the defendant, by virtue of Article 19(a) of the Treaty of Peace following the II world war, whereby Japan waived the claims of its nationals against the United States.128 The District Court’s decision contained discussion of those bombings in the light of the laws of armed conflict and descriptions of the horrifying injuries resulting from the blasts. The plaintiffs argued that the atomic bombing was an illegal act contrary to international law (as it stood in 1945) aiming at a non-military target and causing unnecessary pain, in violation of fundamental human rights. Furthermore, the plaintiffs asserted the responsibility of the defendant State for waiver of claims for damages against the United States (in municipal law as well as in International Law)129. In its decision, the District Court began by asserting that the atomic bombing on both cities was “an illegal act of hostility as the indiscriminate aerial bombardment on undefended cities” and “contrary to the fundamental principle of the laws of war that unnecessary pain must not be given”; thus, leaving aside the Peace Treaty, Japan would theoretically have a claim for damages against the United States in International Law.130 By exercising diplomatic protection of its nationals, Japan would be asserting its own right; however, – the Court proceeded, – in principle “individuals are not the subject of rights in International Law”, and in the case the victims could not ask for redress either before the courts of Japan, or those of the United States:131 their claims under the municipal laws of Japan and of the United States had in fact been waived by Article 19 (a) of the Peace Treaty.132 The defendant State, although conceding that the atomic bombing of Hiroshima and Nagasaki was “exceedingly enormous in destructive power” and a 128 The Japanese government thereby saw itself in the ironical situation of having to argue as defendant in a case moved by Japanese nationals, victims of the atomic bombings of Hiroshima and Nagasaki. Cf. 355 Hanrei Jibo (Decisions Bulletin) p. 17, later translated into English and reported in: Toward a Theory of War Prevention (Series The Strategy of World Order), vol. I (ed. R.A. Falk and S.H. Mendlovitz), N.Y., World Law Fund, 1966, pp. 314-354. 129 Shimoda and Others versus Japan case, in op. cit. supra n. (128), pp. 316-322. 130 Ibid., pp. 339-345. 131 Under the U.S. Federal Tort Claims Act after the war. 132 Shimoda and Others versus Japan case, in op. cit. supra n. (128), pp. 347-352.

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“matter of deep regret”, the damage being the “heaviest in history”, found nevertheless that the plaintiff ’s claims were “not legal questions” but rather “abstract questions”.133 The defendant State’s reasoning, as to the waiver of claims pursuant to Article 19(a) of the Peace Treaty, was very much in the lines of an analogy with the practice of diplomatic protection: the individuals concerned could not pursue their claims directly against a foreign State at international level, as their State had exercised its right to waive any such claims by agreement with the foreign State.134 The defendant State argued that domestic courts were to recognize the conclusion of the Peace Treaty as a fait accompli.135 The District Court of Tokyo concluded that, notwithstanding the atomic bombing of Hiroshima and Nagasaki had been an illegal act in violation of international law, the plaintiffs’ claims in the cas d’espèce were “improper”, and they were therefore dismissed on the merits.136 It was certainly not purely coincidental that District Court saw it fit to deliver its decision on 07.12.1963, the anniversary of Pearl Harbour137... Even in the days of the Lotus case (1927), the view endorsed by the old Permanent Court of International Justice [PCIJ], whereby under International Law everything that was not expressly prohibited would thereby be permitted, was object of severe criticisms not only of a compelling Dissenting Opinion in the case itself138 but also on the part of expert writing of the time.139 Such conception could only have flourished in an epoch “politically secure” in global terms,140 certainly quite different from that of the last decades, in face of the recurrent threat of nuclear weapons and other weapons of mass destruction, the growing 133 Ibid., pp. 323-330. 134 Ibid., pp. 330-331. 135 Cf. ibid., pp. 331-332; the defendant State added that although “deep sympathy” was due to the victims of the atomic explosions in the war, the way of consolation for them “must be balanced with the consolation for other war victims”. 136 The costs of litigation were to be borne by the plaintiffs; ibid., pp. 352 and 314. The Court, nevertheless, expressed its “whole-hearted compassion” for the victims of the atomic blasts; cf. ibid., p. 352. 137 It is somewhat surprising that the District Court should treat the plaintiffs on the same footing as other war victims, as their claims were specifically directed against an armed attack – the atomic bombings of undefended cities – which the same Court had held to have been contrary to the laws of armed conflict. 138 Cf. Dissenting Opinion of Judge Loder, PCIJ, Lotus case (France versus Turkey), Series A, n. 10, Judgment of 07.09.1927, p. 34 (such conception was not in accordance with the “spirit of International Law”). 139 Cf. J.L. Brierly, The Basis of Obligation in International Law and Other Papers, Oxford, Clarendon Press, 1958, p. 144; H. Lauterpacht, The Function of Law in the International Community, Oxford, Clarendon Press, 1933, pp. 409-412 and 94-96; and cf., subsequently, e.g., G. Herczegh, “Sociology of International Relations and International Law”, in Questions of International Law (ed. G. Haraszti), Budapest, Progresprint, 1971, pp. 69-71 and 77. 140 Maarten Bos, “Dominant Interest in International Law”, 21 Revista Española de Derecho Internacional (1968) p. 234.

Basic Considerations of Humanity in Relation to Disarmament

vulnerability of the territorial State and indeed of the world population, and the increasing complexity in the conduction of international relations. In our days, in face of such terrifying threat, it is – as I sustained in a recent book – the logic opposite to that of the Lotus case which imposes itself: all that is not expressly permitted is surely prohibited.141 All weapons of mass destruction, including nuclear weapons, are illegal and prohibited under contemporary International Law. Furthermore, in an essay published more than two decades ago, I allowed myself to warn against the disastrous consequences – in times of peace and of war – of not recognizing the position of individuals as subjects of International Law, and of insisting to build this latter on an exclusively inter-State basis. The widespread bombings of largely undefended cities (either with weapons of mass destruction, or with conventional weapons in large scale), with thousands and thousands of helpless, innocent and silent victims in the civilian population (e.g., Hiroshima, Nagasaki, Tokyo, Coventry, Dresden, Hamburg, Guernica, to name a few, among so many others also bombarded), has been – like the issue of arms trade – simply overlooked in international legal doctrine, and has passed with impunity in International Law to date. The case of Shimoda and Others stands as a dreadful illustration of the veracity of the maxim summum jus, summa injuria, when one proceeds on the basis of an allegedly absolute submission of the human person to a degenerated international legal order built on an exclusively inter-State basis. May I thus here reiterate what I wrote in 1981, regarding the Shimoda and Others case, namely, “(...) The whole arguments in the case reflect the insufficiencies of an international legal order being conceived and erected on the basis of an exclusive inter- State system, leaving individual human beings impotent in the absence of express treaty provisions granting them procedural status at international level. Even in such a matter directly affecting fundamental human rights, the arguments were conducted in the case in the classical lines of the conceptual apparatus of the so-called law on diplomatic protection, in a further illustration of international legal reasoning still being haunted by the old Vattelian fiction”.142

In conclusion, the initiatives I have mentioned in the present chapter, of the conception of zones of peace, of the formulation of the right to peace (within the conceptual universe of the International Law of Human Rights143), and of the establishment of nuclear-weapon-free zones, added to the successive and constant 141 A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, op. cit. supra n. (100), p. 1099. 142 A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A ReAssessment, 59 Revue de droit international de sciences diplomatiques et politiques – Geneva (1981) p. 214. 143 For a projection into the future, cf. A.A. Cançado Trindade, “The Future of the International Protection of Human Rights”, in B. Boutros-Ghali Amicorum Discipulo-

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endeavours towards general and complete disarmament, disclose the existence nowadays of an opinio juris communis as to the illegality of all weapons of mass destruction, including nuclear weapons, under contemporary international law. There is no “gap” concerning nuclear weapons; given the indiscriminate, lasting and indescribable suffering they inflict, they are outlawed, as much as other weapons of mass destruction (chemical and bacteriological [biological] weapons) are. The positivist outlook purporting to challenge this prohibition of contemporary general International Law has long been surpassed. Nor can this matter be approached from a strictly inter-State outlook, without taking into account the condition of human beings as subjects of international law. All weapons of mass destruction are illegal under contemporary international law. The threat or use of such weapons is condemned in any circumstances by the universal juridical conscience, which in my view constitutes the ultimate material source of International Law, as of all Law.144 This is in keeping with the conception of the formation and evolution of International Law which I have been sustaining for many years, also in my Opinions within the Inter-American Court of Human Rights.145 And this is also in keeping with the similar conception upheld, in his Opinions within the ICJ four decades ago, by the distinguished Japanese Judge Kotaro Tanaka: that is, an International Law transcending the limitations of legal positivism,146 and thus capable of responding effectively to the needs and aspirations of the international community as a whole, and, ultimately, of all humankind.

rumque Liber – Paix, Développement, Démocratie, vol. II, Bruxelles, Bruylant, 1998, pp. 961-986. 144 Cf. chapter VI, supra. 145 A.A. Cançado Trindade, “La Humanización del Derecho Internacional y los Límites de la Razón de Estado”, 40 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais – Belo Horizonte/Brazil (2001) pp. 11-23; A.A. Cançado Trindade, “Reflexiones sobre el Desarraigo como Problema de Derechos Humanos Frente a la Conciencia Jurídica Universal”, in La Nueva Dimensión de las Necesidades de Protección del Ser Humano en el Inicio del Siglo XXI (eds. A.A. Cançado Trindade and J. Ruiz de Santiago), 3rd. ed., San José of Costa Rica, UNHCR, 2004, pp. 19-78. 146 Cf. K. Tanaka, “The Character of World Law in the International Court of Justice” [translated from Japanese into English by S. Murase], 15 Japanese Annual of International Law (1971) pp. 1-22; and cf. V. Gowlland-Debbas, “Judicial Insights into Fundamental Values and Interests of the International Community”, in The International Court of Justice: Its Future Role after Fifty Years (eds. A.S. Muller et alii), The Hague, Kluwer, 1997, pp. 344-346; and cf. Y. Saito, “Judge Tanaka, Natural Law and the Principle of Equality”, in The Living Law of Nations – Essays in Memory of A. Grahl-Madsen (eds. G. Alfredsson and P. Macalister-Smith), Kehl/Strasbourg, N.P. Engel Publ., 1996, pp. 401-402 and 405-408.

Chapter XVIII

I.

Basic Considerations of Humanity in Relation to the Law of Treaties

Introduction

It is hardly surprising that basic considerations of humanity surround latelyemerged domains of International Law, such as, e.g., those of human rights protection and of environmental protection. But the incidence of those considerations upon more traditional areas of International Law, which were in the past approached, almost invariably, from the angle of the “will” of States, is indicative of the new times, and a new mentality centred rather on the ultimate addressees of international norms, the human beings. The law of treaties affords a pertinent illustration, disclosing that it is no longer entirely conditioned by the “will” of States and that it, too, acknowledges certain superior common values that the international community as a whole deems should be preserved. Pertinent examples can be found in such areas of the law of treaties pertaining to interpretation of treaties, reservations to treaties, denunciation of treaties, and termination and suspension of the operation of treaties. II.

Considerations on the Interpretation of Treaties

1.

General Remarks

When one comes to the interpretation of treaties, one is inclined to resort at first to the general provisions enshrined in Articles 31-33 of the two Vienna Conventions on the Law of Treaties (of 1969 and 1986, respectively), and in particular to the combination under Article 31 of the elements of the ordinary meaning of the terms, the context, and the object and purpose of the treaties at issue.1 One then promptly finds that, in practice, while in traditional International Law there has 1

Cf. Maarten Bos, “Theory and Practice of Treaty Interpretation”, 27 Netherlands International Law Review (1980) pp. 3-38 and 135-170; W. Lang, “Les règles d’interprétation codifiées par la Convention de Vienne sur le Droit des Traités et les divers types de traités”, 24 Österreichische Zeitschrift für öffentliches Recht (1973) pp. 113-173; C.H. Schreuer, “The Interpretation of Treaties by International Courts”, 45 British Year Book of International Law [BYBIL] (1971) pp. 255-301; Ch. de Visscher,

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been a marked tendency to pursue a rather restrictive interpretation which gives as much precision as possible to the obligations of States Parties, in the International Law of Human Rights, somewhat distinctly, there has been a clear and special emphasis on the element of the object and purpose of the treaty, so as to ensure an effective protection (effet utile)2 of the guaranteed rights. Whilst in general International Law the elements for the interpretation of treaties evolved primarily as guidelines for the process of interpretation by States Parties themselves, human rights treaties, in their turn, have called for an interpretation of their provisions bearing in mind the essentially objective character of the obligations entered into by States Parties: such obligations aim at the protection of human rights and not at the establishment of subjective and reciprocal rights for the States Parties. Hence the special emphasis on the element of the object and purpose of human rights treaties, of which the case-law of the two regional – the European [ECtHR] and the Inter-American [IACtHR] – Courts of Human Rights gives eloquent testimony. The interpretation and application of human rights treaties have been guided by considerations of a superior general interest or ordre public which transcend the individual interests of Contracting Parties. As indicated by the jurisprudence constante of the two aforementioned international human rights tribunals, those treaties are distinct from treaties of the classic type which incorporate restrictively reciprocal concessions and compromises; human rights treaties, in turn, prescribe obligations of an essentially objective character, implemented collectively, and are endowed with mechanisms of supervision of their own.3 The rich case-law on methods of interpretation of human rights treaties has enhanced the protection of the human person at international level and has enriched International Law under the impact of the International Law of Human Rights. The converging case-law to this effect has generated the common understanding, in the regional (European and inter-American) systems of human rights protection, that human rights treaties, moreover, are endowed with a special nature (as distinguished from multilateral treaties of the traditional type); that human rights treaties have a normative character and that their terms are to be autonomously interpreted; that in their application one ought to ensure an

2

3

Problèmes d’interprétation judiciaire en Droit international public, Paris, Pédone, 1963, pp. 9-264. M.K. Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur le Droit des Traités”, 151 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1976) p. 74; J.B. Acosta Estévez and A. Espaliat Larson, La Interpretación en el Derecho Internacional Público y Derecho Comunitario Europeo, Barcelona, PPU, 1990, p. 105, and cf. pp. 105-107. A.A. Cançado Trindade, “The Interpretation of the International Law of Human Rights by the Two Regional Human Rights Courts, in Contemporary International Law Issues: Conflicts and Convergence (Proceedings of the III Joint Conference ASIL/Asser Instituut, The Hague, July 1995), The Hague, Asser Instituut, 1996, pp. 157-162 and 166-167.

Basic Considerations of Humanity in Relation to the Law of Treaties

effective protection (effet utile) of the guaranteed rights; and that permissible restrictions (limitations and derogations) to the exercise of guaranteed rights are to be restrictively interpreted. The work of the ECtHR and the IACtHR has indeed contributed to the creation of an international ordre public based upon the respect for human rights in all circumstances.4 As I have pondered in my Separate Opinion in the Blake versus Guatemala case (reparations, 1999) before the IACtHR, “These elements [of interpretation] converge in sustaining the integrity of human rights treaties, in seeking the fulfi llment of their object and purpose, and, accordingly, in establishing limits to State voluntarism. From all this one can detect a new vision of the relations between public power and the human being, which is summed up, ultimately, in the recognition that the State exists for the human being, and not vice-versa”.5

The ECtHR endorsed the doctrine of autonomous interpretation in its judgments, for example, in the Ringeisen (1971), König (1978) and Le Compte (1981 and 1983) cases. The IACtHR, in its turn, in its sixth Advisory Opinion, on The Word “Laws” in Article 30 of the American Convention on Human Rights (1986), clarified that the word “laws” in Article 30 of the American Convention, to be examined in accordance not only with the principle of legality but also with that of legitimacy, means a juridical norm of a general character, turned to the “general welfare”, emanated from the legislative organs constitutionally foreseen and democratically elected, and elaborated according to the procedure for law-making established by the Constitutions of States Parties. The autonomous meaning of the terms of human rights treaties (as distinct from their meaning, e.g., in domestic law) has been stressed also, e.g., by the Human Rights Committee [HRC] (under the U.N. Covenant on Civil and Political Rights) in the adoption of its views in the Van Duzen versus Canada case (in 1982). Moreover, the dynamic or evolutive interpretation of the respective human rights Conventions (the temporal dimension) has been followed by both the ECtHR6 and the IACtHR,7 so as to fulfil the evolving needs of protection of the 4

5

6 7

A.A. Cançado Trindade, “Le développement du Droit international des droits de l’homme à travers l’activité et la jurisprudence des Cours Européenne et Interaméricaine des Droits de l’Homme” (Discours du Président de la Cour Interaméricaine des Droits de l’Homme), in CourEDH, Cour Européenne des Droits de l’Homme – Rapport annuel 2003, Strasbourg, CourEDH, 2004, pp. 41-50. IACtHR, Blake versus Guatemala case (Reparations), Judgment of 22.01.1999, Series C, n. 48, Separate Opinion of Judge A.A. Cançado Trindade, pp. 52-53, par. 33, and cf. pars. 32-34. E.g., cases Tyrer versus United Kingdom (1978), Airey versus Ireland (1979), Marckx versus Belgium (1979), Dudgeon versus United Kingdom (1981), among others. Cf., in this sense, the obiter dicta in: IACtHR, Advisory Opinion OC-10/89, on the Interpretation of the American Declaration on the Rights and Duties of Man in the

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human being; in its 16th and pioneering Advisory Opinion, on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999), which has inspired the international case-law in statu nascendi on the matter, the IACtHR clarified that, in its interpretation of the norms of the American Convention, it should extend protection in new situations (such as that concerning the observance of the right to information on consular assistance) on the basis of preexisting rights. The same vision has been propounded by the IACtHR in its subsequent and forward-looking 18th Advisory Opinion, on the Juridical Condition and Rights of Undocumented Migrants (2003). The ECtHR has likewise reiteratedly pronounced to that effect;8 in the Loizidou versus Turkey case (1995), for example, the ECtHR expressly discarded undue restrictions which would not only “seriously weaken” its role in the discharge of its functions but “would also diminish the effectiveness of the Convention as a constitutional instrument of European public order (ordre public)”.9 There is, thus, a converging case-law of the two regional Human Rights Courts – and indeed of other human rights international supervisory organs – on the fundamental issue of the proper interpretation of human rights treaties naturally ensuing from the overriding identity of the object and purpose of those treaties.10 General International Law itself bears witness of the principle (subsumed under the general rule of interpretation of Article 31 of the two Vienna Conventions on the Law of Treaties) whereby the interpretation is to enable a treaty to have appropriate effects.

8

9 10

Framework of Article 64 of the American Convention on Human Rights, of 14.07.1989, pars. 37-38; IACtHR, Advisory Opinion OC-16/99, on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, of 01.10.1999, pars. 114-115, and Concurring Opinion of Judge A.A. Cançado Trindade, pars. 9-11; IACtHR, case of the “Street Children” (Villagrán Morales and Others versus Guatemala), Judgment (on the merits) of 19.11.1999, pars. 193-194; IACtHR, case Cantoral Benavides versus Peru, Judgment (on the merits) of 18.08.2000, pars. 99 and 102-103; IACtHR, case Bámaca Velásquez versus Guatemala, Judgment (on the merits) of 25.11.2000, Separate Opinion of Judge A.A. Cançado Trindade, pars. 34-38; IACtHR, case of the Community Mayagna (Sumo) Awas Tingni versus Nicaragua, Judgment (on the merits and reparations) of 31.08.2001, pars. 148-149; IACtHR, case Bámaca Velásquez versus Guatemala, Judgment (on reparations) of 22.02.2002, Individual Opinion of Judge A.A. Cançado Trindade, par. 3. For example, in its judgments in the Wemhoff (1968), Belgian Linguistics (1968), Golder (1975), Ireland versus United Kingdom (1978) and Soering (1989) cases, among others. ECtHR, Loizidou versus Turkey case (preliminary objections, Judgment of 23.03.1995, par. 75. For a general study, cf. A.A. Cançado Trindade, “Approximations and Convergences in the Case-Law of the European and Inter-American Courts of Human Rights”, in Le rayonnement international de la jurisprudence de la Cour européene des droits de l’homme (eds. G. Cohen-Jonathan and J.-F. Flauss), Bruxelles, Bruylant/Nemesis, 2005, pp. 101-138.

Basic Considerations of Humanity in Relation to the Law of Treaties

An aspect which in this respect should not pass unnoticed is that derogation measures and limitations must not be inconsistent with the other obligations under International Law incumbent upon the State Party concerned: thus, neither derogation clauses, nor limitation provisions, of a given human rights treaty, are to be interpreted to restrict the exercise of any human rights protected to a greater extent by other human rights treaties to which the State Party concerned is also a Party. Such understanding finds support in the precept of International Law whereby the interpretation and application of a treaty cannot restrict a State’s obligations ensuing from other treaties on the subject – in the present case, human rights protection – to which the State at issue is also a Party. In the present domain, International Law has been made use of in order to improve and strengthen – and never to weaken or undermine – the protection of recognized human rights.11 The specificity of the International Law of Human Rights finds expression not only in the interpretation of human rights treaties in general but also in the interpretation of specific provisions of those treaties. Pertinent illustrations can be found in, e.g., provisions which contain references to general international law. Such is the case, for example, of the requirement of prior exhaustion of local remedies as a condition of admissibility of complaints or communications under human rights treaties; the local remedies rule bears witness of the interaction between International Law and domestic law in the present domain of protection, which is fundamentally victim-oriented, concerned with the rights of individual human beings rather than of States.12 2.

Procedural Issues

Both the ECtHR and the IACtHR have rightly set limits to State voluntarism, have safeguarded the integrity of the respective human rights Conventions and the primacy of considerations of ordre public over the “will” of individual States, have set higher standards of State behaviour and established some degree of control over the interposition of undue restrictions by States, and have reassuringly enhanced the position of individuals as subjects of the International Law of Human Rights, with full procedural capacity. In so far as the basis of their juris11

12

Cf. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels)”, 202 RCADI (1987) p. 401. Generally recognized principles or rules of International Law – which the formulation of the local remedies rule in human rights treaties refers to, – besides following an evolution of their own in the distinct contexts in which they apply, necessarily suffer, when inserted in human rights treaties, a certain degree of adjustment or adaptation, dictated by the special character of the object and purpose of those treaties and by the widely recognized specificity of the International Law of Human Rights. Cf. A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, Cambridge, Cambridge University Press, 1983, pp. 1-443.

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diction in contentious matters is concerned, eloquent illustrations of their firm stand in support of the integrity of the mechanisms of protection of the two Conventions are afforded, for example, by the decisions of the ECtHR in the Belilos versus Switzerland case (1988), in the Loizidou versus Turkey case (Preliminary Objections, 1995), and in the I. Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa versus Moldovia and the Russian Federation case (2001), as well as by the decisions of the IACtHR in the Constitutional Tribunal and Ivtcher Bronstein versus Peru cases (Jurisdiction, 1999), and in the Hilaire, Constantine and Benjamin and Others versus Trinidad and Tobago cases (Preliminary Objection, 2001). The two international human rights Tribunals, by correctly resolving basic procedural issues raised in the aforementioned cases, have aptly made use of the techniques of Public International Law in order to strengthen their respective jurisdictions of protection of the human person. They have decisively safeguarded the integrity of the mechanisms of protection of the American and European Conventions on Human Rights, whereby the juridical emancipation of the human person vis-à-vis her own State is achieved. They have, furthermore, achieved a remarkable jurisprudential construction on the right of access to justice (and of obtaining reparation) at international level. In its historical Judgment in the case of the massacre of Barrios Altos (2001), concerning Peru, e.g., the IACtHR warned that provisions of amnesty, of prescription and of factors excluding responsibility, intended to impede the investigation and punishment of those responsible for grave violations of human rights (such as torture, summary, extra-legal or arbitrary executions, and forced disappearances) are inadmissible; they violate non-derogable rights recognized by the International Law of Human Rights. This case-law has been reiterated by the IACtHR (with regard to prescription) in its decision in the Bulacio versus Argentina case (2003). 3.

Substantive Law

As to substantive law, the contribution of the two international human rights Courts to this effect is illustrated by numerous examples of their respective caselaw pertaining to the rights protected under the two regional Conventions. The ECtHR has a vast and remarkable case-law, for example, on the right to the protection of liberty and security of person (Article 5 of the European Convention), and the right to a fair trial (Article 6). The IACtHR has a significant case-law on the fundamental right to life, comprising also the conditions of living, as from its decision in the paradigmatic case of the so-called “Street Children” (Villagrán Morales and Others versus Guatemala, Merits, 1999); it has also a rich case-law on distinct forms of reparations. Yet another example can be recalled. The definition of the crime of torture found today in two of the three co-existing Conventions against Torture (the U.N. Convention of 1984, Article 1, and the Inter-American Convention of 1985, Article 2) owes its contents to international human rights case-law, rather than to the tipification of the crime of torture at domestic law level. In fact, the con-

Basic Considerations of Humanity in Relation to the Law of Treaties

stitutive elements of torture in the definition found in the two aforementioned Conventions13 ensue from the jurisprudential construction of the old European Commission of Human Rights in the Greek case (1967-1970), further discussed by the Commission and the European Court in the Ireland versus United Kingdom case (1971-1978); in this particular instance, international case-law influenced international legislation in the field of human rights protection. And, nowadays, the absolute prohibition of torture is acknowledged as belonging to the domain of jus cogens. The extensive case-law of the ECtHR covers virtually the totality of the rights protected under the European Convention and some of its Protocols. The growing case-law of the IACtHR, in its turn, appears innovative and forwardlooking with regard to the right to life, reparations in its multiple forms, and provisional measures of protection,14 these latter sometimes benefitting members of entire human collectivities.15 III. Considerations on the Reservations to Treaties International supervisory organs in the domain of human rights protection have in recent years disclosed their preparedness – and, on some occasions, their determination – to the effect of preserving the integrity of human rights treaties. It may be recalled that, inspired in the criterion sustained by the International Court of Justice [ICJ] in its Advisory Opinion of 1951 on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,16 the present system of reservations set forth in the two Vienna Conventions of the Law of Treaties (of 1969 and 1986, Articles 19-23),17 in joining the formulation of reservations to the acquiescence or the objetions thereto for the determination of their compatibility with the object and purpose of the treaties, is of a markedly voluntarist and contractualist character. 13

14 15 16

17

Namely, severe physical or mental suffering, intentionally inflicted, to obtain information or a confession, with the consent or acquiescence of authorities or other persons acting in an official capacity. Cf. chapter II, supra. Particularly in the present situation of armed conflict in Colombia. In which, – it may be recalled, – the Hague Court endorsed the so-called Pan-American practice relating to reservations to treaties, given its flexibility, and in search of a certain balance between the integrity of the text of the treaty and the universality of participation in it; hence the criterion of the compatibility of the reservations with the object and purpose of the treaties. Cf. ICJ Reports (1951) pp. 15-30; and cf., a contrario sensu, the Joint Dissenting Opinion of Judges Guerrero, McNair, Read and Hsu Mo (pp. 31-48), as well as the Dissenting Opinion of Judge Álvarez (pp. 49-55), for the difficulties generated by this criterion. That is, the Vienna Convention on the Law of Treaties of 1969, and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986, – to which one may add, in the same sense, the Vienna Convention on Succession of States in the Matter of Treaties of 1978 (Article 20).

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Such a system leads to a fragmentation (in the bilateral relations) of the conventional obligations of the States Parties to multilateral treaties, appearing inadequate to human rights treaties, which are inspired in superior common values and are applied in conformity with the notion of collective guarantee. That system of reservations18 suffers from notorious insufficiencies when transposed from the law of treaties in general into the domain of the International Law of Human Rights. To start with, it does not distinguish between human rights treaties and classic treaties, making abstraction of the jurisprudence constante of the organs of international supervision of human rights, converging in pointing out that distinction. It allows reservations (not objected) of a wide scope which threaten the very integrity of human rights treaties; it allows reservations (not objected) to provisions of these treaties which incorporate universal minimum standards (undermining, e.g., the basic judicial guarantees of inviolable rights). If certain fundamental rights – starting with the right to life – are non-derogable (in the terms of the human rights treaties themselves), thereby not admitting any derogations which, by definition, are of an essentially temporal or transitory character, – with greater reason, it would seem to me, a fortiori they do not admit any reservations, perpetuated in time until and unless withdrawn by the State at issue; such reservations would be, in my understanding, without any caveat, incompatible with the object and purpose of those treaties. Although the two Vienna Conventions on the Law of Treaties prohibit the acceptance of reservations incompatible with the object and purpose of the treaty at issue, they leave, however, various questions unanswered. The criterion of the compatibility is applied in the relations with the States which effectively objected to the reservations, although such objections are often motivated by factors – including political – other than a sincere and genuine concern on the part of the objecting States with the prevalence of the object and purpose of the treaty at issue. For the same reason, from the silence or acquiescence of the States Parties in relation to certain reservations one cannot infer a belief on their part that the reservations are compatible with the object and purpose of the treaty at issue. Such silence or acquiescence, moreover, appears to undermine the application of the criterion of the compatibility of a reservation with the object and purpose of the treaty. And the two Vienna Conventions referred to are not clear either, as to the legal effects of a non-permissible reservation, or of an objection to a reservation considered incompatible with the object and purpose of the treaty at issue. They do not clarify, either, who ultimately ought to determine the permissibility or otherwise of a reservation, or to pronounce on its compatibility or otherwise with the object and purpose of the treaty at issue. The present system of reservations permits even reservations (not objected to) which hinder the possibilities of action of the international supervisory organs (created by human rights treaties), rendering difficult the realization of their 18

Endorsed, e.g., by the American Convention on Human Rights (cross-reference of Article 75).

Basic Considerations of Humanity in Relation to the Law of Treaties

object and purpose. The aforementioned Vienna Conventions not only fail to establish a mechanism to determine the compatibility or otherwise of a reservation with the object and purpose of a given treaty,19 but – even more gravely – do not impede either that certain reservations or restrictions formulated (in the acceptance of the jurisdiction of the organs of international protection)20 come to hinder the operation of the mechanisms of international supervision created by the human rights treaties in the exercise of the collective guarantee. The present system of reservations, reminiscent of the old Pan-American practice, rescued by the ICJ21 and the two Vienna Conventions on the Law of Treaties, for having crystallized itself in the relations between States, not surprisingly appears entirely inadequate to the treaties whose ultimate beneficiaires are the human beings and not the Contracting Parties themselves. Human rights treaties, turned to the relations between States and human beings under their jurisdiction, definitively do not bear a system of reservations which approaches them as from an essentially contractual and voluntarist perspective, undermining their integrity, allowing their fragmentation, leaving to the discretion of the Parties themselves the final determination of the extent of their conventional obligations. As the two Vienna Conventions of 1969 and 1986 do not provide any indication for an objective application of the criterion of the compatibility or otherwise of a reservation with the object and purpose of a treaty, they leave it, on the contrary, to be applied individually and subjectively by the Contracting Parties 19

20

21

As neither the aforementioned Vienna Conventions, nor – prior to them – the aforementioned Advisory Opinion of the ICJ on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, define what constitutes the compatibility or otherwise (of a reservation) with the object and purpose of a treaty, the determination is left to the interpretation of this latter, without it having been defined either on whom falls that determination, in what way and when it should be made. At the time of the adoption of that Advisory Opinion (1951), neither the majority of the Hague Court, nor the dissenting Judges on the occasion, foresaw the development of the international supervision of human rights by the conventional organs of protection; hence the insufficiencies of the solution then advanced, and endorsed years later by the two Vienna Conventions on the Law of Treaties referred to. There is a distinction between a reservation stricto sensu and a restriction in the instrument of acceptance of the jurisdiction of an international supervisory organ, even though their legal effects are similar. The Advisory Opinion of the ICJ on the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951) marked the gradual passage, in the matter of reservations to treaties, from the rule of unanimity (of its approval by the States Parties), to the criterion of its compatibility with the object and purpose of the treaty. In a general way, the Vienna Convention incorporated the flexible Pan-American doctrine on reservations, in accordance with a tendency to this effect of the international practice already formed in the epoch; I.M. Sinclair, “Vienna Conference on the Law of Treaties”, 19 International and Comparative Law Quarterly (1970) pp. 47-69; and cf. Articles 19-20 of the Vienna Convention.

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themselves, in such a way that, at the end, only the reserving State knows for sure the extent of the implications of its reservation. Despite the efforts in expert writing to the effect of systematizing the practice of States on the matter,22 it is difficult to avoid the impression that such practice has been surrounded by uncertainties and ambiguities, and has remained inconclusive to date. This indefinition is not at all reassuring for human rights treaties, endowed as they are with mechanisms of international supervision of their own. Th is general picture of indefinition has thus, not surprisingly, led the U.N. International Law Commission [ILC] to engage itself, as from 1998, in the preparation of a Draft Practical Guide on Reservations to Treaties23 (cf. infra). It draws one’s attention, for example, to find an extensive list of reservations, numerous and often incongruous, of States Parties to the U.N. Covenant on Civil and Political Rights;24 and the practical problems generated by many of the reservations (also numerous and not always consistent) of the States Parties to the U.N. Convention on the Elimination of All Forms of Discrimination against Women are well-known, – to what one may add the reservations to the U.N. Convention against Torture and the Convention on the Elimination of All Forms of Racial Discrimination.25 With the persistence of the inadequacy and the insufficiencies of the present system of reservations, it is not at all surprising to find, firstly, multiple expressions of dissatisfaction in this respect in contemporary legal doctrine (both in general studies on the matter26 and in respect 22

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25

26

Cf., e.g., J.M. Ruda, “Reservations to Treaties”, 146 RCADI (1975) pp. 95-218; D.W. Bowett, “Reservations to Non-Restricted Multilateral Treaties”, 48 BYBIL (1976-1977) pp. 67-92; P.-H. Imbert, Les réserves aux traités multilatéraux, Paris, Pédone, 1979, pp. 9-464; K. Holloway, Les réserves dans les traités internationaux, Paris, LGDJ, 1958, pp. 1-358; K. Zemanek, “Some Unresolved Questions Concerning Reservations in the Vienna Convention on the Law of Treaties”, in Essays in International Law in Honour of Judge M. Lachs (ed. J. Makarczyk), The Hague, Nijhoff, 1984, pp. 323336; Ch. Tomuschat, “Admissibility and Legal Effects of Reservations to Multilateral Treaties”, 27 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1967) pp. 463-482; F. Horn, Reservations and Interpretative Declarations to Multilateral Treaties, Uppsala, Swedish Institute of International Law, 1988, pp. 184-222. Cf. U.N., Report of the International Law Commission on the Work of Its 50th Session (1998), General Assembly Official Records – Supplement n. 10(A/53/10), pp. 195-214 (“Reservations to Treaties: Guide to Practice”). Compiled by the Secretary-General of the United Nations and collected in the document: U.N., CCPR/C/2/Rev.4, of 24.08.1994, pp. 1-139 (English version), and pp. 1160 (Spanish version). For a study of the problems created by the reservations to these four human rights treaties of the United Nations, cf. L. Lijnzaad, Reservations to U.N. Human Rights Treaties – Ratify and Ruin?, Dordrecht, Nijhoff, 1995, pp. 131-424. Cf. D. Shelton, “State Practice on Reservations to Human Rights Treaties”, 1 Canadian Human Rights Yearbook/Annuaire canadien des droits de la personne (1983) pp. 205-234; C. Redgwell, “Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties”, 64 BYBIL (1993) pp. 245-282; L. Lijnzaad,

Basic Considerations of Humanity in Relation to the Law of Treaties

of specific human rights treaties27); and secondly, the preparedness of human rights international supervisory organs to assert their competence to apply by themselves the criterion of the compatibility (supra) and to contribute thereby to secure the integrity of the respective human rights treaties. At regional level, in its well-known judgment in the Belilos versus Switzerland case (1988),28 locus classicus on the issue, the ECtHR considered the declaration amounting to a reservation (of a general character) of Switzerland to the European Convention on Human Rights incompatible with the object and purpose of this latter (in the light of its Article 64). On its turn, the IACtHR, in its 2nd and 3rd Advisory Opinions (1982-1983),29 pointed out the difficulties of a pure and simple transposition from the system of reservations of the Vienna Convention on the Law of Treaties of 1969 into the domain of the international protection of human rights. At global level, in the I. Gueye et alii versus France case (1989), e.g., the HRC, in spite of a reservation ratione temporis of the respondent State,30 understood that the question at issue31 was justiciable under the U.N. Covenant on Civil and Political Rights,32 and concluded that there was a violation of Article 26 of the Covenant.33 The same HRC, in its general comment n. 24(52), of November 1994,

27

28 29

30 31 32 33

op. cit. supra n. (25), pp. 3-424; M. Coccia, “Reservations to Multilateral Treaties on Human Rights”, 15 California Western International Law Journal (1985) pp. 1-49; L. Sucharipa-Behrmann, “The Legal Effects of Reservations to Multilateral Treaties”, 1 Austrian Review of International and European Law (1996) pp. 67-88. Cf. B. Clark, “The Vienna Convention Reservations Regime and the Convention on Discrimination against Women”, 85 American Journal of International Law (1991) pp. 281-321; W.A. Schabas, “Reservations to the Convention on the Rights of the Child”, 18 Human Rights Quarterly (1996) pp. 472-491; A. Sanchez Legido, “Algunas Consideraciones sobre la Validez de las Reservas al Convenio Europeo de Derechos Humanos”, 20 Revista Jurídica de Castilla-La Mancha (1994) pp. 207-230; C. Pilloud, “Reservations to the Geneva Conventions of 1949”, International Review of the Red Cross (March/April 1976) pp. 3-44. Followed by the Weber case (1990). In its third Advisory Opinion on Restrictions to the Death Penalty (1983) the IACtHR warned that the question of reciprocity as related to reservations did not fully apply vis-à-vis human rights treaties (paragraphs 62-63 and 65). Earlier, in its second Advisory Opinion on the Effect of Reservations on the Entry into Force of the American Convention (1982), the IACtHR dismissed the postponement of the entry into force of the American Convention by application of Article 20(4) of the 1969 Vienna Convention (paragraph 34). To Article 1 of the [first] Optional Protocol to the Covenant on Civil and Political Rights. Pertaining to pension benefits of more than 700 retired Senegalese members of the French army. As the effects of the French legislation on the matter lasted until then. Communication n. 196/1985, decision of 03.04.1989 (and previous decision of admissibility of 05.11.1987).

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warned that the provisions of the two Vienna Conventions and the classic rules on reservations (based upon reciprocity) were not appropriate to the human rights treaties; given the special character of the Covenant as a human rights treaty, the question of the compatibility of a reservation with its object and purpose, instead of being left at the discretion of the manifestations of the States Parties inter se, should be objectively determined, on the basis of juridical principles, by the Human Rights Committee itself.34 Given the specificity of the International Law of Human Rights, there appears a strong case for leaving the determination of the compatibility or otherwise of reservations with the object and purpose of human rights treaties with the international supervisory organs established by them, rather than with the States Parties themselves; it would be more in keeping with the special character of human rights treaties. To the two international human rights tribunals in operation (the ECtHR and the IACtHR), the individualistic system of reservations does not seem to be in keeping with the notion of collective control machinery proper to human rights treaties. The obiter dicta of the two regional Human Rights Courts have been rendered despite the fact that the European Convention (Article 64)35 and the American Convention (Article 75) on Human Rights do not expressly confer this function upon them; the American Convention, in fact, limits itself to referring to the pertinent provisions of the 1969 Vienna Convention on the Law of Treaties. Given the uncertainties, ambiguities and lacunae in the present system of reservations to treaties of the two Vienna Conventions of 1969 and 1986 (supra), proposals have been advanced in contemporary doctrine36 tending at least to reduce the tension as to the proper application of human rights treaties in the matter of reservations, namely: first, the inclusion of an express indication in human rights treaties of the provisions which do not admit any reservations (such as those pertaining to the fundamental non-derogable rights), as an irreducible minimum to participate in such treaties; second, as soon as the States Parties have proceeded to the harmonization of their domestic legal order with the norms of those treaties (as required by these latter), the withdrawal of their reservations to them;37 third, the modification or rectification, by the State Party, of a reservation considered non-permissible or incompatible with the object and purpose of the treaty,38 whereby a reservation would thus be seen no longer as a formal and final element of the manifestation of State consent, but rather as an essentially temporal measure, to be modified or removed as soon as possible; fourth, the 34 35 36 37

38

Paragraphs 17 and 20; text in: U.N./Human Rights Committee, document CCPR/ C/21/Rev.1/Add.6, of 02.11.1994, pp. 6-7. Prior to Protocol n. 11, in the Loizidou case, supra. Cf., e.g., references in ns. (26) and (27), supra. Cf., in this line of reasoning, the Vienna Declaration and Programme of Action (1993), the main document adopted by the II World Conference on Human Rights, part II, par. 5, and cf. part I, par. 26. Cf. note (25), supra.

Basic Considerations of Humanity in Relation to the Law of Treaties

adoption of a possible “collegial system” for the acceptance of reservations,39 so as to safeguard the normative character of human rights treaties, bearing in mind, in this respect, the rare example of the Convention on the Elimination of All Forms of Racial Discrimination;40 fifth, the elaboration of guidelines (although not binding) on the existing rules (of the two Vienna Conventions of 1969 and 1986) in the matter of reservations, so as to clarify them in practice;41 and sixth, the attribution to the depositaries of human rights treaties of the faculty to request periodic information from the reserving States on the reasons why they have not yet withdrawn their reservations to such treaties. The recent work (as from 1993) of the ILC on the topic of the Law and Practice Concerning Reservations to Treaties tends to identify the essence of the question in the need to determine the powers of the human rights international supervisory organs in the matter, in the light of the general rules of the law of treaties.42 This posture makes abstraction of the specificity of the International Law of Human Rights, attaching itself to the existing postulates of the law of treaties. The debates of 1997 of the ILC focused effectively on the question of the applicability of the system of reservations of the Vienna Conventions in relation to human rights treaties; although the point of view prevailed that the pertinent provisions of those Conventions should not be modified,43 it was acknowledged that that system of reservations should be improved, given its lacunae, above all in relation to non-permissible reservations.44 In the debates of the Commission, it was even admitted that the conventional organs of protection of judicial character (the ECtHR and the IACtHR) pronounce on the permissibility of reservations when necessary to the exercise of their functions;45 such considerations were reflected in the “Preliminary Conclusions on Reservations to Multilateral Normative Treaties Including Human

39 40 41 42

43

44

45

Possibility that came to be considered at the Vienna Conference which adopted the Convention of 1969. System of the two-thirds of the States Parties, set forth in Article 20(2) of that Convention. Such as drawn up in 1998 by the ILC; cf. note (23), supra. Cf. A. Pellet (special rapporteur of the ILC), Second Report on the Law and Practice Relating to Reservations to Treaties (1997), paragraphs 164, 204, 206, 209, 227, 229 and 252. U.N., Report of the International Law Commission on the Work of Its 49th Session (1997), General Assembly Official Records – Supplement n. 10(A/52/10), p. 94, par. 47. Ibid., p. 112, par. 107. In this respect, it was warned that States often and consciously formulate reservations incompatible with the object and purpose of human rights treaties for knowing that they will not be challenged, and that the lack of sanctions for such reservations thus leads States to become Parties to such treaties without truly committing themselves; ibid., pp. 117-118, pars. 129-130. Ibid., pp. 106-107, 119 and 121-122, pars. 82, 84, 134, 138 and 143, respectively.

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Rights Treaties”, adopted by the ILC in 1997 (paragraphs 4-7).46 In my understanding, there are compelling reasons to go further, and the relevant labour of the ILC on the matter could lead to solutions satisfactory to human rights international supervisory organs to the extent that it started from the recognition of the special character of human rights treaties and gave precision to the juridical consequences – for the treatment of the question of reservations – which ensue from that recognition. It seems unlikely, however, that it is prepared to pursue that approach. In its more recent version of its Draft Guidelines on Reservations to Treaties (2003), provisionally adopted by the ILC, it urged States and international organizations to “undertake a periodic review” of their reservations to treaties, and to “consider withdrawing those which no longer serve their purpose”,47 – though it did not pursue the aforementioned approach. Such review, – added the ILC, – “should devote special attention to the aim of preserving the integrity of multilateral treaties”.48 Thus, draft guideline 2.5.3 reflects the concerns of monitoring bodies (“particularly but not exclusively in the field of human rights”), to call often upon States to reconsider their reservations and if possible to withdraw them.49 The ILC has conceded that “The reference to the integrity of multilateral treaties is an allusion to the drawbacks of reservations, that may undermine the unity of the treaty regime”.50

It may be pointed out that human rights treaties have in a way been singled out when one comes to denunciation, and termination and suspension of the operation of treaties (cf. infra); I see, thus, no epistemological or juridical reason why the same could not be done also in relation to reservations. In my view, the conferment of the power of determination of the compatibility or otherwise of reservations with the object and purpose of human rights treaties on the international supervisory organs themselves created by such treaties, would be much more in conformity with the special nature of these latter and with the objective character of the conventional obligations of protection.51 There is a whole logic and common sense in attributing such power to those organs, guardians as they are of the integrity of human rights treaties, instead of abandoning such determination to the interested States Parties themselves, as if they were, or could be, the final arbiters of the scope of their conventional 46 47 48 49 50 51

Text in ibid., pp. 126-127. Cf. U.N./ILC, Report of the International Law Commission (55th Session, May-June and July-August 2003), G.A.O.R. – Suppl. n. 10 (doc. A/58/10), of 2003, p. 184. Ibid., p. 184. Ibid., p. 207. Ibid., p. 208, and cf. pp. 216, 244 and 251 (on the “limitation” of the scope of previous reservations, conducive to their withdrawal). A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 152-170.

Basic Considerations of Humanity in Relation to the Law of Treaties

obligations.52 Such system of objective determination would foster the process of progressive institutionalization of the international protection of human rights,53 as well as the creation of a true international public order (ordre public) based on the full respect to, and observance of, human rights. It is about time for the current process of humanization of International Law 54 to encompass likewise the domain of the law of treaties, traditionally so vulnerable to manifestations of State voluntarism. It is my understanding that, from the perspective of a minimally institutionalized international community, the system of reservations to treaties, such as it still prevails in our days, is rudimentary and rather primitive. There is pressing need to develop a system of objective determination of the compatibility or otherwise of reservations with the object and purpose of human rights treaties, although for that it may be considered necessary an express provision in future human rights treaties, or the adoption to that effect of protocols to the existing instruments.55 Only with such a system of objective determination we will succeed in guarding coherence with the special character of human rights treaties, which, as already pointed out, set forth obligations of an objective character and are applied by means of the exercise of the collective guarantee. Only thus we will succeed to establish, in the ambit of the law of treaties, standards of behaviour which contribute to the creation of a true international ordre public based on the respect and observance of human rights, with the corresponding obligations erga omnes of protection. We stand in need of the renovation and humanization of the law of treaties as a whole, comprising also the forms of manifestation of State consent. I do not see how not to take into account the experience of international supervision accumulated by the conventional organs of protection of human rights in the last decades. Any serious evaluation of the present system of reservations to treaties cannot fail to take into account the practice, on the matter, of such organs of protection. It cannot pass unnoticed that the ICJ, in its already mentioned Advisory Opinion of 1951, effectively recognized, in a pioneering way, the 52

53

54

55

A.A. Cançado Trindade, “The International Law of Human Rights at the Dawn of the XXIst Century”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacional – Castellón/Spain (1999) pp. 155-215, esp. pp. 178-186. For the conception of human rights as an “autonomous juridical imperative”, cf. D. Evrigenis, “Institutionnalisation des droits de l’homme et droit universel”, in Internationales Colloquium über Menschenrechte (Berlin, Oktober 1966), Berlin, Deutsche Gesellschaft für die Vereinten Nationen, 1966, p. 32. A.A. Cançado Trindade, “La Humanización del Derecho Internacional y los Límites de la Razón de Estado”, 40 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais – Belo Horizonte/Brazil (2001) pp. 11-23. As suggested in the aforementioned “Preliminary Conclusions” of 1997 (paragraph 7) of the ILC; cf. U.N., Report of the International Law Commission... (1997), op. cit. supra n. (43), pp. 126-127.

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special character of the Convention for the Prevention and Punishment of the Crime of Genocide of 1948, but without having extracted from its acknowledgement all the juridical consequences for the regime of reservations to treaties. Almost half a century having lapsed, this is a task which, in my view, is incumbent upon international legal doctrine. The words pronounced by the Hague Court in 1951 remain topical nowadays, in pointing out that, in a Convention such as that of 1948, adopted for a “purely humanitarian” purpose, “(...) the Contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the Convention. Consequently, in a Convention of this type one cannot speak of individual advantages and disadvantages to States, of the maintenance of a perfect contractual balance between rights and duties. The high ideals which inspired the Convention provide, by virtue of the common will of the Parties, the foundation and measure of all its provisions”.56

I see no sense in trying to escape from the acknowledgement of the specificity of the International Law of Human Rights as a whole, the recognition of which, in my understanding, in no way threatens the unity of Public International Law; quite on the contrary, it contributes to develop the aptitude of this latter to secure, in the present domain, compliance with the conventional obligations of protection of the States vis-à-vis all human beings under their jurisdictions. With the evolution of the International Law of Human Rights, it is Public International Law itself which is justified and legitimized, in affirming juridical principles, concepts and categories proper to the present domain of protection, based on premises fundamentally distinct from those which have guided the application of its postulates at the level of purely inter-State relations.57 One is not, therefore, here proposing that the development of the International Law of Human Rights be brought about to the detriment of the law of treaties: my understanding, entirely distinct, is in the sense that the norms of the law of treaties (such as those set forth in the two aforementioned Vienna Conventions, anyway of a residual character) can greatly enrich with the impact of the International Law of Human Rights, and develop their aptitude to regulate adequately legal relations at inter-State as well as intra-State levels, under the respective treaties of protection. In sustaining the development of a system of objective determination – which seems to me wholly necessary – of the compatibility or otherwise of reservations with the object and purpose of human rights treaties in particular, in which the or56

57

ICJ, Advisory Opinion of 28.05.1951, ICJ Reports (1951) p. 23; and, for a study on the matter, cf. A.A. Cançado Trindade, “La jurisprudence de la Cour Internationale de Justice sur les droits intangibles / The Case-Law of the International Court of Justice on Non-Derogable Rights”, Droits intangibles et états d’exception / Non-Derogable Rights and States of Emergency (ed. D. Prémont), Brussels, Bruylant, 1996, pp. 53-89. Cf. A.A. Cançado Trindade, “The International Law of Human Rights at the Dawn of the XXIst Century”, op. cit. supra n. (52), pp. 178-186.

Basic Considerations of Humanity in Relation to the Law of Treaties

gans of international protection created by such treaties would exert an important role, I do not see in that any threat to the “unity” of the law of treaties. Quite on the contrary, there could hardly be something more fragmenting and underdeveloped than the present system of reservations of the two Vienna Conventions, for which reason it would be entirely illusory to assume that, to continue applying it as until now, one would thereby be fostering the “unity” of the law of treaties. The true unity of the law of treaties, in the framework of Public International Law, would be better served by the search for improvement in this area, overcoming the ambiguities, uncertainties and lacunae of the present system of reservations, through the development of a system of objective determination (supra), in conformity with the special nature of human rights treaties and the objective character of the conventional obligations of protection. The unity of Public International Law itself is measured rather by its aptitude to regulate legal relations in distinct contexts with equal adequacy and effectiveness. IV. Considerations on the Denunciation of Treaties The two Vienna Conventions on the Law of Treaties (1969 and 1986) determine that a treaty which contains no provision on denunciation is not subject to denunciation, unless it can be established that the parties intended to admit the possibility of denunciation or that this latter “may be implied by the nature of the treaty” (Article 56(1)). The two Vienna Conventions thus open the way to the taking into account of the nature or specificity of certain treaties. As already seen, the special nature of treaties of a humanitarian character (such as human rights treaties) has indeed been taken into account, and has been widely acknowledged. Accordingly, certain limits have been established with regard to the denunciation of such treaties. In fact, basic considerations of humanity have permeated also the clauses of denunciation of certain treaties. This is aptly illustrated, e.g., by the provisions on denunciation of the four Geneva Conventions on International Humanitarian Law of 1949. According to those provisions (common Article 63/62/142/158), the denunciation, which will take effect one year after its notification, shall not, however, while the denouncing power is engaged in a conflict, take any effect “until peace has been concluded”, and until the “operations connected with the release and repatriation of the persons protected” by the Geneva Conventions “have been terminated”. In this way, the obligations of the Parties as to the safeguard of the persons protected under those Conventions subsist, in whatever circumstances, vis-à-vis the denouncing power, while the conflict lasts and the release and repatriation of the persons protected are not concluded.58 58

Traditional considerations of reciprocity are also discarded when it comes to apply, e.g., the provisions of the 1949 Geneva Conventions on International Humanitarian Law, such as those of common Article 3, pertaining to conventional obligations of the State vis-à-vis persons under its jurisdiction; reciprocity here yields of considerations of protection of a superior order.

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Furthermore, the denunciation provisions of the aforementioned four Geneva Conventions (common Article 63/62/142/158) expressly preserves the obligations based on “the principles of the law of nations” as they result from “the laws of humanity” and “the dictates of the public conscience” (the Martens clause). Such obligations, as aptly remarked by B.V.A. Röling, continue governing human conduct even when treaties are no longer binding,59 – contrary to, I would add, what positivists would mechanically argue. The law of protection of the human person does not exhaust itself in the norms and rules of positive law, it encompasses likewise the principles (which inform and conform those norms and rules), without which there is no legal system at all.60 Half a decade after the adoption of the 1969 Vienna Convention on the Law of Treaties, H.W. Briggs pertinently pointed out that the consideration of that Convention in international case-law “has been helpful in furthering the consolidation of the law against unilateral denunciation of international agreements without accountability therefor”.61

The 1984 U.N. Convention against Torture, in this line of concern, provides (Article 31(2)) that a denunciation of it shall not have the effect of releasing the denouncing Party from its obligations under the Convention with regard to “any act or omission which occurs prior to the date at which the denunciation becomes effective”, nor shall the denunciation prejudice in any way the “continued consideration” of any matter already under scrutiny by the U.N. Committee against Torture “prior to the date at which the denunciation becomes effective”. At regional level, the European Convention on Human Rights, as amended by Protocol n. 11, provides (Article 58) likewise that a denunciation of it shall not have the effect of releasing the denouncing Party from its obligations under the Convention in respect of “any act which, being capable of constituting a violation of such obligations, may have been performed by it before the date at which the denunciation became effective”. On its turn, in a similar line of thinking, the 1999 Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities determines (Article XIII) that a denunciation of it “shall not exempt” the State Party from the obligations imposed upon it under the Convention in respect of “any action or omission prior to the date on which the denunciation takes effect”.

59 60

61

B.V.A. Röling, International Law in an Expanded World, Amsterdam, Djambatan, 1960, pp. 37-38. IACtHR, Advisory Opinion n. 18 on the Juridical Condition and Rights of Undocumented Migrants (2003), Concurring Opinion of Judge A.A. Cançado Trindade, paragraphs 44-58. H.W. Briggs, “Unilateral Denunciation of Treaties: The Vienna Convention and the International Court of Justice”, 68 American Journal of International Law (1974) p. 68.

Basic Considerations of Humanity in Relation to the Law of Treaties

And the American Convention on Human Rights (Article 78) only admits denunciation “at the expiration of a five-year period from the date of its entry into force”, and by means of “notice given one year in advance”. Moreover, such a denunciation shall not have the effect of releasing the denouncing State Party from the obligations contained in the Convention with respect to “any act that may constitute a violation of those obligations” and that “has been taken by that State prior to the effective date of denunciation”. The issue of the effects of denunciation, within such limits, became a central one in recent cases concerning Trinidad and Tobago under the American Convention on Human Rights. Trinidad and Tobago became a Party to the American Convention on Human Rights on 28.05.1991, and accepted the IACtHR’s jurisdiction in contentious matters on that same date. Later on, on 26.05.1998, it denounced the American Convention; pursuant to Article 78 of the Convention, such denunciation began to have effects one year later, on 26.05.1999. One day before this date the Inter-American Commission on Human Rights [IAComHR] filed before the IACtHR the Hilaire case; subsequently, after that date, it lodged with the Court the Constantine et allii case (on 22.02.2000) and the Benjamin et allii case (on 05.10.2000), – the three of them concerning Trinidad and Tobago. As they pertained to acts performed by that State prior to the date of its denunciation, the Court retained jurisdiction and took cognizance of the cases (pursuant to Article 78(2) of the Convention), and rendered its Judgments on preliminary objections in the three cases on 01.09.2001, dismissing an undue restriction formulated by the State in its instrument of acceptance of the IACtHR’s compulsory jurisdiction (reiterated in the three cases in the form of a preliminary objection). That restriction would have limited the Court’s jurisdiction to the extent that its exercise would be consistent with the national Constitution, what the IACtHR considered incompatible with the object and purpose of the Convention, and an attempt to subordinate this latter to the national Constitution, what would be inadmissible.62 The IACtHR then ordered the joinder of the three cases and their respective proceedings (on 30.11.2001), and delivered its Judgment on the merits (on 21.06.2002), finding violations of the American Convention. Parallel to that, also after the denunciation by Trinidad and Tobago became effective (on 26.05.1999), the IACtHR ordered successive Provisional Measures of Protection, from 27.05.1999 to 02.12.2003, in the case James et allii versus Trinidad and Tobago (as they also pertained to acts taken by the State prior to the date of its denunciation of the Convention). All these decisions of the IACtHR remain binding upon the respondent State; its denunciation of the Convention does not have the sweeping effect that one might prima facie tend to assume, as the denunciation clause under the American Convention (supra) was surrounded by temporal limitations so as not to allow it to undermine the protection of human rights thereunder. Thus, not even the institution of denunciation of treaties is so 62

IACtHR, pars. 93 and 98-99 of the IACtHR’s Judgment in the Hilaire case; and pars. 84 and 89-90 of the IACtHR’s Judgments in the Benjamin et alii and the Constantine et alii cases.

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absolute in effects as one might prima facie tend to assume. Despite its openness to manifestations of State voluntarism, denunciation has, notwithstanding, been permeated with basic considerations of humanity as well, insofar as treaties of a humanitarian character are concerned. Ultimately, one is here faced with the fundamental, overriding and inescapable principle of good faith (bona fides), and one ought to act accordingly. V.

Considerations on the Termination and Suspension of the Operation of Treaties

The interpretation and application of human rights treaties bear witness of the twilight of reciprocity and of the prominence of considerations of ordre public in the present domain. In fact, the prohibition of the invocation of reciprocity as a subterfuge for non-compliance with humanitarian conventional obligations, is corroborated in unequivocal terms by the 1969 Vienna Convention on the Law of Treaties, which, in providing for the conditions in which a breach of treaty may bring about its termination or suspension of its operation, excepts expressly and specifically the “provisions relating to the protection of the human person contained in treaties of a humanitarian character” (Article 60(5)). The provision of Article 60(5) of the two Vienna Conventions on the Law of Treaties (1969 and 1986), acknowledging the special nature of “treaties of a humanitarian character” and setting forth one of the juridical consequences ensuing therefrom, constitutes a safeguard clause in defence of the human person. In this sense I saw it fit to point out, in a study on the matter 19 years ago, that “the law of treaties itself of our days, as confi rmed by Article 60(5) of the Vienna Convention [on the Law of Treaties], discards the precept of reciprocity in the implementation of the treaties of international protection of human rights and of International Humanitarian Law, by virtue precisely of the humanitarian character of those instruments. Piercing the veil in a domain of International Law – such as the one concerning treaties – so strongly infi ltrated by the voluntarism of States, the aforementioned provision of Article 60(5) of the Vienna Convention de Viena constitutes a clause of safeguard in defence of the human being”.63

In the account of one of the participants in the 1968-1969 Vienna Conference from which the first Vienna Convention on the Law of Treaties (1969) resulted, the provision at issue resulted from a Swiss amendment, promptly supported by several Delegations, to the effect that the grounds for termination or suspension of the operation of treaties should not apply to treaties of a humanitarian character, embodying provisions of protection of the human person.64 Article 60(5) 63 64

A.A. Cançado Trindade, A Proteção Internacional dos Direitos Humanos – Fundamentos Jurídicos e Instrumentos Básicos, São Paulo, Ed. Saraiva, 1991, pp. 11-12. G.E. do Nascimento e Silva, Conferência de Viena sobre o Direito dos Tratados, Rio de Janeiro, MRE/Imprensa Nacional, 1971, p. 81.

Basic Considerations of Humanity in Relation to the Law of Treaties

was maintained in the second Vienna Convention on the Law of Treaties (1986). Another participant in the Vienna Conference of 1968-1969 pondered that there are certain obligations – of protection of the human person – endowed with an “absolute character”, which cannot be allowed to reduce, as “l’idée d’une régression définitive de la conscience humaine est difficile à accepter. En revanche il serait souhaitable que la pratique internationale se moralise dans tous les domaines et acquière ainsi, par la reconnaissance des États, un niveau croissant de valeur: il pourrait et il devrait y avoir normalement de nouvelles règles progressives. Sans qu’il soit nécessaire d’insister sur ce point, les racines profondes d’une telle conception rejoignent la tradition du droit naturel, rajeunie de nos jours par la conception du droit naturel à contenu progressif. En ce sens aussi, on pourrait soutenir que les règles impératives ont dépassé le stade coutumier pour atteindre un niveau plus stable qui est celui des principes généraux du droit international public”.65

Thus, the contemporary law of treaties itself, as attested by Article 60(5) of the 1969 and the 1986 Vienna Conventions, overcoming the precept of reciprocity in the implementation of treaties of a humanitarian character, reckons that the obligations enshrined therein are of ordre public, and may generate effects erga omnes. The overcoming of reciprocity in human rights protection has taken place amidst the constant search for an expansion of the ambit of protection (for the safeguard of an increasingly wider circle of individuals, in any circumstances), for achieving a higher degree of the protection due, and for the gradual strengthening of the mechanisms of supervision, in the defense of common superior values. VI. Concluding Observations Last but not least, attention should also be drawn to the interaction of human rights treaties in the process of interpretation. Given the multiplicity of those treaties, it comes as little or no surprise that the interpretation and application of certain provisions of a given human rights treaty have at times been resorted to as orientation for the interpretation of corresponding provisions of another, – usually newer, – human rights treaty. The practice of international supervisory organs – including under the two regional, European and Inter-American, systems of protection, – affords several examples of such interpretative interaction.66 Moreover, given the possible concurrent interpretation of equivalent provisions of two or more human rights treaties, there is room for the search of the most favourable norm to the alleged victim. This test – primacy of the most favourable norm to the individual, – gathers express support in certain provi65 66

P. Reuter, Introduction au droit des traités, 2nd. ed., Paris, PUF, 1985, p. 120. Cf. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms...”, op. cit. supra n. (11), pp. 91-112, esp. pp. 101-103.

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sions of such human rights treaties as the European Convention (new Article 53) and the American Convention (Article 29(b)) on Human Rights and has found application in practice. The essential motivation underlying the interpretation of human rights treaties has been, rather than to ensure the uniformity of International Law in general and in all circumstances whatsoever, to respond effectively to the needs and imperatives of the international protection of human beings. In proceeding in this way, international supervisory organs – such as the two regional Human Rights Courts, the ECtHR and the IACtHR, – have constructed a converging jurisprudence as to the special nature of human rights treaties and the implications and consequences ensuing therefrom. This has been largely due to the overriding identity of the object and purpose of those treaties. The reassuring result has been a uniform interpretation of the International Law of Human Rights. This, in turn, has contributed significantly to the development of International Law in the present domain of protection. Thus, a chapter of International Law usually approached in the past from the outlook of State voluntarism, comes nowadays to be seen in a different light, under the influence of basic considerations of humanity. Although this chapter of International Law, – the law of treaties, – has maintained itself open to manifestations of the individual “will” of States, – as from the issue of the treatingmaking power itself, – the fact cannot keep on being overlooked that basic considerations of humanity have marked their presence also in the law of treaties. As demonstration of this evolution, developments pertaining to the interpretation of treaties, reservations to treaties, denunciation of treaties, and termination and suspension of the operation of treaties have disclosed a certain preparedness to elaborate freely on areas such as those, so as to search for responses to the contemporary needs of the international community. Like International Law in general, the law of treaties in particular is undergoing a historical process of humanization as well. It cannot pass unnoticed, as timely recalled by Egon Schwelb three decades ago,67 that the preambles themselves of the two Vienna Conventions on the Law of Treaties (of 1969 and 1986) contain an assertion of the principle of universal respect for, and observance of, human rights.68 The treaty-making power is no longer an exclusive prerrogative of States, as it used to be in the past; the 1986 [second] Vienna Convention on the 67

68

In respect of the 1969 Vienna Convention on the Law of Treaties; cf. E. Schwelb, “The Law of Treaties and Human Rights”, in Toward World Order and Human Dignity – Essays in Honor of M.S. McDougal (eds. W.M. Reisman and B.H. Weston), N.Y./London, Free Press, 1976, p. 265. Sixth preambular paragraph in fine, texts reproduced respectively in: U.N., United Nations Conference on the Law of Treaties – Official Records, Documents of the Conference (Vienna, 1968-1969), vol. III, N.Y., U.N., 1971, p. 289; and in: U.N., United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations – Official Records, Documents of the Conference (Vienna, 1986), vol. II, N.Y., U.N., 1995, p. 95.

Basic Considerations of Humanity in Relation to the Law of Treaties

Law of Treaties came to address the treaty-making power of international organizations, some of which devoted to causes of direct interest to human beings and humankind as a whole. The interpretation of treaties has been considerably enriched by the methodology pursued by international supervisory organs of human rights treaties. Such interpretation has adjusted itself to the specificity of human rights treaties.69 It has, moreover, favoured a harmonization of the standards of implementation of the protected rights in the domestic legal order of the States Parties to those treaties.70 The two international human rights Tribunals in operation for a long time (the ECtHR and the IACtHR) have been engaged in a converging jurisprudential construction in respect of reservations to treaties to the effect of avoiding to deprive human rights treaties of their effet utile, thus preserving the mechanisms of protection of the human person established by them. And basic considerations of humanity have nowadays permeated also the denunciation of treaties, as well as the termination and suspension of the operation of treaties. Last by not least, it may further be recalled that the concept of jus cogens made its initial appearance in the law of treaties,71 but nowadays, in my view, it goes well beyond the law of treaties, encompassing other domains of International Law, such as, e.g., the law on the international responsibility of the State.72 It thus deserves to be dealt with on its own, in its evolving and wide dimension,73 and no longer under the law of treaties only.

69

70

71 72

73

R. Bernhardt, “Thoughts on the Interpretation of Human Rights Treaties”, in Protecting Human Rights: The European Dimension -Studies in Honour of G.J. Wiarda (eds. F. Matscher and H. Petzold), Köln, C. Heymanns, 1988, pp. 66-67 and 70-71. And cf. Erik Suy, “Droit des traités et droits de l’homme”, (eds. R. Bernhardt et alii), Berlin, Springer-Verlag, 1983, pp. 935-947; E. Schwelb, “The Law of Treaties and Human Rights”, op. cit. supra n. (67), pp. 262-283; G.E. do Nascimento e Silva, Conferência de Viena... , op. cit. supra n. (64), pp. 80-81; E. de la Guardia and M. Delpech, El Derecho de los Tratados y la Convención de Viena, Buenos Aires, La Ley, 1970, pp. 458 and 454; F. Capotorti, “Il Diritto dei Trattati Secondo la Convenzione di Vienna”, in Convenzione di Vienna sul Diritto dei Trattati, Padova, Cedam, 1984, p. 61. F. Matscher, “Methods of Interpretation of the Convention”, in The European System for the Protection of Human Rights (eds. R.St.J. MacDonald, F. Matscher and H. Petzold), Dordrecht, Nijhoff, 1993, pp. 66 and 73. Articles 53 and 64 of the two Vienna Conventions on the Law of Treaties. As I have sustained, inter alia, in my Concurring Opinion (pars. 44-89) in the Advisory Opinion n. 18 of the IACtHR on the Juridical Condition and Rights of Undocumented Migrants (2003), and in my Separate Opinion (pars. 37-44) in the case of the Brothers Gómez Paquiyauri versus Peru (2004). Cf. chapter XII, supra.

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I.

Basic Considerations of Humanity in Relation to State Responsibility

State Responsibility and the General Interests of the International Community

The international responsibility of the State has always appeared as a complex, truly central and fundamental chapter of Public International Law as a whole. The degree of consensus that is attained, or not, in relation to its multiple aspects, – starting with the very bases of the configuration of such responsibility, – is bound to reflect ultimately the degree of evolution and cohesion of the international community itself as a whole. Half a century of concerted endeavours to systematize this crucial chapter of International Law give reason, on the one hand, for satisfaction as to some advances achieved, and, on the other hand and at the same time, for concern as to the inconclusive – and at times unsatisfactory – results attained to date on some aspects of relevance to the international community as a whole. The prolonged work of the U.N. International Law Commission [ILC] on State responsibility (1956-2001) disclosed, in fact, at least two significant features: the recognition of “the greater or lesser importance to the international community of the rules giving rise to the obligations violated, and the greater or lesser seriousness of the violation itself”.1 The admission, by the ILC, that besides the directly injured States, also indirectly affected States may have a general interest to react to internationally wrongful acts, appeared to attempt to transcend the traditional paradigm in acknowledging the existence of general interests of concern to all States, to the international community as a whole.2 In the same line of thinking, the ILC endeavours to regulate claims arising from the breach of obligations erga omnes (in cases of protection of human rights, or of collec1

2

S. Rosenne, “The Codification of the Law of State Responsibility (1924-1990)”, in The International Law Commission’s Draft Articles on State Responsibility (ed. S. Rosenne), Dordrecht, Nijhoff, 1991, p. 26. Cf. B. Simma, “Bilateralism and Community Interest in the Law of State Responsibility”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, p. 840, and cf. pp. 842 and 830-831, and cf. pp. 827, 829 and 844.

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tive interests, under treaties) are likewise a step forward.3 An examination of the ILC’s prolonged work on State responsibility leads to the identification of basic considerations of humanity also in this domain of International Law (infra). It may be recalled, to this effect, e.g., that when the ILC, as from the mid-seventies to the early eighties, engaged on the task, at a certain stage of its work on the subject, of listing grave violations to international peace and security (such as aggression), to the self-determination of peoples, to the safeguard of the human being (such as slavery, genocide, apartheid), to the protection of the environment (such as massive pollution of the atmosphere or of the oceans), – it followed the same method which it had previously adopted for the determination of peremptory norms of International Law in the ambit of its earlier work on the law of treaties, namely: to provide, for the determination of the obligations at issue, only a basic criterion, sufficiently clear so as to allow the crystallization around itself of international practice and case-law, and sufficiently flexible so as not to hinder “the development of the juridical conscience of the States”.4 As it proceeded in its work (part II, rapporteur W. Riphagen) on the international responsibility of the States, the ILC clarified that it followed a “normative” approach and that it moved away from the old voluntarist conception of international law.5 This latter appeared incapable to solve the problem of the fundamentals and of the validity of international law, which could only find a response in human conscience itself; it was reckoned that it was “impossible to eliminate from the law” the idea of an objective justice, “superior to the facts”, and which disengaged itself from the very observation of the facts.6 On the other hand, the ILC prolonged work which led to the adoption of its Articles on State Responsibility (2001) also disclosed in some aspects a certain resistance to the aforementioned construction of a new paradigm. An illustration is provided by the space occupied, in those Articles, by so-called “countermeasures” (Articles 22 and 49-54), in comparison with the much more succint space devoted to serious breaches of obligations under peremptory norms of general International Law (Articles 40-41). Ubi societas, ibi jus. It should not pass unno-

3

4 5

6

K. Zemanek, “The Legal Foundations of the International System – General Course on Public International Law”, 266 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1997) p. 266. By admitting that other States Parties may be regarded as “injured” (in those circumstances), the ILC moved into the gradual construction of a new paradigm. U.N., Yearbook of the International Law Commission [YILC] (1976)-II, part II, p. 119, par. 61. Cf. W. Riphagen, “Second Report on the Content, Forms and Degrees of International Responsibility”, Yearbook of the International Law Commission (1981)-II, part I, p. 85, pars. 53-54. H. Accioly, Tratado de Direito Internacional Público, 2nd. ed., vol. I, Rio de Janeiro, [MRE], 1956, pp. 18, 24, 26 and 30.

Basic Considerations of Humanity in Relation to State Responsibility

ticed that countermeasures – that is, “legal” countermeasures7 – has now been taken to the centre of the domain of State responsibility without originally and intrinsically belonging to it. Countermeasures are reminiscent of the old practice of retaliation, and, – whether one wishes to admit it or not, – they rely upon force rather than conscience. Recourse to them discloses the insufficient degree of development of the treatment of State responsibility. In this respect, there have at least been some rather rare warnings as to resort to countermeasures: as the international legal order is based upon justice rather than force, to confer a high standing to countermeasures in the domain of State responsibility is “to elevate to a position of high dignity one of [international] society’s least dignified and least sociable aspects”, thus condemning that society “to be what it is”.8 Although the apparently ellegant term “countermeasures” seems to have entered, rather smoothly and uncritically, into the lexicon of contemporary International Law, appearing to be en vogue nowadays, the essence of its practice should not be overlooked. It could hardly be denied that the practice of “countermeasures” ensues mainly from the domain of “the reciprocity of State interests” rather than principles, disclosing clear risks, including that of an escalation of retaliations launched by the application of a given countermeasure.9 There has been support, not surprisingly, for judicial control of countermeasures; one decade ago, in his seventh Report (of 1995), rapporteur G. Arangio-Ruiz attempted to subject these latter to a prior dispute settlement procedure (stressing the need of an institutionalized and controlled reaction – within the ambit of the United Nations – of the “organized international community”),10 and today the idea of a neutral control of countermeasures remains alive.11 Yet, the much larger space occupied by “countermeasures” than by other truly fundamental aspects of State responsibility in the 2001 ILC Articles on the subject discloses an apparent lack of confidence in the role of law for attaining justice; the greater emphasis is therein shifted to coercive means – envisaged as “legal” ones – rather than on conscience and the prevalence of opinio juris communis. Yet, in a domain of International Law endowed with a specificity of its own, such as the International Law of Human Rights, the overall picture is rather different. This is a domain which has rendered possible a re-encounter with the very 7 8 9 10 11

Cf., e.g., O.Y. Elagab, The Legality of Non-Forcible Counter-Measures in International Law, Oxford, Clarendon Press, 1988, pp. 1-221. Ph. Allott, “State Responsibility and the Unmaking of International Law”, 29 Harvard International Law Journal (1988) pp. 23-24. M. Virally, “Panorama du Droit international contemporain – Cours général de Droit international public”, 183 RCADI (1983) pp. 217-218. G. Arangio-Ruiz, “Séptimo Informe sobre la Responsabilidad de los Estados”, U.N. doc. A/CN.4/469, of 09.05.1995, pp. 30-37, 42-43, 46, 49 and 52. Cf., e.g., M.E. O’Connell, “Controlling Countermeasures”, in International Responsibility Today – Essays in Memory of O. Schachter (ed. M. Ragazzi), Leiden, Nijhoff, 2005, pp. 49-62.

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foundations of the international responsibility of States. Herein attention is correctly focused on Law rather than force, on conscience rather than “will”, to the greater effectiveness of Public International Law itself.12 It cannot pass unnoticed that the expansion of the international legal personality in International Law13 was, in fact, related to the issue of the attribution of international responsibility to the State in the course of the ILC work on part I (rapporteur, R. Ago), on the origin of the responsibility of the State. In his substantial fourth Report (of 1972) sobre “The Internationally Wrongful Act of the State, Source of International Responsibility”, rapporteur Roberto Ago14 pondered that “It would be useless to object, as writers have often done, that only States are subjects of International Law and that therefore only they can violate the obligations imposed by that law. Apart from the fact that such an objection would be begging the question, the cases referred to here are not cases of so-called international responsibility of individuals, but cases of international responsibility of the State. Since the action of the private individual would be attributed to the State, it would be the State, acting through the individual, which would breach an international obligation”.15

And he added, in further clarification of his thinking, that “The action of an individual would be the basis of the internationally wrongful conduct of the State, and the State would violate an international obligation through the action of an individual in which certain organs were merely accomplices. (...) The internationally wrongful act with which the State is charged is the violation of an international obligation perpetrated through the action of the individual concerned (...)”.16

II.

The Birth of the International Responsibility of States

It is nowadays generally acknowledged that the international responsibility of the State can be generated by acts or omissions on the part of any of its powers or organs, irrespective of their hierarchy, attributable to it under International Law, which constitute a breach of an international obligation binding it. The birth of the international responsibility of the State thus occurs as from the moment of 12

13 14

15 16

A.A. Cançado Trindade, “Memorial por um Novo Jus Gentium, o Direito Internacional da Humanidade”, 45 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais – Belo Horizonte/Brazil (2004) pp. 17-36. Cf. chapters VII-XI, supra. Roberto Ago (rapporteur of the theme in the ILC in 1963-1979) was preceeded by F.V. García Amador (1955-1961), and followed by (W. Riphagen, 1979-1986), G. ArangioRuiz (1987-1996) and J. Crawford (1997-2001). U.N., YILC (1972)-II, p. 96, par. 63. Ibid., pp. 96-97, par. 64.

Basic Considerations of Humanity in Relation to State Responsibility

the occurrence of such international wrong imputable to it.17 Such an acknowledgement crystallized in “an era of conscious consolidation of International Law”,18 as States gave up attempting to obstruct international law by means of the adoption of laws or administrative acts at variance with it. Here, once again, it was conscience that moved Law forward in the right direction. It gradually became clear that the international obligations of the State were not limited to the executive ones, but comprised likewise legislative and judicial obligations.19 International case-law was soon to sustain likewise that the origin of the international responsibility of the State can lie in any act or omission of any of the powers or agents of the State (be it of the Executive, or of the Legislative, or of the Judiciary),20 as indicated by the locus classicus on the matter, the Judgment on the case concerning Certain German Interests in Polish Upper Silesia (Germany versus Poland, 1926), and in the Advisory Opinion on German Settlers in Poland (1923), both of the old Permanent Court de International Justice [PCIJ].21 This has become jurisprudence constante in the domain of the International Law of Human Rights (European and Inter-American Courts of Human Rights);22 the pronouncements, on the matter, on the part of distinct organs of international 17

18 19

20 21

22

The distinction adopted in the work of the ILC on the Responsibility of the State (in particular of its part I) between primary rules (those which impose specific obligations to the States) and secondary rules (those which determine the juridical consequences of the non-compliance by the States of the obligations established by the primary rules) of International Law, contributes to clarify that the responsibility of the State is engaged as from the moment of the international wrongful act (or omission), there arising therefrom a subsidiary obligation to put an end to the consequences of the violation (what may mean, in the circumstances of a concrete case, e.g., to modify a national law) and to provide reparation for the damages. H. Lauterpacht, “Règles générales du droit de la paix”, 62 RCADI (1937) pp. 145-146. Cf., in this respect, e.g., H. Accioly, Tratado..., op. cit. supra n. (6), pp. 280-310; H. Dipla, La responsabilité de l’État pour violation des droits de l’homme – Problèmes d’imputation, Paris, Pédone, 1994, pp. 17-32; C. Sepúlveda, Derecho Internacional, 13th. ed., Mexico, Ed. Porrúa, 1983, pp. 237-238. Cf., e.g., the digest of case-law in U.N., YILC (1969)-II, pp. 105-106. In the exercise of its contentious as well as advisory jurisdiction, the PCIJ pronounced clearly on the matter: in the aforementioned Judgment, it asserted that national laws are facts which express the will and constitute the activities of the States, in the same way as the judicial decisions or the administrative measures, and concluded that the Polish legislation at issue was contrary to the German-Polish Convention which protected the German interests in question; and in the Advisory Opinion referred to, it sustained that the Polish legislative measures at issue were not in conformity with the international obligations of Poland. Cit. in U.N., YILC (1964)-II, p. 138. Cf., e.g., the Judgments of the European Court of Human Rights in the cases Klass and Others (1978), Marckx (1979), Johnston and Others (1986), Dudgeon (1981), Silver and Others (1983), De Jong, Baljet and van den Brink (1984), Malone (1984), Norris (1988), among others; and the Judgments of the Inter-American Court of Human Rights in the cases “The Last Temptation of Christ” (Olmedo Bustos and Others,

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supervision of human rights, at universal and regional levels, likewise affirm the existence of executive, legislative, and judicial obligations of the States Parties to the respetive human rights treaties, the breach of which promptly engages their international responsibility.23 In a study published in 1968, E. Jiménez de Aréchaga recalled that the unsucessful Hague Conference on the Codification of International Law (1930), at least contributed with the “general recognition” of the responsibility of States for judicial decisions clearly incompatible with the international obligations contracted by the respective States.24 Thus, 75 years ago, there were no longer traces of the surpassed doctrinal attempts, of the XIXth and beginning of the XXth centuries, that sought in vain to avoid the extension to the Judicial Power of the principle of the international responsibility of the State for acts or omissions of all its powers and organs. In this respect, Roberto Ago, as special rapporteur of the ILC on the theme of the Responsibility of the State, categorically pondered, in his substantial third Report (of 1971) on the topic of the internationally wrongful act of the State as “source” of international responsibility, that “(...) No-one now supports the old theories which purported to establish an exception in the case of legislative organs on the basis of the ‘sovereign’ character of Parliament, or in the case of jurisdictional organs by virtue of the principle of independence of the courts or the res judicata authority of their decisions. (...) Today, the belief that the respective positions of the different powers of the State have significance only for constitutional law and none for International Law (...) is firmly rooted in international jurisprudence, the practice of States and the doctrine of International Law”.25

In R. Ago’s correct understanding, expressed as from his second Report (of 1970), on “The Origin of International Responsibility”, any conduct of a State classified

23

24

25

2001), Suárez Rosero (1997-1999), Loayza Tamayo (1997-1998), Castillo Petruzzi and Others (1998-1999), among others. Cf., on the practice of the Human Rights Committee (under the U.N. Covenant on Civil and Political Rights), the cases Aumeeruddy-Cziff ra and Others (1981), and of the Handicapped Italians (1984), as well as its Views (of 31.03.1993) in the case J. Ballantyne, E. Davidson and G. McIntyre versus Canada, and its Views (of 31.03.1994) in the case N. Toonen versus Australia. And, at regional level, cf., e.g., the cases (ns. 60/91 and 87/93) of the Constitutional Rights Project (1994), concerning Nigeria, under the African Charter on Human and Peoples’ Rights, in Decisions of the African Commission on Human and Peoples’ Rights (1986-1997), Series A, vol. 1, Banjul, 1997, pp. 55-59 and 101-104. E. Jiménez de Aréchaga, “International Responsibility”, in Manual of Public International Law (ed. M. Sorensen), London/N.Y., MacMillan/St. Martin’s Press, 1968, p. 551. Roberto Ago (special rapporteur), “Third Report on State Responsibility: The Internationally Wrongful Act of the State, Source of International Responsibility”, in U.N., Yearbook ILC (1971)-II, part I, pp. 246-247, pars. 144 and 146.

Basic Considerations of Humanity in Relation to State Responsibility

by International Law as internationally wrongful entails the responsibility of that State in International Law; thus, any internationally wrongful act (or omission) constitutes “a source of international responsibility”.26 Moreover, the independence of the characterization of a given act (or omission) as wrongful in International Law from the characterization – similar or otherwise – of such act by the domestic law of the State, constitutes a general principle of the law on the international responsibility.27 The fact that a given State conduct conforms itself with the provisions of domestic law, or even is required by this latter, does not mean that its internationally wrongful character can be denied, whenever it constitutes a violation of an international obligation.28 In fact, the question of the distribution of competences, and the basic principle of the separation of powers, are of the greatest relevance in the ambit of constitutional law, but in that of International Law they are nothing but facts, which have no incidence in the configuration of the international responsibility of the State.29 The State, as an indivisible whole, remains a centre of imputation, bound to answer for the internationally wrongful acts or omissions, of any of its powers, or of its agents, irrespective of hierarchy. As very well pointed out by the Swiss jurist Max Huber, in his well-known arbitral award of 1925 in the case of the Island of Palmas (The Netherlands versus United States), the competences 26

27 28

29

As an illustration, Ago mentioned the failure of a State to abide by the international obligation to adopt certain legislative measures required by the treaty at issue, to which it is a Party; R. Ago (special rapporteur), “Second Report on State Responsibility: The Origin of International Responsibility”, in U.N, Yearbook ILC (1970)-II, pp. 179, 187 and 194, pars. 12, 31 and 50. In his view, the damage can be taken into account, for the purpose of the determination of the reparations, “but is not a prerequisite for the determination that an internationally wrongful act has been committed”; R. Ago, “Third Report on State Responsibility...”, op. cit. supra n. (25), p. 223, par. 74. Ibid., pp. 226, 232 and 238, pars. 86, 88, 103-104 and 120. As pointed out by the well-known obiter dictum of the old PCIJ in the case of Certain German Interests in Polish Upper Silesia (Merits, 1926), from the standpoint of International Law, the norms of domestic law are nothing more than simple facts. Ibid., pp. 227, 237 and 246, pars. 92, 117 and 145. – Likewise, it is jurisprudence constante of the International Court of Justice [ICJ] the principle whereby a State cannot invoke difficulties of domestic law in order to evade the observance of its international obligations, – a principle which is set forth in the two Vienna Conventions on the Law of Treaties (of 1969 and 1986, Article 27), and which was also singled out, in his work of codification, in 1957 and 1961, by the previous special rapporteur on the matter of the ILC, F.V. García Amador, duly recalled by R. Ago (ibid., pp. 228 and 231, pars. 94 and 100). – Thus, as pointed out by R. Ago, it is not the task of International Law to occupy itself with the “organization” of the State; in ibid., p. 236, par. 113. The frustrated attempts, in an already distant past, to place the legislative and judicial powers of the State out of international contacts (under the influence, to some extent, of some of the earlier manifestations of legal positivism), would have no sense in our days. They belong to a world which no longer exists.

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(territorial and jurisdictional) exercised by the States have as a counterpart the duties incumbent upon them, emanated from International Law, in their relations with other States,30 – and, I would allow myself to add, also, under the impact of the International Law of Human Rights in the last decades, in relation to all human beings under their respective jurisdictions. The distinction, originally found in part I of the aforementioned project of the ILC, between the obligations of behaviour or conduct and those of result, despite all the doctrinal debate it has aroused in the last three decades,31 has, at least, exercised the role of demonstrating the necessity to promote a better articulation between the domestic and international legal orders.32 Such articulation appears of particular importance for the future of the international safeguard of human rights, with special emphasis on the positive obligations of protection on the part of the State, on the basis of its objective international responsibility engaged as from the violation of its international obligations.33 The harmonization of the norms of domestic law with the provisions of human rights treaties can in fact be considered an obligation of result. But this does not mean that compliance with it can be postponed indefinitely. The whole doctrinal and jurisprudential construction of the last decades about the positive obligations of the States Parties to human rights treaties represents a reaction against the inertia, or the slowness, or the omissions of the public power in the present domain of protection. Such construction contributes to explain, and to set the foundations of, the legislative and other obligations of the States Parties to human rights treaties. Once the international responsibility of a State Party to a human rights treaty is established, such State has the duty to reestablish the situation that se30 31 32 33

U.N., Reports of International Arbitral Awards / Recueil des sentences arbitrales, vol. II, pp. 838-839. Cf. generally, e.g., A. Marchesi, Obblighi di Condotta e Obblighi di Risultato – Contributo allo Studio degli Obblighi Internazionali, Milano, Giuff rè, 2003, pp. 1-171. P.-M. Dupuy, “Le fait générateur de la responsabilité internationale des États”, 188 RCADI (1984) pp. 50 and 25. Cf., on the matter, e.g., Jules Basdevant, “Règles générales du droit de la paix”, 58 RCADI (1936) pp. 670-674; E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Ed. Tecnos, 1980, pp. 319-325, and cf. pp. 328-329; I. Brownlie, System of the Law of Nations – State Responsibility – Part I, Oxford, Clarendon Press, 1983, p. 43; P. Guggenheim, Traité de Droit International Public, vol. II, Genève, Georg, 1954, pp. 52 and 54; P. Reuter, “Principes de Droit international public”, 103 RCADI (1961) pp. 592-594 and 598-603; C.W. Jenks, “Liability for Ultra Hazardous Activities in International Law”, 117 RCADI (1966) pp. 105-110 and 176-196; K. Zemanek, “La responsabilité des États pour faits internationalement illicites, ainsi que pour faits internationalement licites”, in Responsabilité internationale (org. Prosper Weil), Paris, Pédone, 1987, pp. 36-38 and 44-46; B. Conforti, Diritto Internazionale, 5th. ed., Napoli, Ed. Scientifica, 1997, pp. 360-363; J.A. Pastor Ridruejo, Curso de Derecho Internacional Público y Organizaciones Internacionales, 6th. ed., Madrid, Tecnos, 1996, pp. 571-573.

Basic Considerations of Humanity in Relation to State Responsibility

cures to the victims the enjoyment of their violated right (restitutio in integrum, whenever possible), putting an end to the situation in breach of that right, as well as, in the light of the case, to provide adequate reparation for the consequences of such violation. In its Judgment of 05.02.2001 concerning the prohibition in Chile, by application of prior censorship (on the basis of a constitutional provision), of the public exhibition of the movie “The Last Temptation of Christ”, the Inter-American Court of Human Rights [IACtHR] established the objective international responsibility of the respondent State, originated in the promulgation of the 1980 Chilean Constitution containing Article 19(12) (on prior censorship of movie production). The Court determined inter alia that the respondent State should, within a reasonable time, modify its domestic legal order so as to put an end to prior censorship and allow the public exhibition of the aforementioned movie. On 14.11.2001 the State informed the Court of the publication in the Official Journal of the constitutional reform putting an end to the previous censorship regime. Shortly afterwards, the State further informed the IACtHR (reports of 20.08.2002 and of 19.03.2003) of the conclusion of the legislative measures, establishing a new system of qualification of movie production, allowing the public exhibition (as from 11.03.2003) of the movie at issue.34 At last, in a resolution of 28.11.2003, the IACtHR declared that the Chilean State had fully complied with its Judgment of 05.02.2001 on the case of the “The Last Temptation of Christ”. This was a remarkable outcome: for the first time in the history of the IACtHR, a respondent State modified its own Constitution to comply fully with a Judgment of an international tribunal of human rights, setting up a positive precedent for other States Parties to the American Convention. The historical episode reveals that, in the present domain of protection, the primacy of International Law over domestic law comes to constitute, more than an academic construction, an achievement of Law in our days, moved this latter by human conscience.35 34

35

The Court was further informed, by both the petitioners (on 21.10.2003) and the Inter-American Commission on Human Rights [IAComHR] (on 27.10.2003), that they considered that the respondent State had effectively complied with the Court’s Judgment of 05.02.2001. In my Concurring Opinion in the Court’s Judgment of 05.02.2001, I held, in sum, that the international responsibility of a State Party to a human rights treaty arises at the moment of the occurrence of an international wrongful act – or omission – (tempus commisi delicti), imputable to that State, in violation of the treaty at issue Any act or omission of the State, on the part of any of the Powers – Executive, Legislative or Judicial – or agents of the State, irrespective of their hierarchy, in breach of a human rights treaty, engages the international responsibility of the State Party at issue. The distribution of competences between the powers and organs of the State, and the principle of the separation of powers, although of the greatest relevance in the ambit of constitutional law, do not condition the determination of the international responsibility of a State Party to a human rights treaty. Thus, any norm of domestic law, irrespective of its rank (constitutional or infraconstitutional), can, by its own existence and applicability, per se engage the responsibility of a State

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There are further considerations of humanity, still under the issue of the origin or birth of State responsibility, that cannot pass here unnoticed. In addressing circumstances precluding wrongfulness, e.g., the 2001 ILC’s Articles on Responsibility of States asserted that the circumstance of necessity may not be invoked, unless the act at issue “does not seriously impair” an essential interest of the State(s) towards which the obligation exists, or of “the international community as a whole” (Article 25(1)(b)). And they added significantly that nothing in chapter V of Part I of the aforementioned Articles precluded the wrongfulness of any act of a State “which is not in conformity with an obligation arising under a peremptory norm of general international law” (Article 26). Jus cogens was thus brought explicitly into the realm of State responsibility, well beyond the law of treaties.36 The ILC’s Articles on State Responsibility further purported, in Part II, as to the content of the international responsibility of the State, to identify the wide scope of international obligations set out therein. Thus, Article 33(1) stated that the obligations of the responsible State set out in Part II may be owed to another State, to several States, or to the international community as a whole.37 III. The Implementation of the International Responsibility of States As to the distinct moment of the implementation of State responsibility, there are aspects in respect of which basic considerations of humanity have marked their presence as well. Article 42, for example, admitted that a State is entitled, “as an injured State”, to invoke the responsibility of another State, if the obligation breached is owed not only to that State individually, but also to a group of States including that State, or “the international community as a whole”. And Article 48(1)(b) added that “any State other than an injured State” is entitled to invoke the responsibility of another State38 if the obligation breached “is owed to the international community as a whole”. Although the system of countermeasures, as at last adopted in 2001, in part III of the ILC’s Articles on State Responsibility, appears rather unsatisfactory from the standpoint of a truly organized international community (cf. supra), it appeared at least not wholly devoid of basic considerations of humanity. Thus, Article 50(1) determined significantly that countermeasures shall not affect: “(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;

36 37 38

Party to a human rights treaty. I added that a norm of domestic law which, by being in force, per se creates a legal situation which affects the rights protected by a human rights treaty, constitutes, in the context of a concrete case, a continuing violation of such treaty (par. 40 of the Opinion). Cf. chapter XII, supra. Depending in particular on the “character and content” of the international obligation and on the circumstances of the breach. In accordance with the provision of paragraph 2 of the same Article 48.

Basic Considerations of Humanity in Relation to State Responsibility (b) (c) (d)

obligations for the protection of fundamental human rights; obligations of a humanitarian character prohibiting reprisals; other obligations under peremptory norms of general international law”.

Still as to the implementation of the international responsibility of the State, the ILC’s Articles restated, as to the admissibility of claims, the preconditions of the nationality of claims (Article 44(a)) and of the prior exhaustion of local remedies (Article 44(b)). This latter is one of the preconditions of admissibility most often raised in international practice, and it in recent years has been the object of a vast case-law, in particular of international human rights supervisory organs. In the domain of the international protection of human rights, – fundamentally distinct from that of discretionary diplomatic protection at inter-State level,39 – the rule of exhaustion of local remedies is endowed with a procedural rather than substantive nature. It thus conditions the implementation (mise-enoeuvre) of the responsibility of the State (as a requisite of admissibility of an international petition or complaint), but not the birth of such responsibility. This is the thesis which I have been constantly sustaining for almost three decades,40 maintaining that the birth and the implementation of the international responsibility of the State correspond to two distinct moments; in the present context of the international protection of human rights, the requisite of prior exhaustion of remedies of domestic law conditions the implementation, but not the birth, of that responsibility, which is conformed as from the occurrence of an internationally wrongful act (or omission) (which may have its source, e.g., in a legal provision of domestic law, or in an administrative act, or else in a judicial decision). The contributions of human rights international supervisory organs on the application of preconditions for the implementation of the international responsibility of States have paved the way for consistently developing the proper application of the local remedies rule (as a condition of admissibility of petitions) with special attention to the needs of protection and the particularities of the present context of international implementation of human rights. The incidence of the local remedies rule in human rights protection is certainly distinct from its application in the practice of diplomatic protection of nationals abroad (in customary international law), and the rule at issue is far from having the dimensions of an immutable or sacrosanct principle of international law. Moreover, the two contexts – human rights protection and diplomatic protection – are also distinct, and there is nothing to impede the application of that rule with greater or lesser rigour in such distinct situations.

39

40

The basic differences of context require that the local remedies rule, in the ambit of the international safeguard of human rights, be applied with special attention to the needs of protection of the human being. Cf. A.A. Cançado Trindade, “The Birth of State Responsibility and the Nature of the Local Remedies Rule”, 56 Revue de Droit international de sciences diplomatiques et politiques – Sottile (1978) pp. 157-188.

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In rightly attempting to avoid the simple and prompt rejection of complaints for non-exhaustion of local remedies, and trying to obtain further information on the matter at the admissibility stage, international human rights supervisory organs have facilitated and gradually strengthened the access of the alleged victims to the international mechanism of protection. The indications are that the criterion of the effectiveness of local remedies, and certain procedural techniques (such as the shifting of the burden of proof as to exhaustion) and presumptions will continue to be applied in favour of the alleged victims (the ostensibly weaker party) in order to secure the faithful realization of the object and purpose of human rights treaties and instruments. As I have been firmly sustaining for the last three decades, local remedies form an integral part of the very system of international human rights protection, the emphasis falling on the element of redress rather than on the process of exhaustion (of those remedies). The local remedies rule bears witness of the interaction between International Law and domestic law in the present context of protection. We are here before a droit de protection, with a specificity of its own, fundamentally victim-oriented, concerned with the rights of individual human beings rather than of States. Generally recognized rules of international law (which the formulation of the local remedies rule in human rights treaties refers to), besides following an evolution of their own in the distinct contexts in which they apply, necessarily suffer, when inserted in human rights treaties, a certain degree of adjustment or adaptation, dictated by the special character of the object and purpose of those treaties and by the widely recognized specificity of the international protection of human rights.41 IV. Serious Breaches of Obligations under Peremptory Norms of International Law Writing in 1963, the Cuban jurist F.V. García Amador, former rapporteur of the ILC (1956-1961) on State responsibility, asserted that the gravity of the international wrong (act or omission) should be taken into account, and particularly so for the purpose of reparations.42 The following rapporteur on the matter, Roberto Ago, introduced in his substantial work in part I on the origin or birth of State 41

42

A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Remedies in International Law, Cambridge, Cambridge University Press, 1983, pp. 1-443, esp. pp. 6-56, 279-287, 290-322 and 410-412. Th is is the abridged version of the original research on the subject, deposited in Cambridge University Library since 1977: A.A. Cançado Trindade, Developments in the Rule of Exhaustion of Local Remedies in International Law, with Particular Reference to Experiments on the International Protection of Individual Rights, University of Cambridge, vol. I, pp. 1-818, and vol. II, pp. 819-1728. And cf., more recently, R.P. Mazzeschi, Esaurimento dei Ricorsi Interni e Diritti Umani, Torino, Giappichelli, 2004, pp. 1-243. F.V. García Amador, Principios de Derecho Internacional que Rigen la Responsabilidad – Análisis Crítico de la Concepción Tradicional, Madrid, Escuela de Funcionarios Internacionales, 1963, 409.

Basic Considerations of Humanity in Relation to State Responsibility

responsibility, in the framework of the theory of objective international responsibility, the distinction between international “crimes” and “delicts” (former Article 19). The ILC itself related that distinction, in the present domain of State responsibility, to the former acknowledgment of jus cogens, originally in the law of treaties.43 The distinction was at the time regarded as a conceptual advance, in recognizing that particularly serious breaches of International Law, affecting the general interests of the international community, would amount to international “crimes”, and other breaches to international “delicts”. The criterion followed by the ILC, to retain that distinction, was similar to the one that it had adopted, years earlier, for the determination of peremptory norms of international law, namely, to provide a sufficient flexible criterion so as not to hinder “the development of the juridical conscience of the States”,44 and so as to allow international practice and case-law gradually to crystallize the material content of the matter. It was up to the international community itself to assess whether the obligation breached was essential to the protection of its general interests.45 In his thoughtful fifth Report on State responsibility (1993), rapporteur G. Arangio-Ruiz, taking into account the work of his predecessors R. Ago and W. Riphagen, recalled draft Article 19 (on crimes of State) as pertaining to grave breaches of obligations essential to the safeguard of the fundamental interests of the international community,46 entailing punitive damages47. In such circumstances (of crimes of State), G. Arangio-Ruiz favoured the application of “sanctions” by the “competent” U.N. organs on behalf of the “organized international community”.48 Such reaction of the “organized international community” would, in his view, be proportional to the gravity of the crime [of State], in particular that of aggression, amounting to a threat to international peace.49 The concepts of jus cogens and crime of State are more approapriately dealt with in separate chapters;50 suffice it here to point out that the aforementioned outlook then prevailing in the ILC assumed the existence of an international community endowed with a certain degree of cohesion, and having attained a certain level of conscience. By the end of the eighties, in a Seminar held in Florence, R. Ago warned as to “the most utter anarchy” of varied States’ responses to international wrongful acts, and expressed his hope of a more institutionalized international legal order, which he regarded as “extremely important” for

43 44 45 46 47 48 49 50

Cf. U.N., YILC (1976)-II, part II, p. 122, par. 73. U.N., YILC (1976)-II, part II, p. 119, par. 61. Ibid., p. 119, par. 59. U.N. doc. A/CN.4/453/Add.2, of 08.06.1993, p. 6, par. 5 (text in Spanish). Ibid., p. 10, par. 13, and cf. pp. 15-16 and 21-22, pars. 23, 25 and 32-33. Ibid., pp. 25-26, par. 39(iv). Ibid., pp. 35 and 38, pars. 55 and 58. Cf. chapters XII (on jus cogens) and XV (on crime of State), supra.

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progress to be achieved in the present domain.51 In the discussions on the occasion the view was expressed that “the existence of imperative norms reflects the worldly conscience”.52 Both R. Ago and his immediate successors, rapporteurs W. Riphagen and G. Arangio-Ruiz, appeared to opt for reactions to international crimes on the part of a more institutionalized international community, rather than on States taken individually.53 However, as the ILC retook its work on the subject in 2000, the lack of consensus led to the deletion of the concept of international crime of State from the text. Yet, the new rapporteur (J. Crawford) attained the ILC approval of chapter III of part II of the new text (Articles 40-41), on “serious breaches of obligations under peremptory norms of general international law”. Jus cogens was thus transposed into the heart of the domain of State responsibility. Article 40 of the text adopted in 2001 read that “1.

2.

This chapter applies to the international responsibility which is entailed by a serious breach by a State of an obligation arising under a peremptory norm of general international law. A breach of such an obligation is serious if it involves a gross or systematic failure by the responsible State to fulfi l the obligation”.

And Article 41 of the 2001 ILC’s Articles, in addressing the particular consequences of such “a serious breach of an obligation” under peremptory norms of general international law, added that “1. 2.

3.

States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40. No State shall recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation. This Article is without prejudice to the other consequences referred to in this Part and to such further consequences that a breach to which this chapter applies may entail under international law”.

In his commentaries, J. Crawford pointed out that the obligations referred to in Article 40 arise from “substantive rules of conduct” that prohibit what has come to be deemed as “intolerable because of the threat it presents to the sur-

51

52 53

Cf. J.H.H. Weiler, A. Cassese and M. Spinedi (eds.), International Crimes of State – A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility, Berlin, W. de Gruyter, 1989, pp. 238-239. Ibid., p. 239 (views of M. Bennouna and H. Bokor-Szego). And rapporteur G. Arangio Ruiz was further attentive to the need to determine the legal consequences of those crimes.

Basic Considerations of Humanity in Relation to State Responsibility

vival of States and their peoples and the most basic human values.54 As to the consequences of the breach of such obligations, he indicated that Article 41(3) allowed for further consequences, other than the specified ones, thus reflecting the conviction that “the legal regime of serious breaches is itself in a state of development”, and may well evolve in the future into a “more elaborate regime of consequences entailed by such breaches”.55 V.

Concluding Observations

It ensues from the previous considerations that the ILC’s Articles on State Responsibility (2001) are far from being the last word on the subject, as they reckon by themselves that in some respects the law on the subject in still in a stage of development, not ripe yet for codification. After half a century of constant endeavours, the fundamental and central chapter of State responsibility keeps on defying attempts of codification. Yet, endeavours to this effect undertaken in recent years have taken into account basic considerations of humanity. The current process of humanization of International Law has encompassed also the present chapter on State responsibility. Had the international community of States (rather than the international community properly speaking, that is, the one encompassing all subjects of International Law) attained a higher degree of conscientization, the regime of consequences of breaches of obligations, and particularly serious breaches, would have been far more satisfactory. Had the international community achieved a greater level of institutionalization and cohesion, as much required in our days, solutions other than “countermeasures” would have already been devised and adopted. Such “countermeasures”, which do not strictly belong to this domain of International Law, suggest that States still wish to retain much discretion for their action, even outside the framework of a regime of peaceful settlement of international disputes to regulate the matter. Each instrument is product of its time, an so are the Articles adopted in 2001 by the ILC. As already indicated, State responsibility occupies a central place in the corpus juris of International Law, and irradiates itself to distinct areas or chapters of this latter.56 Awareness of its utmost relevance is fortunately more accute in our days (the same applying to responsibility of other subjects of International Law57), 54 55 56

57

J. Crawford, The International Law Commission’s Articles on State Responsibility – Introduction, Text and Commentaries, Cambridge, University Press, 2002, p. 246. Ibid., p. 253. One may refer, as an illustration, inter alia, to the arguments purporting to relate State responsibility to State continuity and State succession, in the case of the Baltic States; cf. I. Ziemele, “State Continuity, Succession and Responsibility: Reparations to the Baltic States and Their Peoples?”, 3 Baltic Yearbook of International Law (2003) pp. 171 and 180. As to recent developments in relation to, e.g., the international responsibility of international organizations, cf. also chapter VIII, supra.

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as the concept of the prevalence of the rule of law at both national and international levels gains increasing space in the international agenda of this first decade of the XXIst century, particularly in that of the U.N. General Assembly.58 State responsibility itself has kept its place in the agenda of the General Assembly, even after the adoption of the Articles of the ILC in 2001, disclosing a sustained prise de conscience of the relevant matter at issue: as a clear indication that the subject remains in a stage of development, the General Assembly has, in the last half-decade (2004-2009), been requesting the U.N. Secretary-General to invite Governments to submit, and keep on forwarding, their written comments, and any further information on their practice (besides recent case-law, to be compiled and updated by the Secretary-General), so as to decide in due course on “any future action regarding the Articles”.59 Despite their shortcomings (supra), the ILC Articles of 2001 on State responsibility have at least retained the concept of jus cogens in the domain of State responsibility, and have taken into due account basic considerations of humanity (cf. supra) in some of its aspects; yet, there still remains a long way to go in order to fulfi l the needs and aspirations of the international community as a whole.

58 59

Cf. chapter XXVI, infra. Cf. U.N., G.A. resolution 59/35, of 02.12.2004, pars. 2-3; U.N., G.A. resolution 62/61, of 06.12.2007, pars. 2-3.

Chapter XX

I.

Basic Considerations of Humanity in Relation to State Succession

Distinct Moments and Contexts of State Succession

The numerous conflicts erupted in the post-cold war period (1989 onwards) – responsible for so many victims – have generated new needs of protection of the human being, which, in turn, have been taken into account by the evolving International Law, in facing the transformations in the world scenario.1 Every legal instrument is product of its time, and the two Vienna Conventions, respectively on Succession of States in Respect of Treaties, of 1978,2 and on Succession of States in Respect of Property, Archives and Debts, of 1983,3 were adopted in the postdecolonization period, under the strong influence of that historical phenomenon (reflected, e.g., in the acknowledgement – by the Convention of 1978 – of the principle of the clean slate or tabula rasa). In historical perspective, the clean slate principle appeared as the most reasonable solution for the newly-emerged independent States within the specific context of decolonization (mainly in the sixties), but State succession has occurred also in other contexts.4 Hence the complexities which have surrounded 1 2 3

4

A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1073-1074. Which waited 19 years to enter into force. Which until the present has not entered into force. For a study, cf. Ph. Kirsch, “La Conférence de 1983 sur la succession d’États et le processus de codification: accident de parcours ou reflet d’une tendance”, in Selected Papers in International Law – Contribution of the Canadian Council on International Law (eds. Y. Le Bouthillier, D.M. McRae and D. Pharand), The Hague, Kluwer, 1999, pp. 49-58. Cf., e.g., Ph. Cahier, “Quelques aspects de la Convention de 1978 sur la succession d’États en matière de traités”, in Mélanges Georges Perrin, Lausanne, Payot, 1984, pp. 63-76; E.G. Bello, “International Equity with Particular Reference to Treaty Law and State Succession”, 58 Revue de droit international de sciences diplomatiques et politiques (1980) pp. 153-185; S. Oeter, “State Succession and the Struggle over Equity: Some Observations on the Laws of State Succession with Respect to State Property and Debts in Cases of Separation and Dissolution of States”, 38 German Yearbook of International Law / Jahrbuch für internationales Recht (1995) pp. 73-102, esp. pp. 88 and 91.

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the matter in varying contexts and in distinct historical moments.5 In fact, in the post-cold war period, with the unification of Germany and the dissolution of the former Soviet Union (USSR) and the former Yugoslavia, the situations of State succession appeared in a context distinct from that which motivated the adoption of the Conventions of 1978 and 1983 on the matter. This does not amount to denying the value of these latter, which at least served the purpose of identifying what was considered to constitute the rules of International Law on the matter; but the subject was to be retaken lately, as has been done by the Institut de Droit International (at the Vancouver session, of 2001),6 in the light of the transformations of the international scenario. These transformations have presented new legal problems, with an incidence in the international protection of human rights, among which those generated, inter alia, by the dismemberments of the former Soviet Union and the former Yugoslavia. Although the 1978 Vienna Convention on Succession of States in Matter of Treaties does not contain an express mention of the treatment to be dispensed to human rights treaties in particular, in the domain of State succession there is space for equity: for example, when it comes to human rights treaties, there are cogent reasons, which have in fact found expression in contemporary international practice on the matter, and in the evolution itself of contemporary International Law, in favour of the continuity of the conventional protection of human rights, without interruptions. In a Legal Opinion that I prepared in 1995 for the Council of Europe, I observed that the States which emerged from the dissolution of the former Soviet Union have given signs of their concern as to their continued obligations in relation to the safeguard of human rights,7 and several of them are in fact nowadays Parties to the European Convention on Human Rights, as well as to the 5

6

7

E.g., the cases of the Baltic States, and of other Republics of the former Soviet Union; cf., e.g., R. Müllerson, “Law and Politics in Succession of States: International Law on Succession of States”, in Dissolution, Continuation and Succession in Eastern Europe (ed. B. Stern), The Hague, M. Nijhoff, 1998, pp. 5-32. Although the resolution of the Institut (of 26.08.2001) covers State succession in matters of property and debts (rapporteur, G. Ress) rather than treaties, the resolution does acknowledge the need “to clarify and improve the situation of individuals” (Article 5(2)), and affirms, in the preamble, that “all situations leading to a succession of States should take place in full conformity with public international law, and in particular with humanitarian law and human rights”. Cf. 69 Annuaire de l’Institut de Droit International – Session de Vancouver (2000-2001) pp. 715 and 717. A.A. Cançado Trindade, “Analysis of the Legal Implications for States that Intend to Ratify Both the European Convention on Human Rights and Its Protocols and the Convention on Human Rights of the Commonwealth of Independent States (CIS) / Analyse des conséquences juridiques qu’impliquent, pour les États, les ratifications tant de la Convention Européenne des Droits de l’Homme avec ses Protocoles, que de la Convention des Droits de l’Homme de la Communauté des États Indépendants” (also in Russian), Strasbourg, Council of Europe/Conseil de l’Europe, 1995, document SG/INF(95)17, of 20.12.1995, pp. 1-38, text reproduced in: 17 Human Rights Law

Basic Considerations of Humanity in Relation to State Succession

U.N. Covenant on Civil and Political Rights. As to former Yugoslavia, – to recall another example, – Croatia, the Federal Republic of Yugoslavia (Serbia-Montenegro), and Bosnia- Herzegovina promptly considered themselves bound by the human rights treaties even before the formal manifestation of such position of theirs (to the depositary of those treaties).8 II.

State Succession and the General Interests of the International Community

In the travaux préparatoires of the 1978 Vienna Convention on Succession of States in Matter of Treaties, the proposal was raised, though not retained, of excluding from the tabula rasa principle multilateral treaties of a “normative character” – mainly the international humanitarian law Conventions – as well as treaties of codification and progressive development of international law of general interest to the international community as a whole. Although such proposal did not materialize in the insertion of a clause to that effect into the 1978 Vienna Convention,9 it was nevertheless significant that already at that time the idea found its supporters. In recent years, an opinio juris communis seems to have been formed on the matter, in support of the prevalence of superior common interests consubstantiated in the protection of the rights of the human person. This is due, in my understanding, to a great extent, to the reassuring impact upon International Law of the corpus juris of the International Law of Human Rights.10 There are also reasons, of a jusphilosophical order, which militate in favour of this evolution, starting with the special character and specificity of human rights treaties; as such treaties protect human rights, inherent to every human being, succession of States, and territorial mutations in general, ought not and cannot affect them.11 This understanding applies to human rights treaties stricto sensu, as well as to

8

9

10 11

Journal (1996) pp. 164-180; and also in: 107/112 Boletim da Sociedade Brasileira de Direito Internacional (1997) pp. 237-273 and 285-324. Cf. I. Poupart, “Succession aux traités et droits de l’homme: vers la reconnaissance d’une protection ininterrompue des individus”, in La succession d’États: codification à l’épreuve des faits / State Succession: Codification Tested against the Facts (eds. P.M. Eisemann and M. Koskenniemi), The Hague, Nijhoff/Académie de Droit International de La Haye, 2000, pp. 484 and 473, and cf. pp. 470 and 476. Cf. P. Pazartzis, La succession d’États aux traités multilatéraux à la lumière des mutations territoriales récentes, Paris, Pédone, 2002, pp. 27-29, and cf. pp. 150 and 152. In the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia raised the issue of State succession (1993), but the International Court of Justice avoid dwelling upon it; ibid., pp. 42-43, and cf. p. 177. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, p. 286, and cf. pp. 283-290. Cf., in this sense, I. Poupart, “Succession aux traités...”, op. cit. supra n. (8), p. 467, and cf. pp. 471 and 474.

471

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treaties on International Refugee Law and International Humanitarian Law,12 – even more forcefully for incorporaring norms of customary international law. In the course of the last two decades, in so far as economic and social rights are concerned, for example, the International Labour Organization [ILO] has endeavoured to promote the continuity of obligations ensuing from its Conventions, and there have been some cases in which new States have accepted ILO Conventions binding their predecessors, though it is not a unanimous practice.13 Automatic succession has occurred in relation to the 1949 Geneva Conventions on International Humanitarian Law (e.g., States successors of the Former Yugoslavia, and of the Former Czechoslovaquia); the same has occurred in relation to human rights treaties; in fact, herein, specifically in case of these latter, there appears clearly to exist nowadays an opinio juris in favour of succession.14 III. State Succession and Continuity of Conventional Obligations Concerning Human Rights The practice of the Human Rights Committee, under the U.N. Covenant on Civil and Political Rights, for example, affords a pertinent illustration to that effect. In its ‘final observations’ (of 1996) on the report submittted by the United Kingdom, under that Covenant, in respect of Hong Kong, shortly before the devolution of this latter to continental China, the Human Rights Committee significantly expressed the understanding of its practice in the sense that “human rights treaties devolve with territory”, and “States continue to be bound by the obligations under the Covenant entered into by the predecessor State. Once the people living in a territory enjoy the protection of the rights under the International Covenant on Civil and Political Rights, such protection cannot be denied to them merely by virtue of dismemberment of that territory or its coming under the sovereignty of another State or of more than one State”.15

12

13 14 15

For a study of these latter, cf. B. Zimmermann, “La succession d’États et les Conventions de Genève”, in Études et essais sur le Droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (ed. C. Swinarski), Genève/ La Haye, CICR/Nijhoff, 1984, pp. 113-123. Cf. P. Pazartzis, op. cit. supra n. (9), p. 105. Cf. ibid., pp. 116-117 and 170, and cf. pp. 175-176, 213 and 219-220. U.N./Human Rights Committee, Consideration of the Report Submitted by the United Kingdom of Great Britain and Northern Ireland (Hong Kong) under Article 40 of the Covenant – Concluding Observations, document CCPR/C/79/Add.69, of 08.11.1996, p. 2, par. 4. Moreover, The Human Rights Committee recalled the Joint Declaration (of 1984) of the People’s Republic of China and of the United Kingdom, in the sense of the continued application, in relation to Hong Kong, of the two U.N. Covenant on Human Rights, even subsequently to 01.07.1997 (cf. ibid., pars. 5-6). – Cf., on this Joint Declaration, A. Byrnes and J. Chan (eds.), Public Law and Human Rights – A Hong Kong Sourcebook, Hong Kong/Singapore/Malaysia, Butterworths, 1993, pp. 243-244, and cf. pp. 45-63.

Basic Considerations of Humanity in Relation to State Succession

The practice of the Human Rights Committee has effectively oriented itself in the sense that, once the inhabitants of a territorial unit come to enjoy the internationally protected rights, they keep on benefitting from the international guarantee of such rights independently of changes in sovereignty over the respective territorial unit. This posture has been supported by the contemporary legal doctrine on this specific question.16 And, significantly, the contemporary practice of the Human Rights Committee in the matter of succession of States, giving primacy to the imperatives of protection of human rights, has not been challenged or questioned by the States at issue.17 The Yugoslav precedent, in its initial stage in 1992, – occurred shortly before the II World Conference on Human Rights in Vienna, – was of considerable importance, given the massive violations of human rights which generated numerous victims, in the course of the disintegration of former Yugoslavia. In the debates on that case in the plenary session of October 1992 of the Human Rights Committee, the view was expressed that the inhabitants of the territory of the former Yugoslavia could not be deprived of the protection of the international instruments of human rights by virtue of the dismemberment of the State; those instruments attributed rights directly to the individuals, who could not be deprived of them as a result of State succession. The concern with human suffering was to prevail over legal technicalities; one came to link the domain of State succession in the present context with “the acquired rights of the population of the State” which had ratified the Covenant on Civil and Political Rights, which subsisted despite the disintegration of the State.18 Subsequently, in its ‘general comment’ n. 26(61), of 1997, the Human Rights Committee summarized its practice on the issue, in an unequivocal way, in the following terms: “The rights enshrined in the Covenant [on Civil and Political Rights] belong to the people living in the territory of the State Party. The Human Rights Committee has consistently taken the view, as evidenced by its long-standing practice, that once the people are accorded the protection of the rights under the Covenant, such protection devolves with territory and continues to belong to them, notwithstanding change in government of the State Party, including dismemberment in more than

16

17 18

Cf. A. Byrnes, Hong Kong and the Continuation of International Obligations Relating to Human Rights after 1997, Hong Kong, University of Hong Kong, 1996, pp. 1-13 (mimeographed, restricted circulation); N. Jayawickrama, “Human Rights in Hong Kong: The Continued Applicability of the International Covenants”, 25 Hong Kong Law Journal (1995) pp. 171-179. I. Poupart, op. cit. supra n. (8), p. 485. J. Chan, “State Succession to Human Rights Treaties: Hong Kong and the International Covenant on Civil and Political Rights”, 45 International and Comparative Law Quarterly (1996) p. 930.

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Chapter XX one State or State succession or any subsequent action of the State Party designed to divest them of the rights guaranteed by the Covenant”.19

This understanding has been advanced not only by the Human Rights Committee, but likewise by other international supervisory organs in the present domain of protection. Thus, in the same line of reasoning, in the V Meeting of Chairpersons of U.N. International Supervisory Organs (September 1994), the thesis was advanced that “successor States were automatically bound by obligations under international human rights instruments from the respective date of independence”.20 U.N. conventional organs of protection, – like the Committee on the Elimination of Racial Discrimination (CERD, of supervision of the U.N. Convention on the matter), – as well as organs of inter-governmental composition, – like the U.N. Commission on Human Rights, – have given particular attention to the need of prevalence of human rights in the contemporary cases of State succession; it may, thus, at last, in our days, safely be asserted that there already exists, at least, a presumption of continuity of the conventional obligations pertaining to human rights, in the cases of territorial changes and succession of States.21 Over a decade ago, a report22 circulated (in April 1993) in the course of the work of the Preparatory Committee to the II World Conference on Human Rights (Vienna, June 1993), argued that the provisions of human rights treaties, – given the special nature of these latter, – should be treated “as applying, on a continuing basis, to the people within the territories of the new States”; an additional reason for that was the “universal application” which those treaties aimed at.23 Thus, “once the people living on a territory fi nd themselves under the protection of an international instrument, such protection cannot be denied to them by virtue of the mere dismembering of that territory and its coming within the jurisdiction of more than one State”.24

On this understanding, in October 1992 the Human Rights Committee requested Bosnia-Herzegovina, Croatia and the Federal Republic of Yugoslavia (SerbiaMontenegro) to submit reports on specific issues under the Covenant on Civil and Political Rights, even before any declaration on their part confi rming their condition of successor States to the former Yugoslavia. The requested States

19 20 21 22 23 24

U.N./Human Rights Committee, General Comment n. 26: Continuity of Obligations, doc. CCPR/C/21/Rev.1/Add.8/Rev.1, of 08.12.1997, p. 1, paragraph 4. U.N., doc. E/CN.4/1995/80, par. 10. Cf., in this sense, e.g., J. Chan, “State Succession to Human Rights Treaties...”, op. cit. supra n. (18), pp. 934-935 and 937. Rapporteur, F. Pocar. U.N., document A/CONF.157/PC/60/Add.4, of 08.04.1993, p. 19, par. 37. Ibid., p. 19, par. 37.

Basic Considerations of Humanity in Relation to State Succession

promptly submitted their reports, without questioning the authority of the Committee to consider them. In the light of the preceding considerations, the view has been propounded that “human rights treaties devolve with territory and all appropriate measures should be taken to prevent populations living in dismembered States from being deprived of the protection resulting from treaties concluded by the predecessor State”.25

This view has met with judicial recognition, with regard to obligations ensuing from human rights and humanitarian law treaties. Thus, in its Judgment of 20 February 2001 in the Celebici case, the Ad Hoc International Criminal Tribunal for the Former Yugoslavia (Appeals Chamber) held that the generally accepted date of Bosnia-Herzegovina’s independence (06.03.1992) may be considered the date as from which it became a Party to the 1949 Geneva Conventions on International Humanitarian Law (par. 110). It further held that “irrespective of any findings as to formal succession, Bosnia and Herzegovina would in any event have succeeded to the Geneva Conventions under customary law, as this type of Convention entails automatic succession, i.e., without the need for any formal confirmation of adherence by the successor State. It may be now considered in international law that there is automatic State succession to multilateral humanitarian treaties in the broad sense, i.e., treaties of universal character which express fundamental human rights. It is noteworthy that Bosnia and Herzegovina itself recognized this principle before the ICJ” 26 (par. 111).

The Tribunal’s Appeals Chamber added that the Geneva Conventions, enjoying nearly universal participation, fell within the category of universal multilateral treaties which reflected “rules accepted and recognized by the international community as a whole”. In the light of the object and purpose of the Geneva Conventions – the guarantee of protection of “certain fundamental values common to mankind in times of armed conflict” – and of the “customary nature” of their provisions, the Appeals Chamber of the Tribunal concluded that “State

25

26

Ibid., p. 19, par. 38, and cf. p. 21, par. 44. – Conventional obligations subsist, being also of customary law, of a jus cogens character, emanating from the “conscience of the international community”; F. Pocar, “Patto Internazionale sui Diritti Civili e Politici ed Estradizione”, in Diritti dell’Uomo, Estradizione ed Espulsione (Atti del Convegno di Ferrara di 1999 per Salutare G. Battaglini, ed. F. Salerno), Padova/Milano, Cedam, 2003, pp. 89-90. In the case of the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Preliminary Objections, 1996), the ICJ noted that BosniaHerzegovina had contended that the Convention against Genocide “falls within the category of instruments for the protection of human rights, and that consequently, the rule of ‘automatic succession’ necessarily applies”; ICJ Reports (1996) p. 611, par. 21.

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succession has no impact on obligations arising out from these fundamental humanitarian Conventions”.27 IV. Concluding Observations The aforementioned understanding, of the incidence of the prevalence of human rights in State succession, has been espoused, as indicated, on reiterated occasions in recent years, in particular in the last decade of the XXth century. Thus, at this beginning of the XXIst century, it is reassuring to verify that, among the well-known constitutive elements of the State – population, territory, and a normative system of its own, – due attention has at last been given to the first one of them, to the population.28 It was about time. And, to that end, the impact of the International Law of Human Rights has contributed decisively. Although the international practice on the matter throughout the nineties does not appear always uniform or wholly conclusive, it does contain, however, significant elements in support of the continuity of conventional obligations pertaining to human rights and humanitarian law, in the context of State succession. There are examples of clear and orderly succession, as in the case, e.g., of the Czech Republic and Slovakia, which appeared listed as Parties to the European Convention on Human Rights (and its Protocols) as from 01.01.1993, the date when the predecessor State, Czechoslovakia, ceased to exist.29 But even with regard to human rights treaties, there has been a co-existence of cases of succession and cases of accession30 (e.g., as regards the U.N. Covenant on Civil and Political Rights). In addition to that, in relation to some successor States (Armenia, Azerbaijan, Georgia, Kyrgyzstan, Moldova, Uzbekistan, Turkmenistan) the Human Rights Committee, for example, has been of the opinion that the entry into force of the Covenant on Civil and Political Rights goes back to the respective dates when those States became independent; and, in the case of Kazakhstan, although a declaration of succession was not received, it was understood that the people within the territory of the State (which constituted part of a predecessor State Party to the Covenant) continued to be entitled to the guar27

28 29

30

Case n. IT-96-21-A, Judgment of 20.02.2001, pars. 112-113. The Appeals Chamber found further support for this position in the decision on jurisdiction in the Tadic case (1997, pars. 79-85). Cf. chapter VII, supra. A. Rasulov, “Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?”, 14 European Journal of International Law (2003) pp. 141-170, esp. pp. 162 and 165. Because of this diversity of State options (succession and accession), in its fi nal report on succession of States in matter of treaties, of 2002, the Committee on Aspects of the Law of State Succession, of the International Law Association, did not go as far as identifying in this non-homogeneous practice a customary law in statu nascendi on the matter at issue (part IV.4, p. 28), identifying a “selective”, rather than an “automatic”, succession (p. 41).

Basic Considerations of Humanity in Relation to State Succession

antees set forth in the Covenant, in accordance with the Committee’s constant practice on the matter.31 Examples of the kind, added to others (cf. supra), seem to disclose a tendency in favour of the continuity of human rights and humanitarian conventional obligations, pursuant to a process of humanization of the law on State succession. This historical process responds to the legitimate aspirations of the international community, as well as to its need to assert and promote human dignity, well above the “will” of individual States. It has been asserted that, nowadays, when State succession occurs, the proper safeguard of human dignity comes to constitute “one of the constitutional principles of current International Law”.32 It could hardly be denied that nowadays a presumption has arisen in favour of the subsistence of conventional obligations pertaining to the protection of the rights of the human person. This presumption, in turn, discloses the fundamental values shared by the contemporary international community, overriding the “will” of individual (predecessor and successor) States. Recent developments to this effect, in the present domain of International Law, confirm the understanding always advanced by the most lucid doctrine that the State exists for the human beings, and not vice-versa. Moreover, those developments constitute a further evidence of the advent of the new jus gentium of our times, the International Law for humankind.

31 32

Cf. U.N., Report of the Human Rights Committee – G.A.O.R. (54th Session, suppl. n. 40 (A/54/40)), vol. I, 1999, Annex I, pp. 100-109. F. Ruiz Ruiz, “The Succession of States in Universal Treaties on the Protection of Human Rights and Humanitarian Law”, 7 International Journal of Human Rights (2003) p. 65, and cf. pp. 43, 63 and 67-69.

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I.

Basic Considerations of Humanity in Relation to Territory

Prerequisites of Statehood Revisited

Traditional International Law devoted much attention to the concept of territory, to which it ascribed a central and key position among the prerequisites of statehood. The territorial State was, in fact, regarded as the cornerstone of the juridical construction of the international order which emerged from the peace of Wesphalia in the XVIIth century, and evolved ever since. It is thus not surprising that the chapter pertaining to territory was one of the most overworked in the past. Of the prerequisites of the State as an international juridical person, it was certainly the one which was more extensively dwelt upon in the past. But as time went on, it became apparent that such an outlook was bound to become not fully satisfactory to the demands of contemporary international life, with a shift of emphasis onto the conditions of living of the population everywhere. In any case, no one would question that respect for State territory and its frontiers is and remains crucial for the maintenance of international peace. State territory, once established or consolidated, came to be regarded as standing erga omnes, thus giving foreseeability and stability to the conduction of international relations. But nor would one question, in a distinct line of thinking, that control by means of the territorial jurisdiction of the State has been much reduced by the impact of scientific and technological developments, and nowadays issues susceptible of strictly territorial solutions have tended to diminish.1 The current revitalization of the foundations of International Law, with the emergence of new concepts (such as that of universal jurisdiction, among others), seems to make abstraction of classic spacial (territorial) solutions, shifting the emphasis to the pursuance of common, universal goals (such as the realization of justice), to the benefit of human beings everywhere. This in no way erodes the norm of general international law whereby each State member of the international community is under the duty to respect the territorial integrity of the other States.

1

L. Dembinski, “Le territoire et le développement du droit international”, 31 Annuaire suisse de droit international (1975) pp. 121-152.

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This duty counts on judicial recognition,2 and, as correctly recalled by J. Barberis, the norm it ensues from “does not derive from the legal nature of the territory of the State”, being rather a general norm of the law of nations itself.3 But while in traditional doctrine considerable attention was devoted to such aspects as acquisition and loss of territory, the fate of the populations living therein did not received equal treatment or care. Only in the XXth century, with the creation of the minorities and mandates systems (in the League of Nations era), and of the trusteeship system (at the beginning of the United Nations era), attention was gradually drawn also to the condition of the populations inhabiting those territories.4 In the light of such new developments, – e.g., under chapter XI of the U.N. Charter, – in the mid-XXth century Charles de Visscher referred to “les fins humaines du territoire”, in pursuance of human interests and aims. In identifying the “fins d’humanité” of the territories placed temporarily (until independence) under the trusteeship system, he thus referred to the passage from the colonial past to the new ideas of emancipation, of the XXth century: “Non seulement le territoire n’est ici susceptible d’aucune appropriation étatique, mais il est inséparable de la mission qui justifie l’autorité tutélaire (...). Le mandat (...) a été créé dans l’intérêt des habitants du Territoire et de l’humanité en général, comme une institution internationale à laquelle était assigné un but international: une mission sacrée de civilisation”.5

Attention was gradually being turned not only to State territory, but also to the population, living not only within States but also in territorial entities other than States. It gradually became clear that the State was not a permanent entity in international intercourse, as there were other forms of international or internal organization that the international order took cognizance of.6 The aforementioned minorities and mandates systems much contributed to shifting attention to the rights of persons and peoples emanating from the law of nations.7

2 3 4 5 6 7

Cf., e.g., Corfu Channel case, ICJ Reports (1949) p. 35. J.A. Barberis, El Territorio del Estado y la Soberanía Territorial, Buenos Aires, Ed. Ábaco de Depalma, 2003, p. 47, and cf. p. 50. Besides exemplifying the principle of non-annexation. Ch. de Visscher, Théories et réalités en Droit international public, 4th. rev. ed., Paris, Pédone, 1970, pp. 229-230. Cf., generally, e.g., J. Verhoeven, “L’État et l’ordre juridique international – remarques”, 82 Revue générale de Droit international public (1978) pp. 749-774. Cf., e.g., A.A. Cançado Trindade, “Exhaustion of Local Remedies in International Law Experiments Granting Procedural Status to Individuals in the First Half of the Twentieth Century”, 24 Netherlands International Law Review (1977) pp. 373-392, and sources referred to therein.

Basic Considerations of Humanity in Relation to Territory

The acknowledgement of the principle of self-determination of peoples,8 within the framework of the United Nations Charter, gave further impetus to the shifting of emphasis to another prerequisite – in my view the most important one – of the State (including that in statu nascendi) as an international juridical person: the population, its human component. Thus, in the United Nations era, even non-self-governing territories, – in the sense of Chapter XI of the U.N. Charter, – were conceived as being endowed with an international legal status, generating obligations erga omnes (of respect of the right of self-determination of their peoples, of safeguard of the human rights of their inhabitants, and of nonexploration of their natural resources),9 opposable not only vis-à-vis the State which administers the territory concerned but also vis-à-vis all the other States: they are obligations due to the international community as a whole. Basic considerations of humanity were herein present as well. Reference may here be made to the obiter dicta of the International Court of Justice [ICJ] in its Advisory Opinion on the Western Sahara (1975), to the effect of recognizing the right of self-determination through “the free and genuine expression of the will of the peoples of the Territory”.10 In this respect, in his Separate Opinion Judge Dillard pondered, in a fortunate an lucid way, that “It is for the people to determine the destiny of the territory and not the territory the destiny of the people”.11

By that time, there was also a doctrinal trend which purported to ascribe greater weight to the State’s legal system rather than to its population or territory. The argument, developed by Krystyna Marek, started with an ascertainment of the juridical identity of the States as encompassing all their rights and obligations under customary and conventional International Law, laying emphasis on their legal order or their normative system. After all, changes in territory or in government did not affect the identity and continuity of States; their rights and obligations survived such changes, to the benefit of stability and security of international relations. Hence the importance of the legal order, at national and international levels.12

8 9

10 11 12

Cf. chapter III, supra. Cf., e.g., Ian Brownlie, “The Rights of Peoples in Modern International Law”, The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon Press, 1988, pp. 1-16; J. Castañeda, Legal Effects of United Nations Resolutions, N.Y., Columbia University Press, 1969, pp. 174-176; A.J. Lleonart y Amselem, Derecho de los Estados a Disponer Libremente de Sus Recursos Naturales, Madrid, CSIC/Instituto Francisco de Vitoria, 1976, pp. 15-478. ICJ Reports (1975) p. 68, par. 162. Ibid., p. 122. Cf. K. Marek, Identity and Continuity of States in Public International Law, 2nd. ed., Geneva, Droz, 1968, pp. 3-126.

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Only the primacy of International Law could explain the identity and continuity of States, as changes in the domestic legal order did not affect the international obligations incumbent upon States. Independence, as a factual precondition of statehood in International Law, provided the criterion of the identity and continuity of States in the international legal order. Independence conferred a special importance on the legal order of the State, which, – in K. Marek’s view, – had priority over the territory and the population, changes in which did not affect statehood in International Law.13 It so happens, however, that, like population and territory, the legal order of the State also undergoes constant changes, without affecting the State’s identity and continuity in International Law. The current process of humanization of International Law shifts the emphasis onto the human component of the population. It was necessary to wait for decades for this to become more and more apparent. But in the past there were those who foresaw the advent of this new outlook. Over half a century ago, M. Bourquin, for example, propounded a vision of International Law which “se penche sur les souffrances de l’humanité et fait écho à ses espoirs”; to him, abstract constructions of the past, however logical they might appear, seemed to have made abstraction of the social reality.14 Almost two decades earlier, the basic criteria for statehood set forth in the célèbre 1933 Montevideo Convention on the Rights and Duties of States listed, first of all, the population (Article 1(a)). In our days, the problems which directly affect the population have invaded and overtaken the international scenario, and have indeed overwhelmed it, to such an extent that it is no longer possible not to give pride of place to human beings, to the human component of the State. It is not by mere chance that the conditions of living of the population formed the common denominator of the recent cycle of World Conferences of the United Nations.15 Those World Conferences, besides forming the international agenda of the early XXIst century, gave recognition to the legitimate concern of the international community with the conditions of living of people everywhere. After all, the State exists for the human beings, and not vice versa. II.

Non-Self-Governing Territories

The international regimes both of territories under the mandates system in the League of Nations era, and of territories under the trusteeship system as well as non-self-governing territories in the United Nations era,16 were created in the major interest of the inhabitants of the respective territories, and ultimately of 13 14

15 16

Cf. ibid., pp. 127-190. M. Bourquin, “L’humanisation du droit des gens”, La technique et les principes du Droit public – Études en l’honneur de Georges Scelle, vol. I, Paris, LGDJ, 1950, pp. 24, 29 and 38. Cf. chapter XXVI, infra. Charter of the United Nations, chapters XII (international truteeship system) and XI (non-self-governing territories).

Basic Considerations of Humanity in Relation to Territory

the humankind as a whole, as regimes with an international aim: the sacred trust of civilization, a dynamic concept turned to the well-being of the populations at issue, not limited by any agreements of contractual relations to the contrary. This was duly pointed out by the ICJ, in its Advisory Opinion of 1950 on the International Status of South West Africa.17 The Court singled out the component principles of the sacred trust of civilization, namely, the principles of non-annexation and of the well-being and development of the populations in non-self-governing territories. The crystallized right to self-determination of peoples is inherent to populations living in non-self-governing territories (in the sense of the international regime of chapter XI of the U.N. Charter) or in other circumstances, finding solid support in contemporary international law. The basic features of this international regime are the principle of non-annexation (what surely excludes from the application to those territories of the classic rules on acquisition and loss of territory in traditional International Law), the international supervision of non-self governing territories (on behalf of the international community), and the primacy of the superior interest in the well-being and development of their populations, titulaires of the right of self-determination. Already in the fifties the element of international supervision was raised onto the international level,18 without margin for restrictions.19 The law of the United Nations saw it fit to reject the old objections of an alleged lack of political, social or educational preparedness or of economic inadequacy of those territories. In fact, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples warned that “inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence” (par. 3),20 and added that the subjugation of peoples to foreign domination constituted “a denial of fundamental human rights” contrary to the U.N. Charter (par. 1). The exercise of the right of self-determination of peoples flourished precisely in the experiences of plebiscites and consultations to the inhabitants of territories under the mandates system (and in the minorities system under the League of Nations), and under the trusteeship system as well

17 18

19 20

ICJ, Advisory Opinion on the International Status of South-West Africa, ICJ Reports (1950) pp. 128-219. Cf. ICJ, Advisory Opinion on Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, ICJ Reports (1955) pp. 67-123; and cf. J. Beauté, Le droit de pétition dans les territoires sous tutelle, Paris, LGDJ, 1962, pp. 2-256. ICJ, Advisory Opinion on Admissibility of Hearings of Petitioners by the Committee on South West Africa, ICJ Reports (1956) pp. 23-71. Cf., for more recent reassessments, R.S. Clark, “Some International Law Aspects of the East Timor Affair”, 5 Leiden Journal of International Law (1992) pp. 267-268; F. Rigaux, “East Timor and Western Sahara: A Comparative View”, in International Law and the Question of East Timor, London, CIIR/IPJET, 1995, p. 173.

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as non-self-governing territories,21 – which, in turn, fostered the development of political and educational preparedness. The alleged economic inadequacy also appeared as a colonialist pretext of the maintenance of the status quo. The U.N. General Assembly, through its resolution 35/118, of 11.12.1980, adopted a Plan of Action for the Full Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples. The General Assembly stated that, two decades having lapsed since the adoption of the aforementioned Declaration, the persisting manifestations of colonialism were incompatible with the U.N. Charter, the principles of International Law and the Declaration itself. It urged member States to continue to wage a campaign against practices which were “detrimental to the interests of the population of the Territories” and to adopt legislative, administrative and other measures to bring about the discontinuance of such practices (par. 6). III. Non-Militarization and Peaceful Uses of Antarctica The Antarctic Treaty22 was originally conceived in order to “freeze” (somewhat literally) territorial claims by some States over the zone covered by it, as well as to foster scientific research and international cooperation, and to secure the peaceful utilization of the zone. Its preamble recognizes, already in the first considerandum, that “it is in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord”.

The fourth considerandum further expresses the belief that a treaty ensuring “the use of Antarctica for peaceful purposes only and the continuance of international harmony in Antarctica” will further the purposes and principles embodied in the U.N. Charter. The preamble adds that the regime of international cooperation established in the Antarctica accords with “the interests of science and the progress of all mankind” (third considerandum). Article 1 of the Treaty prohibits militarization in Antarctica, which “shall be used for peaceful purposes only”, while Article 10 clarifies that such prohibition of non-peaceful activities in the Antarctica is not limited to States Parties only. In this way, the 1959 Antarctic Treaty, although not creating an international organization of a universal character, has nevertheless established a regime of concertation of States Parties which can be characterized as an objective regime, with effects – such as those pertaining to non-militarization – also vis21

22

Cf. A. Rigo Sureda, The Evolution of the Right of Self-Determination – A Study of United Nations Practice, Leiden, Sijthoff, 1973, pp. 17-372; S. Calogeropoulos-Stratis, Le droit des peuples à disposer d’eux-mêmes, Bruylant, Bruxelles, 1973, pp. 15-348. Which in four year’s time will be completing half a century, nowadays binds 44 States, with 3/4 of the world population.

Basic Considerations of Humanity in Relation to Territory

à-vis third parties. The Antarctica Treaty has been significantly instrumental in securing the non-militarization and non-nuclearization of the area.23 Underlying this conception of the Antartic Treaty are the common interests of the international community as a whole.24 The example of these aspects of the 1959 Treaty indicates that, even in a chapter of International Law such as that of territory, traditionally approached from an essentially inter-State perspective, basic considerations of humanity have been duly taken into account. The zone covered by the Antarctica Treaty is reserved solely to peaceful activities. The original 1959 Treaty, together with other subsequent international instruments related thereto,25 conform nowadays what is commonly regarded as the system of the Antarctic Treaty. One of the most important of such instruments is the 1991 Protocol to the Antarctica Treaty on the Protection of the Environment (in force as from 14.01.1998). The Madrid Protocol has added a new dimension to the Antarctica Treaty system, which, besides securing non-militarization of the area, and fostering freedom of scientific research and international cooperation, nowadays also purports to avoid or reduce harmful consequences to the environment (as a result of human presence and activity in the region). The States Parties, and, among these, the Consultative Parties of the Antarctica Treaty in particular, acting by consensus, have played a key role in the development of the system. What is agreed upon, in pursuance of what is regarded as aiming at common good, is meant to have effects erga omnes, to the extent that it requires the observance by other States as well.26 On its part, the 1991 Madrid Protocol conceives its own regime of environmental protection in Antarctica as being “in the interest of mankind as a whole” (preamble, 7th. considerandum).27 Article 2 of the Protocol designates Antarctica as “a natural reserve, devoted to peace and science”. The Antarctica Treaty system discloses sui generis features (such as the distinct positions of States Parties, Consultative Parties and third States), yet it is “anchored in the wider international community”.28 Moreover, 23 24 25

26 27

28

In spaces located south of the 60th degree of latitude South. P. Reuter, “Principes de Droit international public”, 103 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1961) p. 451. E.g., the 1980 Canberra Convention on the Conservation of Antarctic Marine Living Resources, and the 1988 Wellington Convention on the Regulation of Antarctic Mineral Resources Activities. P. Daillier and A. Pellet, Droit international public, 7th. ed., Paris, LGDJ, 2002, pp. 250-251. The Protocol expressly refers to the principles and purposes of the Antarctica Treaty (supra), and categorically asserts that Antarctica “shall not become the scene or object of international discord” (2nd. and 3rd. consideranda). D. Vidas, “The Antarctic Treaty System in the International Community: An Overview”, in Governing the Antarctic – The Effectiveness and Legitimacy of the Antarctic Treaty System (eds. O.S. Stokke and D. Vidas), Cambridge, University Press, 1996, p. 35.

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along the years, what was originally perceived by some as an exclusive club of States has experienced some change, with the wider participation and growing transparency in the consultative process.29 Underlying the principles and purposes of the aforementioned system is the determination to secure the general welfare of all concerned, to the ultimate benefit of humankind. Here, once again, we are faced with basic considerations of humanity. IV. Territory and Zonal Initiatives for Peace Basic considerations of humanity have come to permeate the chapter of International Law concerning territory in distinct ways. In the past, this chapter of international law was studied almost invariably from the angle of State sovereignty only, but it is nowadays also considered in pursuance of the safety of humankind against the threat of nuclear weapons, and other weapons of mass destruction. The conceptual constructions of zones of peace and of nuclear-weaponsfree zones 30 bears witness of this reassuring development. The proclamations of zones of peace (such as the one in the Indian Ocean), and the establishment of five nuclear-weapon-free zones (by the Treaties of Tlatelolco, Rarotonga, Bangkok, Pelindaba and Semipalatinsk), in the second half of the XXth century and the first decade of the XXIst century, have surely responded to the needs and aspirations of humankind, so as to rid the world of the threat of nuclear weapons. At this stage, suffice it here to point out that the strictly territorial considerations of the past, normally developed from the exclusive outlook of State sovereignty, have here yielded to denuclearization by means of the creation of nuclear-weapon-free zones in distinct continents. They have also found space for disarmament in general, by means of zones of peace, to the ultimate benefit of all humankind. Although there remains a long way to go in these initiatives, what has so far been achieved has been made possible with emphasis on the principle of the duty of international cooperation, going beyond a strictly inter-State outlook of International Law. V.

Transitional Administration of Territory on Behalf of the International Community

A recent development in the domain of territory in International Law pertains to the transitional administration of territorial units by the United Nations, on behalf of the international community. The phenomenon is not wholly unknown to international law: the historical precedents of the Saar Territory 31 and the Free City of Danzig,32 in the League of Nations era, may be recalled in this connec29 30 31 32

Cf., e.g., ibid., pp. 57-60. The two concepts having distinctive features; cf. chapter XVII, supra. Administered by the League of Nations (1920-1935). Which had as “guarantor” the League of Nations.

Basic Considerations of Humanity in Relation to Territory

tion.33 In our days, other precedents, which took place subsequently, in the United Nations era34 (e.g., the former U.N. Council for Namibia, set up in 1967),35 are studied in considerable detail, given the growing attention currently turned, in particular, to the cases of direct territorial administration of Kosovo and of East Timor. These two cases have special characteristics of their own, which should not pass unnoticed, and can here be briefly referred to. Member States of the United Nations have not challenged these new experiments of transitional administration of territory, seeing to it that they are undertaken in conformity with International Law.36 To start with, the U.N. Security Council based its resolutions (infra) on chapter VII of the U.N. Charter, after ascertaining a threat to peace in the internal – rather than inter-State – conflicts in both cases, coming thus to assist those particularly weakened territorial units. Those two internal situations, presenting a transitional problem of governance were thereby internationalized37 by the resolutions of the Security Council. 1.

The Case of Kosovo

By means of its resolution 1244 (1999), of 10.06.1999,38 the U.N. Security Council authorized the U.N. Secretary-General to establish an international civil presence called the United Nations Interim Administration in Kosovo (UNMIK). Resolution 1244 was a turning-point in a succession of dramatic events in the region which had already been lasting for several years.39 UNMIK was created to administer Kosovo transitionally until the determination of the future status 33

34 35

36 37

38

39

On those and other historical precedents, cf. C. Stahn, “The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis”, 5 Max Planck Yearbook of United Nations Law (2001) pp. 122-133; R. Wilde, “Representing International Territorial Administration: A Critique of Some Approaches”, 15 European Journal of International Law (2004) pp. 76-80. Cf., e.g., C. Stahn, The Law and Practice of International Territorial Administration, Cambridge, University Press, 2008, pp. 147-158 and 266-347. Cf., e.g., B. Knoll, The Legal Status of Territories Subject to Administration by International Organisations, Cambridge, University Press, 2008, pp. 102-110 and 171180. I. Ingravallo, Il Consiglio di Sicurezza e l’Amministrazione Diretta di Territori, Napoli, Edit. Scientifica, 2008, pp. 9-10. For a general study, cf. Y. Daudet, “L’action des Nations Unies en matière d’administration territoriale”, 6 Cursos Euromediterráneos Bancaja de Derecho Internacional (2002) pp. 465-540. Which endorsed the Peace Plan of 03.06.1999 between the Federal Republic of Yugoslavia and the Republic of Serbia, as well as the Agreement of 09.06.1999 between the Kosovo Protection Force (KFOR), the Federal Republic of Yugoslavia and the Republic of Serbia. For an account, cf., e.g., D. Leurdijk and D. Zandee, Kosovo: from Crisis to Crisis, Aldershot, Ashgate Publ., 2001, pp. 3-161; cf. also, e.g., R. Bermejo García and C. Gu-

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of the Territory was reached. Like in the case of UNTAET (infra), the scope of action reserved to UNMIK was particularly wide, and far-reaching at normative and operational levels,40 going well beyond that of peacekeeping missions of the past.41 The experiment added “a new dimension in conflict management”, bearing in mind the needs of the population at issue.42 In historical perspective, the U.N. experiments in Kosovo, as well as East Timor, came to be regarded as ground-breaking, given the profound involvement of the United Nations, and its far-reaching administrative control.43 In fact, UNMIK was especially engaged in building a workable public administration for civil matters, and undertook successive legislative and administrative activities.44 Resolution 1244 of the Security Council, much discussed in our days,45 provided that UNMIK was to be guided, in all its activities, by “internationally recognized standards of human rights” (par. 42). Such standards were to include, in relation to Kosovo, those which were found, inter alia, in the European Convention on Human Rights. It has been argued that all entities (such as UNMIK) that take up public authority over a given territory so as to provide protection to its inhabitants are bound to observe the corpus juris of human rights and Humanitarian Law (despite the change in the administration of that territory).46 This applies even more forcefully when the transitional administration is undertaken on behalf of the international community.47

40 41

42

43

44

45

46 47

tiérrez Espada, La Disolución de Yugoslavia, Pamplona, Ed. Univ. de Navarra, 2007, pp. 175-211 and 242-262. R. Wilde, op. cit. supra n. (33), p. 95. T. Garcia, “La Mission d’administration intérimaire des Nations Unies des Nations Unies au Kosovo (MINUK)”, 104 Revue générale de Droit international public (2000) p. 62; cf. also D. Leurdijk and D. Zandee, op. cit. supra n. (39), p. 105. M. Bothe and T. Marauhn, “U.N. Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council-Mandated Trusteeship Administration”, in Kosovo and the International Community – A Legal Assessment (ed. C. Tomuschat), The Hague, Kluwer, 2002, pp. 242 and 218. R. Wilde, “From Danzig to East Timor and Beyond: The Role of International Territorial Administration”, 95 American Journal of International Law (2001) pp. 585 and 600. T.H. Irmscher, “The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation”, 44 German Yearbook of International Law (2001) pp. 359 and 362. It is regarded, in expert writing, as a substantial diplomatic achievement, in its endeavours to balance the territorial integrity of the then Federal Republic of Yugoslavia, and the substantial autonomy and self-administration for self-government in Kosovo, and to point towards a new beginning, after a prolonged conflict. Cf. ibid., pp. 367 and 371, and cf. p. 360. For a discussion of more recent developments, cf., e.g., P. Hilpold, “The Kosovo Case and International Law: Looking for Applicable Theories”, 8 Chinese Journal of International Law (2009) pp. 47-61.

Basic Considerations of Humanity in Relation to Territory

A ‘Constitutional Framework for Provisional Self-Government’ of Kosovo was adopted on 15 May 2001, when signed by the Special Representative of the U.N. Secretary-General.48 The ‘Provisional Institutions of Self-Government Assembly’ of Kosovo adopted the declaration of independence of Kosovo on 17 February 2008. Later on, following an initiative of Serbia, the U.N. General Assembly decided, by means of its resolution A/RES/63/3, adopted on 08.10.2008, to request the ICJ to render an advisory opinion on the question whether that declaration of independence by the ‘Provisional Institutions of Self-Government of Kosovo’ was or not in accordance with International Law. The matter is now pending before the ICJ. 2.

The Case of East Timor

Through its resolution 1272 (1999), of 25.10.1999, the U.N. Security Council established the United Nations Transitional Administration in East Timor (UNTAET).49 In a referendum held on 30.08.1999, the great majority of the East Timorese people voted for independence,50 rather than simple autonomy. UNTAET administered East Timor for an interim period (ended in May 2002), and promptly engaged itself into humanitarian assistance in general (and in emergency food relief in particular51) till achieving stabilization (in February 2000). It then shifted its emphasis from emergency relief to transitional governance, focusing on Statebuilding activities (such as civic education and public administration).52 In consultation with the National Consultative Council, a transitional mechanism towards self-government that it had set up in December 1999, UNTAET promulgated the (transitional) legal system of East Timor and trained and appointed some public officials (such as prosecutors and judges). The next step was the establishment, by U.N. Security Council resolution 1410 (2002), of 17.05.2002, of the United Nations Support Mission in East Timor (UNMISET); the idea was to facilitate, by means of the operation of UNMISET, the transition from the period of UNTAET’s mission into a new period of traditional U.N. development

48

49 50

51 52

B. Bing Jia, “The Independence of Kosovo: A Unique Case of Secession?”, 8 Chinese Journal of International Law (2009) p. 30. The author expresses the view that “what distinguishes the case of Kosovo from the case of East Timor is the fact that the illegality of the occupation of the latter, which renders eventual independence a clear choice, is not copied in the former”; ibid., p. 31. Replacing the former United Nations Mission in East Timor (UNAMET). Cf. A.A. Cançado Trindade, “O Caso do Timor-Leste (1999): O Direito de Autodeterminação do Povo Timorense”, 1 Revista de Derecho de la Universidad Católica del Uruguay (2000) pp. 63-83, and in 6/7 Revista da Faculdade de Direito da Universidade do Estado do Rio de Janeiro (1998-1999) pp. 127-145. And also in shelter emergency and basic health care. Cf. J. Federer, The U.N. in East Timor: Building Timor Leste, a Fragile State, Darwin/ Australia, Ch. Darwing University Press, 2005, pp. 97-103.

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assistance.53 UNTAET’s mission was formally terminated on 19.05.2002, and Timor Leste, after a prolonged history of endeavours to master its own destiny,54 became formally an independent country the following day, on 20 May 2002. Both UNTAET and UNMIK have exercised a wide range of functions, including judicial ones, in the two respective territories for the administration of which they had become responsible. While UNMIK has faced difficult aspects in administering justice, UNTAET was engaged from the start in the building and management of the domestic judicial system, and the appointment of the first Timorese legal officers was endowed with undeniable symbolic relevance.55 In any case, the high priority attributed to the operation of the local judicial system in such experiments of transitional administration of territory indicates that the prevalence of the rule of law therein fulfi ls an aspiration of the contemporary international community itself.56 3.

The Centrality of Protection of the Populations

The wide scope and depth of the mandates of UNMIK and UNTAET, endowed with executive, legislative and judicial functions, seems to open a new chapter in the history of the operation of the United Nations in social milieux torn by internal conflicts. Although their activities may not always have wholly fulfi lled the expectations (particularly in the case of UNMIK),57 the role they have played is of 53 54

55

56 57

Ibid., pp. 106-107. For a historical account, cf., e.g., J. Ramos Horta, Funu – The Unfinished Saga of East Timor, Trenton/New Jersey, Red Sea Press, 1987, pp. 1-207. Along the years, the case of East Timor was never withdrawn from the U.N. agenda in one particular aspect, namely, that pertaining to the safeguard of the human rights of its inhabitants; L. Hannikainen, “The Case of East Timor from the Perspective of Jus Cogens”, in International Law and the Question of East Timor, London, CIIR/IPJET, 1995, pp. 108111. – Even in the light of classic canons of International Law, States can no longer invoke “sovereignty” to do whatever it occurs to them to their populations, as States are bound to the respect due to human rights; J. Crawford, The Creation of States in International Law, 2nd. ed., Oxford, Clarendon Press, 2007, pp. 149, 155 and 718; as for peoples’ rights, in general, cf., e.g., Ian Brownlie, “The Rights of Peoples in Modern International Law”, The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon Press, 1988, pp. 1-16. S. Chesterman, “Justice under International Administration: Kosovo, East Timor and Afghanistan”, 12 Finnish Yearbook of International Law (2001) pp. 144, 150, 152153 and 161. Ibid., pp. 163-164. For example, it has been pointed out that on occasions UNMIK has carried out preventive detentions (invoking public safety and order) hardly compatible with the standards of the European Convention on Human Rights (for lack of sufficient judicial control) (pp. 164-165), while in this domain UNTAET seemed more respectful of the human rights standards of the U.N. Covenant on Civil and Political Rights; cf. C. Stahn, op. cit. supra n. (33), pp. 164-169.

Basic Considerations of Humanity in Relation to Territory

undeniable importance and is a landmark in the initiatives of the United Nations within the framework of the chapter VII of its Charter. It has been suggested that their role was of a “dual nature”, as both UNMIK and UNTAET were “not only acting as organs of the U.N.”, but were at the same time “also acting as organs of the Territories concerned”.58 The entities established by resolutions 1244 (1999) and 1272 (1999), – and the respective Special Representatives, named by the U.N. Secretary General to implement those resolutions, – were engaged in a regulatory activity which strenghtened their legal status as transitional international administrations of Kosovo and East Timor.59 The successive resolutions they issued covered a wide range of areas of public administration. They exerted executive, legislative and judicial functions. Significantly, their mandates did not derive from a de facto domestic power, but from the aforementioned U.N. Security Council resolutions,60 that is, from International Law, from the law of nations (the droit des gens) itself.61 UNMIK and UNTAET, operating on behalf of the international community, were conceived to the ultimate benefit of the populations concerned, those of Kosovo and of East Timor. They kept in mind the imperatives of protection of the individuals, groups and peoples inhabiting those territories, and of assistance to them to manage their own affairs and master their own destiny. They kept in mind humanitarian concerns. They pledged their adherence to international human rights standards, in distinct aspects of day-to-day international administration. Thus, e.g., special attention was given to “the establishment of human rights guarantees facilitating the return and care of refugees and displaced persons and to the revocation of discriminatory legislation”.62 58 59 60

61

62

M. Bothe and T. Marauhn, “U.N. Administration of Kosovo and East Timor...”, op. cit. supra n. (42), p. 229. Ibid., pp. 143 and 180. M. Ruffert, “The Administration of Kosovo and East Timor by the International Community”, 50 International and Comparative Law Quarterly (2001) p. 627, and cf. pp. 613 and 622. Of which the law of the United Nations is part. It was, by the way, the intention of the “founding fathers” of the U.N. to ensure that all States (including non-members – Article 2(6)) were to act in accordance with the principles set forth in the U.N. Charter (so far as may be necessary for the maintenance of international peace and security); cf. J.A. Frowein, “Reactions by Not Directly Affected States to Breaches of Public International Law”, 248 RCADI (1994) pp. 357-358; C. Tomuschat, “Obligations Arising for States Without or Against Their Will”, 241 RCADI (1993) pp. 252-257. – It may be added that the action of the U.N. Security Council has lately transcended the classic dimension of purely inter-State relations, with many of its resolutions being addressed in recent years to groups of individuals and populations; cf. B. Simma, “From Bilateralism to Community Interest in International Law”, 250 RCADI (1994) p. 266. C. Stahn, “The United Nations Transitional Administrations...”, op. cit. supra n. (33), pp. 144-145.

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The experiments of UNMIK and UNTAET, also engaged in democratisation, have thus “penetrated the domestic sphere of societies” in Kosovo and East Timor, a sphere which in the past was outside the scope of traditional International Law; in this respect, it has been pondered that “The practice of international territorial administration is difficult to explain on the basis of an exclusively State-centred vision of sovereignty. The experiments in this field have made it clear that international law is at least partially a framework for the organisation of peoples’ rights and individual rights”.63

East Timor has achieved independent statehood. UNTAET has accomplished its goals. The experiments of UNTAET and UNMIK have contributed to shift the attention to the central role of the protection of the population,64 and satisfaction of its basic needs and aspirations. And they have shown that it is the people who determine the fate of their territory, and the international community can step in, in support of the legitimate aspirations of the people concerned. They serve, at last, as examples of the operation of International Law to the ultimate benefit of individuals and peoples, – a manifestation of the present-day outlook of the new jus gentium, the International Law for humankind.

63 64

C. Stahn, The Law and Practice..., op. cit. supra n. (34), p. 755, and cf. pp. 751 and 753. Such attention was already present in the historical case of the administration of Namibia, prior to its independence; cf. ibid., pp. 718-719 and 755-756; B. Knoll, The Legal Status of Territories..., op. cit. supra n. (35), pp. 108-110.

Chapter XXII

I.

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law

Introduction: Diplomatic and Consular Law beyond the Inter-State Outlook

The adoption of the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations, followed by their wide acceptance by the member States of the international community, was soon to be reckoned as a landmark in the codification of modern International Law. Their success was attributed to their pertaining to a classic domain of International Law,1 which already counted, prior to their adoption, on a considerable State practice on the matter. It was also attributed to their pertaining to State conduct, rather than to “the substance of inter-State relations”.2 The aforementioned Conventions were regarded as generally “declaratory” of customary law on the matter, which was significant if one was to keep “all hope of a possible future reconstruction of that minimum of international homogeneity (...). The desired homogeneity is not in any way equivalent to any philosophical, religious, moral or political uniformity. (...) What is postulated therefore is not any kind of uniformization, but a synthesis, in the spirit of full tolerance, of the wealth and diversity of structures, beliefs and ideologies with a minimum of cultural fundamentals in common”.3

It can hardly be doubted that, by the time the Vienna Conventions on Diplomatic and Consular Relations were adopted and entered into force, their implementa-

1

2 3

E. Suy, “Développement progressif et codification du Droit international: le rôle de l’Assemblée Générale revisité”, in Proceedings of the United Nations Congress on Public International Law – International Law as a Language for International Relations (New York, 1995), The Hague, Kluwer, 1996, p. 221. K. Zemanek, “Does Codification Lead to Wider Acceptance?”, in ibid., p. 226. K. Marek, “Thoughts on Codification”, 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1971) p. 520, and cf. p. 507.

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tion was envisaged from the outlook of strictly inter-State relations.4 Yet, less than two decades later, those Conventions, or at least some of their provisions, could be read in a distinct light, ineluctably linking them to the fundamental rights inherent to the human person. The case of the Hostages (United States Diplomatic and Consular Staff in Tehran, 1979-1980), filed by the United States against Iran before the International Court of Justice [ICJ], can be recalled in this connection. In the course of the proceedings (written phase) before the ICJ, the United States, in its memorial, after pointing out that, in the circumstances of the cas d’espèce, the U.S. nationals had been held incommunicado “in the grossest violation of consular norms and accepted standards of human rights”, added emphatically that Article 36 of the 1963 Vienna Convention on Consular Relations “establishes rights not only for the consular officer but, perhaps even more importantly, for the nationals of the sending State who are assured access to consular officers and through them to others”.5 Again in the oral arguments before the ICJ, the complainant State further contended that the treatment dispensed by the Iranian government to the U.S. civil servants captured and kept as hostages in Tehran fell “far below the minimum standard of treatment which is due to all aliens, particularly as viewed in the light of fundamental standards of human rights. (...) The right to be free from arbitrary arrest and detention and interrogation, and the right to be treated in a humane and dignified fashion, are surely rights guaranteed to these individuals by fundamental concepts of international law. Indeed, nothing less is required by the Universal Declaration of Human Rights”.6 In its Judgment of 24 May 1980 on the Hostages (U.S. Diplomatic and Consular Staff in Tehran) case (United States versus Iran), the ICJ, referring to the International Law governing diplomatic and consular relations (Vienna Conventions of 1961 and 1963), felt obliged to draw “the attention of the entire international community” to “the irreparable harm that may be caused by events of the kind now before the Court. Such events cannot fail to undermine the edifice of law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered 4

5

6

Cf., e.g., G.E. do Nascimento e Silva, Diplomacy in International Law, Leiden, Sijthoff, 1972, pp. 29-48; J. Monnier, “Observations sur la codification et le développement progressif du Droit international”, in Mélanges Georges Perrin (eds. B. Dutoit and E. Grisel), Lausanne, Payot, 1984, pp. 241-242. ICJ, Hostages (U.S. Diplomatic and Consular Staff ) in Tehran case, ICJ Reports (1979); Pleadings, Oral Arguments, Documents; p. 174 (emphasis added). The U.S. memorial added that “the right of consular officers in peacetime to communicate freely with co-nationals has been described as implicit in the consular office, even in the absence of treaties”; ibid., p. 174. Cit. in ibid., argument of the agent for the United States (Mr. Owen), pp. 302-303.

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law progress of relations between its members should be constantly and scrupulously respected”.7

In the same judgment on the Hostages case, the ICJ warned that the obligations at issue of the respondent State were “not merely contractual obligations established by the Vienna Conventions of 1961 and 1963, but also obligations under general international law”.8 The ICJ further pondered that the principle of the inviolability of the persons of diplomatic agents and the premises of diplomatic missions had a “fundamental character”, and was “one of the very foundations of this long established régime [of diplomatic law], to the evolution of which the traditions of Islam made a substantial contribution”.9

The ICJ stated that “wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights”.10 In its reasoning throughout the judgment, the ICJ stressed the importance of the relevant principles of International Law as well as of the International Law of Human Rights. The corpus juris of diplomatic law was thus approached in the light of basic considerations of humanity. II.

Diplomatic and Consular Law and Universal International Law

In the same decision of 1980, the ICJ saw it fit to draw attention to the universality of codified diplomatic and consular law, the faithful observance of which was to the ultimate benefit to humankind as a whole. In the words of the Court, “The Vienna Conventions [of 1961 and 1963], which codify the law of diplomatic and consular relations, state principles and rules essential for the maintenance of peaceful relations between States and accepted throughout the world by nations of all creeds, cultures and political complexions. (...) (...) The Court considers it to be its duty to draw the attention of the entire international community, of which Iran itself has been a member since time immemorial, to the irreparable harm that may be caused by events of the kind now before the Court. Such events cannot fail to undermine the edifice of law carefully constructed by mankind over a period of centuries, the maintenance of which is vital for the security and well- being of the complex international community of the present day, to which it is more essential

7 8 9 10

ICJ Reports (1980) p. 43, par. 92. ICJ, case concerning United States Diplomatic and Consular Staff in Tehran (United States versus Iran), ICJ Reports (1980) p. 31, par. 62. Ibid., p. 40, par. 86. Ibid., p. 42, par. 91.

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Chapter XXII than ever that the rules develop to ensure the ordered progress of relations between its members should be constantly and scrupulously respected”.11

It can hardly be doubted that the work of codification and progressive development, in the course of the XXth century, has endowed International Law with an objective basis.12 Furthermore, and most significantly, it has served the imperatives of international justice, and contributed to secure the unity and universality of International Law.13 It is not surprising that it has flourished amidst a humanist philosophy and a considerable importance attributed to the general principles of International Law.14 It acknowledges, moreover, that its normative content flows from the conscience of the members of the international community (and not from their simple acts of will), to respond to their common needs and aspirations, in a manifestation of the opinio juris communis.15 It cannot pass unnoticed that a domain of International Law which, some decades ago, was conceived upon a strictly inter-State basis, such as diplomatic and consular law,16 is nowadays ineluctably permeated with basic considerations of humanity. There could hardly be a more eloquent illustration, as I perceive it, of the current historical process of humanization of International Law, setting the ground for the construction of a new jus gentium of the XXIst century, the International Law for humankind. The aforementioned Hostages case before the ICJ is not an isolated example in this connection. 11 12

13 14

15

16

Ibid., pp. 24 and 43, pars. 45 and 92, respectively. Such was the testimony of a protagonist of successive Vienna Conferences of codification of International Law; cf. G.E. do Nascimento e Silva, “A Codificação do Direito Internacional”, 28-30 Boletim da Sociedade Brasileira de Direito Internacional (1972-1974) ns. 55/60, p. 100. J.G. Guerrero, La codification du Droit international, Paris, Pédone, 1930, pp. 9-10, 13, 24, 27 and 150. A. Mahiou, “Rapport général: Les objectifs de la codification”, in Société Française pour le Droit International, La codification du Droit international (Colloque d’Aixen-Provence), Paris, Pédone, 1999, pp. 22 and 45. As admitted by another distinguished protagonist of codification of international law in the XXth century; cf. Roberto Ago, “Nouvelles réflexions sur la codification du Droit international”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, pp. 2 and 22. To the aforementioned 1961 and 1963 Vienna Conventions, two others can be added, namely, the 1969 Convention on Special Missions, and the 1975 Convention on the Representation of States in Their Relations with International Organizations of a Universal Character. – Moreover, as to case-law, in its recent Judgment (on Preliminary Objections, of 24.05.2007) in the case of A. Sadio Diallo (Guinea versus D.R. Congo), the ICJ pointed out that diplomatic protection has also been influenced by the “substantive development” of International Law in the international protection of individual rights (par. 39). On this development, cf., e.g., S. Touzé, La protection des droits des nationaux à l’étranger – Recherches sur la protection diplomatique, Paris, Pédone, 2007, pp. 1-463.

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law

III. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law More recently, the Inter-American Court of Human Rights [IACtHR] had the occasion to dwell upon the matter, upon a request by Mexico, in respect of a provision of the 1963 Vienna Convention on Consular Relations (Article 36(1)(b)) – in combination with the American Convention on Human Rights, – in an Advisory Opinion of 01 October 1999. In the course of the advisory proceedings,17 one of the eight intervening States before the IACtHR, – the United States, – argued inter alia that the 1963 Vienna Convention was not a human rights treaty nor a treaty “concerning” the protection of human rights, but rather “a multilateral treaty of the traditional type concluded to accomplish reciprocal exchange of rights for the benefit of the Contracting States”.18 In so doing, the United States assumed a position which was diametrically opposed to the one it had upheld years earlier in the Hostages case (cf. supra). The IACtHR dismissed that argument, recalling that under the 1963 Vienna Convention “the consular officer and the national of the sending State both have the right to communicate with each other, at any time, in order that the former may properly discharge his functions”; the consular communication serves a dual purpose, namely, “that of recognizing a State’s right to assist its nationals through the consular officer’s actions and, correspondingly, that of recognizing the correlative right of the national of the sending State to contact the consular officer to obtain that assistance”.19

The IACtHR further recalled that Article 36(1)(b) and (c) of the 1963 Vienna Convention pertained to consular assistance in a given situation, namely, that of deprivation of freedom. The rights mentioned therein had as a characteristic the fact that their titulaire is the individual. In effect, that provision “is unequivocal in stating that rights to consular information and notification are ‘accorded’ to the interested person. In this respect, Article 36 is a notable exception to what are essentially States’ rights and obligations accorded elsewhere in the Vienna Convention on Consular Relations. As interpreted by this Court in the present Advisory Opinion, Article 36 is a notable advance over International Law’s traditional conceptions of this subject”.20 17 18

19 20

Cf. pleadings in Advisory Opinion OC-16/99, cit. infra n. (18), Series B (Pleadings, Oral Arguments and Documents), n. 16, pp. 3-217. IACtHR, Advisory Opinion OC-16/99, of 01.10.1999, on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Series A, n. 16, p. 179, par. 26. Ibid., pp. 238-239, pars. 79-80. Ibid., pp. 239-241, pars. 81-82.

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It ensues from that provision that the exercise of that right is limited only by the choice of the individual himself, who may “expressly” oppose any intervention by the consular officer on his behalf; this, – added the IACtHR, – “confirms the fact that the rights accorded under Article 36 of the Vienna Convention on Consular Relations are rights of individuals”.21 The Court therefore concluded that “Article 36 of the Vienna Convention on Consular Relations endows a detained foreign national with individual rights that are the counterpart to the host State’s correlative duties. This interpretation is supported by the Article’s legislative history. There, although in principle some States believed that it was inappropriate to include clauses regarding the rights of nationals of the sending State, in the end the view was that there was no reason why that instrument should not confer rights upon individuals. (...) Therefore, the consular communication to which Article 36 of the Vienna Convention on Consular Relations refers, does indeed concern the protection of the rights of the national of the sending State and may be of benefit to him. This is the proper interpretation of the functions of ‘protecting the interests’ of that national and the possibility of his receiving ‘help and assistance’, particularly with arranging appropriate ‘representation before the tribunals’. (...)”.22

In its Advisory Opinion of 01.10.1999, the IACtHR, in sum, held that Article 36 of the 1963 Vienna Convention on Consular Relations recognizes to the foreigner under detention individual rights, – among which the right to information on consular assistance, – to which correspond duties incumbent upon the receiving State (irrespective of its federal or unitary structure).23 The Court pointed out that the evolutive interpretation and application of the corpus juris of the International Law of Human Rights, have had “a positive impact on International Law in affirming and developing the aptitude of this latter to regulate the relations between States and human beings under their respective jurisdictions”; the Court thus adopted the “proper approach” in considering the matter submitted to it in the framework of “the evolution of the fundamental rights of the human person in contemporary International Law”.24 The Court expressed the view that, for the due process of law to be preserved, “a defendant must be able to exercise his rights and defend his interests effectively and in full procedural equality with other defendants”.25 Thus, the individual right to information under Article 36(1)(b) of the Vienna Convention on 21 22 23 24 25

Ibid., p. 241, par. 83. Ibid., pp. 241-242, pars. 84 and 87. Paragraphs 84 and 140. Paragraphs 114-115. Paragraph 117. In order to attain its objectives, “the judicial process ought to recognize and correct the factors of real inequality” of those taken to justice; thus, the notification, to persons deprived of their liberty abroad, of their right to communicate with their consul, contributes to safeguard their defence and the respect for their procedural rights. Paragraphs 119 and 121-122.

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law

Consular Relations renders effective the right to the due process of law. The nonobservance or obstruction of the exercise of this right affects the judicial guarantees.26 The Court in this way linked the right at issue to the evolving guarantees of due process of law, and added that its non-observance in cases of imposition and execution of death penalty amounts to an arbitrary deprivation of the right to life itself (in the terms of Article 4 of the American Convention on Human Rights and Article 6 of the International Covenant on Civil and Political Rights), with all the juridical consequences inherent to a violation of the kind, that is, those pertaining to the international responsibility of the State and to the duty of reparation.27 This Advisory Opinion n. 16 of the IACtHR, truly pioneering, has served as inspiration for the emerging international case-law, in statu nascendi, on the matter,28 and is having a sensible impact on the practice of the States (infra) of the region on the issue.29 The Advisory Opinion achieved a considerable mobilization in the advisory proceedings (with eight intervening States, besides several non-governmental organizations and individuals), one of the greatest in the whole history of the Court to date,30 surpassed only by that in the subsequent 26 27

28

29

30

Paragraphs 124 and 129. Paragraph 137; and cf. Concurring Opinion of Judge A.A. Cançado Trindade. – For the pleadings and oral arguments before the Court, cf. IACtHR, OC-16/99, of 01.10.1999, Series B, n. 16 (2000), pp. 3-217. As promptly acknowledged by expert writing, singling out the advanced and evolutive approach it propounded; cf. notes (48), (49) and (50), infra. It has been pointed out, e.g., that “la Cour Interaméricaine avait examiné dans quelle mesure la violation du droit d’être informé de l’assistance consulaire pouvait être considérée comme une violation de la règle fondamentale du procès équitable et si, par voie de conséquence, une telle irrégularité de procédure dans le cas d’une condamnation à mort constituait aussi une atteinte illicite à la vie humaine protégée par l’article 6 du Pacte relatif aux droits civils et politiques. (...) La CIJ ne s’est pas prononcée sur ces questions qui ont trait à l’application de deux principes du droit international (la règle du procès équitable et le droit à la vie)”. Ph. Weckel, M.S.E. Helali and M. Sastre, op. cit. infra n. (48), p. 770. Cf. also, in further acknowledgement of the pioneering contribution of the 16th Advisory Opinion of the Inter-American Court: M. Mennecke, “Towards the Humanization...”, op. cit. infra n. (50), pp. 430-432, 453-455, 459-460 and 467-468; M. Mennecke and C.J. Tams, “The LaGrand Case”, op. cit. infra n. (50), pp. 454-455. For a recent overview, cf. A.A. Cançado Trindade, “The Humanization of Consular Law: The Impact of Advisory Opinion n. 16 (1999) of the Inter-American Court of Human Rights on International Case-Law and Practice”, in 6 Chinese Journal of International Law (2007) n. 1, p. 1-16. In the public hearings (on this 16th Advisory Opinion) before the Court, apart from the eight intervening States, several individuals took the floor, namely: seven individuals representatives of four national and international non-governmental organizations (active in the field of human rights), two individuals of a non-governmental organization working for the abolition of the death penalty, two representatives of a (national) entity of lawyers, four University Professors in their individual capacity, and three individuals in representation of a person condemned to death.

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Advisory Opinion n. 18 of the IACtHR on the Juridical Condition and Rights of Undocumented Migrants (2003).31 It may be observed, in passim, that the historical Advisory Opinion n. 16 reveals the impact of the International Law of Human Rights in the evolution of Public International Law itself, specifically for having the IACtHR been the first international tribunal to warn that non-compliance with Article 36(1)(b) of the Vienna Convention on Consular Relations of 1963 took place to the detriment not only of a State Party but also of the human beings at issue,32 as well as to affirm the existence of an individual right to information on consular assistance in the framework of the guarantees of the due process of law.33 In fact, it may be recalled that, throughout the contentious proceedings in the subsequent LaGrand case (Germany versus United States) before the ICJ, the advisory proceedings conducive to the aforementioned Advisory Opinion n. 16, as well as this Opinion itself, of the IACtHR (of 01.10.1999), were constantly brought to the attention of the ICJ, in both the written and oral phases. Thus, in the written phase of the proceedings in the LaGrand case, Germany, in its memorial (of 16.09.1999), expressly referred to the request by Mexico for an Advisory Opinion pending before the IACtRH.34 Likewise, in its counter-memorial (of 27.03.2000), the United States expressly referred to the Advisory Opinion n. 16 recently issued by the IACtHR.35 This latter was extensively referred to, also in the oral arguments before the ICJ.36 Subsequently, in its Judgment of 27.06.2001 in the LaGrand case, the ICJ found that the United States breached its obligations to Germany and to the LaGrand brothers under Article 36(1) and (2) of the 1963 Vienna Convention on Consular Relations.37

31 32 33 34 35 36

37

For the pleadings and oral arguments before the Court, cf. IACtHR, OC-18/03, of 17.09.2003, Series B, n. 18 (2005), pp. 3-231. As the ICJ has subsequently also admitted, in the aforementioned case LaGrand. Cf. IACtHR, Advisory Opinion n. 16 (OC-16/99), cit. supra n. 18, pp. 3-123, pars. 1-141 [Spanish text]. ICJ, Memorial of the Federal Republic of Germany (LaGrand case), vol. I, 16.09.1999, p. 69. ICJ, Counter-Memorial Submitted by the United States of America (LaGrand case), 27.03.2000, pp. 85-86, n. 110. Cf., in particular, the pleadings of the co-agent and counsel for Germany (B. Simma), in: ICJ, public sitting of 13.11.2000, doc. 2000/26, pp. 60/62; and doc. 2000/27, pp. 9-11, 32 and 36. ICJ Reports (2001) pp. 515-516 (resolutory points 3 and 4). On the “diffident” attitude of the ICJ, which “failed to mention” the judicial precedent of the Advisory Opinion n. 16 of the IACtHR holding that Article 36 of the 1963 Vienna Convention on Consular Relations was among the minimum guarantees essential for a fair trial of foreign nationals, cf. J. Fitzpatrick, “Consular Rights and the Death Penalty after LaGrand”, in American Society of International Law, Proceedings of the 96th Annual Meeting (2002) p. 309.

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law

Subsequent to the LaGrand case, once again, in the case of Avena and Other Mexican Nationals (Mexico versus United States), the complainant State before the ICJ, this time Mexico, in its memorial (of 20.06.2003), throughout its argumentation referred extensively to the aforementioned and leading Advisory Opinion n. 16 (of 1999) of the IACtHR, quoting excerpts of it repeatedly.38 It further referred expressly to other decisions of the IACtHR, also in contentious cases,39 relevant to the matter at issue before the ICJ, in sum, to the relevant jurisprudence constante of the IACtHR on the subject. At a stage of its memorial, Mexico argued, inter alia, in support of its position, that “The increasing support of OC-[Advisory Opinion n.] 16 [of the IACtHR] by foreign governments in death penalty cases involving foreign nationals strongly suggests the existence of an emerging consensus in the practice of nations”.40

In its Judgment of 31.03.2004 in the case of Avena and Other Mexican Nationals, the ICJ found in favour of Mexico.41 IV. The Humanization of Consular Law in Contemporary International Practice Shortly after its adoption, Advisory Opinion n. 16, of the IACtHR, on The Right to Information on Consular Assistance in the Framework of the Due Process of Law (of 01.10.1999), was promptly and expressly referred to by the General Assembly of the United Nations, in its resolutions 54/166, of 17.12.1999,42 and 55/92, of 04.12.2000,43 both on protection of migrants. Advisory Opinion n. 16 of the IACtHR was likewise expressly referred to by the General Assembly of the Organisation of American States (OAS), in two of its resolutions, adopted in 2000 and 2001, respectively.44 Furthermore, the aforementioned Advisory Opinion n. 16 was likewise expressly quoted in decision 2001/52 of the former U.N. Commission on Human Rights.45 38

39 40 41

42 43 44 45

I.C.J., Case concerning Avena and Other Mexican Nationals (Mexico versus United States), Memorial of Mexico, 20.06.2003, pp. 80-81, 136-137, 140-141 and 144, and cf. p. 65. Ibid., pp. 119-121, 151, 153 and 155-157, and cf. p. 55. Ibid., p. 141. ICJ Reports (2004) pp. 70-73. – Once again, like in the LaGrand case, in the Avena case the ICJ, in approaching “consular assistance rights”, reasoned in the line of inter-State relations (diplomatic protection) rather than individual human rights; cf. ibid., pp. 60-61, pars. 124-127, on the reticent position of the ICJ. Tenth preambular paragraph. Fifteenth preambular paragraph. OAS, resolutions AG/RES.1717(XXX-0/00), of 05.06.2000 (fi fth considerandum), and AG/RES.1775(XXXI-0/01), of 05.06.2001 (sixth considerandum). Fourteenth preambular paragraph.

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On its part, the U.N. Subcommission on the Promotion and Protection of Human Rights, in a statement issued on 08.08.2002, urged the United States to stay execution of a Mexican national (J.S. Medina), on the basis of the Advisory Opinion n. 16 of the IACtHR (of 01.10.1999) and the subsequent Judgment of the ICJ in the LaGrand case (of 27.06.2001).46 Again shortly after the Advisory Opinion n. 16 of the IACtHR, the rapporteur of the OAS Inter-American Commission on Human Rights on the question of Migrant Workers and Members of their Families reproduced the views expressed by Peru that the receiving State is under the duty to facilitate consular assistance to foreigners, and by Bolivia and Panama to the effect that migrants have the right to resort to consular authorities of the State of origin.47 Advisory Opinion n. 16 of the IACtHR was truly pioneering, and has served as inspiration for the emerging international case-law, in statu nascendi, on the matter. This has been promptly acknowledged by expert writing, for example, in referring to the subsequent decision of the ICJ (of 27.06.2001) in the LaGrand case, rendered “à la lumière notamment de l’avis de la Cour Interaméricaine des Droits de l’Homme du 1er octobre 1999”.48 It has further been pointed out that the IACtHR’s Advisory Opinion of 1999 contrasts with “la position restrictive prise par la Cour de La Haye” in its decision of 2001 in the LaGrand case:49

46 47

48

49

Statement reproduced in a press release of the U.N. High Commissioner for Human Rights, of the same date, p. 1. 2nd. progress report, reproduced in OAS, Informe Anual de la Comisión Interamericana de Derechos Humanos 2000 – vol. II, pp. 1562 (Peru), 1560 (Bolivia) and 1561 (Panama). G. Cohen-Jonathan, “Cour Européenne des Droits de l’Homme et droit international général (2000)”, 46 Annuaire français de Droit international (2000) p. 642. – It has also been pointed out, as to the Inter-American Court’s Advisory Opinion n. 16, “le soin mis par la Cour à démontrer que son approche est conforme au droit international”. Moreover, “pour la juridiction régionale il n’est donc pas question de reconnaître à la Cour de la Haye une prééminence fondée sur la nécessité de maintenir l’unité du droit au sein du système international. Autonome, la juridiction est également unique. (...) La Cour Interaméricaine des Droits de l’Homme rejette fermement toute idée d’autolimitation de sa compétence en faveur de la Cour mondiale fondamentalement parce que cette dernière ne serait pas en mesure de remplir la fonction qui est la sienne”. Ph. Weckel, M.S.E. Helali and M. Sastre, “Chronique de jurisprudence internationale”, 104 Revue générale de Droit international public (2000) pp. 794 and 791. In effect, “la juridiction régionale avait exprimé son opinion dans l’exercice de sa compétence consultative. Or, statuant sur un différend entre États, la juridiction universelle ne disposait pas de la même liberté, parce qu’elle devait faire prévaloir les restrictions imposées à sa juridiction para le défendeur”. Ph. Weckel, “Chronique de jurisprudence internationale”, 105 Revue générale de Droit international public (2001) pp. 764-765.

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law – “La Cour Interaméricaine avait examiné dans quelle mesure la violation du droit d’être informé de l’assistance consulaire pouvait être considérée comme une violation de la règle fondamentale du procès équitable et si, par voie de conséquence, une telle irrégularité de procédure dans le cas d’une condamnation à mort constituait aussi une atteinte illicite à la vie humaine protégée par l’article 6 du Pacte relatif aux droits civils et politiques. (...) La CIJ ne s’est pas prononcée sur ces questions qui ont trait à l’application de deux principes du droit international (la règle du procès équitable et le droit à la vie)”.50

Turning to the contemporary international practice on the matter, it may be pointed out that two weeks after the adoption of Advisory Opinion n. 16 by the IACtHR, the Ministry of External Relations of Mexico issued a circular note to all its diplomatic and consular posts stressing the importance of that Advisory Opinion and of due compliance with it.51 The matter dealt with in the Advisory Opinion was already occupying a special place, in recent years, in Mexico’s diplomatic and consular practice.52 In an intervention at the 56th U.N. General Assembly (2001) on the report of the ICJ, the Legal Adviser to its Foreign Office stated that Mexico supported the conclusion of the Judgment in the LaGrand case to the effect that individual rights ensued from Article 36(1) of the 1963 of the Vienna Convention on Consular Relations, but would have preferred if the ICJ had established in an “unequivocal manner”, like the IACtHR had already done in its Advisory Opinion n. 16, that those rights had the character of human rights; a pronouncement of the ICJ in this sense “would have resulted of great relevance”.53 As from the end of the year 2000 onwards, Mexico began to resort to diplomatic channels as a complementary strategy for the defence of their nationals condemned to death penalty in the United States. Thus, in the case of M.A. Flores, letters of the Ambassadors of Argentina (01.11.2000), Honduras (08.11.2000), Po50

51 52

53

Ibid., p. 770. – Cf. also, in further acknowledgement of the pioneering contribution of the Advisory Opinion n. 16 of the IACtHR: M. Mennecke, “Towards the Humanization of the Vienna Convention of Consular Rights – The LaGrand Case before the International Court of Justice”, 44 German Yearbook of International Law/Jahrbuch für internationales Recht (2001) pp. 430-432, 453-455, 459-460 and 467-468; M. Mennecke and C.J. Tams, “The LaGrand Case”, 51 International and Comparative Law Quarterly (2002) pp. 454-455. SRE/Mexico, Notice Circular, 14.10.1999, pp. 1-6. Three years before the Advisory Opinion n. 16 of the IACtHR, Mexico and the United States concluded a Memorandum of Understanding on Consular Protection (1996) of their nationals, stressing the need of compliance with Article 36(1) of the 1963 Vienna Convention on Consular Relations, and to allow and facilitate consular officials to be present at all times at the trials or judicial proceedings concerning their respective nationals. SRE/Mexico, Intervención del Consultor Jurídico de la Secretaría de Relaciones Exteriores de México (J.M. Gómez Robledo) en el Marco del Tema 13 del Programa de Trabajo de la 56a. Asamblea General de las Naciones Unidas ‘Informe de la CIJ’, 30.10.2001, p. 2.

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land (31.10.2000), Spain (02.11.2000), and Uruguay (08.11.2000) requested clemency to the Governor of Texas. In those letters, they all requested a reconsideration of the death sentence in view of the Advisory Opinion n. 16 of the IACtHR, in particular its finding therein that the execution of a foreign national deprived of his “Article 36 rights” would constitute an “arbitrary deprivation of life”, in violation of Article 6 of the U.N. Covenant on Civil and Political Rights. Again in the case of G. Valdez Maltos, letters to the same effect, and with the same argument on the basis of the aforementioned Advisory Opinion of the IACtHR, were sent by the Ambassadors of Argentina (12.07.2001), Brazil (16.07.2001), Chile (13.07.2001), Costa Rica (16.07.2001), El Salvador (10.07.2001), Iceland (13.07.2001), Poland (16.07.2001) and Uruguay (12.07.2001) to the Governor of Oklahoma, requesting clemency. The same happened in the case of J. Suárez Medina, when letters of the Ambassadors of Costa Rica (12.08.2002), Guatemala (06.08.2002) and Uruguay (01.08.2002) likewise requested clemency to the Governor and local authorities of Texas, on the basis of the IACtHR’s finding in its Advisory Opinion n. 16. Moreover, in the case of G. Valdez Maltos, the Governments of Argentina, Bolivia, Brazil, Colombia, Ecuador, El Salvador, Guatemala, Panama, Poland, Uruguay and Venezuela consented to join Mexico in fi ling an amicus curiae brief before the U.S. Supreme Court. In that amicus curiae, of August 2001, they expressly supported “the seminal Opinion of the Inter-American Court in OC16/99”; in particular, they referred to the Opinion’s sustaining that the lack of consular notification was prejudicial to the minimum guarantees of due process to secure a fair trial, that a State may not impose the death penalty dpriving individuals of rights under Article 36 of the Vienna Convention on Consular Relations, and that the execution of foreign nationals under such circumstances would constitute an “arbitrary deprivation of life” in violation of Article 6 of the U.N. Covenant on Civil and Political Rights”.54 Likewise, in the case of J. Suárez Medina, the Governments of Argentina, Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Panama, Poland, Spain, Uruguay and Venezuela also consented to join Mexico in fi ling an amicus curiae (of August 2002), wherein once again the “seminal” Advisory Opinion n. 16 of the IACtHR was expressly supported in the same line of reasoning.55 Still in the J. Suárez Medina case, the Government of Mexico, in a note (of 17.07.2002) to the U.S. Department of State, expressly invoked the Advisory Opinion n. 16 of the IACtHR to argue the “illegality under international law” of the execution of its national, in breach of Article 6 of the U.N. Covenant on Civil and Political Rights, “to which the United States is a Party”.56 Other recent examples of international practice on the matter may be singled out. In the framework of the contribution of Advisory Opinion n. 16 of the

54 55 56

Pages 7-8 and 20 of the amicus curiae. Pages 7 and 18 of the amicus curiae. SRE/Mexican Embassy in Washington D.C., Note of 17.07.2002, p. 3.

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law

IACtHR (supra), three States of Central America – El Salvador, Guatemala and Nicaragua – established, on 30 November 2000, a “Mechanism of Trinational Consular Protection”. By means of this initiative, they agreed to render consular protection, by the consuls of each of the three States, to nationals of the other two States, whenever these latter did not have consulates in the receiving State, and there was a situation of proven emergency or necessity.57 Subsequently, the VII Regional Conference on Migration, held in Antigua, Guatemala, on 30-31 May 2002,58 in its final Joint Communiqué acknowledged “the importance of the mechanisms of consular protection in condition of detention” – under the Vienna Convention on Consular Relations or other international agreements – established in the framework of “full respect of the human rights of the migrants”.59 Parallel to that, the I Iberian Meeting of the Community of Brazilians Abroad,60 held in Lisbon, on 09-11.05.2002, contemplated, it its final document, the establishment of a scheme of juridical assistance abroad to Brazilian migrants, in order to secure them “their condition of titulaires of fundamental rights”.61 Shortly after the IACtHR’s Advisory Opinion n. 16, Venezuela’s newly-adopted national Constitution (of 17.11.1999) provided for the duty to observe “consular notification, set forth in international treaties on the matter”, in respect of detention of foreigners.62 For some years the Venezuelan Ministry of External Relations had in fact been attentive to the question of consular assistance to Venezuelans detained abroad.63 On its turn, the Ministry of External Relations of Chile issued in 2001 its new Manual of Procedure for the Due Exercise of Consular Assistance and Protection and of Diplomatic Protection, which, in the light of Article 36(1) of the Vienna Convention on Consular Relations, acknowledges the duty of the receiving State to inform Chilean consuls of the detention of Chilean nationals, and the right of these latter to seek consular assistance and protection, considered in the light of the fundamental rights of the human person.64 On its part, the Ministry of External Relations of Brazil issued in 2000 the new version of its Manual of Consular and Juridical Service, which, after sin57 58

59

60 61 62 63 64

Consideranda 2-3, and operative paragraphs 1-2; the Mechanism became effective on 01 January 2001 (par. 3). With the participation of Belize, Canada, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and the United States. Paragraph 3 of the Joint Communiqué. It further approved the establishment of “mechanisms of cooperation”, on the basis of national legislations, on the matter at issue (par. 6(a)). Promoted by Brazil’s Ministère Public. Item XIII-Conclusion, of the final “Document of Lisbon”, p. 10. Article 44(2) in fine. As exemplified by MRE/Venezuela, circular letter n. DGSRC-a-18, of 04.07.1986, pp. 1-2. Sections 2.1 and 2.3 of the aforementioned Manual, pp. 2 and 6.

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gling out Article 36 of the Vienna Convention on Consular Relations, provided for the organization of “Councils of Citizens” (abroad), to foster communication between nationals living abroad and consular authorities of the country of origin, as well as of “Itinerant Consular Missions”, to render more agile the consular assistance normally rendered in consular offices.65 Still in South America, the Ministry of External Relations of Peru saw it fit to consult the National Police on the compliance with the right of information on consular assistance; this latter reported to the Peruvian Foreign Ministry, on 31.12.2001, that the provision of Article 36 of the Vienna Convention on Consular Relations on “the right of foreigners to receive assistance” from consular authorities of the countries of origin was being complied with in the country.66 In Central America, the Ministry of External Relations of El Salvador sent a circular message, on 08.12.1999, to all its diplomatic and consular posts, summarizing the contents of the Advisory Opinion n. 16 of the IACtHR, and instructing them to comply, in the light of this latter, with the “duty” of the Salvadorean State “to protect its nationals abroad” and to secure, in this connection, the strict observance of the application of Article 36 of the Vienna Convention on Consular Relations.67 Earlier on, in another circular message of the kind, of 16.07.1998, the Foreign Ministry of El Salvador instructed its diplomatic and consular missions to secure compliance with the provision of Article 36 of the 1963 Vienna Convention pertaining to the duty of the receiving State to inform the foreigner under detention of his rights thereunder.68 More recently, on 01.06.2004, the Vice-Ministry of External Relations for Salvadoreans Abroad was created, and has been very active ever since.69 In the same line of concern, the Ombudsman (Defensor de los Habitantes) of Costa Rica, concerned with alleged “policies of deportation” of “many Costa Rican citizens” in Panama, issued a communiqué, on 02.11.2001, recommending to national authorities the prompt exercise of “consular protection”, in the light of the Advisory Opinion n. 16 of the IACtHR.70 Before the issuing of this latter, the Paraguayan Minister of Justice and Labour sent a complaint (with annexes) to the U.S. Secretary of State, in March 1998, to the effect that, in the Breard case (Paraguay versus United States), the right to information for consular assistance had been breached by the United States when the Paraguayan national A.F. Breard was arrested in 1992, and that Paraguay was only notified of that arrest after his national had been tried and 65 66

67 68 69 70

Items 3.1.23, 3.2.1, and 3.3.2, of the aforementioned Manual (version of 02.06.2000). Peru/National Police, report n. 436-DIRSEG-JESE-DEX-IE, of 31.12.2001, p. 2. – And cf., earlier on, [Various Authors,] Comunidades Peruanas en el Exterior: Situación y Perspectivas, Lima, Academia Diplomática del Perú, 1999, pp. 7-78. MRE/El Salvador, Annex to doc. DUAJ/AEJ/1840-01, pp. 1-3. MRE/El Salvador, doc. DGSE/SAC/1042/98, p. 1. Documents provided by the Salvadorean Ministry of External Relations, on fi le with the Author. DHR/Costa Rica, doc. 08445-2001-DHR, of 02.11.2001, pp. 3-4.

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law

sentenced to death. Paraguay was thus deprived of rendering consular assistance, in contrast with its own constant compliance with the relevant provisions of the 1963 Vienna Convention on Consular Relations vis-à-vis U.S. nationals in Paraguay. The Breard case was then, as ultima ratio, lodged by Paraguay with the ICJ, which issued a provisional measure of protection, on 09.04.1998, indicating that the United States should not execute A.F. Breard pending the Court’s final decision on the case.71 Notwithstanding, five days later, on 14.04.1998, A.F. Breard was executed in Virginia, in breach of the ICJ Order. On 03.11.1998 the U.S. Government issued a statement fully recognizing the violation by the United States of the 1963 Vienna Convention in the Breard case, and conveying its apologies to “the Government and people of Paraguay”. The U.S. statement added that “Consular notification is no less important to Paraguayan and other foreign nationals in the United States than to U.S. nationals outside the United States. We fully appreciate that the United States must see to it that foreign nationals in the United States receive the same treatment that we expect for our citizens overseas. We cannot have a double standard”.

On its part, the Paraguayan Ministry of External Relations, in an official communiqué of 04.11.1998, took note of the “full recognition” on the part of the U.S. Government of its breach of the 1963 Vienna Convention, announced that it decided to withdraw its application from the ICJ, and expressed the hope that what occurred to A.F. Breard did not happen again.72 The issue, however, became a recurrent one, as the subsequent LaGrand and Avena cases before the ICJ, both against the United States, were to show. We are thus here before, rather than a “persistent objector”, a persistent violator of the relevant provisions of the 1963 Vienna Convention on Consultar Relations, which seems to attempt to make one believe that a simple apology provides sufficient redress for the irreparable damage caused to the individuals at issue. V.

Concluding Observations

The aforementioned examples of the contemporary international practice on the issue converge in disclosing an opinio juris in the line of the views upheld by the IACtHR in Advisory Opinion n. 16. Even before this latter, there already was an incipient practice in the region under Article 36(1) of the Vienna Convention on Consular Relations. Such international practice was confi rmed and enhanced by that Advisory Opinion, which has decisively contributed to the formation of an opinio juris communis as to the individual rights crystallized under Article 36(1) of the 1963 Vienna Convention. This development, on its part, reflects the 71 72

ICJ Reports (1998) p. 258 (resolutory point n. 1). Documents provided by the Paraguayan Ministry of External Relations, on fi le with the Author.

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ongoing process of humanization of International Law, encompassing relevant aspects of consular relations. Contemporary expert writing has acknowledged the decisive contribution of Advisory Opinion n. 16 of the IACtHR to the gradual jurisdictionalization of consular protection, bringing it closer to the binding obligations of the International Human Rights Law. While diplomatic protection remains largely discretionary, in the traditional ambit of inter-State relations, consular protection is brought into the wider framework of human rights protection, in particular in closer contact with the guarantees of the due process of law.73 In fact, subsequent to its Advisory Opinion n. 16, the IACtHR delivered, on 17 September 2003, its 18th Advisory Opinion, on the Juridical Condition and Rights of Undocumented Migrants, in which it held that States ought to respect and ensure respect for human rights, in the light of the general and basic principle of equality and non-discrimination, and that any discriminatory treatment with regard to the protection and exercise of human rights generates the international responsibility of the States. In the view of the Court, the fundamental principle of equality and non-discrimination has entered into the domain of jus cogens.74 The IACtHR sustained that States cannot discriminate or tolerate discriminatory situations to the detriment of migrants, and ought to guarantee the due process of law to any person, irrespective of her migratory status. This latter cannot be a justification for depriving a person of the enjoyment and exercise of her human rights, including labour rights. Undocumented migrant workers have the same labour rights as the other workers of the State of employment, and this latter ought to ensure respect for those rights in practice. States cannot subordinate or condition the observance of the principle of equality before the law and nondiscrimination to the aims of their migratory or other policies. The IACtHR has thus lately considered the subject at issue into an yet larger framework, of concern to the international community as a whole.75 At universal level, likewise, the Declaration and Programme of Action adopted in Dur73

74 75

Cf., to this effect, E. Decaux, “La protection consulaire et les droits de l’homme”, in Société française pour le Droit international (SFDI), La protection consulaire (Journée d’études de Lyon de 2005), Paris, Pédone, 2006, pp. 56-57, 62, 64, 66 and 69-72. – It has also been argued that it is now possible to draw a new distinction between, on the one hand, direct action and action in representation, and, on the other hand, diplomatic protection; C. Santulli, “Entre protection diplomatique et action directe: la représentation – Eléments épars du statut international des sujets internes”, in SFDI, Le sujet en Droit international (Colloque de Mans, 2004), Paris, Pédone, 2005, pp. 93-95. Cf. chapter XII, supra. On the historical importance of this Advisory Opinion n. 18 (of 2003) of the IACtHR, cf., e.g., L. Ortiz Ahlf, Derecho Internacional Público, 3rd. ed., Mexico, OUP, 2004, pp. 555-557; L. Ortiz Ahlf, De los Migrantes – Los Derechos Humanos de los Refugiados, Asilados, Desplazados e Inmigrantes Irregulares, Mexico, Ed. Porrúa/Universidad Iberoamericana, 2004, pp. 1-69; S.H. Cleveland, “Legal Status and Rights of

Basic Considerations of Humanity in Relation to Diplomatic and Consular Law

ban, South Africa, in 2001, by the U.N. World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, were not indifferent to the protection of migrants. On the contrary, paragraphs 80-81 of the Programme of Action, e.g., saw it fit expressly to urge States “to seek full respect for, and compliance with, the Vienna Convention on Consular Relations of 1963, especially as it relates to the right of foreign nationals, regardless of their legal and immigration status, to communicate with a consular officer of their own State in the case of arrest or detention”; and “to prohibit discriminatory treatment based on race, colour, descent or national or ethnic origin against foreigners and migrant workers, inter alia, where appropriate, concerning the granting of work visas and work permits, housing, health care and access to justice”.

The matter at issue is thus nowadays acknowledged as one of concern to humankind as a whole, having assumed an increasing relevance in the new jus gentium.

Undocumented Workers – Advisory Opinion OC-18/03 [of the IACtHR]”, 99 American Journal of International Law (2005) pp. 460-465.

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I.

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

The Consolidated Convergences between the Regimes of Protection of the Human Person

A critical review of classic doctrine concerning the regimes of protection of the human person reveals that it used to endorse a rather compartmentalized outlook, – distinguishing the International Law of Human Rights, International Refugee Law and International Humanitarian Law, – due in great part to an exagerated emphasis in the distinct historical origins of the three regimes of protection. Perhaps the most notorious distinction lies in the personal domain of application – the legitimatio ad causam, – as the International Law of Human Rights has recognized the right of individual petition (of which individuals are titulaires), which does not find parallels in International Humanitarian Law nor in International Refugee Law. But this does not exclude the possibility, already materialized in practice, of the simultaneous application of norms of the three regimes of protection, or of two of them, precisely because they are essentially complementary to each other. Furthermore, they are guided by a basic identity of purpose: the protection of the human person in all and any circumstances. This is the view which I have been propounding for years; in fact, international practice provides numerous examples of simultaneous or concomitant operation of supervisory organs belonging to the three regimes of protection of the human person.1 The aforementioned identity of purpose has led to approximations or convergences in the three aforemetioned regimes of protection of human beings,2 manifested at normative, 1

2

A.A. Cançado Trindade, “Derecho Internacional de los Derechos Humanos, Derecho Internacional de los Refugiados y Derecho Internacional Humanitario: Aproximaciones y Convergencias”, in ACNUR, in Diez Años de la Declaración de Cartagena sobre Refugiados – Memoria del Coloquio Internacional (San José of Costa Rica, 05-07.12.1994), San José of Costa Rica, UNHCR/IIDH, 1995, pp. 79-80 (hereinafter referred to as “A.A.C.T., Aproximaciones y Convergencias”). Cf. A.A. Cançado Trindade, “Aproximaciones o Convergencias entre el Derecho Internacional Humanitario y la Protección Internacional de los Derechos Humanos”, in Seminario Interamericano sobre la Protección de la Persona en Situaciones de

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hermeneutic and operative levels, which have expanded and strengthened the means of protection. In this way, the compartmentalized view of the past has been overcome, and one has evolved towards the interaction between norms and institutions of the three regimes, to the benefit of the protected human beings.3 It is undeniable that basic considerations of humanity underlie International Humanitarian Law as well as International Human Rights Law and International Refugee Law. Successive resolutions adopted by the International Conferences of the Red Cross, from the end of the sixties (1969) onwards, came expressly to link the application of the norms of humanitarian law to the respect for human rights. It is, moreover, widely reckoned the influence of the norms of the international protection of human rights on the elaboration of the two Additional Protocols (of 1977) to the Geneva Conventions on International Humanitarian Law of 1949, of which are eloquent expression the fundamental guarantees set forth in Article 75 of Protocol I and in Articles 4-5 of Protocol II, common to the two regimes at issue of protection of the rights of the human person. As from the beginning of the eighties (1981 onwards) until now, the Executive Committee of the UNHCR Programme, in successive conclusions adopted, has, in its turn, expressly recognized the direct relationship between the movements and problems of refugees and the norms of human rights, and has widened its approach so as to encompass not only the intermediate stage of protection (refuge) but also the “previous” and “subsequent” stages, respectively, of prevención, and of “durable solution” (voluntary repatriation, local integration, resettlement). One has thereby gradually evolved, – as I pointed out over a decade ago (on the occasion of the tenth anniversary of the Cartagena Declaration on Refugees), – from the application of “a subjective criterion of qualification of the individuals, according to the reasons which would have led them to abandon their homes, to an objective criterion centred rather on the needs of protection”.4

Greater attention has thus come to be devoted to the preventive dimension of the protection of the human person, which already counted on judicial recognition in international case-law.5 In Latin America, e.g., the 1984 Declaration of Cartagena on Refugees placed the matter in the conceptual universe of human rights:

3 4 5

Emergencia – Memoria (Santa Cruz de la Sierra, Bolivia, June 1995), San José of Costa Rica, ICRC/UNHCR, 1996, pp. 33-88; C. Swinarski, Principales Nociones e Institutos del Derecho Internacional Humanitario como Sistema Internacional de Protección de la Persona Humana, San José of Costa Rica, IIDH, 1990, pp. 83-88; C. Sepúlveda, Derecho Internacional y Derechos Humanos, México, Comisión Nacional de Derechos Humanos, 1991, pp. 105-107 and 101-102. Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 80-84. Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 85-90, and cf. pp. 91-93. Cf. ibid., pp. 93-97.

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

the “massive violations” of human rights it referred to came to appear among the elements constituting the expanded definition of refugees.6 One decade later, the Declaration of San José [of Costa Rica] on Refugees and Displaced Persons (1994) emphasized central questions of the epoch which were not so elaborated in the previous Declaration of Cartagena,7 and, significantly, expressly recognized the convergences between the regimes of protection of the human person set forth in the International Law of Refugees, the International Law of Human Rights, and the International Humanitarian Law, given their complementary character.8 In the same line of thinking, the aforementioned convergences between International Refugee Law, the International Law of Human Rights and International Humanitarian Law, also ensue from the document of the International Conference on Central American Refugees (CIREFCA) titled “Principles and Criteria for the Protection and Assistance to Central American Refugees, Returnees and Displaced Persons in Latin America” (1989), and, even more clearly, in the document of evaluation of the application of the provisions of the document “Principles and Criteria”, of 1994. The 1993 Vienna Declaration and Programme of Action, adopted by the II World Conference on Human Rights, besides acknowledging the evolving contribution of the UNHCR, recognized that massive violations of human rights (also in armed conflicts) were among the multiple and complex factors that led to the forced displacement of persons.9 Likewise, in its participation in the same II World Conference on Human Rights (Vienna, 1993) and in its preparatory work, the International Committee of the Red Cross (ICRC) pointed out the complementarity and convergences between Humanitarian Law and human rights.10 At operative level, in the last decades one has witnessed the concomitant operation, in successive conflicts, of organs of international supervision of human rights, of the UNHCR and of the ICRC (such as, e.g., in the cases of Haiti and the former Yugoslavia),11 among others, – on some occasions not without 6 7

8 9 10

11

Third conclusion (an expansion in respect of the 1951 Convention on the Status of Refugees and its 1967 Protocol). Such as, e.g., those of forced displacement; of economic, social and cultural rights; of sustainable human development; of indigenous populations; of the rights of the child; of gender; of the right of asylum in its wide dimension. Preamble and third and sixteenth (a) conclusions. Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 97-98. Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 105-106. Ibid., pp. 160-165; and cf. also, e.g., C. Sommaruga, “Os Desafios do Direito Internacional Humanitário na Nova Era”, 79/80 Boletim da Sociedade Brasileira de Direito Internacional (1992) pp. 7-11. Cf., e.g., A.A. Cançado Trindade, G. Peytrignet and J. Ruiz de Santiago, Las Tres Vertientes de la Protección Internacional de los Derechos de la Persona Humana, México, Ed. Porrúa/Univ. Iberoamericana, 2003, pp. 1-169; Y. Daudet and R. Mehdi (eds.), Les Nations Unies et l’Ex-Yougoslavie (Colloque d’Aix-en-Provence of 1997), Paris, Pédone, 1998, pp. 165-200.

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difficulties (such as, e.g., in the cases of Cambodia and Bosnia).12 In the case of Kosovo (1998-1999), the UNHCR and the ICRC operated with some degree of coordination, amidst much difficulty,13 and bearing also in mind the relevant norms of human rights. On its turn, the U.N. High Commissioner for Human Rights has taken into account human rights norms as well as those of Refugee Law and of Humanitarian Law, in the presences in loco which it has established as from 1996 (in the cases of Colombia, Abjasia-Georgia and the Democratic Republic of the Congo, among others).14 The Institut de Droit International, in examining, in its Berlin session of 1999, the theme “The Application of International Humanitarian Law and of Fundamental Human Rights in Armed Conflicts in which Non-State Entities Take Part”, adopted a resolution in which are taken into account, jointly and in a converging way, International Humanitarian Law and the International Law of Human Rights. Both its preamble and Articles II, III, VI, VII, X, XI and XII refer, expressly and jointly, to human rights and Humanitarian Law.15 The resolution refers, in its preamble, to the question dealt with as a problem which affects the interests of the international community as a whole. II.

The Intensified Convergences between the Regimes of Protection of the Human Person

Expert writing nowadays widely acknowledges the intensification of the convergences between, e.g., International Humanitarian Law and the International Law of Human Rights in the case-law of the ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda.16 The intensification of such interaction is particularly illustrated by the recent case-law of the Inter-American and European Courts of Human Rights, which have taken into account the norms

12 13

14

15

16

Cf., e.g., U. Palwankar (ed.), Symposium on Humanitarian Action and Peace-keeping Operations (Geneva, 1994), Geneva, ICRC, [1994], pp. 18-98. Cf. Independent International Commission on Kosovo, The Kosovo Report – Conflict, International Response, Lessons Learned, Oxford, University Press, 2000, pp. 77, 142, 201 and 208-209. Cf., e.g., J.L. Gómez del Prado, Operaciones de Mantenimiento de la Paz – Presencias en el Terreno del Alto Comisionado de las Naciones Unidas para los Derechos Humanos, Bilbao, Universidad de Deusto, 1998, pp. 28-88. Institut de Droit International, L’application du Droit international humanitaire et des droits fondamentaux de l’homme dans les conflits armés auxquels prennent part des entités non étatiques (Résolution de Berlin du 25.08.1999), Paris, Pédone, 2003, pp. 7-12. Cf. S. Zappalà, “Le Droit international humanitaire devant les tribunaux internationaux des Nations Unies pour l’Ex-Yougoslavie et le Rwanda”, in Les nouvelles frontières du Droit international humanitaire (ed. J.-F. Flauss), Bruxelles, Bruylant, 2003, p. 91.

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

of International Humanitarian Law in the interpretation and application of the American and European Conventions of Human Rights, respectively.17 In the European continent, in face of the fear of an erosion of the right of asylum,18 one has sought new forms of protection against inhuman or degrading treatments inflicted on uprooted persons.19 Thus, a case-law has lately developed under Article 3 of the European Convention of Human Rights extending a protection against the refoulement which is wider in scope than that provided by the 1951 Convention on the Status of Refugees.20 In a Colloquy cosponsored by the UNCHR and the Council of Europe, and held on 02-03 October 1995, it was pointed out precisely that Article 3 of the European Convention (prohibition of torture and inhuman or degrading treatment) has been widely utilized by the petitioners to impede the refoulement; likewise, Article 13 of the Convention (right to an effective remedy) has been invoked by refugees and asylum-seekers. Thus, as a representative of the UNHCR admitted in the aforementioned event, the protection of refugees has been transformed into “a scheme” of human rights.21 The norms of International Humanitarian Law and of the International Law of Human Rights apply simultaneously and concomitantly, and the international practice in the last decades contains several examples in this sense. Various humanitarian entities have, over the last three years, with regard to the conditions of detention in the prisons of Guantánamo and Abu Ghraib, protested against the line of disaggregating argument advanced by the United States (attempting to dissociate the application of norms of International Human Rights Law and International Humanitarian Law), and against the abuses that it paves the way

17

18 19

20

21

Cf. J.-F. Flauss, “Le Droit international humanitaire devant les instances de contrôle des Conventions européenne et interaméricaine des droits de l’homme”, in Les nouvelles frontières du Droit international humanitaire (ed. J.-F. Flauss), Bruxelles, Bruylant, 2003, pp. 117-133. F. Crépeau, Droit d’asile – De l’hospitalité aux contrôles migratoires, Bruxelles, Bruylant, 1995, pp. 17-353. For a general study, cf. A.A. Cançado Trindade and J. Ruiz de Santiago, La Nueva Dimensión de las Necesidades de Protección del Ser Humano en el Inicio del Siglo XXI, 3rd. ed., San José of Costa Rica, UNHCR, 2004, pp. 27-127. H. Lambert, “Protection against Refoulement from Europe: Human Rights Law Comes to the Rescue”, 48 International and Comparative Law Quarterly (1999) pp. 515-516, and cf. pp. 520, 536 and 538. It has been pointed out, in this respect, that that case-law has interpreted Article 3 of the European Convention in an unconditional way, extending a wide protection to those under the threat of expulsion, deportatión or extradition, and raising the non-refoulement not only to a basic principle of the International Law of Refugees but also to a peremptory norm of the International Law of Human Rights; ibid., pp. 516-518 and 544. UNHCR/Council of Europe, The European Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons (1995 Strasbourg Colloquy), Strasbourg, UNHCR (Regional Bureau for Europe), [1996], pp. 3-5 (intervention by D. McNamara).

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to.22 This prompt reaction places the matter in the right perspective, revealing the awareness that nowadays prevails as to the concomitant application of the relevant norms of International Humanitarian Law and of the International Law of Human Rights. In the American continent, the 1984 Declarations of Cartagena on Refugees, the 1994 San José Declaration on Refugees and Displaced Persons, and the 2004 Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America, are, each of them, product of a given historical moment. The first one, the Declaration of Cartagena, was motivated by urgent needs generated by a concrete crisis (internal displacement) of great proportions; to the extent that this crisis was being overcome, due in part to that Declaration, its legacy began to project itself to other regions and subregions of the American continent. The second Declaration was adopted amidst a distinct crisis, a more diffuse one, marked by the deterioration of the socio-economic conditions of wide segments of the population in distinct regions. In sum, Cartagena and San José were product of their time. The aggiornamento of the Colloquy of San José gave likewise a special emphasis on the identification of the needs of protection of the human being in any circumstances.23 There remained no place for the vacatio legis.24 The 1994 Declaration of San José gave a special emphasis not only on the whole problem of internal displacement, but also, more widely, on the challenges presented by the new situations of human uprootedness in Latin America and the Caribbean, including the forced migratory movements originated by causes differents from those foreseen in the Declaration of Cartagena. The 1994 Declaration recognized that the violation of human rights is one of the causes of forced displacements and that therefore the protection of those rights and the strengthening of the democratic system constitute the best measure for the search of durable solutions, as well as for the prevention of conflicts, the exoduses of refugees and the grave humanitarian crises.25 Recently, at the end of consultations, with a wide public participation, undertaken at the initiative 22

23

24 25

Cf., e.g., Amnesty International, Memorandum to the United States Government on the Rights of People in U.S. Custody in Afghanistan and Guantánamo Bay, of April 2002, pp. 1-59; Human Rights Watch, Background Paper on Geneva Conventions and Persons Held by U.S. Forces, of 29.01.2002, pp. 1-6; International Committee of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts – Report (28th International Conference of the Red Cross and Red Crescent, 02-06.12.2003), Geneva, ICRC, 2003, pp. 3-70. Instead of subjective categorizations of persons (in accordance with the reasons which led them to abandon their homes), proper of the past, nowadays the objective criterion of the needs of protection came to be adopted, encompassing thereby a considerably greater number of persons (including the internally displaced persons) so vulnerable as the refugees, or even more than these latter. Ibid., pp. 14-15. Ibid., pp. 431-432.

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

of the UNHCR, the 2004 Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America was adopted,26 on the occasion of the twentieth anniversary of the Cartagena Declaration (supra). For the first time in the present process, a document of the kind was accompanied by a Plan of Action. This can be explained by the aggravation of the humanitarian crisis in the region, particularly in the Andean subregion. As the rapporteur of the Committee of Legal Experts of the UNHCR observed in his presentation of the final report to the Mexico Colloquy, at its first plenary session, on 15 November 2004, although the moments of the 1984 Cartagena Declaration and the 1994 San José Declaration are distinct, their achievements “cumulate, and constitute today a juridical patrimony” of all the peoples of the region, disclosing the new trends of the development of the international safeguard of the rights of the human person in the light of the needs of protection, and projecting themselves into the future.27 Thus, “the Declaration of Cartagena faced the great human drama of the armed conflicts in Central America, but furthermore foresaw the aggravation of the problem of internally displaced persons. The Declaration of San José, in turn, dwelt deeper upon the issue of protection of, besides refugees, also of internally displaced persons, but moreover foresaw the aggravation of the problem of forced migratory fluxes. Ever since, anachronical compartmentalizations were overcome, proper of a way of thinking of a past which no longer exists, and one came to recognize the convergences between the three regimes of protection of the rights of the human person, namely, the International Law of Refugees, International Humanitarian Law and the International Law of Human Rights. Such convergences – at normative, hermeneutic and operative levels – were reaffi rmed in all preparatory meetings of the present Commemorative Colloquy of Mexico City, and have repercussion nowadays in other parts of the world, in conformity with the more more lucid international legal doctrine on the matter”.28

Those convergences29 were, not surprisingly, further reflected in the 2004 Mexico Declaration and Plan of Action to Strengthen the International Protection of 26

27

28 29

Cf. text reproduced in: UNHCR, Memoria del Vigésimo Aniversario de la Declaración de Cartagena sobre los Refugiados (1984-2004), Mexico City/San José of Costa Rica, UNHCR, 2005, pp. 385-398. Cf. “Presentación por el Dr. A.A. Cançado Trindade del Comité de Consultores Jurídicos del ACNUR” (Mexico City, 15.11.2004), in UNHCR, Memoria del Vigésimo Aniversario de la Declaración de Cartagena..., op. cit. supra n. (26), pp. 368-369. Ibid., p. 369. Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 77-168; A.A. Cançado Trindade, “Aproximaciones y Convergencias Revisitadas: Diez Años de Interacción entre el Derecho Internacional de los Derechos Humanos, el Derecho Internacional de los Refugiados, y el Derecho Internacional Humanitario (De Cartagena/1984 a San José/1994 y México/2004)”, in Memoria del Vigésimo Aniversario de

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Refugees in Latin America itself. Thus, as the rapporteur of the Committee of Legal Experts of the UNHCR at last warned at the Mexico Colloquy of November 2004, “there is no place for the vacatio legis, there is no legal vacuum, and all (...) persons are under the protection of the Law, in all and any circumstances (also in face of security measures)”.30

III. The Contemporary Phenomenon of Uprootedness as a Problem Pertaining to the Rights of the Human Person Despite the persistence of the problem of internal displacement along mainly the last two decades, only in the first quarter of 1998 did the former U.N. Commission on Human Rights succeed at last in adopting, in Vienna, the Guiding Principles on Internal Displacement,31 aiming at reinforcing and strengthening the already existing means of protection.32 Those Principles consider altogether the relevant norms of the International Law of Human Rights, International Humanitarian Law and International Refugee Law, so as to apply and extend protection to all persons which stand in need of it, in whatever circumstances, including armed conflicts and internal disturbances or tensions.33 The basic principle of non-discrimination occupies a central position in the aforementioned Guiding Principles of 1998,34 which cares to list the same rights, of internally displaced persons, which other persons in their country enjoy.35 Furthermore, the 1998 Basic Principles determine that displacement cannot take place in a way that violates the rights to life, to dignity, to freedom and security of the affected persons;36 they also assert other rights, such as the right to respect for family life, the right to an adequate standard of living, the right to equality

30 31

32 33

34 35 36

la Declaración de Cartagena sobre Refugiados (1984-2004), San José of Costa Rica, UNHCR, 2005, pp. 139-191. Cf. op. cit. supra n. (27), p. 369. Resulting from the Reports by F. Deng; on the emphasis given by those Reports on the relevance of prevention, cf. F.M. Deng, Internally Displaced Persons (Interim Report), N.Y., RPG/DHA, 1994, p. 21. To this effect, the proposed new principles apply both to governments and insurgent groups, at all stages of the displacement. Cf. W. Kalin, Guiding Principles on Internal Displacement – Annotations, Washington D.C., ASIL/Brookings Institution, [1999], pp. 1-74, and cf. pp. 79-276; and cf. also C. Ramón Chornet, “Los Refugiados del Nuevo Siglo”, in Los Retos Humanitarios del Siglo XXI (ed. C. Ramón Chornet), Valencia, PUV/Univ. de Valencia, 2004, pp. 193-195. Principles 1(1), 4(1), 22, 24(1). It affirms, moreover, the prohibition of the “arbitrary displacement” (Principle 6). Principles 8 and following.

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

before the law, the right to education.37 The basic idea underlying the whole document of 1998 is to the effect that the internally displaced persons do not lose their inherent rights, as a result of displacement, and can invoke the pertinent international norms of protection to safeguard their rights. In sum, the recognition of the objective character of the obligations of protection has fostered the converging interpretation of international instruments of International Humanitarian Law, International Refugee Law, and the International Law of Human Rights.38 In the Advisory Opinion n. 16 (1999) of the Inter-American Court of Human Rights, I concluded my Concurring Opinion observing that, “at this end of century, we have the privilege to witness the process of humanization of international law, which today encompasses also this aspect of consular relations. In the confluence of these latter with human rights, the subjective individual right39 to information on consular assistance, of which are titulaires all human beings who are in the need to exercise it, has crystallized: such individual right, inserted into the conceptual universe of human rights, is nowadays supported by conventional international law as well as by customary international law” (par. 35).

And, in the Inter-American Court’s Advisory Opinion n. 18 (2003), in my Concurring Opinion, I concluded that the Advisory Opinion n. 18, in rescuing “the universalist vision which marked the origins of the best doctrine of International Law”, contributes to “the construction of the new jus gentium of the XXIst century, oriented by the general principles of law (among which the fundamental principle of equality and nondiscrimination), characterized by the intangibility of the due process of law in its wide scope, crystallized in the recognition of jus cogens and instrumentalized by the 37 38

39

Principles 17, 18, 20 and 23, respectively. Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 125-128. Cf., to the same effect, e.g., R. Cohen and F. Deng, Masses in Flight: The Global Crisis of Internal Displacement, Washington D.C., Brookings Institution, 1998, ch. III, pp. 75 and 78-85; C. Ramón Chornet, “Los Refugiados del Nuevo Siglo”, in Los Retos Humanitarios del Siglo XXI (ed. C. Ramón Chornet), Valencia, PUV/Univ. de Valencia, 2004, pp. 193-195. – As to the prevention of uprootedness, the antecedent may be recalled, at the United Nations level, of the system of “early warning”, which ensued from a proposal, in the early eighties, of the special rapporteur on the question of human rights and mass exoduses. Subsequently, this theme was related to the question of the internally displaced persons; cf. U.N. document E/CN.4/1995/CRP.1, of 30.01.1995, pp. 1-119. All this reveals, ultimately, the importance of the prevalence of the right to development as a human right, as well as the preventive dimension of the interrelations of development with human rights; cf., e.g., UNDP, Informe sobre Desarrollo Humano 2000, Madrid, Ed. Mundi-Prensa, 2000, pp. 1-290. Already by the middle of the century one warned as to the impossibility of evolution of Law without the subjective individual right, expression of a true “human right”. J. Dabin, El Derecho Subjetivo, Madrid, Ed. Rev. de Derecho Privado, 1955, p. 64.

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Chapter XXIII consequent obligations erga omnes of protection, and erected, ultimately, on the full respect for, and guarantee of, the rights inherent to the human person” (paragraph 89).

IV. The Character of Jus Cogens of the Principle of Non-Refoulement Along the last decades, basic principles common to International Refugee Law, International Humanitarian Law and the Internacional Law of Human Rights have effectively crystallized, such as, e.g., the principle of equality and non-discrimination, the principle of the inviolability of the human person, the principle of the inalienability and non-renounceability of the rights of the human person, the principle of non-refoulement, the principle of the security of the human person. Underlying the consolidation of the principles are the basic considerations of humanity (emanated from human conscience), of which is eloquent expression, e.g., the Martens clause. The relevance and prevalence of the basic principles are clearly illustrated, e.g., by the universal recognition of the principle of non-refoulement. The first references to non-refoulement occurred in international practice in the inter-war period, mainly as from the mid-thirties;40 but it was in the period subsequent to the II world war that the non-refoulement appeared as a basic principle of International Refugee Law, set forth in Article 3 of the 1951 Convention Relating to the Status of Refugees, and, years later, also in Article II(3) of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.41 The normative content of the principle of non-refoulement also found expression in human rights treaties, such as the 1950 European Convention of Human Rights (Article 3), the 1969 American Convention on Human Rights (Article 22(8)), and, subsequently, and in a categorical way, in the 1984 U.N. Convention against Torture (Article 3).42 Thus, despite its relatively recent historical development, it can be said that already in the years following the end of the Vietnam war (end of the seventies and beginning of the eighties) the non-refoulement came to be considered as a principle of customary International Law itself,43 well beyond the application of treaties of refugee law and of human rights. The following step was taken by the 1984 Declaration of Cartagena on Refugees, which came to refer the principle of non-refoulement to the domain of jus 40 41 42 43

Cf., e.g., Article 3 of the 1933 Convention Relating to the International Status of Refugees, which, however, only attained ratifications of eight States. Cf. G.S. Goodwin-Gill, The Refugee in International Law, 2nd. ed., Oxford, Clarendon Press, 1996, pp. 117-124, and cf. pp. 135 and 167. On its turn, the 1981 African Charter of Human and Peoples’ prefers to focus rather on the institute of asylum (Article 12(3)). For a recent reiteration of this thesis, on the occasion of the fi ftieth anniversary of the 1951 Convention Relating to the Status of Refugees, cf. International Institute of Humanitarian Law, San Remo Declaration on the Principle of Non-Refoulement, San Remo, IIHL, 2001, pp. 1-2.

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

cogens itself.44 This characterization has found support also in the contemporary doctrine on the matter, – which, however, stands in need of greater conceptual development in this respect (cf. infra). In any case, it is beyond doubt that the principle of non-refoulement stands as a true cornerstone of the international protection of refugees as a whole, not admitting any provision to the contrary, and thus integrating the domain of jus cogens.45 Perhaps it may, further on, be necessary, to recall in our days, the imperative character of non-refoulement, in relation to the norms of both International Refugee Law and the International Law of Human Rights, – as timely pointed out by the 1994 Declaration of San José on Refugees and Displaced Persons.46 The aforementioned 1984 U.N. Convention against Torture sets forth the principle of non-refoulement essentially to prevent torture, in a context markedly of human rights. And, in relation to the provision of Article 22(8) of the American Convention on Human Rights, in my Concurring Opinion in the already mentioned case of the Haitians and Dominicans of Haitian Origin in the Dominican Republic (2000) before the Inter-American Court of Human Rights, I sustained that the fundamental principle of non-refoulement had entered into customary international law and also into the domain of jus cogens (par. 7 n. 5). The aforementioned convergences between International Refugee Law and the International Law of Human Rights (cf. supra) have had the effect of widening the normative content of the principle of non-refoulement.47 Identified, in the framework of the former, as the prohibition of rejection at the frontier, the principle of non-refoulement came to be also associated, in the framework of the latter, with the absolute prohibition of torture and cruel, inhuman or degrading treatment, as evidenced by its setting forth in Article 3 of the 1984 U.N. Convention against Torture.48 The principle of non-refoulement discloses a preventive dimension, seeking to avoid the simple risk to be subjected to torture or to cruel, inhuman or degrading treatment (resulting from an extradition, deportation or expulsion). This is 44 45

46 47

48

Fifth conclusion. J. Ruiz de Santiago, “El Derecho Internacional de los Refugiados en su Relación con los Derechos Humanos y en su Evolución Histórica”, in Derecho Internacional de los Refugiados (ed. J. Irigoin), Santiago de Chile, Universidad de Chile, 1993, p. 67. Sixteenth conclusion, letter (a). On its turn, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa dedicates particular attention, e.g., to the conditions of voluntary repatriation (Article 5, pars. 1-5), and is categorical in affi rming that “no refugee shall be repatriated against his will” (par. 1). In the provision on the right of asylum (Article 2), it likewise prohibits the rejection at the frontier, the return or the expulsion (par. 3). W. Suntinger, “The Principle of Non-Refoulement: Looking Rather to Geneva than to Strasbourg?”, 49 Austrian Journal of Public and International Law (1995) pp. 203208; G.S. Goodwin-Gill, “The International Protection of Refugees: What Future?”, 12 International Journal of Refugee Law (2000) pp. 2-3.

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what ensues from recent international case-law, at both regional and global levels. This is illustrated, e.g., in so far as extradition in concerned, by the Judgment of the European Court of Human Rights in the Soering versus United Kingdom case (1989), in which the non-refoulement is inferred under Article 3 of the European Convention of Human Rights.49 The same principle enunciated by the European Court in the Soering case, in opposition to extradition on the basis of Article 3 of the European Convention, was reaffirmed by the same Court in the Vilvarajah versus United Kingdom case (1991), in which it sustained that the prohibition of ill treatment under Article 3 of the European Convention is absolute and is equally applied in cases of expulsion.50 The inference of the non-refoulement referred to occurs, thus, in the matter of extradition, as well as deportation, and of expulsion, under Article 3 of the European Convention (cf. supra). One can proceed likewise under provisions on other protected rights, such as, e.g., the right to private and family life under Article 8 of the European Convention. Issues raised in some recent cases under the European Convention disclose that Article 8 can effectively be invoked to protect migrants of second generation, for example, against deportation or expulsion, on the basis of their family and social links and on their fi rmly established roots in the country of residence.51 The preventive dimension of the principle of non-refoulement, in matter of expulsion is also exemplified, e.g., by the already mentioned Mutombo versus Switzerland case (1994): the U.N. Committee against Torture52 concluded that the expulsion, (or forced return) of the petitioner by Switzerland to Zaire would constitute a violation of Article 3 of the U.N. Convention against Torture, as there was in that country a “consistent pattern” of grave and massive violations of human rights.53 In the same line of reasoning, the Human Rights Committee (under the U.N. Covenant on Civil and Political Rights) has likewise considered successive cases of the possibility of threat of extradition in the light of the preva-

49

50

51

52 53

Also the Human Rights Committee, under the U.N. Covenant on Civil and Political Rights, besides having affi rmed the principle of non-refoulement in its “general comments” n. 7/16 (1982) and 20/44 (1992), has, in its practice, dwelt upon the matter in cases pertaining to extradition (of persons running the risk of the death penalty); cit. in W. Suntinger, op. cit. supra n. (48), pp. 205, 208 and 214. Cf. N. Mole, Problems Raised by Certain Aspects of the Present Situation of Refugees from the Standpoint of the European Convention on Human Rights, Strasbourg, Council of Europe (Human Rights Files n. 9 rev.), 1997, pp. 10, 16 and 18. Cf., e.g., the cases Moustaquim versus Belgium (1991), Beldjoudi versus France (1992), Djeroud versus France (1991), and Lamguindaz versus United Kingdom (1992-1993), cit. in: R. Cholewinski, “Strasbourg’s ‘Hidden Agenda’?: The Protection of SecondGeneration Migrants from Expulsion under Article 8 of the European Convention on Human Rights”, 3 Netherlands Quarterly of Human Rights (1994) pp. 287-288, 292-294 and 297-299. Under the aforementioned 1984 U.N. Convention against Torture. Cit. in W. Suntinger, op. cit. supra n. (48), pp. 210, 217 and 221-222.

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

lence of the protected human rights, in the undestanding that the prohibition of ill-treatment and torture (even if probable or potential, in the requesting State) is endowed with the character of jus cogens.54 Certain basic principles, such as that of non-refoulement, form, thus, an irreducible minimum of the protection of the rights of the human person, and have, also, a projection in the domestic law of the States.55 In fact, the ambit of application of the principle of non-refoulement has expanded, both ratione personae and ratione materiae, mainly as from the eighties, under human rights treaties, to the benefit of, besides the refugees, the foreigners in general, and, ultimately, of every and any individual, in cases of extradition, expulsion, deportation or devolution, towards a State in which he may be at risk of being submitted to torture or cruel, inhuman or degrading treatment (the preventive dimension).56 Considering that a true international regime of absolute prohibition of torture, forced disappearances of persons, and summary, extra-legal and arbitrary executions has already been conformed in our days,57 and that the principle of non-refoulement, with the contribution which has been given to it by the International Law of Human Rights, purports precisely to avoid the simple risk of subjecting someone to torture (and to cruel, inhuman or degrading treatment), the prohibition of which is absolute, – it is, in my view, beyond doubt that the principle of non-refoulement falls under the domain of jus cogens. The character of jus cogens of non-refoulement places this latter above political considerations both of States and of political organs of international organizations;58 in this way, it also calls the attention to the importance of the access of the individuals to justice at international level.59 The acknowledgement of this fundamental principle of International Refugee Law, that of non-refoulement, confirmed and expanded by the International Law of Human Rights, as being 54

55

56

57 58 59

F. Pocar, “Patto Internazionale sui Diritti Civili e Politici ed Estradizione”, in Diritti dell’Uomo, Estradizione ed Espulsione – Atti del Convegno di Ferrara per Salutare G. Battaglini (ed. F. Salerno), Padova/Milano, CEDAM, 2003, pp. 79-95. In Switzerland, e.g., the “peremptory character of the prohibition of the refoulement” (as from an initiative of the Swiss Federal Council of 1994) is nowadays recognized; the 1999 revised Swiss Federal Constitution clarifies that no constitutional amendment can enter into conflict with norms of jus cogens; E. de Wet, “The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law”, 15 European Journal of International Law (2004) pp. 101-102. H. Fourteau, L’application de l’article 3 de la Convention européenne des droits de l’homme dans le droit interne des États membres, Paris, LGDJ, 1996, pp. 211-212, 214, 219-220 and 227. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 345-358. J. Allain, “The Jus Cogens Nature of Non-Refoulement”, 13 International Journal of Refugee Law (2002) n. 4, pp. 538-558. Cf., on this point, A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 9-104.

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of jus cogens, brings about, undoubtedly, a limitation to State sovereignty (in the matter of extradition, deportation, and expulsion), in favour of the integrity and the well-being of the human person. It corresponds, moreover, in my understanding, to an unequivocal manifestation of the increasingly anthropocentric outlook of contemporary International Law. In addition, as I saw it fit to observe, in my Separate Opinion in the Las Palmeras case (Preliminary Objections, 2000), concerning Colombia, before the Inter-American Court of Human Rights, – “(...) the International Law of Human Rights nowadays provides us with the elements for the consolidation of the opposability of obligations of protection to all the States Parties to human rights treaties (obligations erga omnes partes). Thus, several treaties, of human rights60 as well as of International Humanitarian Law,61 provide for the general obligation of the States Parties to guarantee the exercise of the rights set forth therein and their observance. As correctly pointed out by the Institut de Droit International, in a resolution adopted at the session of Santiago of Compostela of 1989, such obligation is applicable erga omnes, as each State has a legal interest in the safeguard of human rights (Article 1).62 Thus, parallel to the obligation of all the States Parties to the American Convention [on Human Rights] to protect the rights enshrined therein and to guarantee their free and full exercise to all the individuals under their respective jurisdictions, there exists the obligation of the States Parties inter se to secure the integrity and effectiveness of the Convention: this general duty of protection (the collective guarantee) is of direct interest of each State Party, and of all of them jointly (obligation erga omnes partes). And this is valid in times of peace63 as well as of armed conflict” 64 (pars. 11-12). 60

61

62 63

64

Cf., e.g., American Convention on Human Rights, Article 1(1); United Nations Covenant on Civil and Political Righs, Article 2(1); United Nations Convention on the Rights of the Child, Article 2(1). Article 1 common to the four Geneva Conventions on International Humanitarian Law of 1949, and Article 1 of the Additional Protocol I of 1977 to the Geneva Conventions of 1949. Cf. I.D.I., 63 Annuaire de l’Institut de Droit International (1989)-II, pp. 286 and 288289. As to the general duty of guarantee of the exercise of the protected human rights, cf. the arguments of Ireland before the European Court of Human Rights (ECtHR), in the Ireland versus United Kingdom case, in: ECtHR, Ireland versus United Kingdom case (1976-1978), Pleadings, Oral Arguments and Documents, Strasbourg, 1981, vol. 23-II, pp. 21-23 and 27, and vol. 23-III, pp. 17-19 and 21-26. Thus, a State Party to the Geneva Conventions of 1949 and its Additional Protocol I of 1977, even if it is not involved in a given armed conflict, is entitled to demand from the other States Parties – which are so involved – compliance with the conventional obligations of a humanitarian character; L. Condorelli and L. Boisson de Chazournes, “Quelques remarques à propos de l’obligation des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances’”, in Études et essais sur le droit international humanitaire et sur les principes de la

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

V.

Concluding Observations

Recent developments in the international protection of the human person, in times both of peace and of armed conflict, stress the general obligation of due dilligence on the part of the State, constituted by its legal duties to take positive measures to prevent, investigate and punish violations of human rights, what in turn stresses and brings to the fore the debate on the protection erga omnes of certain rights and the question of the Drittwirkung, of their applicability in relation to third parties. The new dimension of the law of protection of the human being, endowed recognizedly with a specificity of its own, is being erected jurisprudentially on the twofold duties to ‘respect’ and to ‘ensure respect’, in all circumstances, for treaties of International Humanitarian Law and the International Law of Human Rights. In the present domain of the law of protection, International Law has been made use of in order to improve and strengthen, never to restrict or weaken, the degree of protection of the recognized human rights, at normative as well as procedural levels. The recognition, also judicial, of the wide extent and dimension of conventional obligations of international protection of the human person secures the continuity of the process of expansion of the law of protection. As I asserted over a decade ago, “The approximations or convergences between the complementary regimes of protection, between International Humanitarian Law, International Refugee Law, and the International Law of Human Rights, dictated by the necessities themselves of protection and manifested at normative, hermeneutic and operative levels, contribute to the search for effective solutions to current problems in this domain, and to the improvement and strengthening of the international protection of the human person in any situations or circumstances. It is necessary to keep on advancing decidedly in this direction”.65

Along the last decade, one has fortunately and effectively advanced in this direction, and it is necessary to keep on so advancing in the years to come. The current challenges to the protection of the rights of the human person disclose the pressing need to take into account, simultaneous by or concomitantly, the norms of the International Law of Human Rights, of International Humanitarian Law and of International Refugee Law, so as to fulfi l effectively the new needs of protection.66 The Global Consultations on International Protection, undertaken by the UNHCR, in the form of a Regional Meeting of Experts which took place in San José of Costa Rica in 2001, at the headquarters of the Inter-American Court of Human

65 66

Croix-Rouge en l’honneur de Jean Pictet (ed. C. Swinarski), Genève/La Haye, CICR/ Nijhoff, 1984, pp. 29 and 32-33. Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 167-168. Cf., e.g., H. Fischer and J. Oraá, Derecho Internacional y Ayuda Humanitaria, Bilbao, Universidad de Deusto, 2000, pp. 28-29, 41-55, 61-65 and 81-83.

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Rights, during my Presidency of that international Tribunal, concluded inter alia that, in order to face certain rectrictive tendencies to asylum, “the converging application of the three International Law regimes for the protection of the persons, namely, the International Law of Human Rights, International Humanitarian Law and International Refugee Law” was required (recommendation 2(XVI)). At universal level, on has nowadays a wide series of resolutions of the U.N. General Assembly which deal with problems pertaining to human rights and the rights of refugees from an essentially converging outlook.67 The beneficial effects of the interactions between the International Law of Human Rights, International Refugee Law and International Humanitarian Law for the effective protection of the rights of the human person should be properly stressed. Thus, e.g., the consolidation of a true international legal regime of absolute prohibition of torture in the domain of the International Law of Human Rights results nowadays beneficial also for refugees, as the protection against torture and cruel, inhuman or degrading treatment which is extended to them by certain human rights treaties is particularly wide, thus achieving in this respect a safeguard of greater scope that would be possible in the framework of International Refugee Law.68 The practice of the international supervisory organs of human rights is particularly illustrative, in reinforcing the prohibition of devolution. One may recall, in this respect, besides the aforementioned examples, for instance, the practice of the U.N. Committee against Torture, in application of Article 3 of the 1984 U.N. Convention against Torture, about precisely the scope of the principle of non-refoulement.69 This development is illustrative of the intensification of the converging interrelations between the regimes of protection of the rights of the human person, maximizing the protection at normative, hermeneutic and operative levels. By the time of the twentieth anniversary of the adoption of the Declaration of Cartagena, the advances in the work of protection have been accompanied by the worsening of the situation of vulnerability which today affects those who integrate the great forced migratory fluxes of our times. There arise, thus, new 67

68

69

Cf. the following resolutions of the U.N. General Assembly: resolutions 34/60, of 29.11.1979; 36/148, of 16.12.1981; 37/186, of 17.12.1982; 38/103, of 16.12.1983; 39/117, of 14.12.1984; 40/149, of 13.12.1985; 41/148, of 04.12.1986; 42/144, of 07.12.1987; 43/117, of 08.12.1988; 43/154, of 1988; 44/137, of 15.12.1989; 44/164, of 15.12.1989; 45/140, of 14.12.1990; 45/153, of 18.12.1990; 46/106, of 16.12.1991; 46/127, of 17.12.1991; 47/105, of 16.12.1992; 48/116, of 20.12.1993; 48/135, of 20.12.1993; 48/139, of 20.12.1993; 49/169, of 23.12.1994; 50/152, of 21.12.1995; 50/182, of 22.12.1995; 51/70, of 12.12.1996; 51/71, of 12.12.1996; 51/75, of 12.12.1996; 52/103, of 12.12.1997; 52/132, of 12.12.1997; 53/123, of 09.12.1998; 53/125, of 09.12.1998; 54/147, of 17.12.1999; 54/180, of 17.12.1999; 55/77, of 04.12.2000; 56/13, of 19.12.2001; 56/166, of 19.12.2001; and 57/206, of 18.12.2002. J.-F. Flauss, “Les droits de l’homme et la Convention de Genève du 28 juillet 1951 relative au Statut des Réfugiés”, in La Convention de Genève du 28 juillet 1951 relative au Statut des Réfugiés 50 ans après: bilan et perspectives (ed. V. Chetail), Bruxelles, Bruylant, 2001, p. 117. Ibid., pp. 118 and 123.

Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person

demands of protection of the human being.70 Regrettably, economic progress and the “liberalization” of labour have never succeeded to put an end to new contemporary forms of exploitation of man by man; nowadays, undocumented migrants run the risk of finding themselves in extremely adverse conditions of labour and living. The current closing of frontiers in many countries can, unfortunately, perpetuate and aggravate the contemporary forms of labour exploitation; nor has the scientific-technological progress succeeded to liberate human beings from ill-treating each other. Those victimized count only on a defense against this form of exploitation of the human being: that of the Law. International Refugee Law was built, as from the mid-XXth century, in the light of an outlook of a world divided into sovereign and self-sufficient territorial States. Three decades later, the phenomenon of displacement came to challenge that outlook, which became anachronistic. Internal conflict, in different latitudes, began to require a reassessment and updating of the corpus juris of International Refugee Law, centered no longer on frontier restrictions by States, but rather on an objective situation of the vulnerability of the human beings, irrespective of their being in conformity or not with the frontier restrictions by States. More recently, in the nineties, the phenomenon of even greater dimensions, of human uprootedness, victimizing millions of human beings all over the world, has stressed even more this tendency, centering an increasingly greater attention on the needs of protection, independently of the frontiers of States. There can be no steps backwards herein. The standards set forth in international instruments of protection can only, and ought to, be raised, – as I sustained in a legal opinion which I prepared for the Council of Europe in 1995 with regard to the co-existence of the European Convention of Human Rights and the Minsk Convention of Human Rights of the Community of Independent States (CIS, 1995).71 Any steps backwards or the simple stagnation of the international standards of protection would be, in my view, unjustifiable and inadmissible. At last, it is significant that, throughout the whole preparatory process of consultations72 which led to the adoption, by the UNHCR Mexico Colloquy of November 2004, of the Mexico Declaration and Plan of Action to Strengthen 70

71

72

Cf. A. Roberts, “El Papel de las Cuestiones Humanitarias en la Política Internacional en los Años Noventa”, in Los Desafíos de la Acción Humanitaria – Un Balance, Barcelona, Icaria/Antrazyt, 1999, pp. 31-70; J. Abrisketa, “El Derecho a la Asistencia Humanitaria: Fundamentación y Límites”, in ibid., pp. 71-100; X. Etzeberría, “Marco Ético de la Acción Humanitaria”, in ibid., pp. 101-127. Cf. A.A. Cançado Trindade, “Analysis of the Legal Implications for States that Intend to Ratify both the European Convention on Human Rights and Its Protocols and the Convention on Human Rights of the Commonwealth of Independent States (CIS)”, 17 Human Rights Law Journal (1996) pp. 164-180 (also available in French, Spanish, German and Russian). The preparatory process was composed of three subregional meetings, namely, those of San José of Costa Rica (12-13.08.2004), of Brasília (26-27.08.2004) and of Cartagena of Indias (16-17.09.2004), preceeded by the meeting of legal advisers of the UNHCR (held in Brasilia, on 27-28.03.2004); I had the occasion to participate

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the International Protection of Refugees in Latin America, some achievements of the human conscience in the domain of the present law of protection of the human person were reiterated. Along that preparatory process and in that Colloquy itself there was a reassuring recognition of three points which appear of fundamental importance in our days, namely: first, the convergences between the three regimes of international protection of the rights of the human person (the International Law of Human Rights, International Refugee Law, and International Humanitarian Law); second, the central role and the high relevance of the general principles of law; and third, the character of jus cogens of the basic principle of non-refoulement as a true pillar of International Refugee Law as a whole. This means that, despite the new challenges and some worrisome steps backwards in our days (as, e.g., forced migrations and uprootedness, restrictive and abusive migratory policies, the closing of frontiers and xenophobia), human conscience keeps on moving Law ahead, as its ultimate material source. Thus, despite the incongruities of the practice of States in our times, the opinio juris communis keeps on enlightening the path to follow, which cannot be other than that of the prevalence of the fundamental rights of the human person in all and any circumstances and of the consolidation of the obligations erga omnes of protection. This implies, ultimately, the primacy of the raison d’humanité over the old raison d’État.

in all those meetings, and to preside the fi rst two subregional preparatory meetings (those of San José of Costa Rica and of Brasília, of August 2004).

Part VII Settlement of Disputes

Chapter XXIV

I.

Peaceful Settlement of International Disputes: Current State and Perspectives

Introduction: The Basic Problem of Compulsory Jurisdiction

The fundamental problem underlying the whole chapter of International Law concerning peaceful settlement of international disputes remains the vexata quaestio of compulsory jurisdiction, largely unresolved from the days of the two Hague Peace Conferences (1899 and 1907) to date. For if, on the one hand, the U.N. Charter provides for the general principle of the duty of member States of peaceful settlement of disputes which may put at risk international peace,1 on the other hand, that duty coexists with the prerrogative of the choice left to the contending parties (members or not of the United Nations) of adoption of one of the methods of peaceful settlement of disputes (within and outside the United Nations).2 Such ineluctable and persistent ambivalence has had a repercussion in the application of international instruments. Traditional international legal doctrine has been, somewhat surprisingly, generally conniving with permissiveness (as to choice of methods). Dispute settlement has thus remained particularly vulnerable to manifestations of State voluntarism, thereby resisting attempts of codification or systematization.3 Yet, multiple instruments of dispute settlement 1

2 3

A general principle which is incorporated in mandatory terms in the U.N. Charter – Article 2(3) – and restated in resolution 2625 (XXV) of 1970 of the U.N. General Assembly on Principles of International Law Governing Friendly Relations and Cooperation among States; cf. David Davies Memorial Institute of International Studies, International Disputes: the Legal Aspects (Report of a Study Group), London, Europa Publs., 1972, pp. 8-14. F.S. Northedge and M.D. Donelan, International Disputes: the Political Aspects, London, Europa Publs., 1971, p. 241. Thus, it has on occasions been relegated to jurisdictional clauses appearing in Optional Protocols, rather than in the codification Conventions themselves. For a criticism, cf. H.W. Briggs, “The Optional Protocols of Geneva (1958) and Vienna (1961, 1963) Concerning the Compulsory Settlement of Disputes”, Recueil d’études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968, pp. 628-641; and cf. S. Rosenne, “The Settlement of Treaty Disputes under the Vienna Convention of 1969”, 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1971) pp.

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have been devised and applied in the last decades amidst an apparently growing awareness of the need to give greater weight to the general principle of the duty of peaceful settlement, so as to make it prevail over the prerrogative (of free choice of means) left to the contending parties. In the years following the two Hague Peace Conferences (of 1899 and 1907), and along the XXth century, there were successive endeavours to render widely obligatory the peaceful settlement of international disputes (cf. infra). In the absence, in most cases, of a strict obligation of submitting pending disputes specifically to compulsory jurisdiction, the option left to the parties to choose among distinct and at times indecisive (political) methods of settlement, resulted, “in a substantial proportion of cases, in a stalemate rather than a settlement”.4 However, keeping in mind this caveat as to the absence of a guarantee of compulsory settlement, it does not ensue therefrom that the way would be entirely open to State voluntarism in the present domain of International Law. It is certain that the procedures of the U.N. Security Council5 are supplementary to the traditional methods of peaceful settlement of disputes (mentioned in Article 33(1) of the U.N. Charter),6 but it does not result therefrom that the question at issue would be wholly under the control of the “will” of the States: in fact, the consent of the contending parties is not necessary for a dispute to be taken before the Security Council or the General Assembly, nor for the Security Council to exert its investigatory powers;7 the Council can act on its own initiative, upon request of any member State of the U.N., or as a result of the initiative of the Secretary General.8 And even if one of the parties refuses to appear before the Council, this latter can examine the situation at the request of a member State, of the General Assembly or the Secretary General. Closely linked to the basic issue of compulsory jurisdiction is the question of the efficacy of the specific methods of peaceful settlement of international dis-

4

5 6

7 8

1-62; R.J. Dupuy, “Codification et règlement des différends – Les débats de Vienne sur les procédures de règlement”, 15 Annuaire français de droit international [AFDI] (1969) pp. 70-90. C.W. Jenks, The World beyond the Charter, London, Allen & Unwin, 1969, p. 165, and cf. p. 166. – Likewise, Witenberg used to warn that “seuls sont justiciables les États qui auront accepté de l’être. L’État ne sera justiciable que dans la mesure où il aura accepté de l’être”; J.C. Witenberg, L’organisation judiciaire, la procédure et la sentence internationales – traité pratique, Paris, Pédone, 1937, p. 3. Chapter VI of the U.N. Charter. D.W. Bowett, “The United Nations and Peaceful Settlement”, in International Disputes: the Legal Aspects, London, Europa Publs., 1972, pp. 179-180, and cf. pp. 180 and 183-196. Under Article 34; D. Davies Memorial Institute, International Disputes: the Legal Aspects, op. cit. supra n. (1), pp. 8-14. Articles 34, 35 and 99, respectively. J. Stone, Legal Controls of International Conflict, N.Y., Rinehart & Co. Publ., 1954, pp. 187 and 193-194.

Peaceful Settlement of International Disputes: Current State and Perspectives

putes.9 There remain difficulties to extract generalized or definitive conclusions as to such efficacy. For example, international practice of direct negotiation, although vast, has not always been conducive to clearly concluding results, and does not seem to allow for generalizations. In Latin America, for example, while direct negotiations proved successful, for example, between Argentina and Uruguay over the river Plate and its maritime front, and between Brazil and Argentina over the use of waters of the river Paraná, and between the United States and Panamá over the regime of the Canal, – there have also been also cases in which negotiations, extended for many years, have not produced entirely satisfactory results, such as, e.g., the frontier dispute between Venezuela and Guyana, and the controversies between Venezuela and Colombia as to maritime delimitation.10 II.

Interaction or Complementarity of Means of Peaceful Settlement

A more fertile ground for research seems to be provided by the interaction or complementarity of means of peaceful settlement, as often illustrated, along the years, by, e.g., inter alia, at regional level, the dispute between Chile and Argentina concerning the Beagle Channel (which was object, since 1977, of an arbitral award, of attempts of negociation and mediation), and the territorial dispute between Algeria and Morocco (shortly after the independence of the former, in 1962), when Syria and Ethiopia offered mediation, until an arbitral commission of the OAU intervened.11 Or else, at U.N. level, by the case of Cyprus, wherein the U.N. not only exerted the function of peace-keeping but also acted as initiator of diplomatic exchanges.12 Article 33(1) of the U.N. Charter, whereby the contending parties ought to seek a solution by the traditional methods (inter alia, negociation, conciliation, good offices, mediation), does not appear to have been

9

10

11 12

For an assessment, cf., e.g., M.D. Donelan and M.J. Grieve, International Disputes: Case Histories 1945-1970, London, Europa Publs., 1973, pp. 13-279; C.G. Teng and K.L. Hancock, Synopses of United Nations Cases in the Field of Peace and Security 1946-1965, N.Y., Carnegie Endowment for International Peace, 1966, pp. 1-76; L.B. Sohn, Cases on United Nations Law, 2nd. rev. ed., Brooklyn, Foundation Press, 1967, ch. VI, pp. 291-862. On the negotiations in the aforementioned cases, cf., e.g., H. Gros Espiell, “Le traité relatif au ‘Rio de la Plata’ et sa façade maritime”, 21 AFDI (1975) pp. 241-249; Pr.R.Y. Chuang, “The Process and Politics of the Ratification of the Panama Canal Treaties in the United States”, 56 Revue de droit international de sciences diplomatiques et politiques (1978) pp. 95-113; J. Dutheil de la Rochère, “L’affaire du Canal de Beagle”, 23 AFDI (1977) pp. 408-435; P. Gilhodes, “Le confl it entre la Colombie et le Venezuela: quelques arpents d’eau salée?”, 21 Revue française de science politique (1971) pp. 1272-1289. M.D. Donelan and M.J. Grieve, op. cit. supra n. (9), pp. 145-146. Cf. V. Pechota, Complementary Structures of Third-Party Settlement of International Disputes, N.Y., UNITAR, 1971, p. 10.

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interpreted as requiring that all methods referred to therein ought necessarily to be exhausted before resorting to the Security Council.13 The complementarity of methods of peaceful settlement of disputes has met with judicial recognition. Thus, in the Nicaragua versus United States case (Jurisdiction and Admissibility, 1984), the International Court of Justice [ICJ] pondered that “even the existence of active negotiations in which both parties might be involved should not prevent both the Security Council and the Court from exercising their separate functions under the Charter and the Statute of the Court (...). In the light of the foregoing, the Court is unable to accept either that there is any requirement of prior exhaustion of regional negotiating processes as a precondition to seising the Court; or that the existence of the Contadora process constitutes in this case an obstacle to the examination by the Court of the Nicaraguan application and judicial determination in due course of the submissions of the Parties in the case. The Court is therefore unable to declare the application inadmissible, as requested by the United States, on any of the grounds it has advanced as requiring such a finding”.14

The ICJ further recalled its dictum in the Aegean Sea Continental Shelf case (1978), to the effect that its own jurisprudence “provides various examples of cases in which negotiations and recourse to judicial settlement have been pursued pari passu”.15 Subsequently, in the case of the Land and Maritime Boundary between Cameroon and Nigeria (Preliminary Objections, 1998), the ICJ reiterated its understanding to the effect that “Neither in the [U.N.] Charter nor otherwise in International Law is any general rule to be found to the effect that the exhaustion of diplomatic negotiations constitutes a precondition for a matter to be referred to the Court. No such precondition was embodied in the Statute of the Permanent Court of International Justice (...)”.16

Still at global level, it is significant that the 1982 U.N. Convention on the Law of the Sea foresees the operation of distinct methods of settlement of disputes in matters of the Law of the Sea, such as conciliation and judicial and arbitral settlement (cf. infra). And, at regional level, in the African continent, it is likewise significant that to the Charter of the [then] Organization of African Unity [OAU] was annexed a Protocol creating a Permanent Commission on Mediation, 13

14 15 16

D. Davies Memorial Institute, International Disputes: the Legal Aspects, op. cit. supra n. (1), p. 14; on referral of conflicts to other organs, cf., e.g., E. Jiménez de Aréchaga, “La coordination des systèmes de l’ONU et de l’OEA pour le règlement pacifique des différends et la sécurité collective”, 111 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1964) pp. 426-452. ICJ Reports (1984) pp. 440-441, pars. 106 and 108. Cit. in ibid., p. 440, par. 106. ICJ Reports (1998) p. 303, par. 56.

Peaceful Settlement of International Disputes: Current State and Perspectives

Conciliation and Arbitration (three methods of peaceful settlement)17, which was to coexist with ad hoc committees subsidiary to the main organs of the former OAU (nowadays African Union), for peaceful settlement (diplomatic means) of international disputes in Africa.18 In international practice on dispute settlement, the methods of fact-finding and conciliation have not seldom been combined, in several treaties providing for the appointment of “commissions of fact-finding and conciliation”; likewise, several international agreements have stipulated that only after a recourse in vain to a commission of conciliation will a case be submitted to an arbitral tribunal, thus establishing a “close link” between those two procedures.19 In sum, such methods of dispute settlement, instead of mutually excluding each other, appear complementary to each other and have not seldom interacted in practice. In the inter-State diplomatic contentieux, negotiation has often been “complemented” by recourse to other methods of peaceful settlement,20 either following judicial settlement (as in the North Sea Continental Shelf case, 1969), or else preceding recourse to such other methods of settlement (when negotiations come to a standstill). Negotiations – or else consultations – are referred to in certain treaties sometimes as a preliminary to recourse to other methods of peaceful settlement.21 But when negotiations fail, the situation at issue may aggravate, and lead to severance of relations between the parties concerned, as illustrated, inter alia, by the Hostages case, the contentieux between the United States and Iran following the seizure of the U.S. Embassy in Tehran in 1979.22 Hence the importance of complementarity between negotiation and other methods of peaceful settlement. As aptly pointed out, more than once, by the ICJ,23 there is no requisite in International Law whereby a State would be bound to “exhaust” negotiations before having recourse to other means of peaceful settlement. But if negotiations have not prospered, there would be all the more 17

18 19 20

21 22 23

Composed of 21 members elected by the Assembly of Heads of State and Government; cf. T.O. Elias, “The Commission of Mediation, Conciliation and Arbitration of the Organization of African Unity”, 40 British Year Book of International Law [BYBIL] (1964) pp. 336-348; D.W. Bowett, The Law of International Institutions, 2nd. ed., London, Stevens, 1970, pp. 280-282. Cf. infra, as to the practice. L.B. Sohn, “The Function of International Arbitration Today”, 108 Recueil des Cours de l’Académie de Droit International [RCADI] (1963) pp. 18-19. Cf., for examples, e.g., H.G. Darwin, “Methods of Peaceful Settlement – Negotiation”, in International Disputes: the Legal Aspects, London, Europa Publs., 1972, p. 81. Cf. J. Collier and V. Lowe, The Settlement of Disputes in International Law – Institutions and Procedures, Oxford, University Press, 2000, p. 21. Cf. J.G. Merrills, International Dispute Settlement, 3rd. ed., Cambridge, University Press, 1998, pp. 22-23. E.g., in the Nicaragua versus United States case, 1984, and in the case concerning Land and Maritime Boundary between Cameroon and Nigeria, 1998 (supra).

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reason for resorting to other methods, this possibility being open at any time, even while negotiations are still pending, so as to avoid aggravating the dispute at issue. Endeavours have constantly been undertaken in the United Nations to foster conciliation as a means of dispute settlement.24 Both the Security Council and the General Assembly have in practice “not often themselves assumed the formal role of an organ of conciliation. In general their efforts of conciliation have taken the form of encouraging the parties to negotiate, or making available to them the good offices of the Presidents of the Security Council or General Assembly or of the Secretary General or of putting at their disposal the services of a mediator, and usually in conjunction with a peace-observation mission”.25

Parallel to the commissions of inquiry and conciliation, the U.N. has developed other techniques of the kind, in entrusting to the President of the General Assembly, in particular, certain missions of conciliation. Resort to these methods has not been limited to the U.N. level, but has been extended also at regional level, such as the Mission of Observation of the Organization of American States [OAS] in Belize in 1972.26 Conciliation, the nature of which has been much discussed,27 has attracted growing attention in recent years; it is foreseen in several multilateral treaties (cf. infra), and it is nowadays regarded as a method which may foster compulsory recourse to peaceful dispute settlement. On its part, the procedure of international fact-finding, from its institutionalization, as an autonomous method, by the two Hague Peace Conferences (of 1899 and 1907) to date, has undergone an interesting evolution. In this respect, one may recall the early attempt, by the U.N. General Assembly, of putting into practice the mechanism of a commission of fact-finding and conciliation (1949) to assist States in settling their disputes even outside the U.N., or help the U.N. organs to that end. In 1967 it was decided to elaborate a list of experts in factfinding,28 at the disposal of States, to resort to so as to avoid or impede conflicts,

24

25

26 27

28

J.-P. Cot, La conciliation internationale, Paris, Pédone, 1968, pp. 262-263; V. Pechota, op. cit. supra n. (12), pp. 3, 50 and 54. For a general study, cf. also H. Rolin, La conciliation internationale, Genève, Inst. Dr. Intl. (extrait), 1959, pp. 1-38. D. Davies Memorial Institute, International Disputes: the Legal Aspects..., op. cit. supra n. (1), pp. 15-16; and cf. F. Vallat, “The Peaceful Settlement of Disputes”, in Cambridge Essays in International Law – Essays in Honour of Lord McNair, London/N.Y., Stevens/Oceana, 1965, p. 164. By means of an agreement between Guatemala and the United Kingdom, this latter not an OAS member State. D. Bardonnet, “Problèmes intéressant les États nouveaux – l’État des ratifications des Conventions de La Haye de 1899 et de 1907 sur le règlement pacifique des conflits internationaux”, 7 AFDI (1961) pp. 726-741. With the names forwarded by the member States to the Secretary General.

Peaceful Settlement of International Disputes: Current State and Perspectives

thus singling out the preventive function of fact-finding.29 Early in U.N. practice the procedure of investigation began to be utilized,30 the same happening in the purely inter-State contentieux (e.g., the case of the Red Crusader 31). At regional level, in the period 1977-1979, during the frontier dispute between Costa Rica and Nicaragua, the OAS established three Ad Hoc Commissions of Observers and one Commission of Civil Observers.32 Another example is provided by the Consultative [Advisory] Committee of the [then] OAU on Nigeria (1967-1968), which acted during the “war of Biafra” or the “Nigerian civil war”.33 Furthermore, fact-finding can be put into practice either as an “autonomous” method, per se, of investigation, or “integrated” as a part of a system of settlement of disputes or of control in the application of international conventions.34 It is at global level that a most remarkable illustration of the development of good offices is found: the exercise of these latter by the U.N. Secretary General, on his own initiative (in the ambit of his competence) or at the request of a competent organ of the U.N. or the choice by the contending parties themselves. In practice, the powers of the U.N. Secretary General to utilize good offices have enlarged considerably, parallel to the search for solutions by consensus and conciliation; Article 99 of the U.N. Charter 35 has been interpreted as con29

30

31

32

33 34

35

A method based in Article 33 of the U.N. Charter; N. Bar-Yaacov, The Handling of International Disputes by Means of Inquiry, London, RIIA/O.U.P., 1974, pp. 296-312 and 344-347. In cases such as those of Palestine (1947), Greece (1947-1949), Indonesia (1947-1948), Germany (1951-1953), South Africa (as from 1967); ibid., pp. 276-292; and cf. H.G. Darwin, “[Methods of Peaceful Settlement -] Factfi nding and Commissions of Inquiry”, International Disputes: the Legal Aspects, op. cit. supra n. (1), pp. 172-177; and cf. ibid., p. 23; as to the U.N. Security Council in particular, cf. E.L. Kerley, “The Powers of Investigation of the U.N. Security Council”, 55 American Journal of International Law [AJIL] (1961) pp. 892-918. A dispute opposing Denmark to the United Kingdom dealt with by a fact-finding commission was established by the two States; cf. N. Bar-Yaacov, op. cit. supra n. (29), pp. 179-195. Given the virtual lack of application in practice of the Pact of de Bogotá; cf. E. Lagos, “Los Nuevos Mecanismos Procesales para la Eficácia de la Solución Pacífica de las Controvérsias, con Particular Referencia a la Práctica de la OEA en los Últimos Años”, in Perspectivas del Derecho Internacional Contemporáneo, vol. II, Santiago, Universidad de Chile/Instituto de Estudios Internacionales, 1981, pp. 79-91. On this latter, cf., e.g., Z. Cervenka, The Organization of African Unity and Its Charter, 2nd. ed., London, C. Hurst & Co., 1969, pp. 209-210. Cf. T. Bensalah, L’enquête internationale dans le règlement des conflits, Paris, LGDJ, 1976, pp. 3-222; and, for an empirical study, cf. G. Fischer and D. Vignes, L’inspection internationale – quinze études de la pratique des États et des organisations internationales, Bruxelles, Bruylant, 1976, pp. 3-518. For a study of its legislative history, cf. S.M. Schwebel, “The Origins and Development of Article 99 of the Charter”, 28 British Year Book of International Law [BYBIL] (1951) pp. 371-382.

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ferring upon the Secretary General “all the necessary powers” for the search of peaceful settlement, including those of investigation.36 Examples of the growing exercise of good offices by the U.N. Secretary General in international crises can be found, e.g., inter alia, in the Cuban missile crisis (1962), in the war of Vietnam (1965-1971), in the conflict between India and Pakistan (1965-1971), in the tension between Cambodia and Thailand (1961-1968), at times “fi lling gaps” of the limited operation of the collective organs of the United Nations.37 Such exercise of good offices can take place also on the part of international organs,38 as well as on the part of States, as it has often happened in practice.39 As to mediation, the U.N. has in fact resorted at times to private personalities to exert the function of mediators, and has from the start appointed a commission of “good offices” or a “mediator” for the settlement of disputes.40 At regional level, the practice of Latin American States bears witness of some cases of recourse to mediation, namely, e.g., that by the Foreign Ministers of Costa Rica, Guatemala and Nicaragua in the conflict between El Salvador and Honduras (shortly before the beginning of the hostilities in 1969), and that of the Peruvian jurist Bustamante y Rivero, whose recommendations led to the settlement of the conflict between El Salvador and Honduras.41 The prolonged mediation conducted by the Holy See of the ArgentinianChilean controversy over the Beagle Channel, drawing on the earlier arbitral award (of 1977) in the same case, was not tied up to a rigid procedure, and contemplated separate as well as joint meetings with the Delegations of the two countries, with the presence and intervention of the representative of the Holy

36

37 38

39 40

41

V. Pechota, The Quiet Approach – A Study of the Good Offices Exercised by the United Nations Secretary-General in the Cause of Peace, N.Y., UNITAR, 1972, pp. 2-9, and cf. pp. 11 and 25. Cf. also M.W. Zacher, “The Secretary General and the United Nations’ Function of Peaceful Settlement”, 20 International Organization (1966) pp. 725-726, 730, 733-734 and 738. V. Pechota, op. cit. supra n. (12), pp. 10-11 and 17-18. E.g., in the case of the independence of Indonesia from Dutch ruling and its entry into the United Nations, an important role was exerted by the Committee of Good Offices established by the U.N. Security Council (particularly in the period 19491950). E.g., in the case of the emancipation of Algeria from French ruling (1955-1962), at a certain stage of the conflict (1957) Morroco and Tunisia offered their good offices. E.g., cases of Indonesia, 1947-1950; of Palestine, 1947-1949; of the conflict between India and Pakistan, 1948; of Korea, 1951; of Cyprus, 1964; of the Middle East crisis, 1967; among others; H.G. Darwin, “[Methods of Peaceful Settlement -] Mediation and Good Offices”, International Disputes: the Legal Aspects, London, Europa Publs., 1972, pp. 89-92. Cf., on this latter, e.g., A.A. Cançado Trindade and F. Vidal Ramírez, Doctrina Latinoamericana del Derecho Internacional, vol. II, San José of Costa Rica, IACtHR, 2003, pp. 5-66.

Peaceful Settlement of International Disputes: Current State and Perspectives

See.42 The representative originally appointed by the Pope, Cardinal A. Samoré, played an active role throughout most of the mediatory process, but died before its conclusion. A personal account by a participant in the célèbre mediation, that of Santiago Benadava, credits Cardinal Samoré with the presentation, at a certain stage of the process (June 1980) of a list of “ideas” passed on to the contending parties, which, though containing concessions on the part of both, “did not assume abdication of any principle of natural law, did not contrast with the constitutional foundations of the Parties nor did they oppose substantially the ineluctable exigencies or dictates of the conscience of one or the other Party or of their representatives”.43

The patient endeavours of the Holy See were rewarded by the Peace Treaty at last concluded between Chile and Argentina on 29.11.1984, whereby the two Parties reiterated their duty to abstain from the threat or use of force, settled the maritime delimitation at issue, and established methods of settlement in case of future differences (comprising recourse to conciliation and arbitration). Numerous cases of systematic recourse to arbitration (some 400 instances), since the 1794 Jay Treaty until the end of the thirties in the XXth century, are registered in A.M. Stuyt’s Survey of International Arbitrations 1794-1970, to refer but to one source.44 At global level, the historical contribution of arbitral procedure to peaceful settlement is set forth in publications of arbitral awards in series.45 Along the XXth century, most cases submitted to arbitration were settled mainly by ad hoc arbitral tribunals.46 Like other methods of peaceful settlement, arbitration has also been resorted to, along the last decades, with varying results,47 42 43 44 45

46

47

For an account, cf. A. Brouillet, “La médiation du Saint-Siège dans le différend entre l’Argentine et le Chili dans la zone australe”, 25 AFDI (1979) pp. 47-73. S. Benadava, Recuerdos de la Mediación Pontificia entre Chile y Argentina (19781985), Santiago de Chile, Edit. Universitaria, 1999, p. 75, and cf. pp. 66-67 and 156. Followed by other subsequent cases; cf. A.M. Stuyt, Survey of International Arbitrations 1794-1970, 2nd. printing, Leiden/N.Y., Sijthoff/Oceana, 1976, p. VII. Of the kind of the Moore’s History and Digest of International Arbitrations, the La Pradelle and Politis’s Recueil das arbitrages internationaux; the successive volumes of the series Reports of International Arbitral Awards (of the U.N.) and of the International Law Reports (ed. E. Lauterpacht), among others. Thus, in the era of the old PCIJ, while this latter dealt with 29 contentious cases (judicial settlement), some 80 cases were settled by ad hoc arbitral tribunals. In contrast, only seven cases (among which the case of Sovereignty over Various Red Sea Islands, Eritrea versus Yemen) have been dealt with by the Permanent Court of Arbitration [PCA]. For a general study, cf., e.g., J.L. Simpson and H. Fox, International Arbitration, London, Stevens, 1959, pp. 1ss.; and cf. J.J. Caicedo Castilla, “El Arbitraje en las Conferencias Panamericanas hasta el Pacto de Bogotá de 1948 sobre Soluciones Pacíficas”, 4 Boletim da Sociedade Brasileira de Direito Internacional [BSBDI] (1948) n. 8, pp. 5-33.

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as illustrated, e.g., by the Lac Lanoux case (France versus Spain, 1957), the Rann of Kutch (India versus Pakistan, 1968), the case of the Delimitation of the Continental Shelf case (United Kingdom versus France, 1977), the Beagle Channel case (Argentina versus Chile, 1977-1984), the Dubai/Sharjah Boundary case (1981), the Maritime Delimitation case (Guinea versus Guinea Bissau, 1985), the La Bretagne case (Canada versus France, 1986), the Taba case (Egypt versus Israel, 1988), the Maritime Delimitation case (Guinea Bissau versus Senegal, 1989), the St. Pierre and Miquelon case (Canada versus France, 1992), the Laguna del Desierto case (Argentina versus Chile, 1994-1995), among others.48 In Latin America, despite the conclusion of multilateral instruments such as the Pact of Bogotá (1948), recourse to arbitration continued to take place on an ad hoc basis, from time to time, as illustrated by the cases of the Beagle Channel (1977) and of the Laguna del Desierto (1994-1995, cf. infra), both opposing Argentina to Chile. In the African continent, parallel to the OAU Permanent Commission of Mediation, Conciliation and Arbitration (1963, supra), which has remained to some extent inactive, member States of the former OAU (nowadays African Union) continued at times to resort to more flexible means of negotiated settlement (outside the Commission – cf. supra), – what has led, e.g., to a settlement, outside this latter, of the conflicts opposing Somalia to Kenya and to Ethiopia, the territorial dispute between Algeria and Morocco, and the controversies between Côte d’Ivoire and Guinea over detention of diplomats.49 The fact remains that the arbitral solution does not appear susceptible of generalizations, for being an essentially ad hoc and casuistic means of settlement of international disputes. Judicial settlement, dealt with in more detail in the following chapter, has evolved to a large extent on the basis of an analogy with the function of tribunals at domestic law level.50 It may have occurred that at times expectations have not been amply fulfilled, and this may be partly due to the fact that not seldom what the contending parties were seeking was not so much an interpretation of the law, but rather a modification in the law,51 or its progressive development. In any case, there has been lately a gradual jurisdictionalization of dispute settlement, as a result of the gradual creation and operation of multiple international tribunals.52 48

49 50

51

52

Cf., for an assessment, C. Gray and B. Kingsbury, “Inter-State Arbitration since 1945: Overview and Evaluation”, in International Courts for the Twenty-First Century (ed. M.W. Janis), Dordrecht, Nijhoff, 1992, pp. 55-83, esp. p. 69. D.W. Bowett, op. cit. supra n. (17), p. 283. R. Bierzanek, “Some Remarks on the Function of International Courts in the Contemporary World”, 7 Polish Yearbook of International Law (1975) pp. 121-150. For critical remarks, cf. also, e.g., J. Fawcett, International Economic Conflicts: Prevention and Resolution, London, Europa Publs., 1977, pp. 80-81. F.S. Northedge and M.D. Donelan, op. cit. supra n. (2), pp. 326 and 330; and cf., for a general study, e.g., Max-Planck-Institut, International Symposium on the Judicial Settlement of International Disputes, Heidelberg, 1972, pp. 1-28 (mimeographed). Cf. chapter XXV, infra.

Peaceful Settlement of International Disputes: Current State and Perspectives

III. Settlement of Disputes in Multilateral Treaties Along the XXth century, a major effort in dispute settlement, in the inter-war period of the League of Nations, was represented by the 1928 General Act for the Pacific Settlement of International Disputes (revised in 1949), which provided for conciliation, judicial settlement and arbitration. Although it did not produce the expected results, it in a way stimulated the celebration of bilateral and regional treaties for dispute settlement.53 In our times, an elaborate scheme of dispute settlement can be found, e.g., in the relevant provisions of the 1982 U.N. Convention on the Law of the Sea (Part XV, Articles 279-299),54 comprising the Law of the Sea Tribunal (Annex VI, Statute), its Seabed Disputes Chamber (Articles 186191), and distinct or special chambers (provided by its Statute), a Commission of Conciliation (Annex V), arbitration (Annex VII, including the constitution of an Arbitral Tribunal), and special arbitration (Annex VIII, including the constitution of a Special Arbitral Tribunal, with fact-finding powers).55 Article 297 of the Convention lists three options (the International Tribunal for the Law of the Sea itself, the ICJ, or arbitration), binding procedures (at the request of a contending party), thus setting limits to the traditional free choice of means invoked in this chapter of International Law. The scheme at issue was the result of prolonged and complex negotiations in the preparatory work of the 1982 Montego Bay Convention. Throughout those travaux préparatoires the principle of compulsory settlement gave rise to much controversy. There were those who preferred an optional protocol, recalling to that end that solution, set forth in the corresponding provisions of the 1958 Conventions on the Law of the Sea. Others considered that proposal unacceptable for an all-embracing Convention such as that of Montego Bay, containing so many innovations likely to raise disputes which could only be resolved by the use of an obligatory third party procedure. The disagreements which prevailed rendered it unlikely to select a single method of peaceful settlement. Thus,

53

54 55

E.g., in the European continent, the 1957 European Convention for the Peaceful Settlement of Disputes, – like the aforementioned General Act of Geneva, – had some of its 12 States Parties excluding so-called “non-legal disputes” from the application of the provisions on arbitration; K. Nakamura, “The Convention for the Pacific Settlement of International Disputes in Historical Perspective – In Commemoration of the Centennial of the I Hague Peace Conference”, 43 Japanese Annual of International Law (2000) pp. 9, 15 and 18. For an account of the travaux préparatoires, cf., e.g., L. Valencia Rodríguez, Arreglo de Controversias Según el Derecho del Mar, Caracas, UNESCO, 1989, pp. 15-205. On this dispute-settlement system, cf., e.g., A.O. Adede, The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea, Dordrecht, Nijhoff/Kluwer, 1987, pp. 3-283.

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Chapter XXIV “Faced with this wide divergence of views, the negotiators of the Convention took the only practicable course and resolved the problem by (...) invoking (...) a choice of methods of binding settlement”.56

Hence the aforementioned options left to the States Parties, which had their freedom of choice thus sensibly limited, in addition of the introduction of an element of compulsory settlement. The scheme of dispute-settlement set forth in the 1982 U.N. Convention on the Law of the Sea is particularly significant for such a Convention of a universal character. Moreover, it is indeed unique in comparison with other great codification Conventions of the United Nations, in which the ways and means of settling disputes remain left to the free choice of the parties.57 In addition, some other U.N. codification Conventions (e.g., the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, the 1969 Convention on Special Missions) have adopted the system of separate Optional Protocols on peaceful settlement;58 in this respect, L. Caflisch has forcefully argued that, since any progress in the effective application of substantive law goes through the improvement of methods of peaceful settlement, there is a case for adding a system (preferrably of a jurisdictional nature) of peaceful settlement to the U.N. codification Conventions themselves.59 In this connection, a significant development has been the establishment of a compulsory procedure of conciliation, as adopted by the 1969 and 1986 Vienna Conventions on the Law of Treaties,60 and the 1975 Convention on the Representation of States in Their Relations with International Organizations of Universal Character,61 and the 1978 and 1983 Vienna Conventions on State Succession.62 In its turn, the 1959 Antarctica Treaty provides for consultations between the Contracting Parties, so that any controversy as to its interpretation or application is solved by negociation, investigation, mediation, conciliation, arbitration, judicial settlement (recourse to the ICJ) or any other peaceful means of their choice (Ar56 57

58

59 60 61 62

J.G. Merrills, International Dispute Settlement, op. cit. supra n. (22), pp. 172-173. G. Bosco, “40 Years of U.N.: The Evolution of International Law Concerning the Peaceful Settlement of Disputes”, in The Evolution of International Law since the Foundation of the U.N., with Special Emphasis on the Human Rights – Thesaurus Acroasium – vol. XVI, Thessaloniki, IIPLIR, 1990, pp. 33-35. In practice, “ces Protocoles ont d’ailleurs connu un succès fort modeste”; R.-J. Dupuy, “Codification et règlement des différends...”, op. cit. supra n. (3), p. 72, and cf. p. 73. L. Caflisch, “Cent ans de règlement pacifique des différends interétatiques”, 288 RCADI (2001) pp. 261, 363 and 459, and cf. p. 286. Article 66, and Annex, in case of controversies as to nullity, termination and suspension of operation of treaties. Article 85. Vienna Convention of 1978, Part VI, Article 42; Vienna Convention of 1983, Part V, Article 43.

Peaceful Settlement of International Disputes: Current State and Perspectives

ticle XI). Similarly, the 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America (or Treaty of Tlatelolco) provides that any question or controversy as to its interpretation or application can be submitted to the ICJ, except if the parties concerned agree on another method of peaceful settlement (Article 24). Recourse to conciliation (even when mentioned as an alternative among other means of peaceful settlement) is set forth in some environmental law treaties.63 At global U.N. level, when the Ozone Layer Convention was adopted in 1985, an episode occurred which should not pass unnoticed: according to an account, a group of 16 States annexed a declaration to the Final Act of the Conference of Plenipotenciaries on the Protection of the Ozone Layer (21.03.1985), stating that they expressed their regret that the Vienna Convention for the Protection of the Ozone Layer lacked any provision for the compulsory settlement of disputes (by third parties upon request of one party); furthermore, they appealed to all Parties to the Convention to make use of a possible declaration under Article 11(3) of the aforesaid Convention.64 In the African continent, the Cairo Protocol on Mediation, Conciliation and Arbitration, of July 1964, annexed to the [then] OAU Charter, created a Permanent Commission on Mediation, Conciliation and Arbitration. As a complement to it, since the outbreak of the Algerian-Moroccan conflict of 1963, the main organs of the OAU established subsidiary ad hoc Committees to foster negotiations, or good offices, mediation, inquiry and conciliation; such ad hoc Committees, composed of member-States (a maximum of ten) rather than personalities, have acted in the conflict of Mali versus Haute Volta (declaration of reconciliation of 1975), later settled by the ICJ (Judgment of 1986); they also acted in the civil war of Chad, and have become the most utilized means of settlement of inter-African conflicts to date.65 63

64 65

E.g., the 1963 Optional Protocol (Concerning the Compulsory Settlement of Disputes) to the Vienna Convention on Civil Liability for Nuclear Damage (which provides for the establishment of a conciliation procedure), the 1969 International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties, the 1985 Vienna Convention for the Protection of the Ozone Layer (which fosters the tendency towards unilateral recourse to conciliation), the 1992 Framework Convention on Climate Change, the 1992 Convention on Biological Diversity, the 1994 Convention to Combat Desertification; these last four Conventions also list, as other peaceful settlement means, arbitration (examples of which are provided, in distinct contexts, by the successful decisions of arbitral tribunals in the aforementioned Lac Lanoux case in 1957, and, much earlier on, in the Behring Sea Fur Seals case in 1893, opposing the United Kingdom to the United States) as well as judicial settlement (by the ICJ); cf. C.P.R. Romano, The Peaceful Settlement of International Environmental Disputes, The Hague, Kluwer, 2000, pp. 61-63 and 322. G. Bosco, op. cit. supra n. (57), p. 38. H. Gharbi, “Le règlement des différends dans le cadre de l’Organisation de l’Unité Africaine (OUA)”, in Règlement pacifique des différends internationaux (ed. F. Horchani), Tunis/Bruxelles, Centre de Publication Universitaire/Bruylant, 2002, pp. 538-540.

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In turn, the [then] OAU Council of Ministers itself has exerted its good offices in the frontier dispute between Ethiopia and Somalia. The OAU Conference of Heads of State and Government, declared that the mechanism instituted by the 1964 Cairo Protocol (supra) was an integral part of the [then] OAU Charter, and thus all OAU member-States were automatically Parties to the Statute of the Permanent Commission on Mediation, Conciliation and Arbitration. The main objective of this mechanism is conflict-prevention, but it faces the difficulty of lack of resources; when recourse to arbitration is decided by common agreement, the institution of an arbitral tribunal is foreseen.66 IV. Current Developments: Fact-Finding and the Search for Justice and the Prevalence of the Rule of Law As a technique of dispute-settlement, fact-finding has lately been utilized in pursuance of the prevalence of common and superior values, such as the search for justice and the safeguard of democracy and the rule of law. Some recent developments to this effect should not pass unnoticed. The use of fact-finding as a method of peaceful settlement of international disputes has much expanded through the work of international supervisory organs in the field of human rights67 and of commissions of inquiry under the ILO Constitution.68 In addition, from the mid-seventies onwards, successive Truth Commissions have been established in distinct parts of the world, for the determination of facts related to grave violations of human rights and in the framework of the struggle against impunity. In the period of 1974-1994,69 e.g., 15 Truth Commissions then instituted have disclosed the following common characteristics: firstly, the operation as organs of 66 67

68 69

Composed of 21 member-States of the OAU Conference of Heads of State and Government; ibid., pp. 541-551 and 554. Cf. B.G. Ramcharan (ed.), International Law and Fact-Finding in the Field of Human Rights, The Hague, M. Nijhoff, 1982, pp. 137-150, 151-159 and 176-179 (papers by E. Vargas Carreño, H.C. Kruger and B.G. Ramcharan, respectively). Cf. ibid., pp. 160-175 (paper by G. von Potobsky). Namely, Uganda (1974), Bolivia (1982), Argentina (Report Nunca Más, 1986), Uruguay (1985), Zimbabwe (1985), Uganda again (1986), Philippines (1986), Chile (National Commission on Truth and Reconciliation, 1990-1991), Chad (1990), South Africa (I African National Congress, 1992), Germany (1992), El Salvador (1991), Rwanda (19921993), South Africa again (II African National Congress, 1993), and Ethiopia (19921993). To those fi fteen Truth Commissions (cf. op. cit. infra n. (70)), one is to add two other rather recent initiatives: that of the Truth Commission for Haiti, which did not produce satisfactory results (cf. [Centre International des Droits de la Personne et du Développement Démocratique,] Proposition pour une Commission de la Vérité en Haiti – Élements constitutifs, Montréal, 27.11.1994, pp. 1-13), and that of the investigations undertaken by the National Comissariat of Protection of Human Rights, of Honduras (cf. Comisionado Nacional de Protección de los Derechos Humanos, Los Hechos Hablan por Sí Mismos – Informe Preliminar sobre los Desaparecidos en Honduras 1980-1993, Tegucigalpa, Ed. Guaymuras, 1994, pp. 11-496).

Peaceful Settlement of International Disputes: Current State and Perspectives

fact-finding in a context of democratic transition in distinct countries; secondly, the examination of facts occurred in the past, pertaining not so much to isolated events, but rather to a generalized situation of violations of human rights in given countries; and thirdly, a mandate with temporal limitation, expiring with the presentation of the final report with the results of the investigations.70 The mandates of those Truth Commissions have varied from case to case, as well as the results of their investigations: some have naturally been more successful than others. Among those that achieved concrete results, the Truth Commission for El Salvador (inspired in the experiences on the matter in Chile and Argentina) was the first of the kind to be sponsored and funded by the United Nations;71 others had a governmental origin, as exemplified by the Commission of Truth and Reconciliation of Chile, established in 1990 by the Presidency of the Republic;72 the Truth Commission for Rwanda (which reported in 1993) was, in turn, of non-governmental (international) character;73 the two Truth Commissions for South Africa (appointed by Nelson Mandela) resulted from an original decision of the African National Congress of investigating and reporting publicly on past human rights abuses.74 Recently, the Commission on Truth and Reconciliation of Peru concluded its work and presented, in August 2003, a substantial report.75 Amidst the diversity of their mandates and of the results achieved, Truth Commissions have, – as a characteristic feature of their work, – operated in the investigation of past events in relation to which the national society at issue had been profoundly divided and polarized; such investigation is regarded as remaining, however, necessary, as what happened in the past may have influence in the present and the future of the social environment at issue.76 Overcoming opera70 71 72

73 74 75 76

P.B. Hayner, “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study”, 16 Human Rights Quarterly (1994) pp. 598-604. Cf. ibid., p. 599. For the results of the investigations, cf. Informe Rettig – Informe de la Comisión Nacional de Verdad y Reconciliación, vol. I, Santiago, Feb. 1991, pp. 1-448; Informe Rettig – Informe de la Comisión Nacional de Verdad y Reconciliación, vol. II, Santiago, Feb. 1991, pp. 449-890; and, for an account of the experience, cf. P. Aylwin, “La Comisión de la Verdad y Reconciliación de Chile”, in Estudios Básicos de Derechos Humanos, vol. II (eds. A.A. Cançado Trindade and L. González Volio), San José of Costa Rica, Inter-American Institute of Human Rights (IIHR), 1995, pp. 105-119; P. Aylwin, “La Comisión Chilena sobre la Verdad y Reconciliación”, in Estudios Básicos de Derechos Humanos, vol. VII (eds. A.A. Cançado Trindade, G. Elizondo Breedy, L. González Volio and J. Ordóñez), San José of Costa Rica, IIHR, 1996, pp. 35-52. P.B. Hayner, op. cit. supra n. (70), pp. 600 and 629-632. Ibid., pp. 600, 625-626 and 632-634; and cf. A. Omar, “Truth and Reconciliation in South Africa: Accounting for the Past”, 4 Buffalo Human Rights Law Review (1998) pp. 5-14. Cf., in particular, Comisión de la Verdad y Reconciliación, Informe Final – Conclusiones Generales, Lima, CVR/Peru, 2003, pp. 9-45. [Various Authors,] Truth Commissions: A Comparative Assessment (Seminar of Harvard Law School, of May 1996), Cambridge/Mass., Harvard Law School, 1997, pp. 16, 70 and 81.

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tional difficulties, Truth Commissions have proven to be, in most cases, a relevant instrument in the crystallization of the right to truth77 in its relations with the search for justice and the struggle against impunity.78 On rare occasions fact-finding has been undertaken also in pursuance of the prevalence of what comes to be perceived as the right to the juridical or constitutional order. This is what occurred in the case of the Institutional Crisis of Nicaragua (1993-1994). Upon request of the Nicaraguan Government, the then Secretary-General of the OAS (J.C. Baena Soares), in the ambit of a decision of the OAS Permanent Council of 03.09.1993 titled “Support to the Constitutional Government of Nicaragua”, appointed the Commission of Jurists of the OAS for Nicaragua to “establish the reality of the facts”.79 The Commission80 was set up by the OAS Secretary-General in Managua, on 07.09.1993, when received by the President of the Republic of Nicaragua (Violeta Barrios de Chamorro). In the following months the work of fact-finding, as from a strictly juridical approach, was conducted by the Commission, which was aware that the facts had taken place in a highly politicized and polarized context.81 The difficult work undertaken by the Commission of Jurists disclosed a sui generis feature, in that questions of an essentially constitutional and domestic order were taken up to the examination and consideration of an ad hoc international fact-finding organ at the request of the Government of the State concerned. The sole precedent of the kind, and a rather distant one in time, found by the Commission of Jurists, was the case of the Compatibility of Certain DecreesLaws of Danzig with the Constitution of the Free City of Danzig (1935), in which a request was made to a judicial organ, the old Permanent Court of International Justice (PCIJ), – entirely distinct from the Commission of Jurists of the OAS for Nicaragua, this latter devoid of jurisdictional functions as an essentially fact77

78

79

80 81

On the meaning of fact-finding, in the search for truth, on past violations of human rights, cf. M. Parlevliet, “Considering Truth – Dealing with a Legacy of Gross Human Rights Violations”, 16 Netherlands Quarterly of Human Rights (1998) pp. 141-174. And on the relationship between truth and justice, cf. T.G. Phelps, Shattered Voices – Language, Violence and the Work of Truth Commissions, Philadelphia, University of Pennsylvania Press, 2004, pp. 53-54, 61-67, 79-82, 86, 111-117 and 128. For an assessment, cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 400-406; N. Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice, Oxford, Oxford University Press, 1995, pp. 3-381; K. Ambos, Impunidad y Derecho Penal Internacional, Medellín, Fund. K. Adenauer et alii, 1997, pp. 25-451. Pertaining to conflicts in the National Assembly of that country (which led virtually to its paralysis) and to the procedure of removal of the Contralor General of the Republic. Integrated by A.A. Cançado Trindade (Brazil), E. Ferrero Costa (Peru) and A. Gómez-Robledo Verduzco (Mexico). The applicable law was identified as being essentially Nicaraguan domestic law, placing the two questions under examination in the ambit of the imperative of the prevalence of the rule of law (Estado de Derecho).

Peaceful Settlement of International Disputes: Current State and Perspectives

finding organ, – to resolve whether certain decrees-laws of Danzig were or not compatible with the Constitution of the Free City of Danzig.82 The case of the Institutional Crisis of Nicaragua had, thus, no precedent in the American continent. On 04.02.1994 the three members of the aforementioned Commission of Jurists handled its substantial final Report to the OAS Secretary-General at the headquarters of the Organization in Washington D.C.. The Report, promptly transmitted by the OAS Secretary-General to the Government of Nicaragua, much contributed to put an end to the serious institutional crisis which affected that country, and in particular to the reopening of the work, on a regular and permanent basis, of the Nicaraguan National Assembly. Only four years later, in 1998, the Commission’s Report was published,83 when it was deemed that the issues dealt with therein had found a solution, as their contents had a bearing on historical facts that would no longer affect the politico-institutional framework of the country concerned. There thus already exist, in our days, elements – although insufficiently known so far – for an in-depth study of the right to the constitutional order (directly linked to the prevalence of democracy and the rule of law), bringing closer together the international and domestic legal orders, as illustrated by the mission of fact-finding undertaken by the Commission of Jurists of the OAS in the case of the Institutional Crisis of Nicaragua (1993-1994). V.

The Search for ad hoc Solutions

International practice has disclosed a variety of means of dispute-settlement resorted to by States, ranging from negotiations and consultations to good offices and conciliation, from fact-finding to mediation, and also including arbitration and judicial solution. In the American continent, parallel to the constant and unsuccessful endeavours to secure some degree of effectiveness to the comprehensive codifying treaty on peaceful settlement of disputes in the region (the 1948 82

83

Cf. doc. cit. n. (83) infra, p. 336. The PCIJ, in an Opinion of 04.12.1935, concluded that such decrees-laws were incompatible with the guarantees of individual rights set forth in the Constitution of Danzig. The PCIJ understood that, once the question was raised to the international level (the guarantee by the League of Nations of the Constitution of Danzig), it was incumbent upon it to pronounce on the matter; cf. PCIJ, Series A/B, n. 65, 1935, pp. 41-57, especially pp. 50 and 57. A.A. Cançado Trindade, E. Ferrero Costa and A. Gómez-Robledo Verduzco, “Caso da Crise Institucional da Nicarágua (1993-1994): Informe de la Comisión de Juristas de la Organización de los Estados Americanos (OEA) para Nicarágua”, 113/118 Boletim da Sociedade Brasileira de Direito Internacional (1998) pp. 335-386. The report was subsequently republished in monograph form: A.A. Cançado Trindade, E. Ferrero Costa and A. Gómez-Robledo Verduzco, “Gobernabilidad Democrática y Consolidación Institucional: El Control Internacional y Constitucional de los Interna Corporis – Informe de la Comisión de Juristas de la OEA para Nicarágua (Febrero de 1994)”, 67 Boletín de la Academia de Ciencias Políticas y Sociales – Caracas/Venezuela (2000-2001) n. 137, pp. 593-669.

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Pact of Bogotá), a significant practice of dispute-settlement has been developing on an ad hoc basis, seeking individual solutions to each cas d’espèce. This practice of peaceful settlement has in some instances produced concrete positive results; and this has taken place on some occasions also outside the institutional mechanisms of the regional system of peace. Pertinent examples are afforded, for instance, in Central and South America, in the last three decades.84 The conflict between El Salvador and Honduras, e.g., was settled by the mediation of J.L. Bustamante y Rivero, which led to the Treaty of Peace of 1980 between the two countries concerned.85 Some cases transcended the ambit of regional arrangements and were taken into the global – United Nations – level, such as the cause célèbre, in the Caribbean, of the Cuban missile crisis (1962), taken up to the U.N. Security Council.86 The search for ad hoc solutions has by no means been limited to the American continent. In the African continent, one may recall the co-existence (supra) between the OAU Permanent Commission on Mediation, Conciliation and Arbitration and ad hoc Committees subsidiary to the main organs of the former OAU (nowadays African Union), reflecting the old professed purpose of finding African solutions for inter-African disputes.87 And, in the Asian continent, an example is afforded by the 1997 fisheries agreement between China and Japan, whereby the two countries revised their earlier agreement of 1975 in the light of the entry into force – in respect of them – of the 1982 U.N. Convention on the Law of the Sea;88 reference can also be made to the Southern Bluefin Tuna case (Australia and New Zealand versus Japan) (1993-2000), encompassing both the arbitral procedure under that Convention and negotiations between the contending parties.89 Two such experiences of the search for ad hoc solutions may 84

85 86 87

88

89

E.g., the handling of the border problem between Costa Rica and Nicaragua, in 19771979, and of the conflict between El Salvador and Honduras in 1980; and, in South America, the handling of the crisis opposing Peru and Ecuador, in the eighties and nineties (infra). H. Gros Espiell, “La Paz entre El Salvador y Honduras”, 30 Revista Internacional y Diplomática (1981) n. 361, pp. 28-29. For an account, cf. A. Chayes, The Cuban Missile Crisis, Oxford, University Press, 1974, pp. 1-154. Cf. J.-M. Bipoun-Woum, Le droit international africain, Paris, LGDJ, 1970, pp. 269273; O. Okongwu, “The OAU Charter and the Principle of Domestic Jurisdiction in Intra-African Affairs”, 13 Indian Journal of International Law (1973) pp. 589-593; M. Bedjaoui, “Le règlement pacifique des différends africains”, 18 AFDI (1972) p. 92. The new 1997 agreement significantly sets up a “provisional measures zone”, as “a zone of joint management where the two countries partially exercise joint control or enforcement measures, pending the delimitation of their maritime boundaries”; M. Miyoshi, “New Japan-China Fisheries Agreement – An Evaluation from the Point of View of Dispute Settlement”, 41 Japanese Annual of International Law (1998) p. 30, and cf. pp. 31-43. Cf., e.g., N. Tanaka, “Some Observations on the Southern Bluefin Tuna Arbitration Award”, 44 Japanese Annual of International Law (2001) pp. 9-34.

Peaceful Settlement of International Disputes: Current State and Perspectives

be singled out, given their contribution to contemporary techniques of dispute settlement, namely, those of the process of Contadora, and of recourse to guarantor States. 1.

The Experience of Contadora

In the eighties, given the intensification of tension in the Central-American region, coupled with the incapacity of international organizations – such as the OAS – to resolve the conflict, the Foreign Ministers of Panama, Mexico, Venezuela and Colombia convened a meeting in the Island of Contadora in January 1983, to formulate a proposal of dialogue and negotiation to reduce tension and reestablish peaceful co-existence among Central American States. The document ensuing therefrom was called the Declaration of Contadora (of 09.01.1983), and the articulation of the four countries came to be known as the Group of Contadora. Following initial efforts of good offices on the part of the Presidents of those four countries, in June 1984 the Foreign Ministers of the Group of Contadora drew a document (the so-called Act of Contadora)90 containing the points and recommendations agreed upon. In September of the same year, the Group of Contadora forwarded to the Heads of State of the Central American countries a revised version of the Act of Contadora,91 stressing the need of reestablishment of peace in the region on the basis of compliance with the principles of international law and of the joint search for a regional solution to the Central American crisis; it moreover described the instruments of verification and inspection foreseen for the execution and follow-up of the engagements agreed upon.92 The major difficulties remained the reduction of armaments and demilitarization, the operation of mechanisms of verification and control, and the internal reconciliation. On the other hand, however, the negotiations pursued – together with consultations, ad hoc mechanisms of fact-finding, and good offices, – and the international support they received, avoided the aggravation of the conflict with unforeseeable consequences not only for the region but for the whole continent. In mid-1985, the Foreign Ministers of Argentina, Brazil, Peru and Uruguay held informal consultations which led to the creation of the so-called Group of Support to Contadora. The two Groups had their first joint meeting in Cartagena, in August 1985. In the following months, with the frequency of meetings of the Chancellors of the Groups of Contadora and of Support, the tendency was formed to the effect of minimizing the distinction between the two Groups and of foreseeing common operational initiatives.93 This was the historical root of the 90 91 92

93

Its full title was “Act of Contadora for Peace and Cooperation in Central America”. Accompanied by four Additional Protocols. For a study, cf. A.A. Cançado Trindade, “Mécanismes de règlement pacifique des différends en Amérique Centrale: de Contadora à Esquipulas-II”, 33 AFDI (1987) pp. 798-822. For an account, cf. ibid., pp. 798-822.

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establishment, later on, parallel to the OAS, of the so-called Group of Rio, with a much-expanded agenda (no longer centred on the Central American crisis). Support to the process of Contadora came at last from the Presidents of the five Central American countries themselves (Guatemala, El Salvador, Honduras, Nicaragua and Costa Rica), in the declaration they adopted in their meeting in Esquipulas, Guatemala, on 25 May 1986 (Esquipulas-I). It was followed by the Plan Arias, adopted by the five Central American Presidents in San José of Costa Rica on 15 February 1987. On 06-07 August 1987 they met again in Esquipulas, where they at last agreed on and signed the “Procedure for the Establishment of the Firm and Lasting Peace in Central America” (Esquipulas-II). The main engagements undertaken were directed towards national reconciliation, cease-fi re, democratization and free elections, cessation of aid to irregular forces and rebels, non-use of territory to attack other States, assistance to refugees and displaced persons, the consolidation of democracy.94 Two supervisory organs were promptly set up, namely, the International Commission of Verification and Follow-up and the Executive Committee. The Procedure worked out in August 1987 managed to save time and occupy political space in the negotiating and fact-finding process, which finally led to the creation of a new atmosphere of peace in the Central American region. The Contadora/Esquipulas-II process, as a whole, had the merit and importance of avoiding the escalade of the regional conflict into one of possibly much greater proportions and unforeseeable consequences for the whole continent. This process, as already pointed out, evolved outside the institutional framework of the OAS and the United Nations, – but eventually counted on the support of both organizations95 (and of virtually the whole international community), which reckoned that they could not effectively replace it. The process – even before Esquipulas-I and II – was soon recognized as the only viable way to a negotiated peace in the region. Ultimately, it amounted to a non-institutionalized regional Latin American initiative of settlement of the Central American crisis on the basis of consensus of all parties concerned. Negotiations and fact-finding played a very important role in the settlement. The strong international law tradition of Latin American countries was another element of relevance in the successive formulas negotiated, which proved conducive to peace in the region. 2.

The Experience of Guarantor States

In South America, the prolonged border problem between Ecuador and Peru, which led to armed confrontation between the two countries in 1981 and 19941995, was handled invariably by the guarantors designated in the 1942 Protocol of Rio de Janeiro, settled at last in 1998. To the Declaration of Peace of Itamaraty, signed by Peru and Ecuador in Brasilia, on 17 February 1995, in the presence of 94 95

Points 7, 10 and 11 of Esquipulas II were of particular importance to the means of peaceful settlement. Cf. A.A. Cançado Trindade, op. cit. supra n. (92), pp. 798-822, esp. p. 810, n. 57.

Peaceful Settlement of International Disputes: Current State and Perspectives

representatives of the four guarantor States (Argentina, Brazil, Chile and United States), followed the Declaration of Montevideo of 28 February of the same year, signed by the Foreign Ministers of Ecuador and Peru, together with the Foreign Ministers of Argentina, Brazil and Chile, and the Secretary of State of the United States, in which they ratified their will to comply fully with the Declaration of Peace of Itamaraty. The exercise of mediation undertaken by the guarantor States of the 1942 Protocol of Rio de Janeiro (Argentina, Brazil, Chile and United States) intensified as from 1995.96 The Declaration of the Guarantors signed in Brasilia on 16 April 1997 took note of the exchange of the descriptive explanations of the respective “lists of deadlocks” (listas de impasses). The document further recalled that it was the “exclusive responsibility” of the contending parties to carry on the peace conversations, as to the guarantors corresponded the “autonomous capacity” to make recommendations, suggestions, exhortations, declarations and evaluations on the peace process. The operation of this ad hoc mechanism contributed decisively to ease the tensions between Ecuador and Peru, in the search for a peaceful settlement of their border problem. The successful outcome of the exercise culminated in the final Peace Agreement of 26 October 1998 between Peru and Ecuador. This latter, which insisted in the renegotiation of the frontier as established in the 1942 Protocol, by means of the 1995 Declaration of Peace of Itamaraty admitted that the Protocol remained in force in exchange for the Peruvian recognition that the conclusion of the demarcation foreseen in that instrument required the prior settlement of substantive questions. In October 1996, by the Agreement of Santiago, the contending parties agreed to entrust the guarantor States with the initiative of proposed formulas for peaceful settlement. The first one of them, accepted by all, was the formula of “single undertaking”, whereby no individual aspect of the dispute was to be resolved independently of an over-all solution of the conflict. Ecuador and Peru, for the first time since 1942, set up a common agenda of discussion, suspending temporarily their respective claims; assisted by the guarantor States,97 and “recommendatory opinions” on minor issues, they started holding direct bilateral meetings, most often in Brasilia; in difficult moments of the exercise each contending party met with the guarantor States in separate rooms. The colegial and concerted exercise of the contending parties together with the guarantor States enlarged the negotiating “package”, so as to add to the frontier issue other aspects pertaining to cooperation and joint development in the region. The strategy succeeded,98 and the peace process culminated in the ceremony of the signature of the final peace document of 26.10.1998, which put 96 97 98

Successive documents were signed in Quito (agreement of 23.02.1996), Buenos Aires (communiqué of 19.06.1996), and Santiago (agreement of 29.10.1996). The consultations followed the formula “2 plus 4”, that is, the two contending parties together with the four guarantor States. Oral testimonies that I collected in private interviews with protagonists in the peace process from distinct sides.

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an end to the misunderstandings which had prevailed until 1995. This is a positive contemporary example of a successful mediation stressing the key role of the guarantor States. VI. Endeavours of Systematization At regional level, the systematization of peaceful settlement of international disputes undertaken by the 1948 American Treaty of Peaceful Settlement (Pact of Bogotá) was much awaited,99 but despite the contribution of this latter at conceptual level,100 there remained a practical problem. As the Pact entered into force through the successive ratifications of the States Parties, the effects of previous treaties on peaceful settlement of disputes101 ceased for these latter;102 but as some States of the region had ratified the Pact and others had not (infra), this gave rise to a diversity of situations where individual States were bound either by the Pact of Bogotá itself, or by earlier treaties or – as in the case of several Caribbean countries – by none. The Pact was in fact invoked in a boundary conflict between Honduras and Nicaragua in 1957,103 but this was a rather isolated instance in this respect. Three decades later, in the mid-eighties, there remained 18 member States of the OAS which were not Parties to the Pact of Bogotá; half of those were bound by earlier treaties,104 thus forming a rather diversified – if not confusing – framework of international legal instruments for dispute settlement. This unsatisfactory legal 99

100

101

102 103

104

The mechanism of (multilateral) reciprocal consultations (in case of threat to peace in the region) was created earlier, by the 1936 Convention on the Maintenance, Preservation and Reestablishment of Peace, and was institutionalized shortly afterwards by the Declaration of Lima of 1938. Th is mechanism is the same one which operated continuously in the course of the following decades, and until the eighties, in the consideration of successive crises, such as, e.g., in the Anglo-Argentinian conflict in the South Atlantic over the Falklands/Malvinas Islands (1982). With, e.g., its elaborate definitions of means of settlement; for a study, cf., e.g., J.M. Yepes, “La Conférence Panaméricaine de Bogotá et le droit international américain”, Revue générale de droit international public (1949) pp. 52-74. For example, the Gondra Treaty (1923, of prevention of disputes between the American States), the two General Conventions of Washington of Inter-American Conciliation and Arbitration (1928-1929), the Anti-Bellic Treaty of Non-Aggression and Conciliation (1933, also known as Treaty Saavedra Lamas), the Convention on Maintenance, Preservation and Reestablishment of Peace (1936, setting up the system of reciprocal consultations), and the Treaties on Prevention of Disputes and on Good Offices and Mediation (both of 1936). Article LVIII. J.C. Lupinacci, “Los Procedimientos Jurisdiccionales en el Tratado Americano de Soluciones Pacíficas (Pacto de Bogotá)”, Anuario Uruguayo de Derecho Internacional (1962) pp. 205-206. Cf. OAS, document OEA/Ser.G/CP/CAJP-541/84, of 30 July 1984, pp. 80-82; and cf. note (101), supra.

Peaceful Settlement of International Disputes: Current State and Perspectives

framework has remained unchanged to date. Nowadays, of the 34 member States of the OAS, only 14 have ratified the Pact (8 of which with reservations).105 It was thus not surprising to witness, along the years, successive calls for ratification by all OAS member States of the Pact as the “best way” to improve and consolidate the regional system of peace,106 and also for revision of the Pact.107 In the meantime, recourse to distinct methods continued to take place, moreover rendering it difficult to generalize as to their effectiveness. The resolution of the controversy between Chile and Argentina over the Beagle Channel (shortly after the 1977 arbitral award, followed by the mediation of the Holy See, as from 1979), by means of the adoption of the treaty of peace of 1984 between those two countries, e.g., paved the way for the settlement of another boundary dispute between Argentina and Chile, over the Laguna del Desierto. This latter was submitted to an arbitral tribunal, which rendered its award on 21 October 1994 (followed by another award – on Chile’s requests for revision and interpretation – of 13 October 1995);108 the 1994 award is of interest for the consideration of the concept of res judicata, and the application of the principle non ultra petita partium in the domain of International Law. The field of peaceful settlement of disputes became in fact object of special attention of the second reform of the OAS Charter, – that of the Protocol of Cartagena de Indias of 1985. Attentive to the prevailing situation in the region, endeavours focussed on the search for individual solutions, adequate to each cas d’espèce. This implied an acknowledgement of the virtual immobility of the regional Organization to take effective action in this field as from the first reform of its Charter (the 1967 Protocol of Buenos Aires). This prompted the 1985 reform to devise more flexible methods of operation in conflict resolution. Accordingly, the OAS Charter as amended by the 1985 Protocol of Cartagena de Indias was to authorize any party to a dispute – in relation to which none of the procedures 105 Except for the Dominican Republic and Haiti, Caribbean countries have not ratified it at all; cf. OAS Treaty Series, ns. 17 and 61 (General Information of the Treaty A-42). To this one could add the lack of accession by new OAS member States to the Pact. 106 Comité Jurídico Interamericano, Recomendaciones e Informes – Documentos Oficiales 1967-1973, vol. X, OAS General Secretariat, 1978, pp. 392-407; Comité Jurídico Interamericano, Recomendaciones e Informes – Documentos Oficiales 1965-1966, vol. IX, Rio de Janeiro, Gráf. IBGE, 1970, p. 321. 107 Cf., e.g., C. Sepúlveda, “The Reform of the Charter of the Organization of American States”, 137 RCADI(1972) pp. 107-108, and cf. pp. 99-101 and 131. On the historical experience of the old Inter-American Commission of Peace (formally constituted in 1948), cf. A. Herrarte, “Solución Pacífica de las Controversias en el Sistema Interamericano”, VI Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano (1979), Washington D.C., OAS General Secretariat, 1980, p. 231, and cf. pp. 222-223. 108 For an account, cf. F.O. Salvioli, “Las Sentencias del Tribunal Arbitral sobre el Diferendo Argentino-Chileno en Relación al Recorrido del Límite entre el Hito 62 y el Monte Fiz Roy”, 101/103 Boletim da Sociedade Brasileira de Direito Internacional (1996) pp. 187-205.

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foreseen in the Charter was being made use of – to resort to the OAS Permanent Council to obtain its good offices (Article 84); such direct recourse replaced the previous requirement of prior consent of both, or all, contending parties. Moreover, the former Inter-American Commission on Peaceful Settlement, set up by the 1967 reform of the OAS Charter (supra), was replaced by the OAS Permanent Council’s new faculty of establishing ad hoc Commissions, with the acquiescence of the contending parties (Articles 85-87). With the new OAS Charter reforms of 1985,109 a more practical and flexible mechanism was thus devised, carefully avoiding, at the same time, to “impose solutions” upon either of the parties.110 Furthermore, the OAS Secretary-General became endowed with the new faculty or initiative of bringing to the attention of the OAS General Assembly or Permanent Council any question which in his opinion might affect peace in the continent (Article 116). While these initiatives of institutional reform of the OAS methods of action were being taken, with the apparent understanding that it would be proper and convenient to leave open to contending parties the largest possibilities or schemes of peaceful settlement, once again, not only inside but also outside the regional Organization new means were pursued to tackle a grave situation which was indeed affecting peace in the continent throughout the eighties: the Central-American crisis (the Contadora experiment, cf. supra). At global U.N. level, the Special Committee of the Charter of the United Nations and of the Strengthening of the Role of the Organization, established in December 1975 and composed of 47 member States, soon turned its attention precisely to the chapter of peaceful settlement of international disputes.111 In March 1978 the aforementioned Special Committee prepared a list of 51 proposals,112 and decided, in 1980, to elaborate a draft Declaration on Peaceful Settlement of 109 For an assessment, cf. J.C. Baena Soares, “Aspectos Jurídico-Políticos das Recentes Reformas da Carta da Organização dos Estados Americanos (OEA)”, 87/90 Boletim da Sociedade Brasileira de Direito Internacional (1993) pp. 59-71; J.-M. Arrighi, “Les réformes à la Charte de l’Organisation des États Américains: Problèmes des droits de traités”, 43 AFDI (1997) pp. 1-12. 110 The new mechanism in a way resembled that of the old Inter-American Commission of Peace (supra). 111 U.N., Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, suppl. nº 33 (A/32/33), 1977, pp. 39 and 42-46. There was support for the strengthening of the functions of the Security Council, the General Assembly and the Secretary General as to fact-fi nding, through the more effective use of groups of experts and fact-finding panels, – as well as for more effective conciliatory procedures; cf. ibid., pp. 143-145. 112 Cf. U.N., Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, suppl. n. 33 (A/33/33), 1978, pp. 3-4 and 63-70. The Special Committee recalled the drafting of the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the U.N. Charter; cf. ibid., pp. 15 and 21. And cf. chapter III, supra.

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Disputes.113 In 1982, the Special Committee concluded the draft of the Manila Declaration on Peaceful Settlement of International Disputes.114 The principles of good faith, of peaceful settlement of disputes, of sovereign equality of States, were reaffirmed therein.115 Part II of the draft, with 6 paragraphs, started by calling upon member States to utilize the provisions of the U.N. Charter – particularly those of chapter VI – on peaceful settlement of disputes. The document reaffirmed the function of the U.N. General Assembly of debate and – under Article 12 – recommendation of measures for peaceful settlement of situations which could affect friendly relations among States, and called upon States to utilize consultations in the ambit of the Assembly (and subsidiary organs) aiming at facilitating peaceful settlement (par. 3). It reasserted the main function of the U.N. Security Council in the area (e.g., Article 33), referring to its investigatory powers (of fact-finding) and to the utilization of subsidiary organs in the exercise of its functions (par. 4).116 The functions of the U.N. SecretaryGeneral were reaffirmed, in connection with the operation of the Security Council and the General Assembly, in the settlement of international disputes (par. 6). The Manila Declaration on Peaceful Settlement of International Disputes was adopted by U.N. General Assembly resolution 37/10, of 15 November 1982. VII. Peaceful Settlement and the Renunciation of the Use of Force in International Relations From the two Hague Peace Conferences (1899 and 1907) to date, successive endeavours have been undertaken with the concrete purpose of securing peaceful settlement and prohibiting the use or threat of force in the conduction of international relations.117 Subsequently, the system of collective security was formed (in the United Nations era), determined, to a great extent, by the nuclear deadlock, by the growing economic interdependence among States, and by the general rejection of the unilateral use of force by the States.118 In 1980, in the debates on dispute-settlement of the U.N. Special Committee on Enhancing the Effectiveness of the Principle of Non-Use of Force in Interna113 Cf. U.N., Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, suppl. n. 33 (A/35/33), 1980, pp. 63-108. 114 Submitted to the appreciation of the U.N. General Assembly. The draft started with a preamble (with 11 consideranda), followed by part I, with 13 paragraphs. 115 Cf. loc. cit. supra, suppl. n. 33 (A/37/33), 1982, pp. 9-11. 116 It further pointed out the utility of recourse to the ICJ in disputes with a predominantly juridical character and endorsed the practice of insertion into treaties of clauses foreseeing such recourse for the settlement of disputes about their interpretation and application (par. 5). 117 Cf. J. Zourek, L’interdiction de l’emploi de la force en droit international, Leiden/ Genève, Sijthoff/Inst. H.-Dunant, 1974, pp. 39-42. 118 Ibid., pp. 47-49.

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tional Relations, there was expression for the concern of non-aligned countries with their security and stability, to be better served by the emphasis on the need of a full implementation of the provisions of chapter VII of the Charter and the development of the system of peaceful settlement of disputes contained in chapter VI (rather than by the adoption of a new treaty reiterating the existing obligations).119 For the representatives of Spain as well as India, e.g., the principle of the non-use of force in international relations had become peremptory norm of International Law (jus cogens).120 In the debates of 1981, three countries of Eastern Europe – Romania, Bulgaria and Poland – lent support to the thesis that the principle of non-use of force had become an imperative norm of International Law.121 In the framework of the interrelationship between peaceful settlement and the renunciation of the use or threat of force in international relations, special attention is to be given to the endeavours of prevention of disputes at international level. Fact-finding has often been contemplated to that end. The 1988 Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in This Field, e.g., called for the “full use of the fact-finding capabilities of the Security Council, the General Assembly and the Secretary-General” in the preservation of international peace and security.122 The Handbook on the Peaceful Settlement of Disputes between States prepared by the U.N. Office of Legal Affairs, and published in 1992, contains in fact several examples of initiatives of prevention, as well as settlement, of international disputes, undertaken by the U.N. Security Council, General Assembly and the Secretary-General.123 VIII. Peaceful Settlement beyond State Voluntarism: Some New Trends As from the aforementioned United Nations debates of the eighties, an awareness seems to have been formed to the effect of overcoming the vicissitudes of free will in the present domain of International Law. In this respect, on successive occasions the initiative of a compulsory recourse to conciliation has been taken. Such proposal found expression in the 1982 U.N. Convention on the Law 119 U.N., Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-Use of Force in International Relations, suppl. nº 41 (A/34/41), 1979, pp. 2526. 120 In the meaning of Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treates; cf. ibid., pp. 11 and 28-29. 121 U.N., Report of the Special Committee on Enhancing the Effectiveness of the Principle of Non-Use of Force in International Relations, suppl. n. 41 (A/37/41), 1982, pp. 17, 37, 39, 49, 55, 57, 60-61 and 84-85, respectively; that thesis was to appear in the report of the Working Group of the Special Committee; ibid., pp. 54 and 59. 122 U.N., Handbook on the Peaceful Settlement of Disputes between States, N.Y., U.N. Office of Legal Affairs/Codification Division, 1992, p. 25. 123 Ibid., pp. 120-121 and 127-129.

Peaceful Settlement of International Disputes: Current State and Perspectives

of the Sea (Articles 297(2) and (3) and 298(1)(a)), just as it likewise did in some of the “codification Conventions” (e.g., the 1969 Vienna Convention on the Law of Treaties, the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, the 1975 Vienna Convention on Representation of States in Their Relations with International Organizations of Universal Character, the 1978 Vienna Convention on State Succession in Respect of Treaties, the 1983 Vienna Convention on State Succession in Respect of Assets, Archives and Debts); compulsory recourse to conciliation was also enshrined into the 1985 Vienna Convention on the Protection of the Ozone Layer, the 1992 Framework Convention on Climate Change, the 1992 Convention on Biological Diversity. In the same line of thinking, the 1997 Ottawa Convention on Anti-Personnel Mines and the 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses lent support to the idea of compulsory recourse to fact-finding. Although the result of either conciliation or fact-finding is not compulsory, recourse to one or the other becomes so, under those respective Conventions, and it has rightly been suggested that the fact that such recourse is provided for in those multilateral treaties “may have the effect of guiding States to conform to the substantive rules of the Conventions”.124 These initiatives further suggest a determination of overcoming sheer State voluntarism, and gradually moving towards the configuration of some degree of compulsory settlement also in relation to the operation of non-jurisdictional methods of dispute settlement, – to the benefit, ultimately, of the international community as a whole. Still at United Nations level, the 1982 Manila Declaration on the Peaceful Settlement of International Disputes, the 1988 Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field, and the 1991 Declaration on Fact-Finding by the United Nations in the Field of the Maintenance of International Peace and Security, disclose an outlook of the matter which could hardly fit into a rigid positivist outlook of strict application of legal rules. They surely go beyond that outlook, in propounding peaceful settlement of international disputes also on the basis of the general principles of International Law. Another illustration to the effect that the domain of peaceful settlement of international disputes is no longer entirely open to manifestations of State voluntarism lies in the fairly recent establishment of the mechanism of dispute settlement in the ambit of the World Trade Organization [WTO]. In this latter one can identify, in fact, the advent of a jurisdictionalized mechanism of settlement of disputes (with double degree of jurisdiction 125), of compulsory character, in the ambit of the law on international trade. This mechanism comes to emphasize

124 T. Treves, “Recent Trends in the Settlement of International Disputes”, 1 Cursos Euromediterráneos Bancaja de Derecho Internacional – Castellón (1997) pp. 415-417. 125 That is, the panels and the Appellate Body.

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(although still with some imperfections in practice126) multilateralism in contemporary international relations, with rather satisfactory results to date.127 The new multilateral mechanism of settlement of disputes of the WTO represents, by its very existence, a sensible advance in the present domain of International Law. To start with, it establishes an obligation of conduct, in the sense of the observance of pre-established proceedings. The decisions are binding, and bring about legal consequences; the mechanism, in sum, is an integral part of Public International Law,128 and orients itself by the due process of law, what is endowed with significance and relevance. In fact, the procedure of the mechanism of settlement of disputes of the WTO was conceived in a way of promoting, as far as possible, the foreseeability and the stability in the contentieux of international trade; hence its tendency to a preponderantly juridical outlook. The Appellate Body, of the mechanism of peaceful settlement of the WTO, in some of its reports – mainly in the first of them – has emphasized that the WTO mechanism referred to, – guided by an essentially “rule-oriented” outlook, – effectively integrates International Law, and the cases resolved by it fall into the ambit of the contentieux proper of Public International Law.129 In a chapter of International Law constantly marked, to a large extent, by inter-State voluntarism, the operation of a compulsory and jurisdictionalized mechanism of peaceful settlement of international disputes is at last achieved in the field of international trade, which fulfils the need of juridical security (also in this domain), oriented by the principles and norms of Law rather than considerations of power, – what in turn reverts itself, ultimately, to the benefit of the evolution of International Law itself.130 In sum, the old ambivalence between the duty of peaceful settlement and the free choice of means (cf. supra) needs to be reassessed in our days. The time seems to have come to tip the balance in favour of the former, which corresponds 126 Calling for, e.g., the adoption of rules of its own of more universal acceptance (rather than by reference to more circumscribed experiments, such as OECD). 127 In the operation of the WTO mechanism referred to, the relationship between the environment and international trade, for example, has been considered. Cf. the Shrimp/Turtle case (1999), and comments in Ph. Sands, “Turtles and Torturers: The Transformation of International Law”, 33 New York University Journal of International Law and Politics (2000) p. 534. 128 J. Pauwelyn, “The Role of Public International Law in the WTO: How Far Can We Go?”, 95 AJIL (2001) pp. 535-578; D. Palmeter and P.C. Mavroidis, “The WTO Legal System: Sources of Law”, 92 AJIL (1998) pp. 398-413. 129 J.H. Jackson, The World Trade Organization – Constitution and Jurisprudence, London, Royal Institute of International Affairs, 1999 [reprint], pp. 61-62, 89 and 98. The Appellate Body has made it clear, in its practice, that the general principles of international law (also in the matter of interpretation of treaties) are applicable to the agreements of the WTO. 130 J. Cameron and K.R. Gray, “Principles of International Law in the WTO Dispute Settlement Body”, 50 International and Comparative Law Quarterly (2001) pp. 248298.

Peaceful Settlement of International Disputes: Current State and Perspectives

to a general principle of international law, and its prevalence over the latter, which is but a faculty open to the contending parties. The international community seems to have attained a level of consciousness to concede that the principle of peaceful settlement ought to condition the free choice of means. Developments in the present chapter of International Law in recent decades, as already indicated, appear to point in this direction. The growing institutionalization of dispute settlement systems,131 in particular under some multilateral treaties,132 is bound to foster a less permissive and more clearly rule of law-oriented approach, emphasizing obligations to cooperate, which at times may appear as being truly erga omnes partes.133 Such developments are reassuring, as they appear in keeping with the general interests of the international community. IX. Peaceful Settlement and the General Interests of the International Community It can hardly be doubted that peaceful settlement of international disputes is in keeping with the general interests of the international community. By and large, at universal level, States have displayed in most cases a certain preference for less rigid and more flexible methods of conflict resolution, suitable to the circumstances of the cas d’espèce, – but this has not impeded them to resort, in some cases, to arbitral and judicial solutions. There have lately been attempts of codification and progressive development of the matter at universal U.N. level,134 and some progress has indeed been achieved in recent years, as illustrated by the mechanism of dispute-settlement of the 1982 U.N. Convention on the Law of the Sea. Furthermore, the reaction of some States expressing their preference for compulsory settlement of disputes under the 1985 Vienna Convention for the Protection of the Ozone Layer has disclosed a greater awareness in the international community as to the need of international compulsory jurisdiction.135

131 Such as, inter alia, as already seen, the panels and the Appelate Body of the current mechanism of dispute settlement of the World Trade Organization (WTO, supra). 132 E.g., compulsory recourse to conciliation and to fact-fi nding (supra). 133 A. Peters, “International Dispute Settlement: A Network of Cooperational Duties”, 14 European Journal of International Law (2003) pp. 1-5, 9-11 and 30-34. 134 Such as, e.g., at global (United Nations) level, the 1982 Manila Declaration on the Peaceful Settlement of International Disputes; the 1988 U.N. Declaration on the Prevention and Removal of Disputes and Situations Which May Th reaten International Peace and Security and on the Role of the United Nations on This Field; and various U.N. General Assembly resolutions (including resolution 44/21, of 15.11.1989) on the enhancement of international peace in accordance with the U.N. Charter. Cf. B. Boutros-Ghali, An Agenda for Peace (1995), 2nd. ed. (with Supplement), N.Y., U.N., 1995, p. 52. 135 Cf. chapter XXV, infra, on the matter.

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If international practice yielded in the past to State voluntarism, such posture is in our days under heavy criticism;136 distinct domains of Public International Law have long overcome the voluntarist dogma,137 and there is reason for hope that dispute-settlement may also evolve to the same effect. There exists nowadays, at least, a growing awareness of some factors which can pave the way for advances in this matter to this end.138 First, there is consensus nowadays as to the importance of prevention, – of taking all possible preventive measures to avoid the outbreak and escalation of conflicts. Secondly, the understanding seems now to prevail whereby settlement of disputes cannot focus only on the symptoms, but ought to encompass also the underlying causes which generate them, and their removal, – if a durable solution is to be achieved at all. And thirdly, there is today, furthermore, generalized awareness of the need to find such permanent solutions to conflicts, and of the virtual impossibility to reach them without a sense of fairness and justice. After all, peace and justice go hand in hand; one cannot be achieved without the other. Thus, although peaceful settlement of international disputes remains a chapter of International Law marked by the ambivalence between the general duty underlying it and – in most cases – the prerrogative of free choice of means, it is bound to benefit from recent advances on international adjudication in particular.139 After all, this is also a domain of International Law which, despite that ambivalence, for over a century, – from the two Hague Peace Conferences of 1899 and 1907 to date, – has been constantly revised and revitalized by initiatives aiming to explore the potential of the consolidated methods of dispute-settlement.140 The advent of the League of Nations, added to the 1928 Briand-Kellogg Pact, in turn, contributed to relate peaceful settlement to advances in the substantive law itself.141 In the United Nations era, there have been successive initiatives of in-

136 Cf. chapter I, supra. 137 E.g., the international protection of human rights, the law of international organizations, the international regulation of spaces – particularly as regards the so-called “global commons”, – the international protection of the environment, to name a few. 138 A.A. Cançado Trindade, “Regional Arrangements and Conflict Resolution in Latin America”, in Conflict Resolution: New Approaches and Methods, Paris, UNESCO, 2000, pp. 141-162. 139 Cf. chapter XXV, infra. 140 In historical perspective, it is reckoned that the two aforementioned Hague Peace Conferences contributed in particular to such methods as mediation and good offices, besides dwelling upon investigation and arbitral procedure; L. Caflisch, op. cit. supra n. (59), pp. 308-309 and 325. And cf. also, generally, Permanent Court of Arbitration, The Hague Peace Conferences of 1899 and 1907 and International Arbitration – Reports and Documents (ed. S. Rosenne), The Hague, T.M.C. Asser Press, 2001, pp. 21-457; R. Redslob, Traité de droit des gens, Paris, Rec. Sirey, 1950, pp. 354-359 and 368-377. 141 L. Caflisch, op. cit. supra n. (59), pp. 259-261.

Peaceful Settlement of International Disputes: Current State and Perspectives

stitutionalization of procedures of peaceful settlement (e.g., conciliation), under codification Conventions and other multilateral treaties (cf. supra). Thus, the new approach to the technique of choice of procedures, inaugurated by the 1982 Law of the Sea Convention, was retaken (in a simplified way, with a choice between the ICJ and arbitration) by the 1991 Protocol of Madrid on the Protection of the Antarctica Environment. This is likewise found (in the same simplified formula), although without a compulsory character, in the 1985 Convention on the Protection of the Ozone Layer, in the 1992 Framework Convention on Cimate Change, and in the 1992 Helsinki Conventions on Protection and Utilization of Transfrontier Watercourses and International Lakes, and on Transfrontier Effects of Industrial Accidents; although rendered entirely optional by those treaties, the latitude of choice of procedures open to the contending parties at least seeks to ensure the settlement of disputes thereunder.142 Parallel to the multilateral treaties, the U.N. General Assembly has, on distinct occasions, expressed the need and has lent support to the institutionalization of procedures. It has, e.g., contemplated the method of investigation operating on a permanent basis (including even a list of fact-finders);143 it has, furthermore, recommended a wider use of a general procedure of conciliation,144 given its usefulness in practice. In one of its well-known resolutions in the present context, incorporating the Manila Declaration on Peaceful Settlement of Disputes (of 15.11.1982), the General Assembly restated the principles of peaceful settlement and good faith, and stressed its own role in the present domain (consultations within the Assembly), apart from that of the Security Council. Approved by consensus, the Manila Declaration drew renewed attention to the present chapter of International Law, and was regarded as being, above all, the “expression d’une conscience de plus en plus aiguë du besoin de la réalisation pratique du principe du règlement pacifique des différends”.145

In 1999, in the centennial celebration of the first Hague Peace Conference (1899), attention was again drawn to ideas and proposals on dispute settlement. They included, e.g., the following ones: the relevance of prevention of international disputes,146 further use of conciliation, flexible forms of mediation, institutionalization of inquiry and fact-finding, contribution in recent years of Truth and Reconciliation Commissions, enhancement of the advisory function of the ICJ, participation of non-State entities and individuals in ICJ proceedings, rendering

142 143 144 145

Ibid., pp. 448-449. G.A. resolution 2329(XXII) of 13.12.1967. G.A. resolution 50/50, of 11.12.1995. M. Sahovic, “La Déclaration de Manille sur le règlement pacifique des différends internationaux”, in Essays in International Law in Honour of Judge Manfred Lachs (ed. J. Makarczyk), The Hague, Nijhoff, 1984, p. 458, and cf. pp. 452-453. 146 As in, e.g., international environmental law.

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regional organizations entitled to request advisory opinions from the ICJ.147 The current reconsideration of the matter discloses the renewed importance attributed to it by the international community. There is, moreover, a variety of forms of dispute-settlement, some of them not necessarily involving two of more States. There are distinct kinds of disputes at international level. A considerable progress has been achieved, e.g., in the settlement of disputes opposing individual complainants to respondent States, as disclosed by the advances in the domain of the International Law of Human Rights. Much has been achieved also in specialized areas, such as those of environmental as well as commercial dispute settlement, among others. Progress may appear somewhat slow in the settlement of traditional inter-State disputes, but even here a certain awareness seems to have been developing in recent years, – otherwise the initiatives already referred to (cf. supra), and materialized, some of them, in multilateral treaties, would not have been taken and would not have flourished. Given the factual inequalities of power among juridically equal States, peaceful settlement of international disputes may be perceived as beneficial to States, and, ultimately, to the international community as a whole. After all, settlement of disputes on the basis of the rule of law is bound to serve better the interests of contending States than calculations of power with their characteristic unpredictability. When bilateral negotiations appear no longer viable, third-party dispute settlement appears needed as a guarantee against “unilateral interpretation by a State” (usually, the factually more powerful one) of given provisions.148 Peaceful settlement by means of the application of the methods known in International Law draws attention to the juridical equality of States and to the role of law in the present domain. States seem at last to have become aware that they cannot at all be expected to endanger international peace and security by placing what they perceive as their own individual interests above the general and superior interests of the international community in the maintenance of peace and realization of justice. X.

Concluding Observations

The fact that the general duty of peaceful settlement of disputes has appeared to date coupled with the free choice of means left to the contending parties, does not mean that it is in the nature of this chapter of International Law that it should always and ineluctably be so. Not at all. That general duty ensues from a general principle of International Law, that of peaceful settlement of disputes. The free 147 Cf., generally, e.g., F. Orrego Vicuña and C. Pinto, “Peaceful Settlement of Disputes: Prospects for the XXIst Century (Revised Report Prepared for the Centennial of the I International Peace Conference)”, in The Centennial of the I International Peace Conference – Reports and Conclusions (ed. F. Kalshoven), The Hague, Kluwer/UNITAR, 2000, pp. 268-399. 148 M.M.T.A. Brus, Third Party Dispute Settlement in an Interdependent World, Dordrecht, Nijhoff, 1995, p. 183.

Peaceful Settlement of International Disputes: Current State and Perspectives

choice of means is not a principle of International Law, but rather a faculty which States – duly or unduly, I see no point in indulging into conjectures here, – have reserved for themselves. The 1982 Manila Declaration on Peaceful Settlement of International Disputes, though rightly sharing, with other Declarations of the kind, an approach of the matter on the basis of general principles of International Law (cf. supra), in one specific aspect fell into an imprecision: it mistakenly called the free choice of means a “principle”, when it is nothing but a faculty granted to the contending parties, and an increasingly residual one. In that respect, the 1982 Manila Declaration drew on the 1970 Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States,149 but the Manila Declaration added a qualification, to the effect that peaceful settlement of disputes by the means freely chosen by the contending parties should be undertaken “in conformity with obligations under the Charter of the United Nations and with the principles of justice and International Law”.150 It should not pass unnoticed that Article 33(1) of the U.N. Charter, in opening up a wide choice of means of peaceful settlement to contending parties (negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional arrangements), lays down, in imperative terms (“shall [...] seek a solution”), the principle of the duty of States to settle peacefully any dispute the continuance of which is likely to endanger the maintenance of international peace and security. This is the basic principle guiding the whole matter, that of peaceful settlement, set forth in mandatory terms in Article 2(3) of the U.N. Charter. The free choice of means is but a prerrogative open to contending parties to make sure that that duty is duly complied with. Moreover, it could hardly be doubted that there have been advances in international dispute settlement in recent years, surveyed herein, tipping the balance nowadays in favour of the general principle of peaceful settlement. This is reassuring. As the prolongation and aggravation of certain international disputes can put directly at risk international peace and security, it is to be hoped that this trend will continue, and that States will be increasingly conscious that their common and general interests are much better served by reliance upon the general principle of peaceful settlement than stubborn insistence upon voluntarism, i.e., an entirely free choice of means. Almost two decades ago, in my lectures of 1987 at the Hague Academy of International Law, I saw it fit to ponder that “(...) the terminology itself of human rights treaties provides a clear indication that the rationale of their implementation, directed to protection of human rights, cannot be equated to that of the classic means of peaceful settlement of inter-State conflicts of interests. (...) The chapter on peaceful settlement of international disputes has constantly been particularly vulnerable to manifestations of State voluntarism. (...) (...) In contrast, in the fulfi lment of their international obligations (...) concerning 149 2nd. principle, par. 5. And cf. chapter III, supra. 150 3rd. principle, par. 3, and cf. par. 10; and cf. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms...”, op. cit. infra n. (151), pp. 387-388 and n. 1284.

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Chapter XXIV the settlement of ‘human rights cases’, States cannot be expected to claim or count on the same degree of freedom of action or margin of appreciation. Moreover, the relationship of equilibrium dictated by the principle of sovereign equality of States (supra) is no longer present in the settlement of human rights complaints, which is directed to the protection of the ostensibly weaker party, the alleged victims”.151

The international experience gathered and accumulated in recent years, e.g., in the settlement of human rights cases,152 has contributed to shift the emphasis onto considerations of general interest or ordre public in the peaceful settlement of international disputes in general. To this the purpose of prevention of disputes is to be added. And here we are faced with the basic legacy of the two Hague Peace Conferences (of 1899 and 1907), which has been characterized as “a landmark in the history of mankind”, in recalling, inter alia, the passage of the Final Act of the I Conference (of 1899) whereby the substantial restriction of military charges would be “extremely desirable for the increase of the material and moral welfare of mankind”.153 In peaceful dispute-settlement, in any case, despite recurring invocations of the faculty of free choice of means, the specification, by several multilateral treaties of various kinds, of choices of means of settlement of disputes open to States Parties as to their interpretation and application, notably reduces in practice the traditionally wide – and almost limitless – freedom of choice of means of peaceful settlement that States used to enjoy, or used to believe to be entitled to enjoy. The time seems now come to have a more generalized recourse to binding methods of peaceful settlement, which may operate to the benefit not only of contending parties, in settling their differences, but also, ultimately, of humankind itself, in preserving international peace and security. The decreasing discretion left to contending States is nowadays noticeable in, besides the International Law of Human Rights, also such other domains of International Law, such as the International Law of the Sea (cf. supra), among others. There is greater awareness nowadays that peaceful settlement of international disputes transcends the interests of contending States, and is in keeping with the general interests of the international community as a whole. It does in fact constitute a response to the necessities and requirements of contemporary international relations. Recent initiatives such as those of a compulsory recourse 151

A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels)”, 202 RCADI (1987) pp. 385-389, and cf. p. 390. 152 In the same line of thinking, K. Vasak has aptly emphasized the primacy, in this last domain, of the “valeurs communes à l’emsemble des États parties” to the human rights treaties at issue; K. Vasak, “Le droit international des droits de l’homme”, 140 RCADI (1974) pp. 383-384. 153 F. Kalshoven (ed.), The Centennial of the First International Peace Conference – Reports and Conclusions, The Hague, Kluwer/UNITAR, 2000, pp. 1 and 54 (interventions by F. Kalshoven and H. Blix, respectively).

Peaceful Settlement of International Disputes: Current State and Perspectives

to conciliation as well as to fact-finding, and the growing emphasis on prevention of disputes, are illustrative of the aforementioned greater awareness. Here the recourse to such methods is what becomes binding, even though the solution or outcome is not compulsory. But this trend likewise illustrates the growing awareness of the relevance of peaceful settlement, to the ultimate benefit not only of the contending parties themselves but of the international community as a whole. In a vulnerable world such as ours, the fate of one appears linked to that of the others. In fact, the international community itself is increasingly conscious that, if international disputes remain unsettled and are likely to spread, they may affect other States and, as pointed out by V. Pechota, impair “common shared values”;154 the U.N. Charter itself refers to disputes or situations likely to affect friendly relations among States and to endanger international peace and security (Articles 33 and 14), and, throughout the last decades, the concept of “international concern” has come to apply to a growing variety of situations. Thus, even a chapter of International Law so much marked in the past by State voluntarism as the present one, may be approached in the light of common and superior interests, so as to promote the values shared by the international community. Third-party settlement functions may thus be regarded as endowed with a new feature, insofar as their exercise contributes not only to settle disputes but also to restore the equilibrium of values of the international community.155 The relationship between the principles of peaceful settlement of disputes and of the duty of international cooperation in the present domain of International Law has already been pointed out (cf. supra). Other principles of International Law come likewise into play, such as that of the prohibition of the use or threat of force. Moreover, in acting in good faith (in pursuance of another basic principle), States will not only be complying with International Law, but also serving their own interests in implementing it, as, ultimately, International Law is the guardian of their own rights; in not acting in good faith, they would – as pertinently warned by M. Lachs – be risking much more than what they would have to gain.156 Bearing recent developments on the matter in mind, the conditions seem to be met for international legal doctrine to move definitively away from voluntarism and ample permissiveness (as to choice of methods) and to place greater 154 V. Pechota, “Complementary Structures of Third-Party Settlement of International Disputes”, in Dispute Settlement through the United Nations (ed. K. Venkata Raman), Dobbs Ferry N.Y., Oceana, 1977, p. 174, and cf. 217. 155 Cf. ibid., pp. 175-176 and 178-180. 156 M. Lachs, “Some Thoughts of the Role of Good Faith in International Law”, in Declarations on Principles, A Quest for Universal Peace – Liber Amicorum Discipulorumque B.V.A. Roling, Leyden, Sijthoff, 1977, p. 54; and cf. E. Zoller, La bonne foi en Droit international public, Paris, Pédone, 1977, pp. 3-354; R. Kolb, La bonne foi en Droit international public – Contribution à l’étude des principes généraux de Droit, Paris/Genève, PUF/IUHEI, 2000, pp. 3-688.

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weight upon the sense of responsibility and obligation (of peaceful setttlement of disputes), in conformity with a general principle of International Law, and in fulfilment of the general interests of the international community as a whole. Those recent developments indicate that an appropriate study of the matter at issue, if it is to reflect faithfully its present stage of evolution, should no longer take as a starting point – as the legal doctrine of the past did – the free choice of means; it should rather start from the duty of peaceful settlement emanating from a general principle of International Law, bearing in mind that the outbreak and persistence of international disputes cause damage to international relations, and their aggravation put at risk international peace and security. Hence the pressing need to have them peacefully settled, in pursuance also of the principle of the prohibition of the threat or use of force in International Law.157 Furthermore, the spectre of nuclear deadlock, and the current threat of the arsenals of weapons of mass destruction, and of the arms trade, as well as the outbreak of violent (internal) conflicts in different latitudes in recent years, mark their alarming presence in current concerns with the need to secure greater effectiveness to methods of peaceful settlement of international disputes. In the present era of blatant vulnerability of humankind, the prevalence of an international legal order giving expression to values shared by the international community as a whole appears as, more than voluntary, truly necessary.158 Peaceful settlement of disputes, in particular those which may endanger international peace and security, operates thus to the ultimate benefit of humankind as a whole. This outlook of the matter ought to illuminate the present chapter of the new jus gentium, of the International Law for humankind, at this beginning of the XXIst century. With the preceding considerations in mind, and in the same line of reasoning, the way appears now paved for the examination of what I regard as the necessity of compulsory jurisdiction for the improvement of international adjudication in particular.

157 The principles of international cooperation and good faith have also a role to play herein, disclosing the function of law in dispute-settlement; P.J.I.M. de Waart, The Element of Negotiation in the Pacific Settlement of Disputes between States, The Hague, Nijhoff, 1973, pp. 27-28 and 202, and cf. p. 5. 158 Cf. The Collected Papers of J. Westlake on Public International Law (ed. L. Oppenheim), Cambridge, Cambridge University Press, 1914, p. 79; M. Bourquin, “L’humanisation du Droit des Gens”, La technique et les principes du Droit public – Études en l’honneur de Georges Scelle, vol. I, Paris, LGDJ, 1950, p. 35; M. Bos, “Dominant Interests in International Law”, 21 Revista Española de Derecho Internacional (1968) p. 234.

Chapter XXV

I.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

International Rule of Law Beyond Peaceful Settlement of Disputes

Most of the classic works on international adjudication date from a time when one counted only on, besides the Permanent Court of Arbitration and international arbitral tribunals, the Hague Court – the Permanent Court of International Justice [PCIJ] followed by its successor, the International Court of Justice [ICJ]. In recent years international adjudication has experienced a considerable expansion, with the emergence of new international tribunals. This phenomenon appears to acknowledge that judicial settlement of international disputes comes to be seen as retaining a superiority, at least at conceptual level, in relation to political means of settlement, to the extent that the solution reached is based on the rule of law, and no State is to regard itself as standing above the law. International jurisdiction seems nowadays to go beyond the framework of methods of peaceful settlement of international disputes. Its expansion in contemporary International Law responds and corresponds to a need of the international community of our times. The international rule of law finds expression no longer only at national, but also at international, level. At this latter, the idea of a préeminence of International Law has gained ground in recent years, as acknowledged, e.g., by the Advisory Opinion of the ICJ on the Obligation to Arbitrate by Virtue of Section 21 of the 1947 U.N. Headquarters Agreement (1988); this idée-force has fostered the search for the realization of justice under the rule of law at international level, and has stressed the universal dimension of a new jus gentium in our days.1 The growth of international adjudicative organs transcends peaceful settlement of disputes, pointing to the gradual formation of a judicial branch of the international legal system.2 There is great need for a sustained law-abiding system 1

2

J.-Y. Morin, “L’état de Droit: émergence d’un principe du Droit international”, 254 Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1995) pp. 199, 451 and 462. J. Allain, “The Future of International Dispute Resolution – The Continued Evolution of International Adjudication”, in Looking Ahead: International Law in the 21st Century / Tournés vers l’avenir: Le droit international au 21ème siècle (Proceedings

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of international relations3 (a true international rule of law); nowadays “any progress in International Law passes through progress in international adjudication”.4 Judicial settlement bears testimony of the superiority of law over will or pressure or force. The applicable legal norms preexist the dispute itself. Some advances have been achieved in recent years in the domain of international compulsory jurisdiction, although there appears to remain still a long way to go. A current reassessment of international adjudication can thus be appropriately undertaken, in my view, in historical perspective and in the context of the growth of international jurisdiction, bearing in mind the recurring need and quest for compulsory jurisdiction, in pursuance of the realization of international justice. II.

International Rule of Law: The Saga of the Optional Clause of Compulsory Jurisdiction

1.

From the Professed Ideal to a Distorted Practice

In this respect, one may initially recall the legislative history of the provision of the optional clause of compulsory jurisdiction, as found in Article 36(2) of the Statute of the ICJ, which is essentially the same as the corresponding provision of the Statute of its predecessor, the old PCIJ. The aforementioned Article 36(2) establishes that “The States Parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a) the interpretation of a treaty; b) any question of international law; c) the existence of any fact which, if established, would constitute a breach of an international obligation; d) the nature or extent of the reparation to be made for the breach of an international obligation”.

Article 36(3) adds that “the declaration referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain States, or for a certain time”.5

3

4 5

of the 29th Annual Conference of the Canadian Council of International Law, Ottawa, October 2000), The Hague, Kluwer, 2002, pp. 65, 67, 69 and 71, and cf. pp. 61 and 64. Bin Cheng, “Whither International Law?”, in Contemporary Issues in International Law (eds. D. Freestone, S. Subedi and S. Davidson), The Hague, Kluwer, 2002, pp. 56 and 35. J. Allain, A Century of International Adjudication: The Rule of Law and Its Limits, The Hague, T.M.C. Asser Press, 2000, p. 186, and cf. p. 185. And Article 36(6) determines that “in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court”.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

The origin of the aforementioned provision is found in the travaux préparatoires of the original Statute of the PCIJ. This latter was drafted in 1920 by an Advisory Committee of Jurists (of 10 members),6 appointed by the Council of the League of Nations, and which met at The Hague, in June-July 1920. On that occasion there were those who favoured the pure and simple recognition of the compulsory jurisdiction of the future PCIJ, to what the more powerful States were opposed, objecting that one had gradually to come to trust the international tribunal to be created, before conferring upon it compulsory jurisdiction tout court. In order to overcome the deadlock within the Committee of Jurists referred to, one of its members, the Brazilian jurist Raul Fernandes, proposed the ingenuous formula which was to become Article 36(2) of the Statute – the same as the one of the present Statute of the ICJ, – which came to be known as the “optional clause of the compulsory jurisdiction”.7 The Statute, approved on 13.12.1920, entered into force on 01.09.1921.8 At that time, the decision that was taken constituted the initial step that, during the period of 1921-1940, contributed to attract the acceptance of the compulsory jurisdiction – under the optional clause – of the PCIJ by a total of 45 States.9 The formula of Raul Fernandes,10 firmly supported by the Latin-American States,11 was incorporated into the Statute of the PCIJ; it served its purpose 6

7 8

9

10

11

Namely: Mr. Adatci (Japan), Altamira (Spain), Fernandes (Brazil), Baron Descamps (Belgium), Hagerup (Norway), De La Pradelle (France), Loder (The Netherlands), Lord Phillimore (Great Britain), Ricci Busatti (Italy) and Elihu Root (United States). Cf. R.P. Anand, Compulsory Jurisdiction of the International Court of Justice, New Delhi/Bombay, Asia Publ. House, 1961, pp. 19 and 34-36. For an account, cf., inter alia, J.C. Witenberg, L’organisation judiciaire, la procédure et la sentence internationales – Traité pratique, Paris, Pédone, 1937, pp. 22-23; L. Gross, “Compulsory Jurisdiction under the Optional Clause: History and Practice”, The International Court of Justice at a Crossroads (ed. L.F. Damrosch), Dobbs Ferry/ N.Y., ASIL/Transnational Publs., 1987, pp. 20-21. Cf. the account of a Judge of the old PCIJ, M.O. Hudson, International Tribunals – Past and Future, Washington, Carnegie Endowment for International Peace/ Brookings Institution, 1944, pp. 76-78. – That total of 45 States represented, in reality, a high proportion, at that epoch, considering that, at the end of the thirties, 52 States were members of the League of Nations (of which the old PCIJ was not part, distinctly from the ICJ, which is the main judicial organ of the United Nations, and whose Statute forms an organic whole with the U.N. Charter itself). In his book of memories published in 1967, Raul Fernandes revealed that the Committee of Jurists of 1920 was faced with the challenge of establishing the basis of the jurisdiction of the PCIJ (as from the mutual consent among the States) and, at the same time, of safeguarding and reaffi rming the principle of the juridical equality of the States; cf. R. Fernandes, Nonagésimo Aniversário – Conferências e Trabalhos Esparsos, vol. I, Rio de Janeiro, M.R.E., 1967, pp. 174-175. J.-M. Yepes, “La contribution de l’Amérique Latine au développement du Droit international public et privé”, 32 RCADI (1930) p. 712; F.-J. Urrutia, “La Codification du Droit International en Amérique”, 22 RCADI (1928) pp. 148-149; and cf., more

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in the folowing two decades. Even before the creation and operation of the PCIJ in the period already referred to, the pioneering example of the Central American Court of Justice, created in 1907, should not pass unnoticed. That Court, endowed with a wide jurisdiction, and to which individuals had direct access (enabled to complain even against their own States), operated on a continuous basis during one decade (1908-1918). It heralded the advances of the rule of law at international level, and, during its existence, it was regarded as giving expression to the “Central American conscience”.12 At the San Francisco Conference of 1945, the possibility was contemplated to take a step forward, with an eventual automatic acceptance of the compulsory jurisdiction of the new ICJ; nevertheless, the great powers – in particular the United States and the Soviet Union – were opposed to this evolution, sustaining the retention, in the Statute of the new ICJ, of the same “optional clause of compulsory jurisdiction” of the Statute of 1920 of the predecessor PCIJ. The rapporteur of the Commission of Jurists (entrusted with the study of the matter at the San Francisco Conference of 1945), the French jurist Jules Basdevant, pointed out that, although the majority of the members of the Commission favoured the automatic acceptance of the compulsory jurisdiction, there was no political will at the Conference (and nor in the Dumbarton Oaks proposals) to take this step forward.13 Consequently, the same formulation of 1920, which corresponded to a conception of International Law of the beginning of the XXth century, was maintained in the present Statute of the ICJ. Due to the intransigent position of the more powerful States, a unique oportunity was lost to overcome the lack of automatism of the international jurisdiction and to foster a greater development of the compulsory jurisdiction of the international tribunal. It may be singled out that all this took place at the level of purely inter-State relations. The formula of the optional clause of compulsory jurisdiction (of the ICJ) which exists today, is nothing more than a scheme of the twenties, stratified in time,14 and which,

12 13

14

recently, S.A. Alexandrov, Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice, Dordrecht, Nijhoff, 1995, pp. 7-8. C.J. Gutiérrez, La Corte de Justicia Centroamericana, San José of Costa Rica, Ed. Juricentro, 1978, pp. 31, 42, 106, 150-154 and 157-158. Cf. the account of R.P. Anand, op. cit. supra n. (7), pp. 38-46; and cf. also, on the issue, S. Rosenne, The Law and Practice of the International Court, vol. I, Leyden, Sijthoff, 1965, pp. 32-36; Ian Brownlie, Principles of Public International Law, 6th. ed., Oxford, University Press, 2003, pp. 677-678; O.J. Lissitzyn, The International Court of Justice, N.Y., Carnegie Endowment for International Peace, 1951, pp. 61-64. For expressions of pessimism as to the practice of States under that optional clause, at the end of the seventies, cf. J.G. Merrills, “The Optional Clause Today”, 50 British Year Book of International Law [BYBIL] (1979) pp. 90-91, 108, 113 and 116.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

rigorously speaking, no longer corresponds to the needs of the international contentieux not even of a purely inter-State dimension.15 Such is the case that, by mid-2005, for example, of the totality of member States of the United Nations, no more than 69 States were subject to the compulsory jurisdiction of the ICJ by acceptance of the optional clause of Article 36(2) of its Statute,16 – that is, roughly a third of the international community of our days. And several of the States which have utilized it, have made a distorted use of it, denaturalizing it, in introducing restrictions which militate against its rationale and deprive it of all efficacy. In reality, almost two-thirds of the declarations of acceptance of the aforementioned clause have been accompanied by limitations and restrictions which have rendered them “practically meaningless”.17 One may, thus, seriously question whether the optional clause keeps on serving the same purpose which inspired it at the epoch of the PCIJ.18 The rate of its acceptance in the era of the ICJ is proportionally inferior to that of the epoch of its predecessor, the PCIJ. Furthermore, throughout the years, the possibility opened by the optional clause of acceptance of the jurisdiction of the international tribunal became, in fact, object of excesses on the part of some States, which only accepted the compulsory jurisdiction of the ICJ in their own terms,

15

16

17

18

Regretting (as former President of the ICJ) that this outdated position has insulated the Hague Court from the great corpus of contemporary International Law, cf. R.Y. Jennings, “The International Court of Justice after Fifty Years”, 89 American Journal of International Law (1995) p. 504. For the most recently published texts of the declarations of acceptance, cf. ICJ, Yearbook 2002-2003, vol. 57, The Hague, ICJ, 2003, pp. 127-172 (by then, 64 States had deposited their declarations of acceptance). G. Weissberg, “The Role of the International Court of Justice in the United Nations System: The First Quarter Century”, The Future of the International Court of Justice (ed. L. Gross), vol. I, Dobbs Ferry N.Y., Oceana Publs., 1976, p. 163; and, on the feeeling of frustration that this generated, cf. ibid., pp. 186-190. Cf. also Report on the Connally Amendment – Views of Law School Deans, Law School Professors, International Law Professors (compiled under the auspices of the Committee for Effective Use of the International Court by Repealing the Self-Judging Reservation), New York, [1961], pp. 1-154. Cf. statistic data in G. Weissberg, op. cit. supra n. (17), pp. 160-161; however, one ought to recall the clauses compromissoires pertaining to the contentious jurisdiction of the ICJ, which, in the mid-seventies, appeared in about 180 treaties and conventions (more than two thirds of which of a bilateral character, and concerning more than 50 States – ibid., p. 164).

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with all kinds of limitations.19 Thus, it is not at all surprising that, already by the mid-fifties, one began to speak openly of a decline of the optional clause.20 Those excesses occurred precisely because, in elaborating the Statute of the new ICJ, one failed to follow the evolution of the international community. One abandoned the very basis of the compulsory jurisdiction of the ICJ to a voluntarist conception of International Law, which prevailed at the beginning of the last century, but was subsequently dismissed by its harmful consequences to the conduction of international relations, – such as vehemently warned by the more authoritative contemporary international juridical doctrine. There can be no doubt whatsoever that the distorted and incongruous practice, developed under Article 36(2) of the Statute of the ICJ, definitively does not serve as an example or model to be followed by the States Parties to treaties of protection of the rights of the human being (such as the European and American Conventions on Human Rights), in relation to the extent of the jurisdictional basis of the work of the European and Inter-American Courts of Human Rights. 2.

International Compulsory Jurisdiction: Reflections Lex Lata

Contemporary International Law has gradually evolved, putting limits to the manifestations of a State voluntarism which revealed itself as belonging to another era.21 Much progress has here been achieved due to the impact of the International Law of Human Rights upon Public International Law. The methodology of interpretation of human rights treaties,22 to start with, has been developed as from the rules of interpretation set forth in International Law (such as those formulated in Articles 31-33 of the two Vienna Conventions on the Law of Treaties, 19

20

21

22

Some of them gave the impression that they thus accepted that aforementioned optional clause in order to sue other States before the ICJ, trying, however, to avoid themselves to be sued by other States; J. Soubeyrol, “Validité dans le temps de la déclaration d’acceptation de la juridiction obligatoire”, 5 Annuaire français de Droit international (1959) pp. 232-257, esp. p. 233. C.H.M. Waldock, “Decline of the Optional Clause”, 32 BYBIL (1955-1956) pp. 244287. And, on the origins of this decline, cf. the Dissenting Opinion of Judge Guerrero in the Norwegian Loans case (Judgment of 06.07.1957), ICJ Reports (1957) pp. 69-70. When this outlook still prevailed to some extent, in a classic book published in 1934, Georges Scelle, questioning it, pointed out that the self-attribution of discretionary competence to the rulers, and the exercise of functions according to the criteria of the power-holders themselves, were characteristics of a not much evolved, imperfect, and still almost anarchical international society; G. Scelle, Précis de droit des gens – Principes et systématique, part II, Paris, Rec. Sirey, 1934 (reed. 1984), pp. 547548. And cf., earlier on, to the same effect, L. Duguit, L’État, le Droit objectif et la loi positive, vol. I, Paris, A. Fontemoing Ed., 1901, pp. 122-131 and 614. As can be inferred from the vast international case-law in this respect, analysed in detail in: A.A. Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI, Santiago/Mexico/Buenos Aires/Barcelona, Editorial Jurídica de Chile, 2001, pp. 15-58.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

of 1969 and 1986), comprising not only the substantive norms (on the protected rights) but also the clauses that regulate the mechanisms of international protection. The optional clauses of recognition of the contentious jurisdiction of both the European Court of Human Rights [ECtHR] (prior to Protocol n. 11 to the European Convention)23 and the Inter-American Court of Human Rights [IACtHR] found inspiration in the model of the optional clause of compulsory jurisdiction of the ICJ, – a formula originally conceived 90 years ago (cf. supra). Despite the common origin, in search of the realization of the ideal of international justice, the rationale of the application of the optional clause has been interpreted in a fundamentally distinct way, on the one hand in inter-State litigation, and on the other hand in that of human rights. In the former, considerations of contractual equilibrium between the Parties, of reciprocity, of procedural balance in the light of the juridical equality of the sovereign States have prevailed to date; in the latter, there has been a primacy of considerations of ordre public, of the collective guarantee exercised by all the States Parties, of the accomplishment of a common goal, superior to the individual interests of each Contracting Party (cf. infra). The two aforementioned international human rights Tribunals have found themselves under the duty to preserve the integrity of the regional conventional system of protection of human rights as a whole. In their common understanding, it would be inadmissible to subordinate the operation of the respective conventional mechanisms of protection to restrictions not expressly authorized by the European and American Conventions, interposed by the States Parties in their instruments of acceptance of the optional clauses of compulsory jurisdiction of the two Courts (Article 62 of the American Convention, and Article 46 of the European Convention before Protocol n. 11). Th is would not only immediately affect the efficacy of the operation of the conventional mechanism of protection at issue, but, furthermore, it would fatally impede its possibilities of future development. By virtue of the principle ut res magis valeat quam pereat, which corresponds to the so-called effet utile (sometimes called the principle of effectiveness), widely supported by case-law, States Parties to human rights treaties ought to secure to the conventional provisions the proper effects at the level of their respective domestic legal orders. Such principle applies not only in relation to substantive norms of human rights treaties (that is, those which provide for the protected rights), but also in relation to procedural norms, in particular those relating to the right of individual petition and to the acceptance of the contentious 23

Protocol n. 11 to the European Convention of Human Rights entered into force on 01.11.1998. On the original optional clause (Article 46) of the European Convention, cf. Council of Europe/Conseil de l’Europe, Collected Edition of the ‘Travaux Préparatoires’ of the European Convention on Human Rights/Recueil des Travaux Préparatoires de la Convention Européenne des Droits de l’Homme, vol. IV, The Hague, Nijhoff, 1977, pp. 200-201 and 266-267; and vol. V, The Hague, Nijhoff, 1979, pp. 58-59.

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jurisdiction of the international judicial organs of protection.24 Such conventional norms, essential to the efficacy of the system of international protection, ought to be interpreted and applied in such a way as to render their safeguards truly practical and effective, bearing in mind the special character of the human rights treaties and their collective implementation. The ECtHR had the occasion to pronounce in this respect. Thus, in its Judgment on Preliminary Objections (of 23.03.1995) in the case of Loizidou versus Turkey, it warned that, in the light of the letter and the spirit of the European Convention the possibility cannot be inferred of restrictions to the optional clause relating to the recognition of the contentious jurisdiction of the ECtHR,25 by analogy with the permissive State practice under Article 36 of the Statute of the ICJ; under the European Convention, a practice of the States Parties was formed precisely a contrario sensu, accepting such clause without restrictions.26 In the domain of the international protection of human rights, there are no “implicit” limitations to the exercise of the protected rights; and the limitations set forth in the treaties of protection ought to be restrictively interpreted. The optional clause of compulsory jurisdiction of the international tribunals of human rights makes no exception to that: it does not admit limitations other than those expressly contained in the human rights treaties at issue, and, given its capital importance, it could not be at the mercy of limitations not foreseen therein and invoked by the States Parties for reasons or vicissitudes of domestic order.27 24

25 26

27

Cf., to this effect, the decision of the old European Commission of Human Rights (EComHR) in the case Chrysostomos et alii versus Turkey (1991), in EComHR, Decisions and Reports, vol. 68, Strasbourg, C.E., [1991], pp. 216-253; and cf., earlier on, the obiter dicta of the Commission, to the same effect, in its decisions in the Belgian Linguistic Cases (1966-1967) and in the cases Kjeldsen, Busk Madsen and Pedersen versus Denmark (1976). Article 46 of the European Convention, prior to the entry into force, on 01.11.1998, of Protocol n. 11 to the European Convention. Moreover, it referred to the fundamentally distinct context in which international tribunals operate, the ICJ being “a free-standing international tribunal which has no links to a standard-setting treaty such as the Convention”; cf. European Court of Human Rights (ECtHR), Case of Loizidou versus Turkey (Preliminary Objections), Strasbourg, C.E., Judgment of 23.03.1995, p. 25, par. 82, and cf. p. 22, par. 68. On the prevalence of the conventional obligations of the States Parties, cf. also the Court’s obiter dicta in its previous decision, in the Belilos versus Switzerland case (1988). – The Hague Court, in its turn, in its Judgment of 04.12.1998 in the Fisheries Jurisdiction case (Spain versus Canada), yielded to the voluntarist subjectivism of the contending States (cf. ICJ Reports (1998) pp. 438-468), the antithesis of the very notion of international compulsory jurisdiction, – provoking Dissenting Opinions of five of its Judges, to whom the ICJ put at risk the future itself of the mechanism of the optional clause under Article 36(2) of its Statute, paving the way to an eventual desertion from it (cf. ibid., pp. 496-515, 516-552, 553-569, 570-581 and 582-738, respectively). – And cf. chapter XII, supra. Cf. IACtHR, case of Castillo Petruzzi and Others versus Peru (Preliminary Objections), Judgment of 04.09.1998, Series C, n. 41, Concurring Opinion of Judge A.A.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

In their classic studies on the basis of the international jurisdiction, C.W. Jenks and C.H.M. Waldock warned, already in the decades of the fifties and the sixties, as to the grave problem presented by the insertion, by the States, of all kinds of limitations and restrictions in their instruments of acceptance of the optional clause of compulsory jurisdiction (of the ICJ).28 Although those limitations had never been foreseen in the formulation of the optional clause, States, in the face of such legal vacuum, have felt, nevertheless, “free” to insert them. Such excesses have undermined, in a contradictory way, the basis itself of the system of international compulsory jurisdiction. As well pointed out in a classic study on the matter, the instruments of acceptance of the contentious jurisdiction of an international tribunal should be undertaken “on terms which ensure a reasonable measure of stability in the acceptance of the jurisdiction of the Court”,29 – that is, in the terms expressly provided for in the international treaty itself (cf. infra). The clause pertaining to the compulsory jurisdiction of international human rights tribunals constitutes, in my view, a fundamental clause (cláusula pétrea) of the international protection of the human being, which does not admit any restrictions other than those expressly provided for in the human rights treaties at issue. This has been so established by the IACtHR in its Judgments on Competence in the cases of the Constitutional Tribunal and Ivcher Bronstein versus Peru (1999): “Recognition of the Court’s compulsory jurisdiction is a fundamental clause (cláusula pétrea) to which there can be no limitations except those expressly provided for in Article 62(1) of the American Convention. Because the clause is so fundamental to the operation of the Convention’s system of protection, it cannot be at the mercy of limitations not already stipulated but invoked by States Parties for reasons of domestic order”.30

The permissiveness of the insertion of limitations, not foreseen in the human rights treaties, in an instrument of acceptance of an optional clause of compul-

28

29 30

Cançado Trindade, pars. 36 and 38. Examples of such excesses have been the objections of domestic jurisdiction (domestic jurisdiction/compétence nationale exclusive) of States, the foreseeing of withdrawal at any moment of the acceptance of the optional clause, the foreseeing of subsequent modification of the terms of acceptance of the clause, and the foreseeing of insertion of new reservations in the future; cf. C.W. Jenks, The Prospects of International Adjudication, London, Stevens, 1964, p. 108, and cf. pp. 113, 118 and 760-761; C.H.M. Waldock, “Decline of the Optional Clause”, op. cit. supra n. (20), p. 270; and for criticisms of those excesses, cf. A.A. Cançado Trindade, “The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organisations”, 25 International and Comparative Law Quarterly (1976) pp. 744-751. C.W. Jenks, op. cit. supra n. (28), pp. 760-761. IACtHR, case of the Constitutional Tribunal (Competence), Judgment of 24.09.1999, Series C, n. 55, p. 44, par. 35; CtIADH, case of Ivcher Bronstein (Competence), Judgment of 24.09.1999, Series C, n. 54, p. 39, par. 36.

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sory jurisdiction,31 represents a regrettable historical distortion of the original conception of such clause, in my view unacceptable in the field of the international protection of the rights of the human person. It is the duty of an international tribunal of human rights to look after the due application of the human rights treaty at issue in the framework of the domestic law of each State Party, so as to secure the effective protection in the ambit of this latter of the human rights set forth in such treaty.32 Any understanding to the contrary would deprive the international human rights tribunal at issue of the exercise of the function and of the duty of protection inherent to its jurisdiction, failing to ensure that the human rights treaty has the appropiate effects (effet utile) in the domestic law of each State Party. The case of Hilaire versus Trinidad and Tobago (Preliminary Objections, Judgment of 1st September 2001) before the IACtHR led one to a more detailed examination of that specific point. Article 62(1) and (2) of the American Convention on Human Rights provides that “A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention. Such declaration may be made unconditionally, on the condition of reciprocity, for a specified period, or for specific cases. It shall be presented to the Secretary General of the Organization, who shall transmit copies thereof to the other member States of the Organization and to the Secretary of the Court”.33

In fact, the modalities of acceptance, by a State Party to the Convention, of the contentious jurisdiction of the IACtHR, are expressly stipulated in the aforementioned provisions. The formulation of the optional clause of compulsory jurisdiction of the IACtHR, in Article 62 of the American Convention, is not simply illustrative, but clearly precise. No State is obliged to accept an optional clause,

31 32

33

Exemplified by State practice under Article 36(2) of the ICJ Statute (supra). If it were not so, there would be no juridical security in international litigation, with harmful consequences above all in the domain of the international protection of human rights. The intended analogy between the classic inter-State contentieux and the international contentieux of human rights – fundamentally distinct domains – is manifestly inadequate, as in this latter the considerations of a superior order (international ordre public) have primacy over State voluntarism. The States cannot count on the same latitude of discretionality which they have reserved to themselves in the traditional context of the purely inter-State litigation. Paragraph 3 of Article 62 of the Convention adds that: – “The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it, provided that the States Parties to the case recognize or have recognized such jurisdiction, whether by special declaration pursuant to the preceding paragraphs, or by a special agreement”.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

as its own name indicates.34 But if a State Party decides to accept it, it ought to do so in the terms expressly stipulated in such clause. According to Article 62(2) of the Convention, the acceptance, by a State Party, of the contentious jurisdiction of the IACtRH, can be made in four modalities, namely: a) unconditionally; b) on the condition of reciprocity; c) for a specified period; and d) for specific cases. Those, and only those, are the modalities of acceptance of the contentious jurisdiction of the IACtHR foreseen and authorized by Article 62(2) of the Convention, which does not authorize the States Parties to interpose any other conditions or restrictions (numerus clausus). In my Concurring Opinion in the aforementioned Hilaire versus Trinidad and Tobago case, I saw it fit to ponder that, “(...) In this matter, it cannot be sustained that what is not prohibited, is permitted. This posture would amount to the traditional – and surpassed – attitude of the laisser-faire, laisser-passer, proper to an international legal order fragmented by the voluntarist State subjectivism, which in the history of Law has ineluctably favoured the more powerful ones. Ubi societas, ibi jus... At this beginning of the XXIst century, in an international legal order wherein one seeks to affirm superior common values, among considerations of international ordre public, as in the domain of the International Law of Human Rights, it is precisely the opposite logic which ought to apply: what is not permitted, is prohibited. If we are really prepared to extract the lessons of the evolution of International Law in a turbulent world throughout the XXth century, (...) we cannot abide by an international practice which has been subservient to State voluntarism, which has betrayed the spirit and purpose of the optional clause of compulsory jurisdiction, – to the point of entirely denaturalizing it, – and which has led to the perpetuation of a world fragmented into State units which regard themselves as final arbiters of the extent of the contracted international obligations, at the same time that they do not seem truly to believe in what they have accepted: the international justice” (pars. 24-25).

In its Judgment in the case of Hilaire versus Trinidad and Tobago, the IACtHR rightly observed that, if restrictions interposed in the instrument of acceptance of its contentious jurisdiction were accepted, in the terms proposed by the respondent State in the cas d’espèce, not expressly foreseen in Article 62 of the American Convention, this would lead to a situation in which it would have “as first parameter of reference the Constitution of the State and only subsidiarily the American Convention”, a situation which would “bring about a fragmentation of the international legal order of protection of human rights and would render illusory the object and purpose of the American Convention” (par. 93). And the Court correctly added that 34

Thus, a “reservation” to the optional clause of compulsory jurisdiction of the IACtHR of Article 62 of the American Convention would amount simply to the non-acceptance of that clause, what is foreseen in the Convention.

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Chapter XXV “ (...) The instrument of acceptance, on the part of Trinidad and Tobago, of the contentious jurisdiction of the Tribunal, does not fit into the hypotheses foreseen in Article 62(2) of the Convention. It has a general scope, which ends up by subordinating the application of the American Convention to the domestic law of Trinidad and Tobago in a total way and pursuant to what its national tribunals decide. All this implies that this instrument of acceptance is manifestly incompatible with the object and purpose of the Convention” (par. 88).

This conclusion of the IACtHR found clear support in the precise, and quite clear, formulation of Article 62(2) of the American Convention. Bearing in mind the three component elements of the general rule of interpretation bona fides of treaties – text in the current meaning, context, and object and purpose of the treaty – set forth in Article 31(1) of the two Vienna Conventions on the Law of Treaties (of 1969 and 1986), it could be initially inferred that the text, in the current meaning (numerus clausus), of Article 62(2) of the American Convention, fully corroborated the decision taken by the IACtHR in that Judgment. In the theory and practice of International Law one has sought to distinguish a “reservation” from an “interpretative declaration”,35 in conformity with the legal effects which are intended to be attributed to one and the other.36 In any case, in considering the meaning and scope of a declaration of acceptance of an optional clause of compulsory jurisdiction, – such as the one presented by Trinidad and Tobago under Article 62 of the American Convention and interposed as preliminary objection in the present case Hilaire, – one has to bear 35

36

Cf. U.N./International Law Commission, “Draft Guidelines on Reservations to Treaties”, in: U.N., Report of the International Law Commission on the Work of Its 51st Session (May/July 1999), G.A.O.R. – Suppl. n. 10 (A/54/10/Corr.1-2), 1999, pp. 18-24, item 1.3; and in: Report of the International Law Commission on the Work of Its 52nd Session (May/June and July/August 2000), G.A.O.R. – Suppl. n. 10 (A/55/10), 2000, pp. 229-272, item 1.7. For an examination of the question, cf., e.g., F. Horn, Reservations and Interpretative Declarations to Multilateral Treaties, The Hague/Uppsala, T.M.C. Asser Instituut/ Swedish Institute of International Law, 1988, pp. 98-110 and 229-337, and cf. pp. 184222; D.M. McRae, “The Legal Effect of Interpretative Declarations”, 49 BYBIL (1978) pp. 155-173. Thus, if one intends to clarify the meaning and scope of a given conventional provision, it is an interpretative declaration, while if one intends to modify a given conventional provision or to exclude its application, it is a reservation. In practice, it has not always been easy to draw the dividing line between one and the other, as illustrated by the controversy which has surrounded, in the last decades, the question of the legal effects of declarations inserted into the instruments of acceptance of the optional clause of compulsory jurisdiction, given the sui generis character of such clause. It may be recalled that in the well-known case of Belilos versus Switzerland (1988), the ECtHR considered that a declaration interposed by Switzerland amounted to a reservation – of a general character – to the European Convention on Human Rights, incompatible with the object and purpose of this latter. ECtHR, Belilos versus Switzerland case, Judgment of 29.04.1988, Series A, n. 132, pp. 20-28, pars. 38-60.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

in mind the nature of the treaty in which that clause appears. This corresponds to the “context”, precisely the second component element of the general rule of interpretation of treaties set forth in Article 31 of the two Vienna Conventions on the Law of Treaties. In the Hilaire versus Trinidad and Tobago case (supra), the IACtHR had duly done so, in stressing the special character of the human rights treaties (pars. 94-97). Likewise, the IACtHR has kept constantly in mind the third component element of that general rule of interpretation, namely, the “object and purpose” of the treaty at issue, the American Convention on Human Rights (pars. 82-83 and 88). Thus, the understanding advanced in the cas d’espèce by the respondent State of the scope of its own acceptance of the optional clause of compulsory jurisdiction of the IACtHR, did not resist the proper interpretation of Article 62 of the American Convention, developed in the light of the canons of interpretation of the law of treaties. As I saw it fit to point out, in this respect, in my Separate Opinion in the case Blake versus Guatemala (Reparations, 1999) before the InterAmerican Court, “(...) In contracting conventional obligations of protection, it is not reasonable, on the part of the State, to assume a discretion so unduly broad and conditioning of the extent itself of such obligations, which would militate against the integrity of the treaty. (...) In so far as human rights treaties are concerned, one is to bear always in mind the objective character of the obligations enshrined therein, the autonomous meaning (in relation to the domestic law of the States) of the terms of such treaties, the collective guarantee underlying them, the wide scope of the obligations of protection and the restrictive interpretation of permissible restrictions. These elements converge in sustaining the integrity of human rights treaties, in seeking the fulfi llment of their object and purpose, and, accordingly, in establishing limits to State voluntarism”.37

3.

International Compulsory Jurisdiction: Reflections De Lege Ferenda

A further line of reflections, de lege ferenda, on international compulsory jurisdiction, is here called for. The “judicial decisions”, referred to in the enumeration of the formal sources and evidences of International Law, set forth in Article 38(1)(d) of the Statute of the ICJ,38 certainly are not limited to the case-law of the ICJ itself.39 They likewise comprise, nowadays, the judicial decisions of the international tribunals (Inter-American and European Courts) of human rights, of the 37

38 39

IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999, Series C, n. 48, Separate Opinion of Judge A.A. Cançado Trindade, pp. 114-115, pars. 3233. As “subsidiary means for the determination of rules of law”. As this latter itself has acknowledged, e.g., in its Judgment of 18.11.1960 in the case of the Arbitral Award of the King of Spain of 1906 (Honduras versus Nicaragua), ICJ Reports (1960) pp. 204-217.

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ad hoc International Criminal Tribunals (for ex-Yugoslavia40 and for Rwanda41), of the International Tribunal for the Law of the Sea, of other international42 and arbitral tribunals,43 as well as of national tribunals in matters of International Law.44 This development may confer an increasingly greater importance to caselaw as a formal “source” of International Law,45 as one considers the further creation (in 2002), – parallel to the international tribunals aforementioned, – of the new mixed or “internationalized” criminal courts46 (for Sierra Leone, Kosovo, East Timor, and Cambodia, each one with its own distinctive features).47 This expansion of international jurisdiction has been contributing, in my understand40

41

42

43

44

45 46 47

Cf. K. Lescure, Le Tribunal Pénal International pour l’ex-Yougoslavie, Paris, Montchrestien, 1994, pp. 15-133; R. Kerr, The International Criminal Tribunal for the Former Yugoslavia, Oxford, OUP, 2004, pp. 1-219; A. Cassese, “The International Criminal Tribunal for the Former Yugoslavia and Human Rights”, 2 European Human Rights Law Review (1997) pp. 329-352. Cf., e.g., L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law, Leiden, Nijhoff, 2005, pp. 1-284; R.S. Lee, “The Rwanda Tribunal”, 9 Leiden Journal of International Law (1996) pp. 37-61; [Various Authors,], “The Rwanda Tribunal: Its Role in the African Context”, 37 International Review of the Red Cross (1997) n. 321, pp. 665-715 (studies by F. Harhoff, C. Aptel, D. Wembou, C.M. Peter, and G. Erasmus and N. Fourie). Reference may be made to other contemporary international tribunals, such as the Tribunal of the Andean Union, based in Quito (with a vast case-law); the Central American Court of Justice, based in Managua; and, more recently, the Permanent Tribunal of Revision of Mercosur (set up in Asunción on 13.08.2004). For a general study, cf., e.g., K.N. Metcalf and I. Papageorgiou, Regional Integration and Courts of Justice, Antwerpen/Oxford, Intersentia, 2005, pp. 1-118. E.g., the Iran-United States Claims Tribunal, which, by mid-2005, has issued 314 awards, 30 partial awards, 238 awards on agreed terms, and 18 partial awards on agreed terms. For a general study, cf., e.g., W. Mapp, The Iran-United States Claims Tribunal – The First Ten Years, 1981-1991, Manchester, University Press, 1993, pp. 3-350. R.A. Falk, The Role of Domestic Courts in the International Legal Order, Syracuse University Press, 1964, pp. 21-52 and 170; J.A. Barberis, “Les arrêts des tribunaux nationaux et la formation du droit international coutumier”, 46 Revue de droit international de sciences diplomatiques et politiques (1968) pp. 247-253; F. Morgenstern, “Judicial Practice and the Supremacy of International Law”, 27 BYBIL (1950) p. 90. Cf. chapter V, supra. With both national and international judges. For a general study, cf., Internationalized Criminal Courts – Sierra Leone, East Timor, Kosovo, and Cambodia (eds. C.P.R. Romano, A. Nollkaemper and J.K. Kleffner), Oxford, University Press, 2004, pp. 3-444. And cf. also, e.g., S. Linton, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, 12 Criminal Law Forum (2001) pp. 185-246; R. Rossano, “La Corte Speciale per la Sierra Leone”, 12 I Diritti dell’Uomo (2001) pp. 83-87; S. de Bertodano, “Current Developments in Internationalized Courts”, 1 Journal of International Criminal Justice (2003) pp. 226-244.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

ing, to enlarge the aptitude of International Law to encompass legal relations in distinct domains of human activity.48 The IACtHR, by means of the Judgments on Preliminary Objections in the cases of Hilaire, Benjamin, and Constantine, as well as its earlier Judgments on Competence in the cases of the Constitutional Tribunal and Ivcher Bronstein, safeguarded the integrity of the American Convention on Human Rights, remained master of its own jurisdiction and acted in accordance with the high responsibilities accorded to it by the American Convention. The same can be said of the ECtHR, by means of its Judgment on Preliminary Objections in the case Loizidou versus Turkey, in so far as the European Convention on Human Rights is concerned. Thus, the two aforementioned international Tribunals of human rights, in their converging case-law on the question, have refused to yield to undue manifestations of State voluntarism, have fully performed the functions attributed to them by the human rights treaties which created them, and have given a worthy contribution to the strengthening of the international jurisdiction and to the realization of the old ideal of international justice.49 In the last 90 years, the advances in this particular domain could have been much greater if State practice would not have betrayed the purpose which inspired the creation of the mechanism of the optional clause of compulsory jurisdiction (of the PCIJ and the ICJ), that is, the submission of political interests to Law by means of the development in the realization of justice at international level. The time has come to overcome definitively the regrettable lack of automatism of the international jurisdiction. With the distortions of their practice on the matter, States face today a dilemma which should have been overcome a long time ago: either they return to the voluntarist conception of International Law, abandoning for good the hope in the primacy of Law over political interests,50 or else they retake and achieve with determination the ideal of construction of an 48

49

50

Cf. IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999, Series C, n. 48, Separate Opinion of Judge A.A. Cançado Trindade, pp. 110 and 112, pars. 23 and 27-28. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, ch. XV-XVI, pp. 60-83 and 147168. Cf. a warning of Ch. de Visscher, Aspects récents du droit procédural de la Cour Internationale de Justice, Paris, Pédone, 1966, p. 204; and cf. also L. Delbez, Les principes généraux du contentieux international, Paris, LGDJ, 1962, pp. 68, 74 and 76-77. – For subsequent criticisms by two former Presidents of the ICJ of the unsatisfactory and bad use made by the States of the mechanism of the optional clause (of the compulsory jurisdiction of the ICJ) of the Statute of the Court, cf. R.Y. Jennings, op. cit. supra n. (15), p. 495; and E. Jiménez de Aréchaga, “International Law in the Past Third of a Century”, 159 RCADI (1978) pp. 154-155, And cf. further criticisms by H.W. Briggs, “Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice”, 93 RCADI (1958) p. 273. And cf., in general, J. Sicault, “Du caractère obligatoire des engagements unilatéraux en Droit international public”, 83 Revue générale de Droit international public (1979) pp. 633-688. – Such distorted

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international community with greater cohesion and institutionalization in the light of Law and in search of Justice, moving resolutely from jus dispositivum to jus cogens.51 As I concluded in my Concurring Opinion in the Hilaire versus Trinidad and Tobago case before the IACtHR, “The time has come to consider, in particular, in a future Protocol of amendments to the procedural part of the American Convention on Human Rights, aiming at strengthening its mechanism of protection, the possibility of an amendment to Article 62 of the American Convention, in order to render such clause also mandatory, in conformity with its character of fundamental clause (cláusula pétrea), thus establishing the automatism 52 of the jurisdiction of the Inter-American Court of Human Rights.53 There is pressing need for the old ideal of the permanent international compulsory jurisdiction to become reality also in the American continent, in the present domain of protection, with the necessary adjustments in order to face its reality of human rights and to fulfi l the growing needs of effective protection of the human being” (par. 39).

III. The Recurring Need and Quest for Compulsory Jurisdiction Despite the undeniable advances experienced by the idea of compulsory jurisdiction in the domain of the International Law of Human Rights (supra), the picture appears somewhat distinct in the sphere of purely inter-State relations: it is hard to escape the assessment that, herein, compulsory jurisdiction has made a rather modest progress in recent decades. As pointed out by C.W. Jenks over forty years ago, the foundation of compulsory jurisdiction is, ultimately, the confidence in

51

52

53

State practice cannot, definitively, serve as model to the operation of the judicial organs created by human rights treaties. And always bearing in mind that the protection of fundamental rights places us precisely in the domain of jus cogens; cf., e.g., my intervention in the debates of 12.03.1986 of the Vienna Conference on the Law of Treaties between States and International Organizations or between International Organizations: U.N., United Nations Conference on the Law of Treaties between States and International Organizations or between International Organizations (Vienna, 1986) – Official Records, volume I, N.Y., U.N., 1995, pp. 187-188 (intervention by A.A. Cançado Trindade). Which became a reality, as to the European Court of Human Rights, as from the entry into force, on 01.11.1998, of Protocol n. 11 to the European Convention of Human Rights (cf. infra). With the necessary amendment, – by means of a Protocol, – to this effect, of Article 62 of the American Convention, putting an end to the restrictions therein foreseen and expressly discarding the possibility of any other restrictions, and also putting and end to reciprocity and the optional character of the acceptance of the contentious jurisdiction of the Court, which would become compulsory to all the States Parties.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

the rule of law at international level.54 While full confidence is still lacking, not much progress is bound to be achieved in the present domain. In this respect, e.g., the Institut de Droit International, already in its Neuchâtel session of 1959, adopted unanimously a resolution in support of the compulsory jurisdiction of international courts and tribunals. Noting with concern that the evolution of international jurisdiction was already lagging behind the needs of international justice, the resolution pondered that “submission to law through acceptance of recourse to international courts and arbitral tribunals is an essential complement to the renunciation of recourse to force in international relations”.55

In order to overcome the unsatisfactory situation, the resolution inter alia called for the development of the practice of insertion into general conventions of a clause, binding on all States Parties, of submission of disputes, relating to the interpretation or application of the respective conventions, to international courts and tribunals.56 The plea for compulsory jurisdiction has been duly expressed in expert writing along the last eight decades. In a monograph published as early as in 1924 (four years after the adoption of the Statute of the old PCIJ), Nicolas Politis, in recalling the historical evolution from private justice to public justice, advocated the evolution, at international level, from optional justice to compulsory justice.57 Subsequently, despite the alleged “decline” of the optional clause of the ICJ Statute (cf. supra), one decade after the adoption by the Institut de Droit International (in 1959) of the aforementioned resolution, C.W. Jenks wrote that “The problem of compulsory jurisdiction (...) remains one of the central problems of world organization. (...) A larger measure of compulsory jurisdiction remains a fundamental element in the progress of the rule of law among nations. (...) The progress of compulsory jurisdiction presupposes a parallel progress of the substantive law in adjusting itself to the changing needs of a changing society”.58

54

55 56 57 58

C.W. Jenks, The Prospects..., op. cit. supra n. (28), pp. 101, 117, 757, 762 and 770. Likewise, in his book on international tribunals published in 1944, M.O. Hudson positioned himself clearly in support of compulsory jurisdiction, so as to “strengthen the foundations of international law”; cf. M.O. Hudson, International Tribunals – Past and Future, op. cit. supra n. (9), pp. 83, 153 and 251. Annuaire de l’Institut de Droit International (1959), cit. in C.W. Jenks, op. cit. supra n. (49), pp. 113-114. Annuaire de l’Institut de Droit International (1959), cit. in ibid., p. 115. Cf. N. Politis, La justice internationale, Paris, Libr. Hachette, 1924, pp. 7-255, esp. pp. 193-194 and 249-250. C.W. Jenks, The World beyond the Charter, London, G. Allen and Unwin, 1969, p. 166.

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International jurisdiction is becoming, in our days, an imperative of the contemporary international legal order itself, and compulsory jurisdiction responds to a need of the international community in our days; although this latter has not yet been fully achieved, some advances have been made in the last decades.59 The Court of Justice of the European Communities provides one example of supranational compulsory jurisdiction, though limited to community law or the law of integration. The European Convention of Human Rights, after the entry into force of Protocol n. 11, affords another conspicuous example of automatic compulsory jurisdiction. The International Criminal Court is the most recent example in this regard; although other means were contemplated throughout the travaux préparatoires of the 1998 Rome Statute (such as cumbersome “opting in” and “opting out” procedures), at the end compulsory jurisdiction prevailed, with no need for further expression of consent on the part of States Parties to the Rome Statute.60 This was a significant decision, enhancing international jurisdiction. The system of the 1982 U.N. Convention on the Law of the Sea, in its own way, moves beyond the traditional regime of the optional clause of the ICJ Statute. It allows States Parties to the Convention the option between the International Tribunal for the Law of the Sea, or the ICJ, or else arbitration (Article 287); despite the exclusion of certain matters, the Convention succeeds in establishing a compulsory procedure containing coercitive elements; the specified choice of procedures at least secures law-abiding settlement of disputes under the U.N. Law of the Sea Convention.61 These illustrations suffice to disclose that compulsory jurisdiction is already a reality, – at least in some circumscribed domains of International Law, as indicated above. International compulsory jurisdiction is, by all means, a juridical possibility. If it has not yet been attained on a world-wide level, this cannot be attributed to an absence of juridical viability, but rather to misperceptions of its role, or simply to a lack of conscience as to the need to widen its scope. Compul59

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H. Steiger, “Plaidoyer pour une juridiction internationale obligatoire”, in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 818, 821-822 and 832. And cf. R.St.J. MacDonald, “The New Canadian Declaration of Acceptance of the Compulsory Jurisdiction of the International Court of Justice”, 8 Canadian Yearbook of International Law (1970) pp. 21, 33 and 37. In support of the need for “a system of general compulsory and binding dispute settlement procedures”, cf. further M.M.T.A. Brus, Third Party Dispute Settlement in an Interdependent World, Dordrecht, Nijhoff, 1995, p. 182. H. Corell, “Evaluating the ICC Regime: The Likely Impact on States and International Law”, The Hague, T.M.C. Asser Institute, 2000, p. 8 (internal circulation). L. Caflisch, “Cent ans de règlement pacifique des différends interétatiques”, 288 RCADI (2001) pp. 365-366 and 448-449; J. Allain, “The Continued Evolution....”, op. cit. supra n. (2), pp. 61-62; S. Karagiannis, “La multiplication des juridictions internationales...”, op. cit. infra n. (68), p. 34; M. Kamto, “Les interactions des jurisprudences internationales...”, op. cit. infra n. (69), p. 424.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

sory jurisdiction is a manifestation of the recognition that International Law, more than voluntary, is indeed necessary. In addition to the advances already achieved to this effect, reference could also be made to endeavours in the same sense. One such example is found in the Proposals for a Draft Protocol to the American Convention on Human Rights, which I prepared as rapporteur of the IACtHR, which inter alia advocates an amendment to Article 62 of the American Convention so as to render the jurisdiction of the IACtHR in contentious matters automatically compulsory upon ratification of the Convention.62 Furthermore, several international treaties63 foresee a compulsory resort to the jurisdiction of the ICJ. To the extent that they do so, States Parties would be under the Court’s jurisdiction to settle disputes pertaining to those treaties, paving the way for a broader acceptance of compulsory jurisdiction on a worldwide basis. In this connection, in the years immediately following the end of the cold-war period, e.g., the then Soviet Union (succeeded by the Russian Federation), and some other Eastern European States, withdrew declarations they had previously made to exclude compulsory settlement of disputes in several Conventions they had celebrated during the cold-war period.64 In fact, the optional clause (of the ICJ Statute) is not the only basis of compulsory jurisdiction of the ICJ; another basis consists precisely of jurisdictional or compromissory clauses65 inserted into treaties conferring jurisdiction on international tribunals to settle disputes concerning their interpretation and application. Although not so often invoked as they possibly could, a more systematic inclusion in treaties of such jurisdictional or arbitration clauses would contribute to widen the scope of compulsory jurisdiction.66 Such expansion is bound to occur to the extent that States realize that it is ultimately in their own interest, and in the common or general interest, to have their disputes normally settled by judicial means. This latter is the most perfected way of peaceful settlement, for all that it affords: preexisting rules, rigour and juridical security. Beyond such settlement, compulsory jurisdiction is an expression of the rule of law at international level, conducive to a more cohesive international legal order inspired and guided by the imperative of justice.

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A.A. Cançado Trindade, Informe: Bases para un Proyecto de Protocolo a la Convención Americana sobre Derechos Humanos, para Fortalecer Su Mecanismo de Protección, vol. II, 2nd. ed., San José of Costa Rica, Inter-American Court of Human Rights, 2003, pp. 1-64. E.g., inter alia, the 1957 European Convention on Peaceful Settlement of Disputes, Article 1. T. Treves, “Recent Trends in the Settlement of International Disputes”, 1 Bancaja Euromediterranean Courses of International Law (1997) pp. 404-405. Cf., on such compromissory clauses, e.g., H.M. Cory, Compulsory Arbitration of International Disputes, N.Y., Columbia University Press, 1932 [reprint 1972], ch. VI, pp. 160-191. C.W. Jenks, The Prospects..., op. cit. supra n. (28), p. 761, and cf. pp. 109 and 111.

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IV. International Rule of Law: The Growth of International Jurisdiction It is well-known that the international community counts nowadays on a multiplicity of international tribunals (e.g., besides the ICJ, the International Tribunal for the Law of the Sea, the permanent International Criminal Court, the international tribunals – Inter-American and European and African Courts – of human rights, the ad hoc International Criminal Tribunals – for ex-Yugoslavia and for Rwanda, – the Court of Justice of the European Communities, among others67). This is symptomatic of the way contemporary International Law has evolved, and of an increasing recourse to international adjudication. Throughout the last years the old ideal of international justice has been revitalized and has gained ground, with the considerable expansion of the international judicial function, reflected in the creation of new international tribunals; the work of these latter has been enriching contemporary international case-law, contributing, as already indicated, to assert and develop the aptitude of International Law to regulate adequately juridical relations in distinct domains of human activity (cf. supra). Disputes submitted to international adjudication in our days are no longer vested with strict inter-State dimension; hence the creation and co-existence of multiple specialized international tribunals of our times, reflecting a decentralized international legal order.68 Still more significantly, in expanding international jurisdiction, contemporary multiple international tribunals have enlarged the access to international justice of the subjects of International Law (other than States).69 They have done what the ICJ alone has not been capable of doing (by force of the constraints of its Statute). They are responding to a pressing need 67

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Such as the internationalized criminal courts (cf., e.g., C.P.R. Romano et alii (eds.), Internationalized Criminal Courts – Sierra Leone, East Timor, Kosovo, and Cambodia, Oxford, University Press, 2004, pp. 3-444), and subregional integration courts, such as the Central American Court of Justice (cf., e.g., A. León Gómez, Doctrina de la Corte Centroamericana de Justicia, Managua, UCA, 2002, pp. 1-501; R. Chamorro Mora, La Corte de Justicia de la Comunidad Centroamericana, Managua, IAG, 2000, pp. 3-203), the Andean Court of Justice (cf., e.g., F. Novak Talavera and L.G.-C. Moyano, Derecho Internacional Público, vol. III, Lima, PUC/Peru, 2005, pp. 189-194; G. Larenas Serrano, El Tribunal de Justicia Andino, Quito, Ed. Casa de la Cultura Ecuatoriana, 1980, pp. 13-162), and the newly-established (on 13.08.2004) of the Permanent Tribunal of Revision of the Mercosur (in Asunción). S. Karagiannis, “La multiplication des juridictions internationales: un système anarchique?”, in Société française pour le Droit international, in La juridictionnalisation du Droit international (Colloque de Lille), Paris, Pédone, 2003, pp. 61 and 156; E. Jouannet, “La notion de jurisprudence internationale en question”, in ibid., p. 365; M. Bedjaoui, “La multiplication des tribunaux internationaux ou la bonne fortune du droit des gens”, in ibid., pp. 530 and 539. H. Ascensio, “La notion de juridiction internationale en question”, in La juridictionnalisation du Droit international (Colloque de Lille), Paris, Pédone, 2003, p. 198; M. Kamto, “Les interactions des jurisprudences internationales et des jurisprudences nationales”, in ibid., pp. 414 and 459; J.-P. Cot, “Le monde de la justice internation-

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

of the contemporary international community.70 The human person has at last been granted access to justice, no longer only at national level, but likewise at international level. Specialized international tribunals, such as the European and Inter-American and African Courts of Human Rights, and the ad hoc International Criminal Tribunals for Ex-Yugoslavia and Rwanda, have asserted universalist principles, and the primacy of humanitarianism over traditional techniques of inter-State litigation.71 Their work, lately fostering comparative studies,72 has thus proved to be complementary to that of the ICJ, and they have contributed to erect contemporary international adjudication into a new universalist dimension, beyond peaceful settlement of international disputes on a strictly inter-State basis. They have thereby enriched contemporary Public International Law. The multiplication of international tribunals is, thus, a reassuring phenomenon, in providing additional forums for the access to, and realization of, justice at international level. Attention should be focused on this healthy substantial development which is a reflection of the expansion of the application of International Law in general and of judicial settlement in particular,73 instead of attempting – as some international lawyers have tried to do – to create a “problem” with the traditional concern with delimitation of competences. The issues arising from the co-existence of international tribunals can be properly addressed by means of dialogue among international judges, not by self-assertions of alleged supremacy.74

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ale”, in ibid., pp. 517 and 521; M. Bedjaoui, “La multiplication des tribunaux internationaux ou la bonne fortune du droit des gens”, in ibid., pp. 541-544. Moreover, studies of the case-law of the specialized international tribunals take regularly into account the contribution of the case-law of other international tribunals. Cf., e.g., inter alia, L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law, Leiden, Nijhoff, 2005, pp. 1-284; A.A. Cançado Trindade and M.E. Ventura Robles, El Futuro de la Corte Interamericana de Derechos Humanos, 3rd. ed., San José of Costa Rica, IACtHR/UNHCR, 2005, pp. 7-629. M. Koskenniemi and P. Leino, “Fragmentation of International Law? Postmodern Anxieties”, 15 Leiden Journal of International Law (2002) pp. 576-578. Cf., e.g., G.-J.A. Knoops, An Introduction to the Law of International Criminal Tribunals – A Comparative Study, Ardsley/N.Y., Transnational Publs., 2003, pp. 1-199; J.R.W.D. Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd. ed., Ardsley/N.Y., Transnational Publs., 2000, pp. 3643. Cf. J.I. Charney, “Is International Law Th reatened by Multiple International Tribunals?”, 271 RCADI (1998) pp. 116, 121, 125, 135, 347, 351 and 373. There is currently no basis in any international instrument for asserting the supremacy of the ICJ, or any other international tribunal, over the other international courts; nowhere is such “supremacy” set forth in any text whatsoever. L. Cafl isch, “Cent ans de règlement pacifique...”, op. cit. supra n. (61), p. 431. And cf., to the same effect, H. Caminos, “The Creation of Specialised Courts: The Case of the Interna-

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Contemporary international tribunals, working in a cooperative and complementary way, have the common mission of realization of justice at international level. Far more important than the classic question of the delimitation of competences is the advance they have accomplished in the ideal of realization of international justice: they have already considerably enlarged the circles of justiciable persons, and this is a very significant contemporary phenomenon indeed. In this spirit, some international specialized tribunals are entrusted with the task of deciding on highly specific or technical matters, giving moreover their contribution to the evolution of an expanded International Law.75 The co-existing international human rights Tribunals in operation to date, the ECtHR and the IACtHR, have, for example, succeeded in setting forth approximations and convergences in their respective case-law, despite the distinct factual realities of the two continents in which they operate.76 The work of the ECtHR and the IACtHR has indeed contributed to the creation of an international ordre public based upon the respect for human rights in all circumstances. Moreover, the dynamic or evolutive interpretation of the respective human

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tional Tribunal for the Law of the Sea”, in Liber Amicorum Judge S. Oda (eds. N. Ando, E. McWhinney and R. Wolfrum), vol. I, The Hague, Kluwer, 2002, pp. 569574; C.-A. Fleischhauer, “The Relationship between the International Court of Justice and the Newly Created International Tribunal for the Law of the Sea in Hamburg”, 1 Max Planck Yearbook of United Nations Law (1997) pp. 327-333. – Article 95 of the U.N. Charter foresees the creation of new international tribunals without in any way suggesting any such “supremacy”. There has been an expansion of the international judicial function itself, beyond the purely inter-State level, encompassing the settlement of disputes involving also nonState entities. K. Oellers-Frahm, “Multiplication of International Courts and Tribunals and Conflicting Jurisdiction – Problems and Possible Solutions”, 5 Max Planck Yearbook of United Nations Law (2001) p. 69; J. Collier and V. Lowe, The Settlement of Disputes in International Law – Institutions and Procedures, Oxford, OUP, 2000, p. 14. This converging case-law has generated their common understanding that human rights treaties are endowed with a special nature (as distinguished from multilateral treaties of the traditional type); that human rights treaties have a normative character, of ordre public; that their terms are to be autonomously interpreted; that in their application one ought to ensure an effective protection (effet utile) of the guaranteed rights; that the obligations enshrined therein do have and objective character, and are to be duly complied with by the States Parties, which have the additional common duty of exercise of the collective guarantee of the protected rights; and that permissible restrictions (limitations and derogations) to the exercise of guaranteed rights are to be restrictively interpreted. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, ch. XI, pp. 23-58 and 185-194; and cf. A.A. Cançado Trindade, “Approximations and Convergences in the Case-Law of the European and Inter-American Courts of Human Rights”, in Le rayonnement international de la jurisprudence de la Cour européenne des droits de l’homme (eds. G. Cohen-Jonathan and J.-F. Flauss), Bruxelles, Nemesis/Bruylant, 2005, pp. 101-138.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

rights Conventions (the intertemporal dimension) has been followed by both the ECtHR77 and the IACtHR.78 This outlook grows in importance for having come at a time when the establishment of a new international human rights Tribunal (an African Court on Human and Peoples’ Rights) under the 1998 Protocol to the African Charter on Human and Peoples’ Rights has lately taken place (2005). Despite the challenges that the two human rights Tribunals in operation nowadays face, particularly with the increasing overload of cases (the ECtHR to a far greater extent than the IACtHR), individuals have been raised as subjects of the International Law of Human Rights, endowed with full procedural capacity, and have recovered their faith in human justice when it appeared to fade away at domestic law level.79 This significant procedural development, with the automatism of the international jurisdiction of the ECtHR and recent developments to this effect as regards the IACtHR, strongly suggests, as far as the two international human rights Tribunals are concerned, that the old ideal of the realization of international justice is finally seeing the light of the day. This is the point I have seen it fit to single out in my address at the ceremony of opening of the judicial year of 2004 of the ECtHR (on 22.01.2004, at the Palais des Droits de l’Homme in Strasbourg), as follows: “(...) In some international legal circles attention has been diverted in recent years from this fundamental achievement to the false problem of the so-called ‘proliferation of international tribunals’. Th is narrow- minded, unelegant and derogatory expression simply misses the key point of the considerable advances of the old ideal of international justice in the contemporary world. The establishment of new international tribunals is (...) an acknowledgment of the superiority of the judicial means of settlement of disputes, bearing witness of the prevalence of the rule of law in democratic societies, and discarding any surrender to State voluntarism. Since the visionary writings and ideas of Nicolas Politis and Jean Spiropoulos of Greece, Alejandro Álvarez of Chile, André Mandelstam of Russia, Raul Fernandes of Brazil, René Cassin and Georges Scelle of France, Hersch Lauterpacht of the United Kingdom, John Humphrey of Canada, among others, it was necessary to wait for decades for the current developments in the realization of international justice to take place, nowadays enriching rather than threatening International Law, strengthening rather than undermining International Law. The reassuring growth of international tribunals is a sign of our new times, and we have to live up to it, to

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Cases Tyrer versus United Kingdom, 1978; Airey versus Ireland, 1979; Marckx versus Belgium, 1979; Dudgeon versus United Kingdom, 1981, among others. Advisory Opinion n. 16, on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, 1999; and Advisory Opinion n. 18, on Juridical Condition and Rights of Undocumented Migrants, 2003. Cf. chapters IX and X, supra.

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Chapter XXV make sure that each of them gives its contribution to the continuing evolution of International Law in the pursuit of international justice”.80

In the domain of the protection of the fundamental rights of the human person, the growth and consolidation of international human rights jurisdictions in the European and American continents, have set higher standards of State behaviour and established some degree of control over the interposition of undue restrictions by States, and have reassuringly enhanced the position of individuals as subjects of the International Law of Human Rights, endowed with full procedural capacity. In so far as the basis of the jurisdictions of the IACtHR and the ECtHR in contentious matters is concerned, eloquent illustrations of their firm stand in support of the integrity of the mechanisms of protection of the two Conventions are afforded, for example, by recent decisions of the ECtHR81 as well as of the IACtHR.82 The two international human rights Tribunals, by correctly resolving basic procedural issues raised in such recent cases, have aptly made use of the techniques of Public International Law in order to strengthen their respective jurisdictions of protection of the rights of the human person. They have decisively safeguarded the integrity of the mechanisms of protection of the American and European Conventions on Human Rights, whereby the juridical emancipation of the human person vis-à-vis her own State is achieved. Human rights treaties such as the European and American Conventions have, by means of an interpretative interaction, reinforced each other mutually, to the ultimate benefit of the protected human beings.83 Interpretative interaction has in a way contributed to the universality of the conventional law on the protection of human rights. This has paved the way for a uniform interpretation of the corpus juris of contemporary International Human Rights Law. Such uniform interpretation in no way threatens the unity of International Law. Quite on 80

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A.A. Cançado Trindade, “Speech Given on the Occasion of the Opening of the Judicial Year [of the European Court of Human Rights], 22 January 2004”, in ECtHR, Annual Report 2003, Strasbourg, ECtHR, 2004, pp. 41-49; (and Rapport annuel 2003, Strasbourg, CourEDH, 2004, pp. 41-50); and cf. A.A. Cançado Trindade, “The Merits of Coordination of International Courts on Human Rights”, 2 Journal of International Criminal Justice (2004) pp. 309-312. In the Belilos versus Switzerland case (1988), in the Loizidou versus Turkey case (Preliminary Objections, 1995), and in the I. Ilascu, A. Lesco, A. Ivantoc and T. PetrovPopa versus Moldovia and the Russian Federation case (2001). In the Constitutional Tribunal and Ivtcher Bronstein versus Peru cases, Competence (1999), and in the Hilaire, Constantine and Benjamin and Others versus Trinidad and Tobago (Preliminary Objection, 2001). A.A. Cançado Trindade, “The Development of International Human Rights Law by the Operation and the Case-Law of the European and Inter-American Courts of Human Rights”, 25 Human Rights Law Journal (2004) n. 5-8, pp. 157-160; A.A. Cançado Trindade, “Le développement du Droit international des droits de l’homme à travers l’activité et la jurisprudence des Cours européenne et interaméricaine des droits de l’homme”, 16 Revue universelle des droits de l’homme (2004) n. 5-8, pp. 177-180.

International Rule of Law: The Need and Quest for International Compulsory Jurisdiction

the contrary, instead of threatening “to fragment” International Law, the two Tribunals at issue have helped to develop and achieve the aptitude of International Law to regulate efficiently relations which have a specificity of their own – at intra-State, rather than inter-State, level, opposing States to individuals under their respective jurisdictions, – and which require a specialized knowledge from the Judges. The unity and effectiveness of Public International Law itself can be measured precisely by its aptitude to regulate legal relations in distinct contexts with equal adequacy. From all the aforesaid one can detect the current historical process of humanization of International Law (a new jus gentium), disclosing a new outlook of the relations between public power and the human being, – an outlook which is summed up, ultimately, in the recognition that the State exists for the human being, and not vice-versa. In operating, and constructing their converging case-law, to that effect, the two international human rights Tribunals, the European and the Inter-American Courts, have indeed contributed to enrich and humanize contemporary Public International Law. They have done so as from an essentially and necessarily anthropocentric outlook, as aptly foreseen, since the XVIth century, by the so-called founding fathers of the law of nations (the droit des gens).

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Part VIII Perspectives

Chapter XXVI

I.

The Legacy of the Recent Cycle of World Conferences of the United Nations

Preliminary Observations: The International Legal Order in a World of Profound Contradictions

International Law has marked its presence in the recent cycle of the World Conferences convened by the United Nations in the nineties and by the turn of the century. Those Conferences, which I had the occasion to follow closely,1 have contributed decisively to form the substantive content of the international agenda of this beginning of the XXIst century. Relevant passages of their final documents (declarations and plans or programmes of action) identify key issues of direct concern to the international community, propose courses of action as a response to new challenges and in pursuance of a new international order with more social justice, and propound the cultural and spiritual development of human societies, to the benefit of humankind as a whole. They contain, in fact, numerous references to the international community, in the sense not of the traditional community of States but rather and clearly of the enlarged international community, – comprising States, international organizations and human beings, either individually or in human groups or collectivies. Their messages are thus addressed to States as well as the other subjects of contemporary International Law. References are often made to international treaties and instruments regulating matters of interest to humankind as a whole (mainly in the domains of human rights protection and environmental protection, among others). One could hardly assess the legacy of the recent cycle of U.N. World Conferences without outlining preliminarily some features of the world scenario in which they took place, – as perspicatiously summed up, e.g., by the statement of the Delegation of Pakistan at the II World Conference on Human Rights in Vienna, on 16 June 1993, which drew lessons from our times in the following terms: 1

Having personally participated in all the stages, including the Drafting Committee, of one of them (the 1993 II World Conference on Human Rights), in the preparatory world of another (the 1995 World Summit on Social Development), and in events associated with yet another one (the 1992 U.N. Conference on Environment and Development).

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Chapter XXVI “The World Conference on Human Rights is taking place in the twilight of the XXth century, – a century which has witnessed greater progress in science and technology than all of recorded history. Yet, this century has also seen greater destruction and more killing than all the wars of history put together. The XXth century will be remembered for the conquest of space and for the information revolution. It will also be remembered as a period when States officially sanctioned the deliberate slaughter of innocent men, women and children, – in the gas chambers of Auschwitz, the gulags of Siberia, the carpet bombing of London, Berlin and Dresden and the atomic destruction of Hiroshima and Nagasaki”.2

At the same World Conference of Vienna, the President of the Republic of Namibia, on his turn, pondered that, despite the flagrant, persistent violations of human rights in many parts of the world, the last quarter of the XXth century witnessed the emergence of human rights as the central point in inter-State relations, and the 1993 World Conference provided “a rare opportunity for humanity to reaffirm the centrality and indivisibility of basic human rights and fundamental freedoms as the pillars of both domestic and international policy”.3 1.

A Transformation of Epoch

In fact, at this beginning of the XXIst century we can witness, more than an epoch of transformations, a transformation of epoch. This latter has been marked by profound contradictions, such as that between, on the one hand, the considerable development in communications, and, on the other hand, the growing – if not alarming – socio-economic disparities between countries and at the interior of these latter (among segments of the population), as well as the outbreak of violent internal conflicts in various parts of the world. The events which have dramatically changed the international scenario, as from 1989, keep on taking place in an overwhelming rhythm, without enabling us to foresee what awaits us in the immediate future. To those victimized by the current internal conflicts in many countries, many others are added in search of their cultural identity in this rapid and overwhelming transformation of epoch. The growing concentration of income in world scale has brought about the tragic growth of those marginalized and excluded in all parts of the world. The Habitat Agenda and Declaration of Istanbul, adopted by the II U.N. World Conference on Human Settlements (Istanbul, June 1996), e.g., warned as to the precarious situation nowadays affecting “more than one billion people liv2

3

U.N., “Statement of Begum Nusrat Bhutto, Leader of the Pakistan Delegation to the World Conference on Human Rights”, Vienna, 16.06.1993, pp. 2-3 (internal circulation), cit. in A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 272-273. U.N., “Speech by H.E. Dr. Sam Nujoma, President of the Republic of Namibia, at the Closing of the World Conference on Human Rights”, Vienna, 25.06.1993, p. 2-3 (internal circulation), cit. in ibid., pp. 2-3, cit. in ibid., p. 273.

The Legacy of the Recent Cycle of World Conferences of the United Nations

ing in absolute poverty” in the world today, in a state of abandonment, without adequate housing and in infra-human conditions.4 The Draft Declaration (of June 1994) before the Preparatory Committee of the Copenhagen World Summit for Social Development after warning against open unemployment,5 called for a “rebirth of the ideals of social justice” to find solutions for the problems of our societies, as well as for a “world development of humankind”; it further warned, bearing in mind the future of humankind, that the social responsibilities of knowledge should be kept in mind, since – as stressed for a long time – “science without a conscience can only be the ruin of the soul”.6 The Copenhagen Declaration on Social Development, adopted by the World Summit of 1995, duly emphasized the pressing need of seeking solutions to current social problems,7 as a great challenge emerging of the current transformation of epoch. 2.

The Spirit of Our Epoch

In fact, the conscience of the need to fulfil the basic needs of all human beings has led to the acknowledgement of the legitimacy of the concern of the whole international community with the situation and the conditions of living of all human beings everywhere, as from a necessarily humanist outlook, in this transformation of epoch in which we live. Thus, the Vienna Declaration and Programme of Action,8 adopted by the World Conference on Human Rights on 25.06.1993, besides setting forth (in its preamble) positions of principle,9 invoked “the spirit of our epoch and the realities of our time” (15th considerandum), to require that all the peoples of the world and all U.N. member States “rededicate themselves to the global task” of promoting and protecting all human rights so as to secure their “full and universal enjoyment”. The deliberations in Vienna in 1993 on

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Cf. U.N., Habitat Agenda and Istanbul Declaration (II U.N. Conference on Human Settlements, Istanbul, 03-14 June 1996), N.Y., U.N., 1996, pp. 7 and 47, and cf. pp. 6-7, 17-17, 78-79 and 158-159. – For further statistical data, cf. e.g., United Nations/CEPAL, La Cumbre Social – Una Visión desde América Latina y el Caribe, Santiago, CEPAL, 1994, pp. 29, 16 and 14. Affecting nowadays about 120 million persons all over the world, added to 700 million underemployed persons; U.N. doc. A/CONF.166/PC/L.13, of 03.06.1994, p. 37, and cf. pp. 21 and 16. Ibid., pp. 3-4 and 6. Particularly in its paragraphs 2, 5, 16, 20 and 24; text in U.N. doc. A/CONF.166/9, of 19.04.1995, Informe de la Cumbre Mundial sobre Desarrollo Social (Copenhagen, 06-12.03.1995), pp. 5-23. United Nations, World Conference on Human Rights – The Vienna Declaration and Programme of Action, June 1993, N.Y., U.N., 1993, pp. 25-71. Such as the undertaking, under Articles 55-56 of the U.N. Charter, the Universal Declaration and the two U.N. Covenants on Human Rights, to take measures to secure further progress in the universal observance of human rights, these latter ensuing from the dignity and worth inherent to the human person.

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this considerandum led to one of the most enlightening moments that I recall of the debates of the Drafting Committee of that World Conference. In my own personal recollections (in book form) of thoses debates, which took place in the afternoon of 23.06.1993, I reported that “Originally it was contemplated to make reference only to the ‘spirit of our epoch’, but the decision was taken to add another reference to the ‘realities of our time’ in the understanding that these latter should be appreciated in the light of the former: the ‘spirit of our epoch’ is characterized by the common aspiration to superior values, to the growth of the promotion and protection of human rights intensified in the democratic transition and the establishment of the rule of law in so many countries, to the search for global solutions in the treatment of global themes (with reference made, e.g., to the need of erradication of extreme poverty). This was the understanding which prevailed, in this respect, in the Drafting Committee”.10

3.

Universalism and Cultural Diversity

Another substantial debate in the same Vienna Conference was reflected in the counterposition between the universality of human rights and the so-called cultural particularisms. Having always supported the universality of human rights,11 my experience as Delegate to that World Conference and my participation in the work of its Drafting Committee have reinforced my position. There is nowadays recognition of the relevance of the cultural identity and diversity to the effectiveness – and indeed the universality – of legal norms of human rights protection. Some points are here to be kept in mind. Firstly, cultures are not static, they manifest themselves dynamically in time, and have appeared open to the advances in the domain of human rights in the last decades. Secondly, many human rights treaties have been ratified by States with the most diverse cultures; thirdly, there are more recent treaties, – such as the Convention on the Rights of the Child (1989), – which, in their travaux préparatoires, took in due account the cultural diversity, and enjoy nowadays a virtually universal acceptance.12 Fourthly, cultural diversity has never been an obstacle to the formation of a universal hardcore of non-derogable fundamental rights, set forth in several human rights treaties. Moreover, cultural diversity has not restrained the contemporary tendency of criminalization of grave human rights violations, nor the recent advances in international criminal law, nor the

10

11 12

A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, chapter V, pp. 242-243, pars. 14-15. Cf., recently, A.A. Cançado Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XI, Santiago, Editorial Jurídica de Chile, 2001, pp. 15-455. The Geneva Conventions on International Humanitarian Law (1949), e.g., also count today on a virtually universal acceptance.

The Legacy of the Recent Cycle of World Conferences of the United Nations

acknowledgement of the principle of universal jurisdiction in some human rights treaties,13 nor the universal struggle against impunity. Cultural diversity has not impeded, either, the creation in our days of a true international regime of absolute prohibition of torture, forced disappearances of persons, and summary, extra-legal and arbitrary executions.14 These developments have enhanced the safeguard of non-derogable rights in any circumstances. Eight years after the Vienna Conference, the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance duly stressed the value of mutual understanding and respect for cultural diversity.15 In its call for a “harmonious multicultural world”,16 the Dunbar Declaration and Programme of Action stressed “the need to seek common ground among and within civilizations in order to address common challenges to humanity”,17 and added that “Cultural diversity is a cherished asset for the advancement and welfare of humanity at large and should be valued, enjoyed, genuinely accepted and embraced as a permanent feature which enriches our societies. (...) All peoples and individuals constitute one human family, rich in diversity. They have contributed to the progress of civilizations and cultures that form the common heritage of humanity. Preservation and promotion of tolerance, pluralism and respect for diversity can produce more inclusive societies”.18

II.

The Legacy of the Cycle of U.N. World Conferences: Conditions of Life as a Matter of International Concern

Given the aggravation today of the tragic phenomenon of impoverishment of large sectors of the population,19 attention is shifted in particular to the situation of the vast segments of the population unjustly excluded from the benefits of so-called “economic growth” and “modernization”.20 The matter has, 13 14 15 16 17 18 19

20

Such as, e.g., the 1984 U.N. Convention against Torture, among others. Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 338-358. Dunbar Declaration and Programme of Action, paragraphs 40, 148-149 and 179. Paragraphs 179 and 5. 8th preambular paragraph. 19th preambular paragraph, and par. 6. On the considerable and alarming number of persons (more than a billion people) living – or surviving – nowadays in conditions of extreme poverty, cf. UNDP, Human Development Report 1993, Oxford, University Press, 1993, p. 1. On the “cultural dimension” of “critical poverty”, with increase of violence and prejudices against the poor segments of society, cf. UNESCO, La Erradicación de la Pobreza Crítica en America Latina y el Caribe, Paris, UNESCO, 1988, pp. 4-7. A.A. Cançado Trindade, Direitos Humanos e Meio Ambiente – Paralelo dos Sistemas de Proteção Internacional, Porto Alegre/Brazil, S.A. Fabris Ed., 1993, pp. 96-97, and cf. pp. 99-112.

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not surprisingly, attracted considerable attention in recent World Conferences convened by the United Nations (on Environment and Development, 1992; Human Rights, 1993; Population and Development, 1994; Social Development, 1995; Women, 1995; Habitat-II, 1996; International Criminal Jurisdiction, Rome, 1998; Struggle against Racism, Durban, 2001). Those Conferences (in particular those held in the period 1992-1996) have acknowledged the pressing need to reverse the deterioration of living conditions affecting growing segments of the population in many parts of the world nowadays. In fact, if one is to detect a common denominator in the recent U.N. World Conferences, it may well be found in the recognition of the legitimacy of the concern of the international community as a whole with the conditions of living of all human beings. Developmental and environmental considerations21 have been invoked to the effect of achieving the improvement of economic and social conditions of life. Regarded by some as a principle of contemporary International Law,22 sustainable development 23 has come to be regarded as meeting basic human needs (as to health, nutrition, housing, education). The links between development and some of the economic and social rights24 hardly require any demonstration. Amidst the growing call for the pursuance of social justice among and within nations, development came to be seen as encompassing environmental sustainability, social justice and the strengthening of democratic institutions (public participation). 1.

U.N. Conference on Environment and Development (Rio de Janeiro, 1992)

Agenda 21, adopted by the 1992 U.N. Conference on Environment and Development (UNCED), expressly referred to the vulnerable groups,25 the central concern laying in the satisfaction of basic human needs26 (food, health preservation, 21 22

23

24

25

26

Cf. World Commission on Environment and Development, Our Common Future, Oxford, University Press, 1987, pp. 75-90, 40, 43-66 and 8-9. Cf. Nagendra Singh, “Sustainable Development as a Principle of International Law”, International Law and Development (ed. P. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff, 1988, pp. 2-5. Which occupied a central place in the 1987 Brundtland Commission report (n. 21, cit. supra); as known, in its view sustainable development called for meeting the needs and aspirations of the present without compromising the ability of future generations to meet their own needs. Enshrined in human rights treaties like the 1966 U.N. Covenant on Economic, Social and Cultural Rights, the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, and the 1981 African Charter on Human and Peoples’ Rights. E.g., the urban and rural poor, indigenous populations, children, women, the elderly, the homeless, the terminally-ill, the disabled persons; chapter 6, par. 2, 5, 13 and 23; chapter 3, par. 4 and 8-9; and chapter 7, par. 16, 20, 26-27, 30, 36, 45, 51 and 76. Chapter 4, par. 5 and 8, and chapter 6, par. 1, 18 and 32, and chapter 7, par. 4-6 and 67-68. Agenda 21 expressed the hope that, through the integration of environmental and developmental considerations, a “global partnership” can be attained, so as to

The Legacy of the Recent Cycle of World Conferences of the United Nations

adequate housing, education). On their turn, both the Framework Convention on Climate Change and the Convention on Biological Diversity (1992) expressly referred, in their respective preambles, to the fundamental and urgent aim of eradication of poverty.27 Likewise, the Declaration of Principles on Forests, also adopted by the 1992 Rio Conference, also called for the eradication of poverty and the meeting of the “social, economic, ecological, cultural and spiritual human needs of present and future generations”.28 Both the Declaration of Rio de Janeiro and the Agenda 21, adopted by UNCED on 14.06.1992, were significantly permeated by elements proper to the conceptual universe of human rights and nowadays common to the two domains of protection (of the human being and of the environment).29 The 1992 Rio Declaration – like Agenda 2130 – devoted particular attention to the right of participation (in environmental management and in the promotion of sustainable development).31 And it was categorical in asserting that “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations” (Principle 3). 2.

II World Conference on Human Rights (Vienna, 1993)

On its turn, the Vienna Declaration and Programme of Action, the main document adopted by the II World Conference on Human Rights (1993), began by recalling the determination expressed in the preamble of the U.N. Charter itself “to save succeeding generations from the scourge of war”, and “to establish conditions under which justice and respect for obligations arising from treaties and other sources of International Law can be maintained”.32 It stressed the interrelationship between democracy, development and respect for human rights.33 The approval of the insertion of the section on the right to development as a human

27

28 29

30 31 32 33

fulfi l basic human needs, to protect and to manage better the ecosystems and to improve the living conditions for all; chapter 1, par, 1-2; and cf. chapter 8, par. 2 and 4. The former relates it to the “legitimate priority needs of developing countries” and the latter regards it, together with economic and social development, as “the first and overriding priorities of developing countries”. Paragraphs 7(a) and 2(b), respectively. Cf. Principles 1, 3, 5 and 10 of the Rio Declaration on Environment and Development. The Rio Declaration referred expressly to International Humanitarian Law applicable to the protection of the environment (Principle 24), to the protection of human health (Principle 14), and to the interdependence and indivisibility between environmental protection, development and peace (Principle 25). Cf. its chapters 24-27, and 29-32, and cf. chapter 36, pars. 1-4; chapter 1, par. 3; and chapter 38, pars. 11 and 13-14. Cf. Principles 20-22 of the Rio Declaration. Preamble, 7th considerandum. Part I, paragraph 8; and cf. part II, paragraph 80.

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right into the Vienna Declaration and Programme of Action represented a major breakthrough in the elaboration and adoption of the document: the Vienna Declaration and Programme of Action significantly endorsed34 the key provisions of the 1986 Declaration on the Right to Development.35 The final document of the Vienna Conference called for universal observance of human rights in accordance with the U.N. Charter, “other instruments relating to human rights and International Law”;36 it urged States to withdraw reservations which were contrary to the object and purpose of human rights Conventions or which were “otherwise incompatible with international treaty law”.37 It further called upon States to refrain from any unilateral measure that impeded the full realization of human rights, “in particular the rights of everyone to a standard of living adequate for their health and well-being, including food and medical care, housing and the necessary social services”.38 3.

International Conference on Population and Development (Cairo, 1994)

The Programme of Action adopted by the Cairo Conference on Population and Development (1994) referred to sustainable development,39 relating populations issues and reproductive health to it and to universally recognized human rights standards. The Programme of Action, containing its Principles, called for an improvement in the standards and quality of life,40 in stating that “human beings are at the centre of concerns for sustainable development”.41 The Cairo Confer-

34 35

36 37 38

39

40 41

Part I, paragraphs 10-11; part II, paragraph 72. Cf. part I, pars. 10-11, and part II, paragraph 72. For an account and general assessment of the Vienna Conference results, cf. A.A. Cançado Trindade, “Balance de los Resultados de la Conferencia Mundial de Derechos Humanos (Viena, 1993)”, in Estudios Básicos de Derechos Humanos, vol. III, San José of Costa Rica, IIHR, 1995, pp. 17-45. Part I, paragraph 1. Part II, paragraph 39. Part I, pars. 30-31. – The Programme of Action went further, in indicating “additional approaches” to strengthen the enjoyment of economic, social and cultural rights, such as “a system of indicators to measure progress in the realization of the rights” set forth in the U.N. Covenant on Economic, Social and Cultural Rights; part II, par. 98. For which, its preamble stated, “Agenda 21 provides a framework”. In fact, the Cairo document acknowledged, in its chapter III, that “Agenda 21 leaves to the International Conference on Population and Development further consideration of the interrelationship between population and the environment”; doc. cit. infra n. (43), p. 15. Chapter II, Principles 5, 6 and 8. Principle 2.

The Legacy of the Recent Cycle of World Conferences of the United Nations

ence also devoted attention to vulnerable groups,42 and restated the right to development in its Principle 3.43 The Programme of Action insisted upon poverty eradication as a major challenge in order to achieve sustainable development,44 and called for compliance with treaties for the protection of the human person.45 The Cairo Programme of Action was attentive to the well-being of present and future generations, and was likewise attentive to the observance of relevant norms of International Refugee Law.46 The Cairo final document related population problems to social development and women’s rights and empowerment,47 thus establishing a proper linkage between the 1994 World Conference and the then forthcoming World Conferences in Copenhagen (on Social Development) and Beijing (on Women).48 4.

World Summit for Social Development (Copenhagen, 1995)

The Declaration and Programme of Action adopted by the World Summit for Social Development (1995) purported to address the core issues of eradication (originally, alleviation and reduction) of poverty, expansion of productive employment, and enhancement of social integration (particularly of the more disadvantaged groups). Its main objetives included those of placing human needs at the centre of development, identifying common problems of disadvantaged or socially marginalized groups, mobilizing resources for social development,49 and ensuring a more effective rendering of social services for the more disadvan-

42 43

44 45

46 47

48

49

Principles 11, 12, 13 and 14. Cf. U.N., Population and Development – Programme of Action Adopted at the International Conference on Population and Development (Cairo, 05-13.09.1994), U.N. doc. ST/ESA/SER.A/149, 1995, p. 9. Cf. doc. cit. supra n. (43), chapter III, pp. 13-14. Such as the 1989 Convention on the Rights of the Child, the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, and the 1951 Convention and 1967 Protocol Relating to the Status of Refugees; cf. ibid., pp. 26 and 31, 48 and 56. Cf. preamble, and chapter X of the Programme of Action. On gender equality, equity and empowerment of women, cf. chapter IV of the Programme of Action. – The whole of chapter VII of the Programme of Action was devoted to reproductive rights and health. The Cairo document observed at last, in chapter XVI on the follow-up of the Conference, that the “implementation of the Programme of Action at all levels ought to be viewed as part of an integrated follow-up eff fort” to the recent and major World Conferences convened by the United Nations. Cf. S. Johnson, The Politics of Population: The International Conference on Population and Development – Cairo 1994, London, Earthscan, 1995, pp. 10, 64, 175-176 and 209. At local, national, regional and international levels.

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taged. All those points were duly reflected in the Copenhagen Declaration on Social Development, which expressed the conviction that “social development and social justice are indispensable for the achievement and maintenance of peace and security within and among our nations. In turn, social development and social justice cannot be attained in the absence of peace and security or in the absence of respect for all human rights and fundamental freedoms. This essential interdependence was recognized 50 years ago in the Charter of the United Nations and has since grown ever stronger”.50

The 1995 Declaration identified the following “major sources of social distress and instability” in the world today: chronic hunger and malnutrition, chronic poverty, lack of productive employment and social disintegration, illicit drug problems, organized crime, corruption, foreign occupation, armed conflicts, illicit arms trafficking, terrorism, intolerance and incitement to hatreds (racial, ethnic, religious and of other kinds), xenophobia, endemic and communicable and chronic diseases, arms production and acquisition and expenditure.51 The Copenhagen Declaration and Programme of Action further enshrined the commitments to eradicate – not only to alleviate or reduce – poverty in the world; like the final documents of previous World Conferences (supra), it also referred expressly to the right to development, – to the effect of placing human beings at the centre of all development and economics at the service of human needs,52 – and focused attention on vulnerable groups (including migrants, refugees and displaced persons).53 It warned as to the risks of social disintegration (in its various manifestations) and the need to promote social development in the light of 50 51

52

53

U.N., Report of the World Summit for Social Development (Copenhagen, 0612.03.1995), U.N. doc. A/CONF.166/9, of 19.04.1995, Annex I, p. 5, par. 5. Ibid., pp. 8 and 23, pars. 20, 23 and 29(9)(g). It called inter alia for “the appropriate reduction of excessive military expenditures, including global military expenditures and the arms trade, and investments for arms production and acquisition, (...) so as to allow possible allocation of additional funds for social and economic development”; ibid., p. 23, par. 29(9)(g). U.N., Proyecto de Resultado de la Cumbre Mundial sobre Desarrollo Social: Proyecto de Declaración y Proyecto de Programa de Acción, document A/CONF.166/PC/L.22, of 25.11.1994, p. 6; and, for the final version, cf. U.N., Informe de la Cumbre Mundial sobre Desarrollo Social (Copenhagen, 06-12.03.1995), doc. A/CONF.166/9, of 19.04.1995, Annex I, pp. 10-29. U.N., Informe de la Cumbre Mundial..., doc. cit. supra n. (52), pp. 5-101; U.N., Proyecto de Resultado..., doc. cit. supra n. (52), pp. 15-47. – As pointed out in a seminar of follow-up to the World Summit, the Declaration and Programme of Action of Copenhagen enlarged the concept of poverty so as “to include lack of access to basic services and amenities, lack of security and exclusion from participation in the life of the community. Furthermore, discrimination and social inequality were emphasized as significant facets of poverty; and the reduction of poverty was explicitly linked to the reduction of inequalities”. United Nations Research Institute for Social

The Legacy of the Recent Cycle of World Conferences of the United Nations

the observance of human rights, setting forth detailed agendas for law-making by States54 and for co-ordinated action by international organizations. 5.

IV World Conference on Women (Beijing, 1995)

The Beijing Declaration, adopted by the IV World Conference on Women (1995), expressed its determination “to advance the goals of equality, development and peace for all women everywhere in the interest of all humanity”, as well as “to ensure respect for international law, including humanitarian law, in order to protect women and girls in particular”.55 The Platform for Action, adopted by the same World Conference, also warned against the threatening growth of poverty (affecting mostly women)56 and singled out the role of women in the struggle against poverty.57 It further pondered that, while the international changes in the world scenario since the end of the cold war seemed to have reduced the threat of a global armed conflict, yet “wars of aggression, armed conflicts, colonial or other forms of alien domination and foreign occupation, civil wars and terrorism continue to plague many parts of the world. Grave violations of human rights of women occur, particularly in times of armed conflict, and include murder, torture, systematic rape, forced pregnancy and forced abortion, in particular under policies of ethnic cleansing”.58

In a “world of continuing instability”, the Beijing Platform further warned, violations of International Humanitarian Law and International Human Rights Law continue to occur, victimizing mainly women and children (besides the elderly and the disabled), who nowadays constitute some 80 per cent of the world’s mil-

54

55 56 57

58

Development (UNRISD), After the Social Summit: Implementing the Programme of Action (Report, Geneva Seminar, 04.07.1995), Geneva, UNRISD, 1995, p. 4. J. Paul, Incorporating Human Rights into the Work of the World Summit for Social Development, Washington, American Society of International Law (Issue Papers on World Conferences n. 3), 1995, pp. 54, and cf. pp. 27 and 33. Preamble and pars. 3 and 33. U.N., IV World Conference on Women – The Beijing Declaration and the Platform of Action (Beijing, September 1995), N.Y., U.N., 1996, p. 23, pars. 13 and 16. U.N., Informe de la IV Conferencia Mundial sobre la Mujer (Beijing, 04-15.09.1995), doc. A/CONF.177/20, of 17.10.1995, Annex I, chapter II, pars. 16-17 and 21; and chapter IV, pars. 47-57. U.N., IV World Conference on Women..., op. cit. supra n. (56), p. 22, pars. 10-11, and p. 121, pars. 211-212, and p. 126, par. 230(c). The Platform denounced that “excessive military expenditures, including global military expenditures and arms trade or trafficking, and investments for arms production and acquisition have reduced the resources available for social development”; ibid., p. 23, par. 13. It added that “family disintegration, population movements between urban and rural areas within countries, international migration, war and internal displacements are factors contributing to the rise of female-headed households”; ibid., p. 25, par. 22.

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lions of refugees and internally displace persons.59 The document added that those violations are breaches of “fundamental principles” of International Humanitarian Law and International Human Rights Law, which have, moreover, constituted “abhorrent practices that are strongly condemned and must be stopped immediately (...). (...) Gross human rights violations and policies of ethnic cleansing in war-torn and occupied areas continue to be carried out. These practices have created, inter alia, a mass flow of refugees and other [internally] displaced persons in need of international protection (...), the majority of whom are women, adolescent girls and children. Civilian victims, mostly women and children, often outnumber casualties among combatants”.60

Chapter IV of the Beijing Platform for Action called repeatedly for compliance with certain human rights and humanitarian treaties,61 given the “systematic and systemic character of discrimination against women”.62 The Platform warned against violence originating from certain cultural practices (traditional or modern) and aggravated by social pressures.63 Like other final documents of recent U.N. World Conferences, the 1995 Platform for Action clearly saw itself as part of the process of formation of the international agenda – centered on human beings, their needs and rights – of the XXIst century.64 6.

U.N. Conference on Human Settlements (Habitat-II, Istanbul, 1996)

The II U.N. Conference on Human Settlements (Habitat-II, Istanbul, June 1996) purported to dwell upon the central issues of sustainable human settlements in an urbanizing world65 and adequate shelter for all. The Habitat Agenda, adopted by the Conference, acknowledged the interdependence of economic and social

59 60 61

62 63 64 65

Ibid., pp. 83-84, pars. 134-136. Ibid., pp. 82-83, pars. 131 and 133. Such as the two U.N. Covenants on Human Rights, the U.N. Convention against Torture, the 1951 Convention and the 1967 Protocol on the Status of Refugees, the 1949 Geneva Conventions on Humanitarian Law and its two Additional Protocols of 1977, the U.N. Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, and, in particular, the Convention on the Elimination of All Forms of Discrimination against Women; cf., as to this latter, in doc. cit. supra n. (56), e.g., chapter IV, pars. 124, 199 and 221; and chapter V, pars. 323-324 and 327. Chapter IV, par. 222, and cf. pars. 213 and 223. Cf. chapter IV, pars. 118, 224, 251 and 276-277. Cf. chapter IV, par. 106. U.N., Why a Conference on Cities?, N.Y., U.N., 1995, pp. 1-3.

The Legacy of the Recent Cycle of World Conferences of the United Nations

development and environmental protection,66 and affirmed the right of everyone to an adequate standard of living, including “adequate food, clothing, housing, water and sanitation”, and to the “continuous improvement of living conditions”.67 It further stated that its objectives were “in full conformity” with the purposes and principles of the U.N. Charter and International Law, and professed its aim to promote international peace and security and support all endeavours to settle international disputes by peaceful means, in accordance with the U.N. Charter, adding that “to safeguard the interests of present and future generations in human settlements is one of the fundamental goals of the international community”.68 In the Istanbul World Conference debates, which invoked the role of human solidarity in the reduction of inequalities within and between countries, there was support for the view that “a sustainable habitat was no longer the responsibility and function of the State alone, but a challenge for all societal actors”.69 The improvement of the condition of human settlements, and of quality of life in general, was depicted as a “common cause of all mankind”, one which aimed at ensuring “a brighter future for humanity”.70 The Habitat Agenda devoted special attention to “vulnerable groups and people with special needs”,71 urged States to cooperate in order to achieve “the elimination of such practices and all unilateral measures impeding social and economic development”, and expressed the belief that attaining the goals listed in the Istanbul document would promote “a more stable and equitable world free from injustice and conflict” and would contribute to “a just, comprehensive and lasting peace”.72 7.

U.N. Conference on the Establishment of an International Criminal Court (Rome, 1998)

By the time the U.N. Conference on the Establishment of an International Criminal Court [ICC] was convened in Rome in 1998, its Preparatory Committee had already opted for the principle of complementarity73 to characterize the nature 66 67 68 69 70 71

72 73

U.N. Centre for Human Settlements, Habitat Agenda as Adopted at the United Nations Conference on Human Settlements (Habitat II), preamble, considerandum 1. Ibid., preamble, considerandum 9. U.N., Habitat Agenda and Istanbul Declaration, op. cit. supra n. (66), pp. 21-22 and 27. U.N., Report of the United Nations Conference on Human Settlements (Habitat II) (Istanbul, 03-14 June 1996), N.Y., U.N., 1997, pp. 135, 140 and 172, and cf. p. 219. Cf. ibid., p. 222. U.N., Habitat Agenda and Istanbul Declaration, op. cit. supra n. (66), pars. 72-75, and cf. pars. 86-92 and 15 (poverty eradication, creation of productive employment and social integration). Ibid., par. 13. Cf. 10th preambular paragraph of the Rome Statute; and cf. Articles 12-14, on the preconditions to the exercise of the ICC jurisdiction.

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of the relations between the ICC and national jurisdictions, and attention was turned to the “core crimes” to fall under the competence ratione materiae of the future ICC, as well as the “triggering mechanism” and the status and faculties of the Prosecutor, in the prolonged discussions in the six periods of sessions of that Committee (1996-1998).74 On 17.07.1998 the U.N. Rome Conference approved the Statute of the ICC,75 which defined four categories of “core crimes” (Article 5) under the jurisdiction of the ICC,76 – after debates which prolonged up to the end of the Conference, – namely, genocide (Article 6),77 crimes against humanity (Article 7), war crimes (Article 8), and the crime of aggression.78 For the inclusion of this latter in the Statute it was necessary to overcome prolonged resistances and controversies, partly due to the involvement in the issue of a political organ like the U.N. Security Council.79 The Statute set forth general principles of international criminal law,80 despite the conceptual differences between Delegations of countries of droit civil and those of common law.81 It was, in addition, clarified that, to crimes of the gravity of genocide, crimes against humanity and war crimes, no statutes of limitations can apply, as those crimes fall under the domain of jus cogens, bringing about obligations erga omnes.82 The 1998 Rome Conference has thus contributed 74

75 76 77 78 79

80 81 82

For an account of the work of the Preparatory Committee, cf. U.N., doc. A/AC.249/1, of 07.05.1996, pp. 1-132; U.N., doc. A/AC.249/1998/L.3, of 04.02.1998, pp. 1-175. Like previous U.N. World Conferences, the process of the Rome Conference also counted on the contribution of non-governmental organizations; cf., e.g., Amnesty International, The International Criminal Court: Making the Right Choices, Part I, Jan. 1997, pp. 1-3; Part II, July 1997, pp. 1-96; Part III, July 1997, pp. 1-63; Part IV, March 1998, pp. 1-51. Human Rights Watch, Commentary for the Siracusa Meeting of Experts on the Establishment of a Permanent International Criminal Court, N.Y., HRW, [1997], pp. 1-5. Besides its Annexes, and the Final Act of the Conference. Cf. Articles 34-39 of the Statute, on its Pre-Trial, Trial and Appeals Chambers. The definition of which derives from that set forth in Articles II-III of the 1948 Convention against Genocide. On this latter, cf. Articles 5(2), 121 and 123 of the Statute. The absence of a statutory definition of the crime of aggression was cause for concern. Likewise, the “transitory provision” of Article 124 of the Statute, – reflecting the vicissitudes of the negotiatory process, – allowing for the non-acceptance of the jurisdiction of the ICC over war crimes (Article 8) for a period of seven years (sSince the entry into force of the Statute for the State Party at issue), was, not surprisingly, promptly criticized (mainly by non-governmental organizations). Cf., generally, A. Cassese, International Criminal Law, Oxford, University Press, 2003, pp. 31-36. Cf. H.-P. Kaul, “Towards a Permanent International Criminal Court – Some Observations of a Negotiator”, 18 Human Rights Law Journal (1997) p. 173, and cf. p. 171. Cf., e.g., M.C. Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes”, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights (Proceedings of the Siracusa Conference, September

The Legacy of the Recent Cycle of World Conferences of the United Nations

to overcome a gap which persisted in traditional international law, in establishing a permanent international criminal jurisdiction; it has further contributed to the configuration of accountability under International Law for atrocities perpetrated against human beings. It has become an important step in the long-standing struggle against impunity, and has enhanced the rule of law, at both national and international levels. It remains now to see how will the Rome Statute be put into practice. 8.

World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, 2001)

Human suffering has in fact projected itself in time, encompassing successive victims;83 the Durban Declaration and Programme of Action, the main final document adopted by the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, South Africa), was, not surprisingly, wholly victim-oriented. It warned that racism, racial discrimination, xenophobia and related intolerance “constitute a negation of the purposes and principles” of the U.N. Charter.84 It denounced the “devastating evils of humanity”, such as those “inflicted on millions of men, women and children as a result of slavery, the slave trade, the transatlantic slave trade, apartheid, genocide and past tragedies”;85 it further singled out the “dehumanizing conditions of ex-

83

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1998, ed. C.C. Joyner), Ramonville St.-Agne, Érès, 1998, pp. 133-148. – The Rome Statute provided for ex officio faculties of the Prosecutor (Articles 15-18), including that of initiating investigations motu propio; and as to the system of penalties, while under the Statutes of the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda there was a renvoi to the respective domestic legal orders, the Rome Statute, in turn, established its own applicable penalties (Article 77). In this respect, when asked what could one behold, from the perspective of the victims, in human experience along the XXth century, one of the coordinators of the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, South Africa) replied: – “We see a path full of corpses: those of the Armenian genocide, those of the genocide in the Soviet gulags, those of the holocaust of millions of Jews but also of hundreds of thousands of gypsies and the subjection to slavery of hundreds of millions of individuals in Europe, those of the Cambojan genocide, those of the Rwandan genocide, those of the ethnic cleansings in all parts of the world: in the Balcans, in the Region of the Great Lakes of Africa, in Tibet, in Guatemala, to mention but some examples”. J.L. Gómez del Prado, La Conferencia Mundial contra el Racismo – Durban, Sudáfrica 2001, Bilbao, University of Deusto, 2002, p. 11. 13th preambular paragraph, text in: U.N., Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban, 31.08.2001 to 08.09.2001), U.N. doc. A/CONF.189/12, 2001, p. 6. The Declaration reasserted non-discrimination as a “fundamental principle of International Humanitarian Law”; ibid., p. 12, par.20. Durban Declaration, paragraphs 3 and 100.

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treme poverty to which more than one billion [people] are currently subjected”, and to which “historical injustices have undeniably contributed”.86 The Durban Declaration further acknowledged that “slavery and the slave trade, including the transatlantic slave trade, were appalling tragedies in the history of humankind not only because of their abhorrent barbarism but also in terms of their magnitude, organized nature and especially their negation of the essence of the victims (...)”.87

The Durban Declaration and Programme of Action, accordingly, devoted attention to the provision of remedies, reparations and compensation to victims at domestic and International Law, and recalled that some States had already taken the initiative to apologize and pay reparation, where appropriate, for grave and massive violations committed. It stressed the relevance of the right to seek just and adequate reparation or satisfaction for damages suffered as a result of discrimination, as enshrined in numerous international human rights instruments, such as the U.N. Convention on the Elimination of All Forms of Racial Discrimination.88 It further invited the international community and its members “to honour the memory of the victims” of racism and to restore their dignity, with a view to “closing those dark chapters in history and as a means of reconciliation and healing”.89 9.

U.N. Millenium Summit (2000) and World Summit Outcome (2005)

By the end of December 1998, the U.N. General Assembly decided to convene yet another World Conference (in 2000), to be called the Millenium Summit.90 Four months before the Summit, the U.N. Secretary-General (Kofi Annan) invited governments to take the occasion to consider expressing support for a core list of 25 multilateral treaties (including human rights treaties and international criminal law treaties) that he hoped would attain universal participation; he obtained responses from 84 governments.91 The Summit meetings (four roundtables) took place in the U.N. headquarters in New York, with an impressive presence of Heads of State and Government, on 06-08 September 2000. By means of its resolution 55/2, of 08.09.2000, U.N. General Assembly adopted the so-called Millenium Declaration, purporting to foster the process of reforms of the United Nations. 86 87 88 89 90 91

Durban Declaration, pars. 3, 19 and 158. Durban Declaration, paragraph 13, text in op. cit. supra n. (84), p. 11. Paragraphs 165-166, 100 and 104. Paragraph 101. U.N., General Assembly resolution 53/202, of 17.12.1998. Cf. M.G. Schechter, United Nations Global Conferences, London/N.Y., 2005, pp. 156161.

The Legacy of the Recent Cycle of World Conferences of the United Nations

After reasserting the principles and purposes of the U.N. Charter, regarded as “atemporal and universal” (par. 3), the Declaration professed respect for the rule of law at both national and international levels, and the determination to secure the implementation of treaties in such areas as, e.g., disarmament and control of armaments, International Humanitarian Law and International Human Rights Law (par. 9). The Millenium Declaration focused on the strengthening of the United Nations,92 in order to secure justice and the rule of law in international relations (par. 30).93 It then identified what it called the “Millenium Development Goals” (such as erradication of extreme poverty, universality of primary education, protection of human health and reduction of child mortality, promotion of environmental sustainability and global partnership for development, and empowerment of women and promotion of their equality with men),94 – some of which had already been asserted and stressed by earlier U.N. World Conferences (cf. supra). In September 2003 the then U.N. Secretary-General announced, in the framework of the reforms, the creation of a High Level Panel to study the threats and challenges confronting the United Nations, and the changes required therefrom. The Report of the Panel, titled “A More Secure World: Our Shared Responsibility”, issued on 02.12.2004, warned against the threats to human rights and humanitarian law, to health and of environmental degradation, of poverty, of weapons of mass destruction, and of terrorism.95 The 2004 Report called for a more effective system of collective security, with adjustments in the Security Council,96 and for 92

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It reasserted the “central position” of the General Assembly, the necessity of intensifying efforts to achieve a comprehensive reform of the Security Council “in all its aspects”, and called for the enhancement of the International Court of Justice ((par. 30). U.N., G.A. resolution A/RES/55/2, of 08.09.2000, pp. 1-9. On the centrality of the human rights approach in the “Millenium Development Goals”, cf. United Nations, Claiming the Millenium Development Goals: A Human Rights Approach, N.Y./Geneva, UNHCHR, 2008, pp. 1-52. U.N., A More Secure World: Our Shared Responsibility – Report of the High-Level Panel on Threats, Challenges and Change (Executive Summary), N.Y., U.N., 2004, pp. 1-2. – Hence the importance of prevention and of a more effective system of collective security. In this regard, Brahimi Report of 2000 had already called upon U.N. member States to a greater cooperation with U.N. peace operations; ibid., pp. 2-4; and cf. L. Boisson de Chazournes, “Rien ne change, tout bouge, ou le dilemme des Nations Unies propos sur le rapport du Groupe de Personnalités de Haut Niveau sur les menaces, les défis et le changement”, 109 Revue générale de Droit international public (2005) pp. 155-156, and cf. pp. 147-161. By means either of the increase of new permanent members without veto, or else of four new non-permanent members, in rotation. It may be recalled that successive projects of reforms of the Security Council have been considered and debated in the United Nations since 1991; cf. B. Fassbender, U.N. Security Council Reform and the Right of Veto – A Constitutional Perspective, The Hague, Kluwer, 1998, ch. IX, pp. 221-275.

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the creation of a new organ of the United Nations, the Peacebuilding Commission, which would act in coordination with regional organizations, to devote the necessary attention to countries emerging from a situation of conflict.97 Shortly afterwards, the U.N. Secretary-General presented, six months before the 2005 World Summit, its Report of 21.03.2005 titled “In Larger Freedom: Towards Development, Security and Human Rights for All”, which addressed the enhancement of collective action to sustain the rule of law at national and international levels,98 and to protect “potential or real victims of mass atrocities”.99 It singled out the role of the international judicial function (contemporary international tribunals),100 as well as of fact-finding,101 as components of the aforementioned rule of law. It further called for the universal ratification of treaties which are essential to face the new challenges to the international community, and reasserted the continuing validity of the principles and purposes of the U.N. Charter.102 The Report recognised the need of structural changes of the United Nations, and contained recommendations, in that regard, to the forthcoming World Summit of Heads of State and Government.103 In mid-September 2005, the World Summit took place at the U.N. headquarters in New York. The intervening Heads of State and Government (or their representatives) dwelt upon the virtual totality of the items of the agenda; successive interventions dwelt upon several aspects of the threats and challenges 97 98

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U.N., A More Secure World: Our Shared Responsibility..., op. cit. supra n. (95), pp. 5-6. Cf. U.N., In Larger Freedom: Towards Development, Security and Human Rights for All – Report of the Secretary General, document A/59/2005, of 21.03.2005, pp. 6 and 24. Ibid., pp. 34-36. On the formulation of the “responsability to protect”, originated from a Canadian proposal, cf., e.g., P. Hilpold, “The Duty to Protect and the Reform of the United Nations – A New Step in the Development of International Law?”, 10 Max Planck Yearbook of United Nations Law (2006) pp. 50-54; H. Owada, “The United Nations and the Maintenance of International Peace and Security – The Current Debate in the Light of Reform Proposals”, 48 Japanese Annual of International Law (2006) pp. 7-10. Adding to the ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda (cf., e.g., P. Tavernier and C. Renaut (eds.), Actualité de la jurisprudence pénale internationale à l’heure de la mise en place de la Cour Pénale Internationale, Bruxelles, Bruylant, 2004, pp. 7-278), the so-called internationalized or mixed Tribunals; cf., e.g., [Various Authors,] Internationalized Criminal Courts – Sierra Leone, East Timor, Kosovo and Cambodia (eds. C.P.R. Romano, A. Nollkaemper and J.K. Kleff ner), Oxford, University Press, 2004, pp. 3-444; D. Linton, “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, 12 Criminal Law Forum (2001) pp. 185-246; R. Rossano, “La Corte Speciale per la Sierra Leone”, 12 I Diritti dell’Uomo (2001) pp. 83-87. E.g., the commissions of fact-fi nding for Darfour, East Timor and Côte d’Ivoire. U.N., In Larger Freedom..., op. cit. supra n. (98), pp. 36 and 39. Cf. ibid., pp. 52 and 55-62.

The Legacy of the Recent Cycle of World Conferences of the United Nations

to the present-day international community.104 The World Summit decided in effect in favour of the creation of the Peacebuilding Commission, as well as of a new Human Rights Council in order to replace the former U.N. Commission on Human Rights. There was no decision as to the reform of the Security Council, which was postponed, to the dissatisfaction of many delegates; the U.N. Secretary-Geral himself expressed his “disappointment” with the deletion from the final document of the Summit of all references to disarmament and nuclear nonproliferation.105 Half a decade after the Millenium Declaration (2000), the U.N. at last adopted the document titled the 2005 World Summit Outcome, as considered by the Summit and the General Assembly (LX Session). Composed of five parts and 178 paragraphs, the document addressed the following themes: a) values and principles; b) development; c) peace and collective security; d) human rights and the rule of law; and e) strengthening of the United Nations.106 In the first part, the World Summit Outcome stressed the importance of multilateralism, of collective security, of the universality of human rights, of cultural and religious diversity for the enrichment of humankind, and of the need to face the causes of the current threats and challenges to the international community.107 In the second part, it recalled the commitment with the erradication of poverty, of environmental protection and of sustainable development;108 moreover, it stressed the importance of a society centred in the population.109 In the third part, concerning peace and collective security, it condemned State unilateralism, and reiterated the fundamental principles of the prohibition of the use of force and of peaceful settlement of international disputes, and the commitment of all with multilateralism.110 It stressed the important role of the United Nations in peacekeeping and peacebuilding, in the application of sanctions without resorting to the use of force, and in the struggle against terrorism (with due respect for International Law, encompassing the International Law of Human Rights, the International Law of Refugees and International Humanitarian Law).111 As to peacebuilding, the decision was effectively taken to create a

104 For a recent account, cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 4th. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2009, pp. 545-552, esp. pp. 549-555. 105 Cf. ibid., p. 2. 106 Cf. U.N., 2005 World Summit Outcome, document A/60/L.1, of 15.09.2005, pp. 1-40. 107 Paragraphs 6-8 and 13-14. 108 It further launched the International Decade for Action “Water for Life”; paragraphs 19, 24 and 56. 109 With due respect for the rights of women and of migrants; paragraphs 60-62. 110 Paragraphs 72-78. 111 Paragraphs 81-87, 91-92, 97-98 and 106. On the promotion of the dialogue and understanding among civilizations, cf. paragraph 82.

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Peacebuilding Commission as a “consultative intergovernmental organ”.112 The fourth part of the aforementioned document of 2005, after reiterating the universality and interdependence of all human rights, decided to strengthen the U.N. High-Commissioner for Human Rights.113 In a significant paragraph, the document asserted that “Recognizing the need for universal adherence to and implementation of the rule of law at both the national and international levels, we: – reaffirm our commitment to the purposes and principles of the Charter and international law and to an international order based on the rule of law and international law, which is essential for peaceful coexistence and cooperation among States”.114

The fifth and last part, on the strengthening of the United Nations, restated the determination to this end, so as to enhance the U.N. organs to face the “needs of the XXIst century”, as well as the pursuance of the “prompt reform” of the Security Council, so as to render it more widely representative, efficient and transparent.115 It further expressed its commitment to continue to give a follow-up to the results of the U.N. World Conferences116 (cf. supra). It decided to create a Human Rights Council, to strengthen further the U.N. mechanisms of human rights.117 The document finally added that, as the U.N. Trusteeship Council (TC) had already performed the historical functions conferred upon him, chapter XIII of the U.N. Charter should be deleted, as well as the reference to the TC in chapter XII; it also expressed its decision to eliminate the references to “enemy States” found in Articles 53, 77 and 107 of the Charter.118 III. The United Nations and the Rule of Law at National and International Levels It is reassuring to notice that the rule of law is now being considered also at international level, and has found its place in the recent debates concerning the reform of the United Nations (supra). In effect, it is to be kept in mind that the concept of rule of law has a long history; its roots go back to the thought of ancient Greeks (Plato, Aristotle). As with them, in ancient Rome Cicero sustained that 112 Paragraph 97. 113 Paragraphs 120-121 and 124. And cf., on the protection of refugees as well as internally displaced persons, paragraphs 132-133. 114 Paragraph 134(a). On the protection of populations, – by means of “collective action” under the U.N. Charter (chapter VII), – against genocide, war crimes, ethnic cleansing, and crimes against humanity, cf. paragraph 139. And on the “dialogue among cultures, civilizations and religions”, cf. paragraphs 141-145. 115 Paragraphs 146 and 153. 116 Paragraphs 155, 157 and 169. 117 Paragraph 157. 118 Paragraphs 176-177.

The Legacy of the Recent Cycle of World Conferences of the United Nations

law emanated from the recta ratio and aimed to accomplish the common good.119 Thus conceived, the rule of law had another ancestor in Thomas Aquinas.120 Later on, Enlightenment philosophers expressed confidence in the application of right reason in pursuance of universal principles.121 Thereafter, the rule of law kept on being cultivated,122 both in the relations between the public power and individuals, and in those among nation States. In our days, the rule of law is considered in greater depth at national as well as international levels, and bearing in mind the needs and aspirations of the international community as a whole. In fact, as already indicated, in the debates at the United Nations in the period 2000-2005, attention has reassuringly been drawn into the rule of law at both national and international levels. At first, the U.N. Millenium Declaration, adopted in September 2000, called for “respect for the rule of law in international as in national affairs”, as well as the implementation by States Parties of treaties in the domains of disarmament and arms control, International Humanitarian Law, and International Human Rights Law.123 This passage echoed the call, made on various occasions in recent years, in successive U.N. World Conferences as well as in expert writing.124 119 To him, true law is right reason, eternal and spread through all people (On the Commonwealth, book 3, section 33); right reason establishes justice, which “constitutes the bond among humans” (On the Laws, book 1, section 42); Cicero, On the Commonwealth and on the Laws (ed. J.E.G. Zetzel), Cambridge, University Press, 2003 [reprint], pp. 71, 120 and 172. 120 In his locus classicus on natural law, his Treatise on Law (found in the second part of his Summa Theologiae), Thomas Aquinas, upholding the rectitude of reason itself and the existence of universal precepts, asserted that “the end of law is the common good, because, as Isidore says (...), law should be framed, not for any private benefit, but for the common good of all the citizens” (question 96, article 1); Th. Aquinas, Treatise on Law, Washington D.C., Regnery Publs./Gateway Eds., 2001 [reprint], p. 88, and cf. p. 107, and, on synderesis, cf. also p. 57. 121 B.Z. Tamanaha, On the Rule of Law – History, Politics, Theory, Cambridge, University Press, 2004, pp. 7, 11-12, 18-19 and 39-42, and cf. pp. 71, 80, 120-121, 127 and 136. 122 Spinoza, for example, aware of the place occupied by recta ratio in the stoicism, drew attention to its specificity, the (universal) rectitude of which leads to right action; B. Rousset, “La ‘Recta Ratio’”, in La Recta Ratio: Criticiste et spinoziste? – Hommage en l’honneur de B. Rousset (ed. L. Bove), Paris, Presses de l’Univ. Paris-Sorbonne, 1999, pp. 18 and 25. It is, thus, quite distinct from, and indeed opposed to, calculations and rationalizations, which not seldom appear irrational; the ancient Greeks already distinguished between reason and calculation, between logos and logismos; B. Piettre, “Calcul et raison”, in ibid., pp. 202-203, 205, 209 and 228. 123 Part II(9) of the Declaration. 124 As to this latter, to recall but one example, one decade earlier, in an essay published in 1991, the Russian jurist G.I. Tunkin recalled U.N. General Assembly resolutions, such as the 1981 Declaration on the Prevention of War, which stipulated that States and their rulers that first resorted to the use of nuclear weapons would “commit the greatest crime against humanity”; he argued that only the U.N. could take enforcement measures, limited to issues of international peace and security. Singling

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In the framework of the preparatory work of the 2005 review of progress in the implementation of that Declaration together with the “Millenium Development Goals”, the U.N. Secretary-General decide to convene a “treaty event”, in September 2005, titled “Focus 2005: Responding to Global Challenges”. To that end, a selection was made, out of 500 multilateral treaties of which he was depositary, of the key provisons and objectives of a “core group” of 32 multilateral treaties, reflecting a broad array of interconnected concerns, namely: protection of human rights and of refugees, protection of the environment, disarmament, law of treaties, law of the sea, health, penal matters, combat of terrorism, and of organized crime and corruption.125 Urging all States to become Parties to those treaties and to implement them, the Secretary-General warned that advances in such selected domains “depends, crucially, on the strength of our collective efforts to consolidate and advance the rule of law”, at national and international levels.126 The central purpose of the whole exercise was to secure the “continuing commitment” of States to “the central role of the rule of law in international relations”.127 The selected treaties, – in the ponderation of the Secretary-General, – further reflected the international community’s endeavours, over 60 years, “to build a multilateral framework of agreed rules not only to govern inter-State relations but also to strengthen the legal environment in which individuals live” and work.128 It is worth singling out the main traits of this exercise, in the progress review of the Millenium Declaration and the “Millenium Development Goals”, namely: the focus on multilateral treaties, the search for – and assertion of – the primacy of the rule of law at both national and international levels, and the overcoming of the purely inter-State outlook of the matter. Half a decade after the launching of this exercise at the United Nations, the new document 2005 World Summit Outcome, adopted in September 2005, referring to the aforementioned “treaty event”, recognized “the need for universal adherence to, and implementation of,

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out the contribution of the “increasing role” of international organizations in the settlement of international disputes, he stressed their crucial role also for moving forward to “the primacy of international law”. To him, “international politics should abide by international law because without it politics cannot ensure a durable normal functioning of the international system, and therefore the survival of mankind”. G.I. Tunkin, “Remarks on the Primacy of International Law in Politics”, in Le droit international au service de la paix, de la justice et du développement – Mélanges M. Virally, Paris, Pédone, 1991, pp. 457 and 462-463. Cf. United Nations, Multilateral Treaty Framework: An Invitation to Universal Participation – Focus 2005: Responding to Global Challenges, N.Y., U.N., 2005, pp. 1154. U.N., Multilateral Treaty Framework..., op. cit. supra n. (125), p. XI. Ibid., p. VII. Ibid., p. VIII.

The Legacy of the Recent Cycle of World Conferences of the United Nations

the rule of law at both the national and the international levels”.129 Such rule of law is a component of the new jus gentium of our days. In fact, at the U.N. 2005 World Summit itself, and subsequently to it (period 2005-2008), attention has further been focused on the needed strengthening of the rule of law at national and international levels.130 In fact, shortly after the adoption of the document World Summit Outcome (2005), it was pointed out to the U.N. Secretary General that the international and national dimensions of the rule of law were “strongly interlinked”, and that “the strengthening of the rule of law at the international level thus had a direct impact on the rule of law at national level”.131 As a follow-up to the commitment to that end given at the U.N. World Summit, the subject was taken up for further consideration, in 2006, by the VI Committee of the U.N. General Assembly. This latter, on its turn, recommended, on 17.11.2006, a “solemn commitment to an international legal order based on the rule of law and international law”, bearing in mind the “indivisible core values and principles of the United Nations”.132 The U.N. General Assembly, on its part, endorsed the recommendation of its VI Committee, in its resolution on “The Rule of Law at the National and International Levels”, adopted on 18.12.2006.133 The fact that the subject has been taken up at the highest level by the United Nations seems to disclose a new consciousness of the pressing need to secure the preservation and strengthening of the rule of law at national and international levels. And, in this domain, the right of direct access to justice at national and international levels has a key role to play. Pursuant to the U.N. General Assembly resolution 61/39, of 2006, the U.N. Secretary General presented an interim report, circulated on 15.08.2007, on “The Rule of Law at the National and International Levels”, which surveyed current activities of the organs, bodies, offices, departments, funds and programmes within the U.N. system devoted to the promotion of the rule of law at the national and international levels, for consideration of the U.N. General Assembly. The compiled inventory 134 covered the following activities: a) at the international level, activities relating to the teaching and dissemination and promotion of international law, to assistance in the domestic implementation of international law, to dispute resolution at the international level, and to conflict resolution and trasitional justice; and b) at the national level, activities relating to the strength-

129 Part IV(134) of the document. 130 U.N., G.A. resolution 60(1), of 2005. 131 Annex to the letter from Liechtenstein and Mexico to the U.N. Secretary General, of 11.05.2006, U.N. doc. A/61/142, par. 2, and cf. par. 4. 132 U.N., Report of the VI Committee, U.N. doc. A/61/456, of 17.11.2006, p. 3, par. 9. 133 U.N., G.A. resolution 61/39, of 18.12.2006, pars. 1-5. 134 On the basis of the information provided by a total of 40 entities within the U.N. system contacted to that end.

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ening of administrative institutions and public law and governance issues, and to the administration of justice and law enforcement.135 Furthermore, the U.N. Secretary General presented another report, on 11.07.2007, also on “The Rule of Law at the National and International Levels”, on the comments and information received from governments on the subject at issue.136 It is significant that, by then, the subject had gathered growing attention at the U.N., in a clear sign of the awakening of conscience as to its importance in our times. This can clearly be seen in some converging comments made by Delegations of countries from different continents and distinct cultural backgrounds on the matter under consideration.137 There was a call for “universal adherence” to the rule of law at national and international levels, duly implementing it, and singling out the rule of law in postconflict situations as well as in the context of long-term development.138 More recently, in a resolution adopted on 11 December 2008, the U.N. General Assembly itself has reaffirmed “the need for universal adherence to and implementation of the rule of law at both the national and international levels”, as well as its “commitment to an international order based on the rule of law and international 135 Cf. U.N. document A/62/261, of 15.08.2007, pp. 1-12. 136 Cf. U.N. document A/62/121, of 11.07.2007, pp. 1-35. 137 For example, one of the Delegations pointed out that the international rule of law meant that “international law constitutes the foundation of international relations”, and that an important role was reserved to the U.N. and multilateral institutions in this domain; statement by Sweden, in ibid., p. 31. In fact, some Delegations expressly recalled and endorsed the commitment of the 2005 World Summit Outcome document to the rule of law at national and international levels. The commitment to the purposes and principles of the U.N. Charter was likewise reiterated (statement by Kuwait, in ibid., p. 21). State conduct was to be guided by the principles of international law, there being a need of “an effective multilateral system so as to prevent or sanction violations of international law” (statement by Germany, in ibid., pp. 18-19). The broad concept of rule of law, – it was argued, – encompassed not only the norms regulating human activity (of both the governing and the governed), but also the subjects of rights; at international level, the rule of law is grounded on the principles of the U.N. Charter, there being a need to strengthen the role of international tribunals (statement by Mexico, in ibid., pp. 24-27). There was also need to secure compliance with judgments of international tribunals and resolutions of international organizations (statement by Egypt, in ibid., p. 11). The subjection of the State and its authorities to the law was called for, as no one was above the law (statement by The Netherlands, in ibid., pp. 28-29). Likewise, it was asserted “the subjection of the State to the law, meaning that the executive authority is bound by the law in all the actions that it takes and measures that it pursues” (statement by Qatar, in ibid., p. 30). 138 Statement by Liechtenstein, in ibid., p. 23. The strengthening of the rule of law was supported as “a condition for the prevention of conflict and a key element in peacemaking and peacebuilding” (statement by France, in ibid., p. 16). Attention was drawn to the interrelatedness between the rule of law and peace, security, development and respect for human rights (statement by Finland, in ibid., p. 12).

The Legacy of the Recent Cycle of World Conferences of the United Nations

law”.139 The universal juridical conscience keeps on moving ahead contemporary International Law, the new jus gentium of our times. IV. Concluding Observations What lessons can be extracted from the present transformation of epoch? The XXth century has left a tragic mark: never, as in the last century, so much progress in science and technology has been verified, accompanied paradoxically by destruction and cruelty in an unprecedented scale.140 Despite all the advances registered in the last decades, e.g., in the protection of human rights, grave and massive violations of these latter have persisted. The remarkable transformations in the contemporary world scenario launched as from 1989, by the end of the cold war and the outbreak of numerous internal conflicts, have characterized the end of the XXth century as a moment in history of considerable political density and of profound reflection on the very bases of international society, and of the gradual formation of the international agenda of the beginning of the XXIst century. The rapid changes amidst the search for new forms of political, social and economic organization have disclosed the growing vulnerability of human beings, and their increasingly greater needs of protection. International Law has not remained indifferent to the fate of human beings: despite the recurrence of of the breaches of the law and of violations of human rights, the reaction of human conscience is nowadays felt, much more promptly than in the past. There is, thus, reason for hope. The turn of the century has been marked by an over-all reassessment of many concepts in the light of the consideration of themes which affect humankind as a whole (human rights, development, environment, population, human security and peace, international criminal justice and struggle against racism). It is not surprising that, in approaching such themes of universal concern, the U.N. World Conferences have criticized and discarded unwarranted unilateral measures.141 The recent cycle of U.N. World Conferences has generated an unprecedented and impressive universal dialogue and concert, not at all limited to the official debates among governmental Delegates; such Conferences have all been accompanied by World Forums of non-governmental organizations and entities of civil 139 U.N., General Assembly resolution 63/128, of 11.12.2008, on “The Rule of Law at the National and International Levels”, fourth preambular paragraph. 140 Cf. chapter XVI, supra. 141 In this respect, the 1995 Beijing Platform for Action, for example, saw it fit eloquently to “discourage the adoption of and refrain from any unilateral measure, not in accordance with International Law and the Charter of the United Nations, that impedes the full achievement of economic and social development by the population of the affected countries”. U.N., IV World Conference on Women..., op. cit. supra n. (56), p. 89, par. 144(h). The Platform supported the taking of measures “in accordance with international law with a view to alleviating the negative impact of economic sanctions on women and children”; ibid., p. 89, par. 144(i).

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society, national and international.142 The views of these latter have been duly taken into account. Such wide participation – States and civil society – has characterized the dialogue sustained also in the follow-up of the U.N. World Conferences.143 It is today generally acknowledged that such transparent “State-societal interaction” has stressed the relevance of universal principles and social values, has fostered multilateralism and established a pattern of change in ideas aiming at the general improvement of the human condition.144 These points have simply been missed by the so-called “realists”, who, in their characteristic myopia,145 have, not surprisingly, attempted, in vain, to minimize the universal dialogue emerging from the recent U.N. World Conferences. “Realists” cannot understand the construction of a universal international law incorporating ethical values, engulfed as they have permanently been in their Hobbesian outlook of national self-interest, endless competition, struggle for survival, and blatant power theories on international relations. In their constant subservience to power, – as they see it at a given moment in history, – “realists” surely cannot share Cicero’s conception of jus gentium as a common law of humankind, nor F. Suárez’s jus gentium proper to humankind, nor the Grotian construction of a new jus gentium – based on the dictates of recta ratio – for the new times.146 “Realists” have thus been rather inclined to justify armaments and the arms race, and have somewhat cynically developed rationalizations of whatever practical objectives they happened to have chosen to uphold, in their rejection of all idealism and of universal ethical principles.147 To their surprise, if not astonishment and confusion, contemporary International Law has suceeded to transcend 142 I had the occasion, parallel to the official Conferences (cf. note (1), supra), to participate in two of those NGO World Forums, namely, those of the 1992 U.N. Conference on Environment and Development (Rio de Janeiro), and of the 1993 II World Conference on Human Rights (Vienna). My personal recollections of those events are assembled in A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 214-231 and 261-267. Cf. also, e.g., World Conference on Human Rights (Vienna, June 1993) – The Contribution of NGOs, Reports and Documents (ed. M. Nowak), Vienna, Manz, 1994, pp. 1-231. 143 An assessment of the impact of these latter has held that such wide participation is nowadays necessary for ensuring the effectiveness of the relevant international law norms as well of their follow-up mechanisms. Cf. [Various Authors,] United Nations-Sponsored World Conferences – Focus on Impact and Follow-up (ed. M.G. Schechter), Tokyo, U.N.U. Press, 2001, pp. 5, 7, 58-59, 61-62, 67, 75 and 180-181. 144 Cf. A.F. Cooper, Tests of Global Governance: Canadian Diplomacy and United Nations World Conferences, Tokyo, United Nations University Press, 2004, pp. 1-5, 1314, 21, 39-68 and 248-249. 145 Cf. chapter II, supra. 146 Cf. Ch.S. Edwards, Hugo Grotius, the Miracle of Holland – A Study of Political and Legal Thought, Chicago, N.-Hall Publs., 1981, pp. 53, 63, 74, 89-90, 103 and 171-173. 147 Cf. ibid., pp. 174-176.

The Legacy of the Recent Cycle of World Conferences of the United Nations

the traditional inter-State paradigm, which they have been so used to, and familiar with. The law of nations has in fact evolved – amidst a profound crisis of values – into a universal International Law. The fact that societal aspirations have been duly taken into account in the unprecedented dialogue of recent U.N. World Conferences has conferred, in my view, special relevance and an undeniable legitimacy upon the respective final documents of those World Conferences (supra): they identify the contents of the international agenda of this new century, the needs and aspirations of the international community lato sensu, comprising States and other subjects of International Law, engaged into that sustained universal dialogue to the benefit of humankind as a whole. In those U.N. World Conferences, the issues of satisfaction of basic human needs, peoples’ empowerment, sustainable development,148 and search for more effective protection of economic, social and cultural rights (largely overlooked in the past) have occupied a special place and attracted particular attention. The recent U.N. World Conferences have been particularly attentive to the conditions of life and special needs of protection in particular of vulnerable groups and the poorer segments of the population. This is reflected in various passages of their lengthy final documents, which place human beings at the centre of their concerns. In focusing on vulnerable groups (such as, among others, those formed by the poorest segments of society), the immediate concern has been with meeting basic human needs, and therefrom with fostering people’s empowerment. The experience in human rights promotion and protection has not, in fact, been confined to meeting basic human needs: it has gone much further than that, towards empowerment, in the civil, political, economic, social and cultural domains. The United Nations itself has summed up the message of its recent World Conferences in singling out their new people-centred, sustainable, gender-sensitive and social dimension, as well as the “universality of concern” regarding the issues dealt with.149 The international human rights agenda has, moreover, with the crystallization of the right to development as a human right,150 expanded considerably. In sum, the common denominator of the recent cycle of U.N. World Conferences has been the special attention to the conditions of living of the population, – in particular of those conforming vulnerable groups, in special

148 Regarded as encompassing the eradication of poverty, the meeting of basic human needs (the central preoccupation of Agenda 21) and the improvement of socio-economic conditions of life. 149 U.N., The World Conferences – Developing Priorities for the XXIst Century, N.Y., U.N., 1997, pp. V-VI, 1-3 and 6. 150 By means of the reassertion of the right to development as a human right by the 1992 Rio de Janeiro Declaration, the 1993 Vienna Declaration and Programme of Action, and the 1994 Cairo Programme of Action, followed by the 1995 Copenhagen Declaration and Programme of Action, the 1995 Beijing Platform for Action, and the 1996 Habitat Agenda.

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need of protection.151 The implications of placing people at the centre of politicoeconomic changes and of all development process are considerable and call for a reassessment of traditional concepts (e.g., models of development, security, international cooperation). The great challenges of our times, addressed in the final documents of the U.N. World Conferences, have urged States and other subjects of International Law to foster the revitalization of the very foundations and principles of contemporary International Law, shifting the emphasis from classic jurisdictional and spacial (territorial) solutions on to the notion of solidarity. Underlying those final documents of U.N. World Conferences, added to the 1998 Rome Statute of the ICC, and the 2001 Durban Declaration and Programme of Action, is ultimately the universal search for justice. This comprises not only distributive justice, but also redress for the wrongs inflicted upon millions of human beings. International Law, the new jus gentium of this beginning of the XXIst century, is to respond to this call from the universal juridical conscience. The recent U.N. World Conferences have sought to elevate human rights related issues to a central place on the agenda of contemporary international relations. Human rights do in fact permeate all areas of human activity, and the recognition of this phenomenon corresponds to a new ethos of our times. The final documents of those Conferences should be duly taken into account by all international lawyers, taking our discipline no longer as an instrumental at the service of power, but rather as a new jus gentium of emancipation of human beings, as the International Law for humankind.

151

A.A. Cançado Trindade, “Sustainable Human Development and Conditions of Life as a Matter of Legitimate International Concern: The Legacy of the U.N. World Conferences”, in Japan and International Law – Past, Present and Future (International Symposium to Mark the Centennial of the Japanese Association of International Law), The Hague, Kluwer, 1999, pp. 285-309.

Chapter XXVII Codification and Progressive Development of a Universal International Law

I.

Introduction

In the course of the present book, reiterated references were made to codification1 and progressive development2 of International Law, in the assessment of the evolution of distinct chapters of the discipline. I purport now to dedicate some reflections to the codification and progressive development of International Law as such, no longer tangentially, as an illustration of the historical projection of each of the chapters surveyed, but rather as a central point of attention, aiming at drawing lessons from past endeavours to foster the gradual ongoing construction of the new jus gentium of our days. In the present chapter attention will at first be turned to the exercise of codification and progressive development of the discipline in historical perspective. In this respect, I have already referred3 to the acknowledgement, along the past decades, that the systematization of the discipline, through the exercises of its codification and progressive development, has attributed great importance to general principles of International Law, in pursuance of an essentially humanist outlook, endowing International Law with an objective basis, and contributing to its universalization; the normative content to that end flowed from the conscience of the members of the international community, giving expression to the opinio juris communis, in response to their common needs and aspirations (infra). In this chapter, attention will at last be turned to the lessons and projections of the codification and progressive development of International Law, moved, as they have been, ultimately by the universal juridical conscience. II.

Codification and Progressive Development in Historical Perspective

In fact, already in the first half of the XXth century, in an epoch when the raw materials of the practice of International Law were not yet systematized as they

1 2 3

Cf. chapters V, VI, XVIII, XIX, XX, XXII and XXIV, supra. Cf. chapters VIII, XVIII and XXII, supra. Cf. chapter XXII, supra.

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are in our days, there was awareness of the relevance of the identification and systematization of the principles of International Law.4 This task appeared as a considerable challenge, in face of the great number of problems awaiting solution, many of which generated by two world wars, added to diverging doctrines on certain issues of International Law,5 to the pessimism manifested in juridical circles after the failure of the Hague Codification Conference of 1930,6 and, in sum, to a state of uncertainty wherein International Law was found, in an epoch regarded as one of transition. Subsequently, with the vast normative production undertaken by distinct international organs,7 the endeavours of codification and progressive development of international law obtained a new impulse – mainly in the ambit of the United Nations, – which, in a way, corresponded to the expectations not only of the academic circles but also of the international community as a whole.8 The work of codification and progressive development became even more necessary with the occurrence of important transformations in the international scenario, as illustrated, e.g., by the Law of the Sea (the four Geneva Conventions of 1958, succeeded by the Convention of Montego Bay of 1982). The work of the U.N. Inter4

5

6

7

8

Cf., on this point, e.g., C. Parry, “The Practice of States”, 44 Transactions of the Grotius Society (1958-1959) pp. 145-186; C. Parry, The Sources and Evidences of International Law, Manchester, University Press, 1965, pp. 1-27 and 56-82; S. Rosenne, Practice and Methods of International Law, London/N.Y., Oceana Publs., 1984, pp. 1121; Ch. Rousseau, Droit international public, 11th. ed., Paris, Dalloz, 1987, pp. 11-16; A.A. Cançado Trindade, “Elementos para uma Sistematização da Prática do Direito Internacional”, 158 Arquivos do Ministério da Justiça – Brasília (1981) pp. 29-35. Such as, inter alia, the different approaches, among countries of the European and American continents, of the whole chapter on the international responsibility of States. Cf. “Ata Final da Conferência para a Codificação do Direito Internacional (The Hague, 12.04.1930)”, 3 Textos e Documentos – Rio de Janeiro (1981) n. 11, pp. 15-19. And, for antecedents, cf. S. Rosenne (ed.), League of Nations – Committee of Experts for the Progressive Codification of International Law [1925-1928], vol. II, Dobbs Ferry/N.Y., Oceana Publs., 1972, pp. 1-487; cf. also, S. Rosenne, “The Codification of the Law of State Responsibility (1924-1990)”, The International Law Commission’s Draft Articles on State Responsibility (ed. S. Rosenne), Dordrecht, Nijhoff, 1991, pp. 8-17; R. Saraiva Guerreiro, “Métodos e Processos de Codificação e Desenvolvimento do Direito Internacional nas Nações Unidas”, 61/66 Boletim da Sociedade Brasileira de Direito Internacional (1975-1979) pp. 9-10; Roberto Ago, “Nouvelles réflexions sur la codification...”, op. cit. infra n. (16), pp. 9-10. Cf. E. McWhinney, Les Nations Unies et la formation du droit, Paris, Pédone/ UNESCO, 1986, pp. 101-129 and 261-287; A. Pellet, “La formation du droit international dans le cadre des Nations Unies”, 6 European Journal of International Law (1995) pp. 401-425; F. Cede, “New Approaches to Law-Making in the U.N. System”, 1 Austrian Review of International and Comparative Law (1996) pp. 51-66. K. Zemanek, “Codification of International Law: Salvation or Dead End?”, in Le Droit international à l’heure de sa codification – Études en l’honneur de Roberto Ago, vol. I, Milano, Giuff rè, 1987, p. 581.

Codification and Progressive Development of a Universal International Law

national Law Commission [ILC]9 had great success in areas in relation to which there already existed a vast international practice, such as those of diplomatic and consular relations (Vienna Conventions of 1961 and 1963, respectively),10 and of the law of treaties (Vienna Conventions of 1969 and 1986, respectively).11 The work of codification in relation to other matters (e.g., inter alia, the code of offences against the peace and security of mankind, State immunities, to recall a couple of the most significant ones) did not from the start correspond entirely to the expectations,12 – even though the possibility could not be discarded that non-ratified codification conventions could exert influence in the formation of opinio juris.13 The criteria for the identification of topics for codification have been, most often and above all, the fulfi lment of the pressing needs of the international community in the juridical domain, and the guidance for responses, in practice, to key questions of international relations.14 With the emergence of new topics, reflecting new demands of the international community, the process of codification and progressive development of International Law has become complex15 and multifaceted, being nowadays conducted in different international forums (cf. supra). It is a necessarily dynamic work,16 as the normative production in the present domain ought to accompany 9

10 11 12

13

14

15

16

Cf. United Nations, The Work of the International Law Commission, 7th. ed., vol. I, N.Y., U.N., 2007, pp. 7-244; C. Calero Rodrigues, “O Trabalho de Codificação do Direito Internacional nas Nações Unidas”, 101/103 Boletim da Sociedade Brasileira de Direito Internacional (1996) pp. 23-30; C.-A. Fleischhauer, “The United Nations and the Progressive Development and Codification of International Law”, 25 Indian Journal of International Law (1985) pp. 1-7. Cf. chapter XXII, supra. Cf. chapter XVIII, supra. K. Zemanek, “Codification of International Law...”, op. cit. supra n. (8), pp. 587-590; E. Suy, “Développement progressif et codification du Droit international...”, op. cit. infra n. (40), p. 221. J. Monnier, “Observations sur la codification et le développement progressif du Droit international”, in Mélanges Georges Perrin, Lausanne, Université de Lausanne/Payot, 1984, p. 248; C.Th. Eustathiades, “Unratified Codification Conventions”, in Gilberto Amado Memorial Lectures, Brasília, FUNAG/M.R.E., 1998, pp. 62-65. A. Yankov, “Strengthening the Process of Codification and Development of International Law: the Evolving Functions of the International Law Commission and Increasing the Commitments of States”, in International Law as a Language for International Relations – Proceedings..., op. cit. infra n. (40), pp. 233 and 239. Cf. G. Abi-Saab, “La Commission du Droit International, la codification et le processus de formation de Droit international”, in Making Better International Law: the International Law Commission at 50 (Proceedings of the U.N. Colloquium, New York, 1997), N.Y., U.N., 1998, pp. 181-200; P. Tomka, “Major Complexities Encountered in Contemporary International Law-Making”, in ibid., pp. 209-219. D.P. Verma, “Rethinking about New International Law-Making Process”, 29 Indian Journal of International Law (1989) pp. 38-51. – On the thesis of the “spontaneous” formation of the norms of International Law, moved by the conscientization of the

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the transformations of the world.17 This is illustrated, e.g., by the work of codification undertaken by the ILC pertaining to the chapter of sucession of States18 (the two Vienna Conventions, on Succession of States in Respect of Treaties, of 1978, and on Succession of States in Respect of Property, Archives and Debts, of 1983) and the considerable changes undergone by the subject ever since, particularly along the last two decades. The endeavours of codification and progressive development of International Law in the last half-century have disclosed to the States their incapacity to resolve individually, by themselves, many of the problems which affect them; to that end they stand in need of the co-participation of other States and of other subjects of International Law. The international community has given signs of its preparedness to move away from the traditional Hobbesian – or “realist” – outlook of international relations (marked by power politics)19 and to get gradually closer to a Kantian outlook of a universal community characterized by cooperation and solidarity.20 III. Codification and Progressive Development: Lessons and Projections Codification appears to go hand in hand with progressive development of International Law: if the former does not take account of the latter, it will in all probability not withstand the onslaught of time, of the passing of time. It may be charged as not amounting to proper codification, but rather to “ossification of the development” of International Law on the matter at issue:21 this has in fact been lately argued in relation, e.g., to the 2004 U.N. Convention on Jurisdictional Immunities of States and Their Property. In fact, in its travaux préparatoires

17

18 19

20

21

members of the international community, cf. Roberto Ago, “Nouvelles réflexions sur la codification du Droit international”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, pp. 2 and 22. G.E. do Nascimento e Silva, “The Influence of Science and Technology on International Law”, in Gilberto Amado Memorial Lectures, op. cit. supra n. (13), pp. 152 and 155. Cf. chapter XX, supra. An illustration of the distortions of this outlook can be found in the hopeless comments of G. Schwarzenberger, The Frontiers of International Law, London, Stevens, 1962, pp. 22, 24 and 57. Cf. A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1042-1043 and 1072-1075; A. Cassese, International Law in a Divided World, Oxford, Clarendon Press, 1986, pp. 31 and 123. L. McGregor, “State Immunity and Jus Cogens”, 55 International and Comparative Law Quarterly (2006) p. 445, and cf. p. 437; and cf. L.McGregor, “Addressing the Relationship between State Immunity and Jus Cogens Norms: A Comparative Assessment”, in International Prosecution of Human Rights Crimes (eds. W. Kaleck et alii), Berlin, Springer, 2007, p. 84.

Codification and Progressive Development of a Universal International Law

the path was opened for the inclusion into its draft of an acknowledgment of conceptual advances achieved in the corpus of other Conventions (e.g., on the Law of Treaties, of 1969 and 1986), in the sense of setting forth, for example, the conception of peremptory norms of international law (jus cogens). Yet, the ILC Working Group was of the view (report of 1999) that the point “did not seem to be ripe enough” for codification.22 However, almost two decades after the adoption of the first Vienna Convention on the Law of Treaties (1969), and 17 years before the adoption of the aforementioned 2004 Convention, the Polish jurist Manfred Lachs aptly warned that the aim of codification is to consolidate, not to immobilize, and added that the acknowledgement of jus cogens in the work of codification and progressive development (as from the 1969 Vienna Convention on the Law of Treaties) amounted to a prise de conscience as to its need, and, moreover, progressive development itself called for codification.23 Such acknowledgement of jus cogens, bearing witness of the interrelationship of codification and progressive development of International Law, is remindful of the ideal of a civitas maxima gentium, propounded by the so-called “founding fathers” of International Law, moving us towards a universal jus gentium. This point is just one illustration, and a very significant one, of the intermingling between codification and progressive development. Contemporary International Law no longer admits being confined within the rigid postulates of traditional conventional International Law. It has advanced new concepts, it has created new legal regimes – as illustrated by the 1982 U.N. Convention on the Law of the Sea – in order to respond to the needs of the international community as a whole, thus moving towards the universalization of International Law. In doing so, it has taken into due account basic considerations of humanity, as we have already seen in relation to various chapters of International Law.24 The more Conventions of codification and progressive development of the discipline do so, the longer they are bound to last. In dwelling upon the matter, Roberto Ago pondered that the atrocities of the XXth century, added to the problems facing the international community in our times, have awakened human conscience to the need to construct a new international legal order beyond State sovereignty, more sensitive to opinio juris, and erected to a much greater extent on cooperation and solidarity.25 From this perspective, codification and progressive development do indeed point towards the universalization of International Law; the misleading and meaningless question of so-called “fragmentation” of International Law 26 should not have been retained by the U.N. International Law 22 23 24 25 26

U.N. document A/C.6/54/L.12, of 12.11.1999, p. 7, par. 47. M. Lachs, The Teacher in International Law, 2nd. rev. ed., Dordrecht, Nijhoff, 1987, pp. 209 and 218-219, and cf. pp. 43, 50-51 and 58-59. Cf. chapters XVI-XXIII, supra. R. Ago, “Nouvelles réflexions sur la codification...”, op. cit. supra n. (16), pp. 1-31. For a criticism, cf., e.g., A.A. Cançado Trindade, “The Merits of Coordination of International Courts on Human Rights”, 2 Journal of International Criminal Justice

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Commission, as it begs the question, and it is not, and has never been, a topic of codification and progressive development of our discipline. The 2004 Convention on Jurisdictional Immunities of States and Their Property has lately been severely criticized for having taken the easier course of simply not addressing the issue of the impact of the considerable advances of International Law of Human Rights and of peremptory norms of International Law on the traditional canons of State immunities.27 Codification Conventions, quite on the contrary, are bound to be long-lasting if they give expression also to the progressive development of the matter at issue, so as properly to fulfi l the needs and aspirations of the international community as a whole. Thus, “pragmatism” has also its pitfalls, as it cannot behold but the present moment. The pragmatic attitude of having a text adopted for adoption’s sake, making abstraction of the emergence and evolution of the new jus gentium of our times, is bound to lead into a pyrrhic victory. The prompt responses of contemporary International Law to grave violations of the rights inherent to the human person, at the conceptual and normative levels, are a definitive achievement of contemporary International Law, which has learned the lessons of the recent past. One cannot make abstraction of this historical achievement in the work of codification and progressive development of International Law. IV. Concluding Observations: Codification and Progressive Development Moved by the Universal Juridical Conscience References have already been made to several Conventions which duly evoked the superior interests or the concern or the heritage of humankind, in distinct domains of International Law, such as, e.g., International Environmental Law, Law of the Sea, International Law of Outer Space, and International Law of Bioethics.28 Some of those Conventions already have been, not surprisingly, long-lasting, and they have all gathered prompt and widespead support and have attracted

27

28

(2004), n. 2, pp. 309-312; L. Caflisch and A.A. Cançado Trindade, “Les Conventions Américaine et Européenne des Droits de l’Homme et le Droit international général”, 108 Revue générale de Droit international public (2004) pp. 5-62. Cf., e.g., C. Keith Hall, “U.N. Convention on State Immunity: The Need for a Human Rights Protocol”, 55 International and Comparative Law Quarterly (2006) pp. 411426; L. Caflisch, “Immunité des États et droits de l’homme: Évolution récente”, in Internationale Gemeinschaft und Menschenrechte – Festschrift für Georg Ress (eds. J. Bröhmer et alii), Köln/Berlin, C. Heymanns Verlag, 2005, pp. 936-938 and 943; L. McGregor, “State Immunity and Jus Cogens”, op. cit. supra n. (21), pp. 437-438, 441 and 444-445; and cf. also L.M. Caplan, “State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory”, 97 American Journal of International Law (2003) pp. 741-744, 757-758, 768 and 780-781. And, for a debate on current uncertainties, cf., e.g.: Various Authors, Le droit international des immunités: contestation ou consolidation? (ed. J. Verhoeven), Paris/Bruxelles, LGDJ/ Larcier, 2004, pp. 11-274. Cf. chapter XIII, supra.

Codification and Progressive Development of a Universal International Law

considerable attention. Since the beginning of the last century, the work of codification and progressive development of International Law has been undergoing a process of sedimentation, and has been moving forward by the universal juridical conscience. It is worth recalling some reflections to that effect. To start with, the aforementioned work appeared to assume the conscientization as to its need. As we know it today, that work owes much to the influence of the German “historical school” in the XIXth century (Savigny and others), in its building of the normative order emanating from the juridical conscience (then conceived as the Volksgeist, l’esprit du peuple), and perfected through the social evolution.29 Somewhat distinctly, attention is turned today, in my view, to the conscience of the international community as a whole (rather than of each people), to the universal juridical conscience, as the ultimate material source of universalized International Law.30 Codification of international law has already evolved in a long journey, of over a century, pari passu with the progressive development of the discipline. There are those who identify the two Hague Peace Conferences (of 1899 and 1907) as “the first modern codification Conferences”.31 One century after the II Hague Peace Conference, codification and progressive development of International Law are nowadays undertaken by a multiplicity of organs, at universal as well as regional levels, and by means of treaties as well as resolutions, in a much more complex way, to fulfi l the current normative needs of the international community as a whole. Underlying this process is “the primacy of International Law in international relations”, as propounded, e.g., over a century ago, by one of the promoters of the two Hague Peace Conferences (of 1899 and 1907), the Russian jurist F.F. de Martens.32 In his recollections of the II Hague Peace Conference, the Cuban jurist Antonio S. Bustamante y Sirvén pondered that the 1907 Conference contributed to developing further humanitarian principles and propitiated a greater acceptance of previous international instruments towards universal International Law, a “common law of humankind”; in his outlook, the wider participation that the 1907 Conference counted on, with contributions of States from different con29

30 31

32

G. Abi-Saab, “La Commission du Droit International, la codification et le processus de formation de Droit international”, in U.N., Making Better International Law: The International Law Commission at 50 – Proceedings of the U.N. Colloquium on Progressive Development and Codification of International Law (New York, October 1997), New York, U.N., 1998, p. 186. Cf. chapter VI, supra. Intervention by S. Rosenne, in U.N., Making Better International Law..., op. cit. supra n. (29), p. 127; and cf. F. Münch, “La codification inachevée”, in Le Droit international à l’heure de sa codification – Études en l’honneur de Roberto Ago, vol. I, Milano, Giuff rè, 1987, p. 376. Y.M. Kolosov, “Overview of the International Law-Making Process and the Role of the International Law Commission”, in U.N., Making Better International Law..., op. cit. supra n. (29), p. 203.

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tinents and with distinct cultures, enabled the II Hague Peace Conference to behold the advent of a world “juridical community” and to bear in mind the “unity of humankind”.33 He added that the principles which found expression therein contributed to the “progress of International Law” and the “human welfare”, and left the legacy of the acknowledgement of the much-needed compliance with the “duties of humanity”, even when they do not form part of positive law.34 The relationship between conscience and the formulation of general principles and the codification of international law marked presence also in the writings of the Chilean jurist Alejandro Álvarez. During the II world war, he sustained (in 1944) that the principles of law and the precepts of international justice emanated spontaneously from the international juridical conscience.35 In his view, it was natural law thinking which best captured that conscience, wherefrom the principles of law emanate, including such “new principles” as the condemnation of genocide, and “the condemnation of war as a crime against humanity”.36 In 1947, in a report submitted to the Institut de Droit International (1947 Lausanne session), A. Álvarez, amidst the “grave crisis” faced by International Law, reiterated his view that international justice was a manifestation of the international juridical conscience, to which the precepts of the law of nations owed their formation;37 he added that the general interests of the international

33 34

35 36

37

A.S. de Bustamante y Sirvén, La Segunda Conferencia de la Paz Reunida en el Haya en 1907, vol. II, Madrid, Libr. Gen. de V. Suárez, 1908, pp. 137 and 139-141. A.S. de Bustamante y Sirvén, La Segunda Conferencia de la Paz..., op. cit. supra n. (33), pp. 157-159, and cf. pp. 133 and 147. In his forecast, the principles which found expression at the II Hague Peace Conference would become “world law”, therefrom emerging “the definitive and necessary codification of International Law”; ibid., pp. 157-158. He further regarded, as one of the greatest achievements of the 1907 Hague Conference, the acknowledgement of the principle of the juridical equality of States; ibid., p. 145. A. Álvarez, La Reconstrucción del Derecho de Gentes – El Nuevo Orden y la Renovación Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 19-21, 24-25 and 86-87. A. Álvarez, El Nuevo Derecho Internacional en Sus Relaciones con la Vida Actual de los Pueblos, Santiago, Editorial Jurídica de Chile, 1961, pp. 155-157 and 304. He further recalled the reference to conscience (as a source of applicable legal rules in the absence of express conventional provisions) found in the preamble of the 1907 Hague Convention Respecting the Laws and Customs of War on Land (the wellknown Martens clause), in acknowledgement of the presence of conscience in the work of codification, such as the one undertaken at the two Hague Peace Conferences (of 1899 and 1907) in the regulation of war and neutrality. Cf. ibid., pp. 156 and 356-357. A. Álvarez’s outlook did not pass unnoticed to some of his contemporaries; cf., e.g., J.-M. Yepes, “Les problèmes fondamentaux du Droit des gens en Amérique”, 47 Recueil des Cours de l’Académie de Droit International de La Haye (1934) p. 8. A. Álvarez, “Méthodes de la codification du Droit international public – Rapport”, in Annuaire de l’Institut de Droit International (1947) pp. 38 and 46-47, and cf. pp. 50-51, 54, 64 and 69.

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community should “model” the “rights of States and individuals” and guide the work of reconstruction of International Law.38 Ever since, the role of conscience in giving expression to the opinio juris communis has been recognized time and time again.39 Expert writing is clear in acknowledging, in our days, that the work of codification and progressive development of International Law purports indeed to give expression to the opinio juris of the international community as a whole.40 In a thoughtful essay on the matter, Maarten Bos observed that the aforementioned work “nous conduit, en effet, à l’essence du droit, à ses conditions vitales, à l’art d’exprimer en une langue professionnelle des projections intérieures, à une prise de conscience dans un domaine qui, de par sa nature même, appartient à l’invisible et est destiné à y rester en dépit des symboles de notre écriture”.41

The work of codification and progressive development purports to strengthen the international legal order, in securing the primacy of International Law; it ensues from a prise de conscience of the members of the international community to respond to its normative needs,42 and it contributes decisively to the construction of a truly universal International Law.

38

39

40

41

42

Ibid., pp. 44-45 and 68-69, and cf. p. 70. On the international juridical conscience in the present domain, cf. also A. Álvarez, Exposé des motifs et Déclaration des grands principes du Droit international, 2nd. ed., Paris, Éditions Internationales, 1938, pp. 19 and 22-23, and cf. pp. 8-9, 16-21, 27 and 51. Cf. J.G. Guerrero, La codification du Droit international, Paris, Pédone, 1930, pp. 910, 13, 24, 27 and 150; G.E. do Nascimento e Silva, “A Codificação do Direito Internacional”, 28-30 Boletim da Sociedade Brasileira de Direito Internacional (1972-1974) ns. 55/60, p. 100; R. Ago, “Nouvelles réflexions sur la codification...”, op. cit. supra n. (16), pp. 2 and 22; A. Mahiou, “Rapport général: Les objectifs de la codification”, in Société Française pour le Droit International, La codification du Droit international (Colloque d’Aix-en-Provence), Paris, Pédone, 1999, pp. 22, 30, 41-42 and 45. The “international juridical conscience” is ineluctably related to the progressive development of International Law; R. Fernandes, “A Responsabilidade dos Estados em Direito Internacional” (1952), 48 Boletim da Sociedade Brasileira de Direito Internacional (1995) n. 95/97, p. 27. E. Suy, “Développement progressif et codification du Droit international: Le rôle de l’Assemblée Générale revisité”, in U.N., International Law as a Language for International Relations – Proceedings of the U.N. Congress on Public International Law (New York, March 1995), U.N./Kluwer, The Hague, 1996, p. 216; and cf. K. Zemanek, “Does Codification Lead to Wider Acceptance?”, in ibid., p. 228; K. Zemanek, “Codification of International Law...”, op. cit. supra n. (8), p. 601. M. Bos, “Aspects phénomenologiques de la codification du Droit international public”, in Le Droit international à l’heure de sa codification – Études en l’honneur de Roberto Ago, vol. I, Milano, Giuff rè, 1987, p. 142. R. Ago, “Nouvelles réflexions sur la codification...”, op. cit. supra n. (16), pp. 2 and 22.

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As pointed out by R.-J. Dupuy, humanity “parle aux consciences”, being a “transcendance intérieure”; thus, “l’essentiel est d’avoir un projet pour l’humanité. Ce qui suppose une prise de conscience par les gouvernements, les scientifiques, les philosophes, de tous les hommes de pensée des devoirs nouveaux qu’impose à tous l’avènement de l’humanité dans l’histoire”.43 He thereby perceived in an organ of codification and progressive development of International Law, such as the ILC, the much needed sensitivity “à poser la primauté de l’éthique sur la technique, celle-ci devant être au service de celle-là. Ainsi qu’il s’agisse du jus cogens naguère ou des crimes internationaux aujourd’hui, ou constate de fréquentes références à des formules comme la ‘conscience universelle’ ou à la ‘conscience générale des États’ qui expriment le fondement communautaire que l’on entend donner aux règles en cours de préparation”. 44

In my intervention in the centennial celebration of the II Hague Peace Conference, organized by The Hague Academy of International Law and held at The Hague, on 06-07 September 2007, I saw it fit to ponder: “It is highly significant that, at the time of the convening of the 1907 Hague Peace Conference, when legal positivism was still at its height, with its characteristic and invariable subservience to power, a new outlook of International Law was being formed, shifting attention from the will of individual States to the fulfi lment of the needs and aspirations of humankind. There was already consciousness of the pitfalls of the positivist-voluntarist conception of International Law, as, if it was by their will that States allegedly created International Law, it was also by their will that States violated it, and such voluntarist conception revolved in a vicious circle, wholly incapable of explaining the formation and evolution of the norms of International Law45. The danger of increasing armaments and the threat of war awakened the general awareness that, in order to preserve international peace, it was imperative to replace Realpolitik by the pursuance by all of the common good, well beyond the interests of individual States. It had become, in sum, imperative to reckon that conscience stood well above the will. Thus, by the end of the II Hague Peace Conference of 1907 the universalist outlook of International Law had gained considerable ground. The betrayal of its ideals engulfed the world into the tragedy of two wars of devastating and catastrophic dimension, with millions of victims. But the seed of universalism, to secure peace and justice, and going well beyond the insufficient inter-State dimen-

43 44 45

R.-J. Dupuy, op. cit. infra n. (44), pp. 260-261. R.-J. Dupuy, Dialectiques du Droit international – souveraineté des États, communauté internationale, et droits de l’humanité, Paris, Pédone, 1999, p. 145. A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A ReAssessment”, 59 Revue de droit international de sciences diplomatiques et politiques (Sottile) – Geneva (1981) pp. 201-240.

Codification and Progressive Development of a Universal International Law sion of the past, had already been planted. From time to time it was again recalled, up to our days, at this beginning of the XXIst century”.46

In the mid-XXth century, the reconstruction of International Law took account of superior values common to humankind; the Swiss jurist Max Huber, in a collection of essays published in 1954, referred to a “droit de l’humanité”, having in mind the four Geneva Conventions of 1949 on International Humanitarian Law and the U.N. Charter. In his perception, the principle of humanity was underlying them all, as well as several other treaties which did not expressly invoke such principle, but contributed likewise to the emergence of a new jus gentium “en sa qualité de droit naturel”, going beyond “toute codification”.47 The four Geneva Conventions of 1949, transcending reciprocity, moved towards “un véritable droit de l’humanité”, inspired by the principle of the dignity of the human person.48 Such Conventions, it may be added, are an expression today of a universal International Law. Shortly before their adoption, the U.N. Charter, on its turn, reaffi rmed, in its preamble, faith in fundamental human rights and in the dignity and worth of the human person, in its determination to save succeeding generations from the scourge of war (par. 1) and to establish conditions for the prevalence of peace and justice and respect for international obligations (pars. 1-2); the Charter expressly encouraged, in Article 13(1), the work of codification and progressive development of International Law. In the view of M. Huber, the U.N. Charter itself had become the turning point of a new stage in the progressive development of the law of nations, of the droit de l’humanité; in his words, the Charter “emprunte quelque chose de l’idée de la civitas maxima, que nombre de philosophes du droit considèrent comme le but final de toute l’évolution juridique et de tous les efforts qui tendent à l’établissement d’une paix durable”.49

46

47 48 49

A.A. Cançado Trindade, “The Presence and Participation of Latin America at the II Hague Peace Conference of 1907”, in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque de 2007) (éd. Y. Daudet), Leiden/La Haye, Académie de Droit International/Nijhoff, 2008, pp. 81-82. M. Huber, La pensée et l’action de la Croix-Rouge, Genève, CICR, 1954, pp. 26 and 247, and cf. pp. 270-271. Ibid., pp. 290-291 and 304. M. Huber, La pensée et l’action..., op. cit. supra n. (47), p. 286.

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I.

The Process of Gradual Humanization of Public International Law

In the course of the last century International Law has undergone an extraordinary development, which gradually took the shape of an historical process of its humanization. Traditional International Law, in force at the beginning of the XXth century, was characterized by unlimited State voluntarism, reflected in the permissiveness of recourse to war, secret diplomacy and the celebration of unequal treaties, the maintenance of colonies and protectorates and zones of influence. Against this oligarchical and unjust order arose principles such as those of the prohibition of war of aggression and of the use and threat of force, – and of the non-recognition of situations generated by these latter, – of the juridical equality of States, and of the peaceful settlement of international disputes. Moreover, the struggle against inequalities started, with the abolition of the capitulations, the establishment of the system of protection of minorities under the League of Nations, and the early international labour Conventions of the International Labour Organization [ILO]. In mid-XXth century the necessity was recognized of the reconstruction of International Law with attention turned to the rights of the human being, an eloquent testimony of which having been given by the adoption of the 1948 Universal Declaration of Human Rights, followed, in the course of over five decades, by more than 70 treaties of human rights protection nowadays in force at global and regional levels. In the era of the United Nations, and by influence of this latter and its specialized agencies, as well as of regional organizations, International Law came to experience an extraordinary expansion. The emergence of the new States, amidst the historical process of decolonization, was to mark profoundly its evolution in the decades of the fifties and sixties, in the framework of the great impact within the United Nations of the emerging right of self-determination of peoples. The process of democratization of International Law was then launched. Thus, already by the mid-XXth century, the more enlightened doctrine of International Law moved definitively away from the Hegelian and neo-Hegelian formulation of the State as an assumed final repository of the freedom and responsibility of the individuals who composed it. The development of the uni-

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versal movement in favour of human rights, in the last five decades, contributed decisively to the historical rescue of the human being as subject of International Law, – a development which I regard as the most precious legacy of the evolution of legal science in the XXth century. The United Nations gradually turned attention also to the economic and social domain, parallel to international trade and development, without prejudice of the initial and continuing concern with the preservation of international peace and security. In transcending the old parameters of the classic law of peace and war, International Law equipped itself to respond to the new demands and challenges of international life, with greater emphasis on international cooperation. In the decades of the sixties to the eighties, multilateral forums dedicated themselves to an intense process of elaboration and adoption of successive treaties and resolutions of regulation of the spaces, in distinct areas such as those of the outer space and the law of the sea. The notable transformations in the contemporary world scenario launched, as from 1989, by the end of the cold war and the outbreak of numerous internal conflicts, have characterized the nineties as a moment in history marked by a profound reflection, in a universal scale, on the very bases of the international community and the gradual formation of the international agenda of the XXIst century. The recent cycle of the World Conferences of the United Nations, of the end of the XXth century and the beginning of the XXIst century, has proceeded to a global reassessment of many concepts in the light of the consideration of themes which affect humankind as a whole. Its common denominator has been the special attention to the conditions of living of the population (particularly of the vulnerable groups, in special need of protection), therefrom resulting the universal recognition of the necessity to place human beings definitively at the centre of all process of development. In fact, the great challenges of our times – the protection of the human being and of the environment, disarmament, the erradication of chronic poverty and human development, and the overcoming of the alarming disparities among countries and within them, – have fostered, in a universal dialogue, the revitalization of the very foundations and principles of contemporary International Law, tending to make abstraction of jurisdictional and spacial (territorial) classic solutions and replacing the emphasis on the notion of solidarity. Looking back in time, elements can indeed be found, in the recent cycle of U.N. World Conferences, as well as in the recent work of UNESCO, in support of the new outlook of a world-wide dialogue, rather than “clash”, of civilizations. Traditional international order, marked by the predominance of State sovereignties and exclusion of the individuals, was not able to avoid the intensification of the production and the use of weapons of mass destruction, nor the gross and flagrant violations of human rights perpetrated in all the regions of the world, and the successive atrocities of the XXth century, including the contemporary ones, – such as the holocaust, the gulag, followed by new acts of genocide, e.g., in South East Asia, in Central Europe (ex-Yugoslavia) and in Africa (Rwanda). Such

International Law for Humankind – Towards a New Jus Gentium

atrocities have awakened the universal juridical conscience to the necessity of reconceptualizing the very bases of the international legal order. At this beginning of the XXIst century, we effectively have the privilege to witness the process of humanization of International Law, which comes to occupy itself more directly with the realization of common superior goals. The recognition of the centrality of human rights corresponds to a new ethos of our times. Such process of humanization manifests itself, in my view, as I have been sustaining for years, in all domains of the discipline: the foundations of International Law, its subjects, its new conceptual constructions, the basic considerations of humanity permeating all its chapters, and the quest for the international rule of law for the realization of justice and maintenance of peace. Such process, in turn, discloses the new jus gentium of our times, the International Law for humankind. II.

The New Jus Gentium: International Law for Humankind

The new jus gentium of this beginning of the XXIst century, emerging from the fragmentation of jus inter gentes, rescues, in its reconstruction, the vision and ideals of the founding fathers of the discipline. It propounds a universalist outlook, going beyond purely inter-State relations. Its foundations are independent of the “will” of its subjects of law (States and others). It ultimately stems from human conscience, and is erected upon ethical foundations incorporating basic human values, shared by the entire international community and humankind as a whole. It thus paves the way for the future evolution of the international legal order. The temporal dimension is inherent in legal science and underlies the whole domain of International Law, which is formed, interpreted and applied in time. Rather than implying historical “relativism”, this evidences that Law accompanies the evolution of the relations it is meant to regulate, giving responses to the needs and aspirations of humankind. In its protective function, it discloses an increasingly relevant preventive dimension. The needs and aspirations of humankind can be fulfi lled by Law, rather than discretionary use of force, in the pursuit of the realization of justice. It draws attention to common responsibilities towards present and future generations. 1.

Foundations

General principles of law are inextricably linked to the very foundations of Law, and International Law makes no exception to that. Such principles inform and conform the norms and rules of International Law, and account for their evolution. Those principles are a manifestation of the universal juridical conscience; in the evolving jus gentium, basic considerations of humanity have an important role to play. General principles of law have inspired not only the interpretation and application of its norms, but also the very formation of law, the law-making process itself.

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There are general principles of law (such as that of the dignity of the human person) which are truly fundamental, identified with the very foundations of the legal system, and conforming the substratum of this latter. They have always been present in the quest for justice. They have been repeatedly restated, and retain their full validity in our days. Legal positivist thinking has always tried, in vain, to minimize the role played by those principles, but the truth remains that, without them, there is no legal system at all, national or international. They give expression to the idea of an objective justice, expressing the universal juridical conscience, and paving the way to a universal International Law, the new jus gentium, the International Law for humankind. General principles of international law, projected in time and reiterated in the last decades, retain their full validity in our days, and the fundamental principle of the prohibition of the threat or use of force in inter-State relations, endowed with judicial recognition, makes no exception to that. What is preventive or “anticipatory” is law itself, not the use of force. The emerging right to humanitarian assistance focuses on the fulfi lment of the needs of protection of its titulaires, rather than on “intervention”. Force only generates force, and one cannot pretend to erect a new “international order” on the basis of unwarranted use of force, outside the framework of the U.N. Charter. The violation of the basic principle of International Law of the prohibition of the threat or use of force does not generate a “new practice”, but rather engages the international responsibility of the wrongdoers. The primacy of International Law over force is a cornerstone of contemporary International Law, and an imperative of jus cogens. International law-making today goes well beyond the consideration of the formal “sources” of International Law; these latter were never meant to be exhaustive, and resort to them has been nothing more that an exercise of an outmoded analytical positivism, which has never found nor provided a convincing explanation of the validity of international legal norms. Such formal “sources” were equated with the ways and means whereby international law has been formed. The formation of contemporary international law constitutes a much wider process than the formulation and acknowledgement of its formal “sources”, seeking the legitimacy of international norms through the expression of the opinio juris communis (going well beyond the subjective element of custom), as well as the fulfilment of the public interest and the realization of the common good of the international community as a whole. It points towards a universal International Law, the new jus gentium, emanating ultimately from the universal juridical conscience, which stands well above the “will” of the subjects of law (among which the States). The consideration of the formal “sources” of international law alone fails to take into account the basic issue of the validity of International Law and the substratum of legal norms (beliefs, values, ethics, ideas, human aspirations). It is not possible to consider the legal order making abstraction of ethics. Hence the necessity to examine the formal “sources” together with the ultimate material source of International Law, the universal juridical conscience, also to enable international law to face the new challenges of our times. The recta ratio is deeply

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rooted in human thinking, and reiterated invocations of the universal juridical conscience (going well beyond legal positivism) can be found, for the identification of a communis opinio juris, in treaty-making and international treaties themselves, in the historical projection of the Martens clause, in judicial proceedings and international case-law, in United Nations resolutions, and in a longstanding trend of international legal doctrine. The universal juridical conscience is the ultimate material source of International Law (as of all Law), and accounts for the current construction of a new jus gentium, asserting the idea of an objective justice, – the International Law for humankind. 2.

Subjects

The gradual formation of a new jus gentium has been marked by the phenomenon of the expansion of international legal personality, which, in turn, discloses the current process of humanization of International Law. States themselves have contributed to that expansion, aware of their insufficiencies to face individually the contemporary challenges of international life, in particular those which are the concern of humankind as a whole. Even in approaching their own rights and duties, States have reckoned that they cannot ignore the international community as a whole. They no longer insist on the plea of domestic jurisdiction, and, no longer fearing the end of their past monopoly of international legal personality, have learned to work together with international organizations, with individuals and civil society, in pursuance of the common good. International organizations, assuming a life of their own, have put an end to the former State monopoly of international legal personality and of privileges and immunities, have expanded the treaty-making power, have, – in sum, – changed the structure of International Law itself, which would nowadays be inconceivable without them. They have rendered the formation of International Law multifaceted, and the rules pertaining to their own structure, composition and decision-making ever more complex. Their resolutions, of varying contents and legal effects, have contributed to the ascertainment of the communis opinio juris. They have adjusted themselves to the new times and, responding to the needs and aspirations of the international community as a whole, they have enriched the international law-making process and the function of international regulation itself, in covering issues of concern to the whole of humankind. The rescue of the condition of the human person as subject of International Law is the most precious legacy of the international legal thinking of the second half of the XXth century. It is in line with the contemporary process of humanization of contemporary International Law, of which it appears as one of its most basic features. Individuals are subjects (titulaires) of rights and bearers of duties, which emanate directly from International Law. They have begun to participate, integrating entities of the civil society, in consultations conducive to the elaboration of contemporary international instruments. They have been assuming an increasingly significant role, directly or indirectly, in the formation of the communis opinio juris. They are not only “actors”, but true subjects, of the new jus

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gentium. The widespread recognition of the international legal personality – active and passive – of the individual has responded to a true need of the international community as a whole. To such personality necessarily corresponds the legal capacity of individuals to act, and vindicate their rights, at international level. Th is is materialized through their direct access – understood lato sensu – to international justice, implying a true right to the Law (droit au Droit). The consolidation of their legal capacity, through the exercise of their right of individual petition at international level, is one of the most significant features of the new jus gentium: it marks the emancipation of the individual from his own State. It is properly illustrated by the jus standi of individuals before the European Court of Human Rights, and the locus standi in judicio of individuals in the whole procedure before the Inter-American Court of Human Rights. The right of access (lato sensu) to international justice has at last crystallized as the right to the realization of justice at international level. Humankind as such has emerged as a subject of International Law, coexisting with other subjects without replacing them. The principle of humanity permeates the whole corpus juris of International Law. This has been acknowledged in the case-law of the ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda, singling out the feeling of humaneness, evidenced even when humanity itself is victimized by international crimes. On their part, the Inter-American and European Courts of Human Rights have asserted in their case-law the fundamental principles of the dignity of the human person and of the inalienability of the rights inherent to her. When one comes to the expansion of international legal personality, it is more precisely humankind (rather than humanity) that one has in mind, encompassing all the members of the human species as a whole, comprising, in a temporal dimension, present as well as future generations. Humankind has already been marking presence in the more lucid international legal doctrine, – a presence which has lately been accentuated by the human rights framework. The present challenge lies in the devising and completion of the conceptual construction of the legal representation of humankind, conducive to the consolidation of its international juridical capacity, in the ambit of the new jus gentium of our times. 3.

Conceptual Constructions

In the gradual building of the international law for humankind, conceptual constructions are now in course. International jus cogens by definition goes well beyond the law of treaties, extending itself to the domain of State responsibility and, ultimately, to any juridical act. It encompasses the whole of International Law, and projects itself into domestic law as well, invalidating any measure or act incompatible with it. Jus cogens has a direct bearing on the foundations of a universal International Law, and is a pillar of the new jus gentium.

International Law for Humankind – Towards a New Jus Gentium

The existence of erga omnes obligations has met with judicial recognition of contemporary international tribunals; it now remains to determine the legal consequences for States of their breach. Those obligations mark their presence in distinct domains of International Law (such as human rights protection, environmental protection, disarmament and arms control). Obligations erga omnes have a horizontal dimension, in the sense that they are owed to the international community as a whole, and a vertical dimension, in the sense that they bind everyone, the organs and agents of the State, as well as individuals themselves. When the legal regime of obligations erga omnes consolidates itself (encompassing the juridical consequences of their violation), the acknowledgment of actio popularis at international level may take place without uncertainties. These developments take place, again, in the process of the humanization of International Law, as the beneficiaries of compliance with, and due performance of, obligations erga omnes, are, ultimately, all human beings. Theoretical constructions of the new jus gentium have been purporting to face the challenges confronting humankind today. The concept of common heritage of mankind (in the Law of Outer Space, and, endowed with some degree of institutionalization, in the Law of the Sea), e.g., discloses the temporal dimension of the links of solidarity uniting succeeding generations. Despite shortcomings in its application, it was conceived bearing in mind the existence of superior common interests, and the imperative of international distributive justice. The same vision inspired the concept of common concern of mankind (in International Environmental Law), devoid of proprietary connotations, and coexisting with the former concept, as well as with that of common heritage of humanity (in the International Law of Bioethics). All these constructions, instead of visualizing humanity from the perspective of the States, recognize the limits of the States from the perspective of the fulfilment of the needs and aspirations of humankind. Recent endeavours (e.g., by UNESCO) in the formulation of the right to peace in international law have inserted it, beyond the level of inter-State relations, in the framework of the rights of the human person and of peoples to the ultimate benefit of humankind. The same applies to the right to development, which, on its part, as from the 1986 U.N. Declaration and the 1990 U.N. Global Consultation on the matter, has become definitively incorporated to the lexicon of contemporary International Law, embodying demands of the human person and peoples to be fulfi lled to the ultimate benefit of humankind, well beyond the strict inter-State dimension. Recent developments in the new jus gentium have pointed towards the complementarity between the international responsibility of States and the international criminal responsibility of individuals (with their legal consequences). Such complementarity, in the struggle against impunity and the pursuance of the realization of justice at international level, bears witness of the acknowledgment of the fundamental or superior interests of the international community, which have, in turn, brought about a revitalization of the principle of universal jurisdic-

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tion (going well beyond the confines of the classical principles of territoriality and nationality). 4.

Basic Considerations of Humanity

There is awareness today that never as in the XXth century there was so much scientific-technological progress accompanied tragically by so much destruction and cruelty and human suffering. In reaction to this great paradox, the universal juridical conscience has awakened to humanize contemporary International Law. In fact, basic considerations of humanity permeate today the whole corpus juris of the law of nations, as acknowledged by contemporary international instruments, by international case-law and by the more lucid international legal doctrine. The search for peace remains a permanent goal of humankind as a whole, for its own survival. The initiative of the creation of zones of peace, and of nuclearweapon-free zones (Treaties of Tlatelolco, Rarotonga, Bangkok, Pelindaba and Semipalatinsk) bears witness of this aim. The same applies to current endeavours towards complete disarmament (the over-all disarmament regime having as main cornerstones the CTBT and the NPT). Under the new jus gentium, transcending the strictly inter-State dimension, and moved by the universal juridical conscience, all weapons of mass destruction – including nuclear weapons – are illegal, in any circumstances whatsoever, and are in breach of International Humanitarian Law. From the perspective of the new jus gentium, the threat or use of such weapons is a crime against humanity. A classic chapter of International Law such as that of the law of treaties has also been permeated by basic considerations of humanity. The dynamic interpretation of human rights treaties and humanitarian treaties (as living instruments) is one illustration in this regard, asserting the objective character of the obligations of protection, the autonomous meaning of its terms, and the emphasis on their effet utile, the realization of their object and purpose. The system of reservations to treaties enshrined in the two Vienna Conventions on the Law of Treaties (of 1969 and 1986) has proven inadequate to human rights treaties, endowed with mechanisms of supervision of their own; international supervisory organs have lately displayed their preparedness to proceed to the determination of the compatibility or otherwise of reservations with the object and purpose of the respective treaties. The denunciation of treaties is no longer entirely at the mercy of the denouncing States, there being today humanitarian safeguards, as illustrated by the pertinent provisions of the 1949 Geneva Conventions on International Humanitarian Law, the 1984 U.N. Convention against Torture, and the European and American Conventions on Human Rights. The same applies to the termination and suspension of the operation of treaties, as acknowledged by the relevant provisions of the two Vienna Conventions on the Law of Treaties (1969 and 1986). The law of treaties is thus nowadays open to basic considerations of humanity.

International Law for Humankind – Towards a New Jus Gentium

Such considerations further encompass the central chapter of State responsibility, which can originate in any act or omission of any power (Executive, Legislative or the Judiciary) or organ of State, irrespective of hierarchy. The prerequisites for the implementation of State responsibility bear likewise witness of basic considerations of humanity: the rule of exhaustion of local remedies, e.g., as a condition of admissibility of international claims, has an incidence in human rights protection distinct from that in diplomatic protection, with due attention to, and adjustments dictated by, the particularities and imperatives of the former, a law of generalized protection. Furthermore, the international community as such, and the peremptory norms of International Law, mark their presence nowadays in the conceptual universe of the law on State responsibility. Basic considerations of humanity also comprise the chapter of State succession: recent developments have disclosed support for the continuity of conventional obligations of human rights protection, without interruptions. There is nowadays a presumption that successor States are regarded, or regard themselves, as bound by such obligations concerning the rights inherent to the human person, which have primacy over territorial mutations in general. A classic chapter such as that of territory is nowadays approached from a much wider outlook. Respect for State territory and its frontiers is regarded as crucial for the maintenance of international peace. In addition, of the prerequisites of statehood, attention is increasingly shifted to the living conditions of the population. Non-self-governing territories acquired an international status in the major interest of their inhabitants. The Antarctica system, on its turn, illustrates the concerted initiative of a regime of non-militarization and peaceful uses, in addition to other zonal initiatives for peace. And, bearing in mind the historical precedents of the Saar Territory and the Free City of Danzig (in the League of Nations era), the recent cases of Kosovo and East Timor provide examples, in the United Nations era, of transitional administration of territory on behalf of the international community. Diplomatic and consular law, having attained universality, undergo nowadays likewise a process of humanization. Their basic postulates are an irreducible minimum constructed by humankind as a whole over the centuries. The right to information on consular assistance is an individual right, which, as asserted by the Inter-American Court of Human Rights in a pioneering way, is currently situated in the framework of the guarantees of the due process of law. Here, once again, basic considerations of humanity have played an important role, and have been exerting a considerable impact on international legal thinking and practice. Along the last two decades, the intensification of the convergences and interactions of the regimes of protection of International Human Rights Law, International Humanitarian Law and International Refugee Law have maximized the protection of the human person in any circumstances whatsoever. Such increasing convergences and interactions have taken place at normative, interpretative and operational levels, to the ultimate benefit of all human beings.

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Chapter XXVIII

5.

International Rule of Law

Although the classic chapter of peaceful settlement of international disputes has been marked by the ambivalence between the general duty (ensuing from a principle) of peaceful settlement and the faculty (not a principle) of free choice of means of the contending parties, some advances have been achieved in this domain, amidst the pursuance of common values and considerations of ordre public. Several multilateral treaties of various kinds have specified choices of means of peaceful settlement, decreasing the discretion left to the contending parties. The 1982 U.N. Convention on the Law of the Sea affords an example in this respect. There is greater awareness nowadays that peaceful settlement of disputes transcends the interests of the contending parties and is in keeping with the general interests of the international community as a whole. The old ideal of international compulsory jurisdiction is a manifestation of the endeavours towards international rule of law and the quest of the international community as a whole for the realization of justice at international level. It is a reality in our days, as exemplified by the Court of Justice of the European Communities, the European Court of Human Rights, the International Criminal Court, and recent development in the Regulations of the Inter-American Court of Human Rights in this direction. The recent case-law of this latter and its European counterpart provide illustrations of advances in the construction of the right of direct access to justice (lato sensu) at international level and the preservation of the integrity of the respective mechanisms of protection. The multiplicity of international tribunals in our times is a reassuring phenomenon; the aforementioned Tribunals of human rights, together with the Law of the Sea Tribunal, the ad hoc International Criminal Tribunals for the Former Yugoslavia and for Rwanda, and the internationalized criminal courts (for Cambodia, East Timor, Kosovo and Sierra Leone), among others, coexist nowadays with the International Court of Justice, serving the common cause of the realization of justice at international level. Furthermore, international organizations – starting with the United Nations – have been seeking to reform or readjust themselves, in the light of their principles and purposes, so as to exercise their functions more effectively, in face of new challenges and calls for responding to the needs and aspirations of the population. International Law has not remained indifferent to the situation of human beings, to the human condition. Moreover, in historical perspective, one can perceive in successive exercises of codification and progressive development of International Law, in recent decades, moments of enlightenment, disclosing a humanist outlook, endowing its corpus juris with an objective basis, contributing to its universalization, and giving expression to the opinio juris communis, emanated ultimately from the conscience of the members of the international community of our times.

International Law for Humankind – Towards a New Jus Gentium

III. Epilogue: A Message of Confidence More than an epoch of transformation, we live in a transformation of epoch. The recent cycle of U.N. World Conferences along the nineties and by the turn of the century has produced the international agenda of this beginning of the XXIst century, and has reassessed many issues which affect humankind as a whole. It has conducted a dialogue at universal level. It has drawn attention to the conditions of life of all people everywhere, and to special needs of protection in particular of vulnerable groups and the poorer segments of the population. It has identified the needs and aspirations of the international community as a whole (comprising States and other subjects of International Law, including humankind itself). It has placed peoples and human beings at the centre of international concerns, not only to meet their basic needs, but also to foster their empowerment. This contemporary universal dialogue has been conducted amidst the profound crisis of values in which we live, demonstrating that there is reason for hope and confidence in the future of International Law, moved ultimately by the universal juridical conscience. This is the basic message that I wish to leave with the new generations of scholars of the discipline: to foster the revitalization of the very foundations and basic principles of contemporary International Law, bearing witness of the expansion of international legal personality, with the primacy of International Law over force, in the search of the realization of international justice so as to leave a better world to our descendants. This is my understanding, herein submitted in an ineluctable intergenerational perspective. We can aspire to a better world, to start with, by learning properly the lessons of the past. It has been in historical moments of crisis, such as the one we currently witness and endure, that one has gathered energy and found inspiration to endeavour to improve the human condition. Human conscience does not capitulate in face of great adversities; quite on the contrary, it awakens as to the pressing need to face new challenges and to construct a better world. At the end of this study, I dare to express my own confidence that, being faithful to the humanist and universalist vision of the founding fathers of our discipline, the new generations of its scholars will succeed to keep on constructing, in the years to come, to the benefit of our descendants, the new jus gentium of this new century, the International Law for humankind.

645

Select Bibliography*

I. Introduction and Part I (Chapters I-II) Accioly, H., Tratado de Direito Internacional Público, 2nd. ed., vol. I, Rio de Janeiro, [MRE], 1956; Ago, R., Scienza Giuridica e Diritto Internazionale, Milano, Giuffrè, 1950; Ago, R., “Pluralism and the Origins of the International Community”, Italian Yearbook of International Law, 1977, vol. 3; Aquinas, Th., Treatise on Law, Washington D.C., Gateway Ed., 2001 [reprint]; Ben Achour, Y., Le rôle des civilisations dans le système international, Bruxelles, Bruylant/ Éd. Univ. de Bruxelles, 2003; Berlin, I., The Crooked Timber of Humanity, Princeton, University Press, 1997 [reprint]; Bernhardt (ed.), R., Interim Measures Indicated by International Courts, Berlin/Heidelberg, Springer-Verlag, 1994; Bokor-Szegó, H., The Role of the United Nations in International Legislation, Amsterdam, North-Holland Publ. Co., 1978; Bos, M., “Dominant Interests in International Law”, Revista Española de Derecho Internacional, 1968, vol. 21; Brierly, J.L., The Basis of Obligation in International Law and Other Papers, Oxford, Clarendon Press, 1958; Cançado Trindade, A.A., “Reflections on International Law-Making: Customary International Law and Reconstruction of Jus Gentium”, in International Law and Development (Proceedings of the 1986 Conference of the Canadian Council on International Law), Ottawa, Canadian Council on International Law, 1986; Cançado Trindade, A.A., “The Time Factor in the Application of the Rule of Exhaustion of Local Remedies in International Law”, Rivista di Diritto Internazionale, 1978, vol. 61; Cançado Trindade, A.A., “Les Mesures provisoires de protection dans la jurisprudence de la Cour Interaméricaine des Droits de l’Homme”, Revista do Instituto Brasileiro de Direitos Humanos, 2003, vol. 4; *

The present bibliography is not meant to be exhaustive; it contains only those titles selected as particularly recommended reading. Other titles, for further details of the subjects examined, and the full bibliographical sources, can be found in the footnotes of the text.

648

Select Bibliography Carrillo Salcedo, J.A., El Derecho Internacional en Perspectiva Histórica, Madrid, Tecnos, 1991 (reed.); Carrillo Salcedo, J.A., “Droit international et souveraineté des États – Cours général de Droit international public”, RCADI, 1996, vol. 257; Castberg, F., “Natural Law and Human Rights”, Revue des droits de l’homme / Human Rights Journal, 1968, vol. 1; Chemillier-Gendreau, M., Humanité et souverainetés, Paris, Éd. La Découverte, 1995; Collins, L., “Provisional and Protective Measures in International Litigation”, RCADI, 1992, vol. 234; Doehring, K., “Die Wirkung des Zeitablaufs auf den Bestand völkerrechtlicher Regeln”, Jahrbuch 1964 der Max-Planck- Gesellschaft, Heidelberg, 1964; Dryer, D.P., “Aristotle’s Conception of Orthos Logos”, The Monist, 1983, vol. 66; Duguit, L., L’État, le Droit objectif et la loi positive, vol. I, Paris, A. Fontemoing ed., 1901; Dupuy, R.-J., La Communauté internationale entre le mythe et l’histoire, Paris, Economica/ UNESCO, 1986; Dupuy, R.-J., “Communauté internationale et disparités de développement – Cours général de Droit international public”, RCADI, 1979, vol. 165; Elias, T.O., “The Doctrine of Intertemporal Law”, American Journal of International Law, 1980, vol. 74; García y García, A., “The Spanish School of the Sixteenth and Seventeenth Centuries: A Precursor of the Theory of Human Rights”, Ratio Juris – University of Bologna, 1997, vol. 10; Gautier, Ph., “Interim Measures of Protection before the International Tribunal for the Law of the Sea”, in Current Marine Environmental Issues and the International Tribunal for the Law of the Sea (eds. M.H. Nordquist and J.N. Moore), The Hague, Nijhoff, 2001; Georgopoulos, T., “Le droit intertemporel et les dispositions conventionnelles évolutives – quelle thérapie contre la vieillesse des traités?”, Revue générale de Droit international public, 2004, vol. 108; Greig, D., “The Time of Conclusion and the Time of Application of Treaties as Points of Reference in the Interpretative Process”, in Time, History and International Law (eds. M. Craven, M. Fitzmaurice and M. Vogiatzi), Leiden, Nijhoff, 2007; Gros Espiell, H., “El Nacimiento del Derecho de Gentes y la Idea de Comunidad Internacional”, Anuario Argentino de Derecho Internacional, 1984-1986, vol. 2; Guggenheim, P., Les mesures provisoires de procédure internationale et leur influence sur le développement du droit des gens, Paris, Libr. Rec. Sirey, 1931; Hague Academy of International Law, Livre jubilaire / Jubilee Book – 1923-1973, Leyde, Sijthoff, 1973; Hambro, E., “The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice”, in Rechtsfragen der Internationalen Organisation – Festschrift für H. Wehberg (eds. W. Schätzel y H.-J. Schlochauer), Frankfurt a/M, 1956; Hesse, H., Sobre la Guerra y la Paz (transl. of Krieg und Frieden), 5th ed., Barcelona, Ed. Noguer, 1986;

Select Bibliography Jellinek, G., L’État moderne et son droit (transl. G. Fardis), part I, Paris, V. Giard & E. Brière, 1911; Jenks, C.W., The Common Law of Mankind, London, Stevens, 1958; Jiménez de Aréchaga, E., “International Law in the Past Third of a Century”, RCADI, 1978, vol. 159; Jiménez de Aréchaga, E., “The Grotian Heritage and the Concept of a Just World Order”, in International Law and the Grotian Heritage (1983 Hague Colloquium), The Hague, T.M.C. Asser Instituut, 1985; Kelsen, H., “Les rapports de système entre le droit interne et le droit international public”, 14 RCADI, 1926, vol. 14; Kiss, A.-Ch., “La notion de patrimoine commun de l’humanité”, RCADI, 1982, vol. 175; Kolb, R., Les Cours généraux de Droit international public de l’Académie de La Haye, Bruxelles, Bruylant/Éd. Université de Bruxelles, 2003; Lachs, M., “The Development and General Trends of International Law in Our Time – General Course in Public International Law”, RCADI, 1980, vol. 169; Lachs, M., “Le rôle des organisations internationales dans la formation du droit international”, in Mélanges offerts à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964; Laghmani, S., Histoire du droit des gens – du jus gentium impérial au jus publicum europaeum, Paris, Pédone, 2003; Lauterpacht, H., Private Law Sources and Analogies of International Law, London, Longmans, 1927; Lauterpacht, H., “On Realism, Especially in International Relations”, in International Law Being the Collected Papers of Hersch Lauterpacht, vol. 2, part I, Cambridge, University Press, 1975; Lombardi, G., Ricerche in Tema di ‘Ius Gentium’, Milano, Giuffrè, 1946; Lombardi, G., Sul Concetto di ‘Ius Gentium’, Roma, Istituto di Diritto Romano, 1947; Marek, K., “Thoughts on Codification”, Z.f.a.ö.R.u.V., 1971, vol. 31; Maritain, J., De la justice politique – Notes sur la présente guerre, Paris, Libr. Plon, 1940; Miele, A., La Comunità Internazionale, vol. I, 3rd. ed., Torino, Giappichelli, 2000; Moreau-Reibel, J., “Le droit de société interhumaine et le ‘jus gentium’: Essai sur les origines et le développement des notions jusqu’à Grotius”, RCADI, 1950, vol. 77; Mosler, H., “The International Society as a Legal Community”, RCADI, 1974, vol. 140; Nascimento e Silva, G.E. do, “Le facteur temps et les traités”, RCADI, 1977, vol. 154; Ost, F., and Kerchove, M. van de, Entre la lettre et l’esprit – Les directives d’interprétation en Droit, Bruxelles, Bruylant, 1989; Preez Louw, A. du, The Concept ‘Jus Gentium’, Leiden, Rijksuniversiteit te Leiden, 1991; Pufendorf, S., On the Duty of Man and Citizen (ed. J. Tully), Cambridge, University Press, 2003 (reed.); Ralston, J.H., International Arbitration from Athens to Locarno, Stanford, Stanford University Press, 1929; Rao, C., “ITLOS: The First Six Years”, Max Planck Yearbook of United Nations Law, 2002, vol. 6;

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Select Bibliography Rentto, J.-P., “Jus Gentium: A Lesson from Aquinas”, Finnish Yearbook of International Law, 1992, vol. 3; Reuter, P., “Principes de Droit international public”, RCADI, 1961, vol. 103; Rist, J.M., “An Early Dispute about Right Reason”, The Monist, 1983, vol. 66; Rosenne, S., The Time Factor in the Jurisdiction of the International Court of Justice, Leyden, Sijthoff, 1960; Russell, Bertrand, Sceptical Essays, London, Routledge, 1993 [reprint]; Scheuner, U., “Jus Gentium and the Present Development of International Law”, in Volkenrechtelijke Opstellen aangeboden aan Prof. Dr. G.H.J. van der Molen, Kampen, J.H. Kok N.V., 1962; Sherman, G.E., “Jus Gentium and International Law”, AJIL, 1918, vol. 12; Skubiszewski, K., “The Contribution of the Academy to the Development of the Science and Practice of Public International Law”, RCADI, 1998, vol. 271; Tavernier, P., Recherches sur l’application dans le temps des actes et des règles en droit international public, Paris, LGDJ, 1970; Thierry, H., “L’évolution du Droit international – Cours général de Droit international public”, RCADI, 1990, vol. 222; Tomuschat, Ch. “International Law: Ensuring the Survival of Mankind on the Eve of a New Century”, RCADI, 1999, vol. 281; Triepel, H., “Les rapports entre le droit interne et le droit international”, RCADI, 1923, vol. 1; Trouwborst, A., Precautionary Rights and Duties of States, Leiden, Nijhoff, 2006; Truyol y Serra, A., Histoire du Droit international public, Paris, Economica, 1995; [Various Authors,] Jus Naturae et Gentium – Eine Umfrage zum Gedächtnis des Hugo Grotius, Kiel, Universität Kiel/Instituts für internationales Recht, 1925; [Various Authors,] Los Derechos del Hombre – Estudios y Comentarios en torno a la Nueva Declaración, Reunidos por la UNESCO, Mexico/Buenos Aires, 1949; [Various Authors,] Dialogue among Civilizations – The Round Table on the Eve of the United Nations Millenium Summit (N.Y., 2000), Paris, UNESCO, 2001; [Various Authors,] Le Droit international et le temps (Colloque de Paris de 2000), Paris, SFDI/Pédone, 2001; [Various Authors,] Reinterpreting the Precautionary Principle (eds. T. O’Riordan, J. Cameron and A. Jordan), London, Cameron May, 2002 [reprint]; Verdross, A., Derecho Internacional Público, 5th. ed. (transl. from the 4th. German ed. of Völkerrecht), Madrid, Aguilar, 1969 (1st. reprint); Verdross, A., “Le fondement du Droit international”, RCADI, 1927, vol. 16; Villiger, M.E., Customary International Law and Treaties, Dordrecht, Nijhoff, 1985; Vitoria, F. de, Relecciones del Estado, de los Indios, y del Derecho de la Guerra (Introduction by A. Gómez Robledo), 2nd. ed., Mexico, Ed. Porrúa, 1985; Visscher, Ch. de, Théories et réalités en Droit international public, 4th rev. ed., Paris, Pédone, 1970; Walters, F.P., A History of the League of Nations, Oxford, University Press, 1969 (reprint);

Select Bibliography Webster, C.K., The Congress of Vienna 1814-1815, London/Edinburgh, H. Milford/Oxford University Press, 1919; Weeramantry, C.G., Universalising International Law, Leiden, Nijhoff, 2004.

II.

Part II (Chapters III-IV)

Abi-Saab, G., “Cours général de Droit international public”, RCADI, 1987, vol. 207; Abi-Saab, R., “Les ‘principes généraux’ du Droit humanitaire selon la Cour Internationale de Justice”, RICR, 1987, n. 766; Allott, Ph., “State Responsibility and the Unmaking of International Law”, Harvard International Law Journal, 1988, vol. 29; Álvarez, A., Exposé de motifs et Déclaration des grands principes du Droit international moderne, 2nd. ed., Paris, Éds. Internationales, 1938; Álvarez, A., Le Droit international de l’avenir, Washington, Institut Américain de Droit International, 1916; Arangio-Ruiz, G., The United Nations Declaration on Friendly Relations and the System of the Sources of International Law, Alphen aan den Rijn, Sijthoff/Noordhoff, 1979; Arbour, J.-M., Droit international public, 4th. ed., Cowansville/Québec, Éd. Y. Blais, 2002; Azevedo, Ph., A Justiça Internacional, Rio de Janeiro, MRE, 1949; Bannelier, K., Corten, O., Christakis, Th., and Klein, P. (eds.), L’intervention en Irak et le Droit international, Paris, Pédone/CEDIN, 2004; Barbosa, R., Obras Completas de Rui Barbosa, vol. XXXIV-II (A Segunda Conferência da Paz, 1907), Rio de Janeiro, MEC, 1966; Best, G., “The Restraint of War in Historical and Philosophical Perspective”, in Humanitarian Law of Armed Conflict: Challenges Ahead – Essays in Honour of F. Kalshoven (eds. A.J.M. Delissen and G.J. Tanja), Dordrecht, Nijhoff, 1991; Blanco Gaspar, V., La Agresión Internacional: Intentos de Definición, Madrid, Consejo Superior de Investigaciones Científicas/Instituto Francisco de Vitoria, 1973; Blix, H., “The Helsinki Declaration on Principles Guiding Relations Between States in Europe”, Revue egyptienne de droit international, 1975, vol. 31; Boutros-Ghali, B., “Le principe d’égalité des États et les organisations internationales”, RCADI, 1960, vol. 100; Boutros-Ghali, B., “Le Droit international à la recherche de ses valeurs: paix, développement, démocratisation”, RCADI, 2000, vol. 286; Brierly, J.L., The Law of Nations, 6th. ed., Oxford, Clarendon Press, 1963 [reprint 1967]; Brölmann, C., Lefeber, R., and Zieck, M. (eds.), Peoples and Minorities in International Law, Dordrecht, Nijhoff, 1993; Broms, B., “The Definition of Aggression”, RCADI, 1977, vol. 154; Brownlie, I., Principles of Public International Law, 6th. ed., Oxford, Clarendon Press, 2003; Brownlie, I., International Law and the Use of Force by States, Oxford, Clarendon Press, 1963 [reprint 1981];

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Select Bibliography Brownlie, I., “‘International Law and the Use of Force by States’ Revisited”, Australian Year Book of International Law, 2001, vol. 21; Bustamante y Sirvén, A.S. de, La Segunda Conferencia de la Paz Reunida en el Haya en 1907, vol. II, Madrid, Libr. Gen. de V. Suárez, 1908; Cahier, Ph., “Changements et continuité du Droit international – Cours général de Droit international public”, RCADI, 1985, vol. 195; Calogeropoulos-Stratis, S., Le droit des peuples à disposer d’eux- mêmes, Bruxelles, Bruylant, 1973; Cançado Trindade, A.A., Princípios do Direito Internacional Contemporâneo, Brasília, Edit. University of Brasília, 1981; Cançado Trindade, A.A., “The Presence and Participation of Latin America at the II Hague Peace Conference of 1907”, in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque de 2007) (ed. Y. Daudet), Leiden/The Hague, The Hague Academy of International Law/Nijhoff, 2008; Cançado Trindade, A.A., “O Caso do Timor-Leste (1999): O Direito de Autodeterminação do Povo Timorense”, Revista de Derecho de la Universidad Católica del Uruguay, 2000, vol. 1; Carrillo Salcedo, J.A., Soberanía de los Estados y Derechos Humanos en Derecho Internacional Contemporáneo, 2nd. ed., Madrid, Tecnos, 2001; Cassese, A., Self-Determination of Peoples – A Legal Reappraisal, Cambridge, University Press, 1995; Cassese, A., and Weiler, J.H.H. (eds.), Change and Stability in International Law-Making, Berlin, W. de Gruyter, 1988; Castañeda, J., Obras Completas, vol. I: Naciones Unidas, México D.F., Colegio de México/ Secretaría de Relaciones Exteriores, 1995; Castañeda, J., “The Underdeveloped Nations and the Development of International Law”, International Organization, 1961, vol. 15; Cicero, M.T., The Republic [De Republica] – The Laws [De Legibus], Oxford, University Press, 1998, books II-III; II Conférence de la Paix, Actes et discours de M. Ruy Barbosa, La Haye, W.P. van Stockum et Fils, 1907; Corten, O., “Opération Iraqi Freedom: peut-on admettre l’argument de l’‘autorisation implicite’ du Conseil de Sécurité?”, RBDI, 2003, vol. 36; Cot, J.-P., and Pellet, A. (eds.), La Charte des Nations Unies – Commentaire article par article, Paris/Bruxelles, Economica/Bruylant, 1985; Crawford (ed.), J., The Rights of Peoples, Oxford, Clarendon Press, 1988; Danilenko, G.M., Law-Making in the International Community, Dordrecht, Nijhoff, 1993; Delbez, L., Les principes généraux du Droit international public, 3rd. ed., Paris, LGDJ, 1964; Díez de Velazco, M., Las Organizaciones Internacionales, 12nd. ed., Madrid, Tecnos, 2002; Dostoievski, F.M., Souvenirs de la maison des morts (1862), Paris, Gallimard, 1997 [reed.]; Dupuy, R.-J., “La contribution de l’Académie au développement du Droit international”, RCADI, 1973, vol. 138;

Select Bibliography Elias, T.O., “Scope and Meaning of Article 2(4) of the United Nations Charter”, in Contemporary Problems of International Law: Essays in Honour of G. Schwarzenberger on his 80th Birthday (eds. Bin Cheng and E.D. Brown), London, Stevens, 1988; Fabela, I., Intervención, 1st. ed., Mexico, UNAM, 1959; Favre, A., “Les principes généraux du droit, fonds commun du Droit des gens”, in Recueil d’études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968; Fernandes, R., Le principe de l’égalité juridique des États dans l’activité internationale de l’après-guerre, Genève, Impr. A. Kundig, 1921; Fernandes, R., A Sociedade das Nações, Rio de Janeiro, Imprensa Nacional, 1925; Fischer, H., and Oraá, J., Derecho Internacional y Ayuda Humanitaria, Bilbao, University of Deusto, 2000; Fitzmaurice, G., “The General Principles of International Law, Considered from the Standpoint of the Rule of Law”, RCADI, 1957, vol. 92; Friedmann, W., “The Uses of ‘General Principles’ in the Development of International Law”, AJIL, 1963, vol. 57; Gray, C., International Law and the Use of Force, Oxford, University Press, 2000; Guardia, E. de la, and Delpech, M., El Derecho de los Tratados y la Convención de Viena, Buenos Aires, La Ley, 1970; Guerrero, G., La Codification du Droit International, Paris, Pédone, 1930; Guggenheim, P., “Les principes de Droit international public”, RCADI, 1952, vol. 80; Hannikainen, L., “The Case of East Timor from the Perspective of Jus Cogens”, in International Law and the Question of East Timor, London, CIIR/IPJET, 1995; Herczegh, G., General Principles of Law and the International Legal Order, Budapest, Akadémiai Kiadó, 1969; Hesse, H., Guerre et paix – considérations politiques, Paris, L’Arche Éd., 2003; Homer, The Iliad, N.Y./London, Penguin Books, 1991 [reed.]; ICRC, Customary International Humanitarian Law (eds. J.-M. Henckaerts and L. DoswaldBeck), vols. I-III, Cambridge, University Press, 2005; Kant, I., Perpetual Peace [1795], in La paix (Textes choisis, ed. M. Lequan), Paris, Flammarion, 1998; Kelsen, H., The Law of the United Nations, London, Stevens, 1951; Kelsen, H., Collective Security under International Law (1954), Union/New Jersey, Lawbook Exchange Ltd., 2001 [reprint]; Kolb, R., Ius contra Bellum – Le droit international relatif au maintien de la paix, 2nd. ed., Bâle/Bruxelles, Helbing Lichtenhahn/Bruylant, 2009; Lachs, M., “Le vingt-cinquième anniversaire du traité régissant les principes du droit de l’espace extra-atmosphérique, 1967- 1992”, Revue française de droit aérien et spatial, 1992, vol. 184; Las Casas, B. de, Tratados, vol. I, Mexico, Fondo de Cultura Económica, 1997 [reprint]; Las Casas, B. de, Brevísima Relación de la Destrucción de las Indias [1552], Barcelona, Ediciones 29, 2004 [reed.]; Le Fur, L., “La théorie du droit naturel depuis le XVIIe. siècle et la doctrine moderne”, RCADI, 1927, vol. 18;

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Select Bibliography Lleonart y Amselem, A.J., Derecho de los Estados a Disponer Libremente de Sus Recursos Naturales, Madrid, CSIC/Instituto Francisco de Vitoria, 1976; Lowe, V., and Warbrick, C. (eds.), The United Nations and the Principles of International Law – Essays in Memory of M. Akehurst, London/N.Y., Routledge, 1994; Macdonald, R., “The Charter of the United Nations in Constitutional Perspective”, Australian Year Book of International Law, 1999, vol. 20; Márquez Carrasco, M.C., Problemas Actuales sobre la Prohibición del Recurso a la Fuerza en Derecho Internacional, Madrid, Tecnos, 1998; McNair, Lord, The Law of Treaties, Oxford, Clarendon Press, 1961; Miele, M., Principi di Diritto Internazionale, 2nd. ed., Padova, Cedam, 1960; Momtaz, D., “‘L’intervention d’humanité’ de l’OTAN au Kosovo et la règle du non-recours à la force”, RICR, 2000, vol. 82, n. 837; Nguyen-Rouault, F., “L’intervention armée en Irak et son occupation au regard du Droit international”, 108 RGDIP, 2003, vol. 108; Pérez Triana, S., and Stead, W.T. (intr.), Doctrina Drago – Colección de Documentos, London, Impr. Wertheimer, Lea & Co., 1908; Pictet, J., Développement et principes du Droit international humanitaire, Genève/Paris, Inst. H.-Dunant/Pédone, 1983; Politis, N., La morale internationale, N.Y., Brentano’s, 1944; Reuter, P., Introduction au droit des traités, 2nd. ed., Paris, PUF, 1985; Riad, F.A.-M., “Equality Among Nations”, Revue egyptienne de droit international, 1975, vol. 31; Rigo Sureda, A., The Evolution of the Right of Self-Determination, Leiden, Sijthoff, 1973; Rolin, H., “Les principes de Droit international public”, RCADI, 1950, vol. 77; Romilly, J. de, La Grèce antique contre la violence, Paris, Éd. Fallois, 2000; Roscher, B., “The ‘Renunciation of War as an Instrument of National Policy’”, 4 Journal of the History of International Law / Revue d’histoire du droit international (2002); Rousseau, Ch., “Principes de Droit international public”, RCADI, 1958, vol. 93; Sahovic, M., “Codification des principes du Droit international des relations amicales et de la coopération entre les États”, RCADI, 1972, vol. 137; Sahovic, M., “Le Droit international et la crise en ex- Yougoslavie”, Cursos Euromediterráneos Bancaja de Derecho Internacional – Castellón/Spain, 1999, vol. 3; Sahovic (ed.), M., Principles of International Law Concerning Friendly Relations and Cooperation, Belgrade/N.Y., Institute of International Politics and Economics/Oceana, 1972; Scelle, G., Précis de droit des gens – principes et systématique, Paris, Rec. Sirey, 1934; Sibert, M., “The Rule Pacta Sunt Servanda: From the Middle Ages to the Beginning of Modern Times”, Indian Yearboook of International Affairs, 1956, vol. 5; Sicilianos, L.-A., “L’autorisation par le Conseil de Sécurité de recourir à la force: une tentative d’évaluation”, RGDIP, 2002, vol. 106; Sorensen, M., “Principes de Droit international public”, RCADI, 1960, vol. 101; Tomuschat (ed.), Ch., Modern Law of Self-Determination, Dordrecht, Nijhoff, 1993;

Select Bibliography Touret, D., “La Déclaration universelle des droits des peuples”, Revue de droit international de sciences diplomatiques et politiques, 1977, vol. 55; Toynbee, A., Guerra e Civilização, Lisbon, Edit. Presença, 1963 (reed.); Treves, T., “La Déclaration des Nations Unies sur le renforcement de l’efficacité du principe du non-recours à la force”, AFDI, 1987, vol. 33; Truyol y Serra, A., Histoire du Droit international, Paris, Economica, 1995; Truyol y Serra, A., Fundamentos de Derecho Internacional Público, 4th. rev. ed., Madrid, Tecnos, 1977; Tunkin, G., “‘General Principles of Law’ in International Law”, in Internationale Festschrift für A. Verdross (eds. R. Marcic et alii), München/Salzburg, W. Fink Verlag, 1971; Ulloa, A., Derecho Internacional Público, vol. I, 2nd. ed., Lima, Impr. Torres Aguirre, 1939; and vol. II, 4th. ed., Madrid, Ed. Iberoamericanas, 1957; Umozurike, U.O., Self-Determination in International Law, Hamden/Conn., Archon Books, 1972; Uribe Vargas, D., La Paz es una Trégua – Solución Pacífica de Conflictos Internacionales, 3rd. ed., Bogotá, Universidad Nacional de Colombia, 1999; Vallindas, P.G., “General Principles of Law and the Hierarchy of the Sources of International Law”, in Grundprobleme für internationalen Rechts – Festschrift für Jean Spiropoulos, Bonn, Schimmelbusch & Co., 1957; [Various Authors,] Les résolutions dans la formation du Droit international du développement (Colloque de 1970), Genève, IUHEI, 1971; [Various Authors,] Colloque international sur le droit à l’assistance humanitaire – Actes (Paris, 25-27.01.1995), Paris, UNESCO, 1996; [Various Authors,] La pratique et le Droit international (Geneva Colloquy of 2003), Paris, Pédone/SFDI, 2004; Verdross, A., “Les principes généraux de Droit dans le système des sources du Droit international public”, in Recueil d’études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968; Virally, M., “Le rôle des ‘principes’ dans le développement du Droit international”, in Recueil d’études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968; Vitanyi, B., “La signification de la ‘généralité’ des principes de droit”, RGDIP, 1976, vol. 80; Weckel, Ph., “L’emploi de la force contre la Yougoslavie ou la Charte fissurée”, RGDIP, 2000, vol. 104; Weil, S., Reflexiones sobre las Causas de la Libertad y de la Opresión Social, Barcelona, Ed. Paidós/Universidad Autónoma de Barcelona, 1995; Whitton, J.B., “La règle pacta sunt servanda”, RCADI, 1934, vol. 49; Wolfke, K., “The Privileged Position of the Great Powers in the International Court of Justice”, Die Friedens-Warte, 1961- 1966, vol. 56; Wright, Quincy, A Study of War, 2nd. ed., Chicago/London, University of Chicago Press, 1983 [Midway reprint]; Yepes, J.-M., “La contribution de l’Amérique Latine au développement du Droit international public et privé”, RCADI, 1930, vol. 32; Zoller, E., La bonne foi en Droit international public, Paris, Pédone, 1977;

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Select Bibliography Zourek, J., L’interdiction de l’emploi de la force en droit international, Leiden/Genève, Sijthoff/Institut H.-Dunant, 1974; Zourek, J., “Enfin une définition de l’aggression”, AFDI, 1974, vol. 20; Zweig, S., O Mundo que Eu Vi [Le Monde d’hier], Rio de Janeiro, Ed. Record, 1999 [reed.]; Zweig, S., Romain Rolland, Zurich/Paris, Belfond, 2000 [reed.].

III. Part III (Chapters V-VI) Ago, R., “Nouvelles réflexions sur la codification du droit international”, RGDIP, 1988, vol. 92; Akehurst, M., “The Hierarchy of the Sources of International Law”, BYBIL, 1974-1975, vol. 47; Álvarez, A., La Reconstrucción del Derecho de Gentes – El Nuevo Órden y la Renovación Social, Santiago de Chile, Ed. Nascimento, 1944; Álvarez, A., “Méthodes de la codification du Droit international public – Rapport”, in AIDI, 1947; Aquinas, Th., Aquinas Selected Political Writings (ed. A.P. D’Entrèves), Oxford, Blackwell, 1970 [Summa Theologiae, Part I]; Aristotle, Ética Nicomaquea – Política, Mexico, Ed. Porrúa, 2000 (book I, sections VII and XIII; book II, sections II and VI; book III, section XII; book VII, sections VIII and IX; and book X, section IX); Augustin, St., Oeuvres I – Les Confessions précédées de Dialogues philosophiques, Paris, Gallimard, 1998; Barberis, J.A., “Les arrêts des tribunaux nationaux et la formation du droit international coutumier”, Revue de droit international de sciences diplomatiques et politiques 1968, vol. 46; Baxter, R.R., “Treaties and Custom”, RCADI, 1970, vol. 129; Berlin, I., The Proper Study of Mankind, N.Y., FSG, 2000; Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, London, Stevens, 1953; Borchard, E.M., The Diplomatic Protection of Citizens Abroad, N.Y., Banks Law Publ. Co., 1916; Bos, M., “The Recognized Manifestations of International Law – A New Theory of ‘Sources’”, GYIL, 1977, vol. 20; Bos, M., A Methodology of International Law, Amsterdam, North- Holland, 1984; Cahier, Ph., “Le problème des effets des traités à l’égard des États tiers”, RCADI, 1974, vol. 143; Cançado Trindade, A.A., O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002; Cançado Trindade, A.A., Direito das Organizações Internacionais, 3rd. ed., Belo Horizonte/ Brazil, Edit. Del Rey, 2003; Cançado Trindade, A.A., “The Burden of Proof with Regard to Exhaustion of Local Remedies in International Law”, Revue des droits de l’homme / Human Rights Journal – Paris, 1976, vol. 9;

Select Bibliography Cançado Trindade, A.A., “Exhaustion of Local Remedies in International Law and the Role of National Courts”, Archiv des Völkerrechts, 1977-1978, vol. 17; Cede, F., “New Approaches to Law-Making in the U.N. System”, Austrian Review of International and Comparative Law, 1996, vol. 1; Charney, J.I., “Universal International Law”, AJIL, 1993, vol. 87; Cicero, M.T., On the Commonwealth and On the Laws [De Legibus] (ed. J.E.G. Zetzel), Cambridge, University Press, 2003 [reed.], books I-III; Cicero, M.T., On Duties [De Officiis] (eds. M.T. Griffin and E.M. Atkins), Cambridge, University Press, 2003 [reed.]; Conforti, B., “Humanité et renouveau de la production normative”, in Humanité et droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991; Drzemczewski, A., “Les faux débats entre monisme et dualisme – Droit international et droit français: l’exemple du contentieux des droits de l’homme”, 51 Boletim da Sociedade Brasileira de Direito Internacional (1998) n. 113-118, pp. 95- 109; Falk, R.A., The Role of Domestic Courts in the International Legal Order, Syracuse University Press, 1964; Fitzmaurice, G.G., “Some Problems Regarding the Formal Sources of International Law”, in Symbolae Verzijl présentées au Professeur J.H.W. Verzijl à l’occasion de son LXXème. anniversaire, The Hague, M. Nijhoff, 1958; Fleischhauer, C.-A., “The United Nations at Fifty”, GYIL, 1995, vol. 38; Ghozali, N.E., “Les fondements du Droit international public – approche critique du formalisme classique”, in Les droits des peuples à disposer d’eux-mêmes – Méthodes d’analyse du Droit international – Mélanges offerts à Ch. Chaumont, Paris, Pédone, 1984; Gómez Robledo, A., Meditación sobre la Justicia, Mexico/Buenos Aires, Fondo de Cultura Económica, 1963; Guggenheim, P., “Contribution à histoire des sources du droit des gens”, RCADI, 1958, vol. 94; Haggenmacher, P., “La doctrine des deux éléments du droit coutumier dans la pratique de la Cour Internationale”, RGDIP, 1986, vol. 90; Hazard, P., La crise de la conscience européenne (1680-1715), vols. I and II, Paris, Gallimard, 1968; Hoof, G.J.H. van, Rethinking the Sources of International Law, Deventer, Kluwer, 1983; Huesa Vinaixa, R., El Nuevo Alcance de la ‘Opinio Juris’ en el Derecho Internacional Contemporáneo, Valencia, Tirant lo Blanch, 1991; Institut de Droit International, Livre du Centenaire 1873-1973: Évolution et perspectives du droit international, Bâle, Karger, 1973; International Law Association, The Present State of International Law – 1873-1973, Kluwer, Deventer, 1973; Jiménez de Aréchaga, E., El Derecho Internacional Contemporáneo, Madrid, Tecnos, 1980; Jones, J.R.W.D., The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd. ed., Ardsley/N.Y., Transnational Publs., 2000; Herik, L.J. van den, The Contribution of the Rwanda Tribunal to the Development of International Law, Leiden, Nijhoff, 2005; Kant, I., [Critique de] la raison pratique, Paris, PUF, 1963 [reed.];

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Select Bibliography Kelsen, H., “The Basis of Obligation in International Law”, in Estudios de Derecho Internacional – Homenaje al Profesor C. Barcía Trelles, Santiago de Compostela, University of Santiago de Compostela, 1958; Koskenniemi, M., From Apology to Utopia – The Structure of International Legal Argument, Helsinki, Finnish Lawyers’ Publ. Co., 1989; Lachs, M., The Teacher in International Law, 2nd. rev. ed., Kluwer, Nijhoff, 1987; Lador-Lederer, J.J., “Some Observations on the ‘Vienna School’ in International Law”, Nederlands Tijdschrift voor internationaal Recht, 1970, vol. 17; La Pradelle, A. de, Maîtres et doctrines du droit des gens, 2nd. ed., Paris, Éds. Internationales, 1950; Lauterpacht, H., The Development of International Law by the International Court, London, Stevens, 1958; Mateesco, N., Doctrines-écoles et développement du droit des gens, Paris, Pédone, 1951; McWhinney, E., Les Nations Unies et la formation du droit, Paris, Pédone/UNESCO, 1986; Merrills, J.G., The Development of International Law by the European Court of Human Rights, 2nd. ed., Manchester, University Press, 1993; Millán Moro, L., La ‘Opinio Juris’ en el Derecho Internacional Contemporáneo, Madrid, Ed. Centro Est. R. Areces, 1990; Monaco, R., “Réflexions sur la théorie des sources du Droit international”, in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996; Monaco, R., “Fonti e Pseudo Fonti del Diritto Internazionale”, Rivista di Diritto Internazionale, 1978, vol. 61; Montesquieu, Considérations sur les causes de la grandeur des romains et de leur décadence [1734], Paris, Garnier, 1954 [reed.]; Münch, F., “Le rôle du droit spontané”, in Pensamiento Jurídico y Sociedad Internacional – Libro-Homenaje al Prof. D. A. Truyol y Serra, vol. II, Madrid, Universidad Complutense, 1986; Parry, C., The Sources and Evidences of International Law, Manchester, University Press/ Oceana, 1965; Plato, Diálogos, vol. III (Phedon, The Banquet, Phedro), Madrid, Ed. Gredos, 1997; Pustogarov, V.V., Fedor Fedorovitch Martens – Jurist i Diplomat (Préface de C. Swinarski), Moscow, Ed. Mezdunarodinye Otnoscheniya, 1999; Röling, B.V.A., International Law in an Expanded World, Amsterdam, Djambatan, 1960; Rosenne, S., “Bilateralism and Community Interest in the Codified Law of Treaties”, in Transnational Law in a Changing Society – Essays in Honour of Ph. C. Jessup (ed. W. Friedmann, L. Henkin, and O. Lissitzyn), N.Y./London, Columbia University Press, 1972; Rosenne, S., Practice and Methods of International Law, London/N.Y., Oceana Publs., 1984; Scelle, G., “Essai sur les sources formelles du droit international”, in Recueil d’études sur les sources du droit en l’honneur de F. Gény, vol. III, Paris, Rec. Sirey, 1934; Schreuer, Ch., “Recommendations and the Traditional Sources of International Law”, GYIL, 1977, vol. 20; Seneca, L.A., Entretiens – Lettres à Lucilius (ed. P. Veyne), Paris, Éd. R. Laffont, 1993;

Select Bibliography Sinclair, I.M., The Vienna Convention on the Law of Treaties, Manchester, University Press/ Oceana, 1973; Skubiszewski, K., “A New Source of the Law of Nations: Resolutions of International Organisations”, in Recueil d’études de Droit international en hommage à P. Guggenheim, Geneva, I.U.H.E.I., 1968; Sloan, B., “General Assembly Resolutions Revisited (Forty Years Later)”, BYBIL, 1987, vol. 58; Sorensen, M., Les sources du Droit international, Copenhague, E. Munksgaard, 1946; Sperduti, G., “Dualism and Monism: A Confrontation to be Overcome”, 3 Italian Yearbook of International Law (1977) pp. 31-49; Sucharitkul, S., “Évolution continue d’une notion nouvelle: le patrimoine commun de l’humanité”, International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989; Sucharitkul, S., “L’humanité en tant qu’élément contribuant au développement progressif du Droit international contemporain”, in L’avenir du Droit international dans un monde multiculturel (Colloque de La Haye, novembre 1983, ed. R.-J. Dupuy), The Hague, Nijhoff/Académie de Droit International de La Haye/U.N.U., 1984; Suy, E., Les actes juridiques unilatéraux en Droit international public, Paris, LGDJ, 1962; Tassitch, G., “La conscience juridique internationale”, RCADI, 1938, vol. 65; Tigroudja, H., and Panoussis, I.K., La Cour Interaméricaine des Droits de l’Homme – Analyse de la jurisprudence consultative et contentieuse, Bruxelles, Bruylant/Nemesis, 2003; Teilhard de Chardin, P., Himno del Universo, 2nd. ed., Madrid, Ed. Trotta, 2000 [reed.]; Truyol y Serra, A., “Théorie du Droit international public – Cours général”, RCADI, 1981, vol. 183; United Nations, The Work of the International Law Commission, 5th. ed., N.Y., U.N., 1996; U.N. Secretary-General, Ways and Means of Making the Evidence of Customary International Law More Readily Available, N.Y., U.N. publ. n. 1949-V-6, 1949; Valladão, H., Democratização e Socialização do Direito Internacional, Rio de Janeiro, Livr. José Olympio Ed., 1961; [Various Authors,] New Trends in International Lawmaking – International ‘Legislation’ in the Public Interest (Proceedings of the Kiel Symposium, March 1996), Berlin, Duncker & Humblot, 1997; [Various Authors,] L’élaboration du Droit international public (Colloque de Toulouse, Société Française pour le Droit International), Paris, Pédone, 1975; Verdross, A., “Coincidences: Deux théories du droit des gens apparues à l’époque de la création de l’Académie de Droit International”, in Hague Academy of International Law, Livre jubilaire / Jubilee Book (1923-1973, ed. R.J. Dupuy), Leyde, Sijthoff, 1973; Verdross, A., “Les principes généraux du Droit dans la jurisprudence internationale”, RCADI, 1935, vol. 52; Verma, D.P., “Rethinking about New International Law-Making Process”, Indian Journal of International Law, 1989, vol. 29; Verzijl, J.H.W., International Law in Historical Perspective, vol. I, Leyden, Sijthoff, 1968; Virally, M., “Panorama du Droit international contemporain – Cours général de Droit international public”, RCADI, 1983, vol. 183;

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Select Bibliography Visscher, Ch. de, De l’équité dans le règlement arbitral ou judiciaire des litiges de Droit international public, Paris, Pédone, 1972; Vitoria, F. de, Political Writings (eds. A. Pagden and J. Lawrance), Cambridge, University Press, 1991; Yasseen, M.K., “L’interprétation des traités d’après la Convention de Vienne sur le droit des traités”, RCADI, 1976, vol. 151; Yee, Sienho, “The News that Opinio Juris ‘Is Not a Necessary Element of Customary [International] Law’ Is Greatly Exaggerated”, GYIL, 2000, vol. 43.

IV. Part IV (Chapters VII-XI) Agius, E., Busuttil, S., et alii (eds.), Future Generations and International Law, London, Earthscan Publs., 1998. Ago, R., “Le quarantième anniversaire des Nations Unies”, in L’adaptation des structures et méthodes des Nations Unies (Colloque de La Haye, 1985 – ed. D. Bardonnet), Dordrecht, Académie de Droit International de La Haye/Nijhoff, 1986; Akashi, K., Cornelius van Bynkershoek: His Role in the History of International Law, The Hague, Kluwer, 1998; Albuquerque Mello, C.D. de, Curso de Direito Internacional Público, vol. I, 15th. rev. ed., Rio de Janeiro, Ed. Renovar, 2004; Alfaro, R.J., “The Rights and Duties of States”, RCADI, 1959, vol. 97; Allott, Ph., Eunomia – New Order for a New World, Oxford, University Press, 1990; Allott, Ph., “Reconstituting Humanity – New International Law”, EJIL, 1992, vol. 3; Álvarez, A., Le Droit international de l’avenir, Washington, Institut Américain de Droit International, 1916; Anand, R.P., “Sovereign Equality of States in International Law”, RCADI, 1986, vol. 197; Arangio-Ruiz, G., Diritto Internazionale e Personalità Giuridica, Bologna, Coop. Libr. Univ., 1972; Asamoah, O.Y., The Legal Significance of the Declarations of the General Assembly of the United Nations, The Hague, Nijhoff, 1966; Association for the Prevention of Torture (APT), The African Court on Human and Peoples’ Rights – Presentation, Analysis and Commentary: The Protocol to the African Charter on Human and Peoples’ Rights, Establishing the Court (Occasional Paper), Geneva, APT, January 2000; Association Internationale Vitoria-Suarez, Vitoria et Suarez – Contribution des Théologiens au Droit International Moderne, Paris, Pédone, 1939; Azcárate, P. de, League of Nations and National Minorities: An Experiment, Washington, Carnegie Endowment for International Peace, 1945; Badawi El-Sheikh, I.A., “Draft Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights – Introductory Note”, African Journal of International and Comparative Law, 1997, vol. 9; Barberis, J.A., “Nouvelles questions concernant la personnalité juridique internationale”, RCADI, 1983, vol. 179;

Select Bibliography Bassiouni, M.Ch., Crimes against Humanity in International Criminal Law, 2nd. rev. ed., The Hague, Kluwer, 1999; Bastid, E., “Observations sur la pratique du consensus”, in Multitudo Legum Ius Unum – Festchrift für W. Wengler, vol. I, Berlin, Inter-Recht, 1973; Beauté, J., Le droit de pétition dans les territoires sous tutelle, Paris, LGDJ, 1962; Bedjaoui, M., Nuevo Orden Mundial y Control de Legalidad de los Actos del Consejo de Seguridad, Bilbao, Ed. Instituto Vasco de Administración Pública, [1995]; Bello, A., Principios de Derecho Internacional (1832), 3rd. ed., Paris, Libr. Garnier Hermanos, 1873; Bentwich, N., The Mandates System, London, Longmans, 1930; Bettati, M., and Dupuy, P.-M., Les O.N.G. et le Droit international, Paris, Economica, 1986; Bin Cheng, “The United Nations and the Development of International Law Relating to Outer Space”, in The Evolution of International Law since the Foundation of the U.N. – Thesaurus Acroasium, vol. XVI, Thessaloniki/Greece, Institute of International Public Law and International Relations, 1990; Bindschedler, R.L., “La délimitation des compétences des Nations Unies”, RCADI, 1963, vol. 108; Blanc Altemir, A., El Patrimonio Común de la Humanidad – Hacia un Régimen Jurídico Internacional para Su Gestión, Barcelona, Bosch, 1992; Boisson de Chazournes, L., “Rien ne change, tout bouge, ou le dilemme des Nations Unies propos sur le rapport du Groupe de Personnalités de Haut Niveau sur les menaces, les défis et le chagement”, Revue générale de Droit international public, 2005, vol. 109; Bos, M., “Aspects phénomenologiques de la codification du Droit international public”, in Le droit international à l’heure de sa codification – Études en l’honneur de R. Ago, vol. I, Milano, Giuffrè, 1987; Boutros-Ghali, B., An Agenda for Peace, 2nd. ed., N.Y., United Nations, 1995; Boutros-Ghali, B., An Agenda for Development, N.Y., United Nations, 1995; Boutros-Ghali, B., An Agenda for Democratization, N.Y., United Nations, 1996; Brölmann, C.M., “A Flat Earth? International Organizations in the System of International Law”, Nordic Journal of International Law / Acta Scandinavica Juris Gentium, 2001, vol. 70; Brownlie, I., “International Law at the Fiftieth Anniversary of the United Nations – General Course on Public International Law”, RCADI, 1995, vol. 255; Brown Scott, J., The Spanish Origin of International Law – Francisco de Vitoria and his Law of Nations, Oxford/London, Clarendon Press/H. Milford – Carnegie Endowment for International Peace, 1934; Caflisch, L., and Cançado Trindade, A.A., “Les Conventions Américaine et Européenne des Droits de l’Homme et le droit international général”, RGDIP, 2004, vol. 108; Cançado Trindade, A.A., Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003; vol. II, 1999; and vol. III, 2003; Cançado Trindade, A.A., The Application of the Rule of Exhaustion of Local Remedies in International Law, Cambridge, Cambridge University Press, 1983; Cançado Trindade, A.A., Direito das Organizações Internacionais, 4th. ed., Belo Horizonte/ Brazil, Edit. Del Rey, 2009;

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Select Bibliography Cançado Trindade, A.A., “Co-existence and Co-ordination of Mechanisms of International Protection of Human Rights (At Global and Regional Levels”, RCADI, 1987, vol. 202; Cançado Trindade, A.A., “The International Law of Human Rights at the Dawn of the XXIst Century”, Cursos Euromediterráneos Bancaja de Derecho Internacional – Castellón/ Spain, 1999, vol. 3; Cançado Trindade, A.A., “El Nuevo Reglamento de la Corte Interamericana de Derechos Humanos (2000) y Su Proyección Hacia el Futuro: La Emancipación del Ser Humano como Sujeto del Derecho Internacional de los Derechos Humanos”, Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – OAS, 2001, vol. 28; Cançado Trindade, A.A., “Vers la consolidation de la capacité juridique internationale des pétitionnaires dans le système interaméricain des droits de la personne”, Revue québécoise de Droit international, 2001, vol. 14, n. 2; Cançado Trindade, A.A., “La jurisprudence de la Cour Internationale de Justice sur les droits intangibles” in Droits intangibles et états d’exception (eds. D. Prémont, C. Stenersen and I. Oseredczuk), Bruxelles, Bruylant, 1996; Cançado Trindade, A.A., “The Domestic Jurisdiction of States in the Practice of the United Nations and Regional Organisations”, ICLQ, 1976, vol. 25; Cançado Trindade, A.A., “Exhaustion of Local Remedies in International Law Experiments Granting Procedural Status to Individuals in the First Half of the Twentieth Century”, Netherlands International Law Review, 1977, vol. 24; Cançado Trindade, A.A., “La Ampliación del Contenido Material del Jus Cogens”, in XXXIV Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – 2007, Washington D.C., OAS General Secretariat, 2008; Carrillo Salcedo, J.A., Dignidad frente a Barbarie – La Declaración Universal de Derechos Humanos, Cincuenta Años Después, Madrid, Ed. Trotta, 1999; Cassese, A. International Law, Oxford, OUP, 2001; Cassese, A., International Criminal Law, Oxford, OUP, 2003; Cassin, R., “L’homme, sujet de droit international et la protection des droits de l’homme dans la société universelle”, in La technique et les principes du Droit public – Études en l’honneur de G. Scelle, vol. I, Paris, LGDJ, 1950; Cassin, R., “Vingt ans après la Déclaration Universelle”, Revue de la Commission Internationale de Juristes, 1967, vol. 8, n. 2; Cassirer, E., El Mito del Estado, Mexico, Fondo de Cultura Económica, 1996 (reed.); Castañeda, J., “Valeur juridique des résolutions des Nations Unies”, RCADI, 1970, vol. 129; Charpentier, J., “Le contrôle par les organisations internationales de l’exécution des obligations des États”, RCADI, 1983, vol. 182; Chemain, R., “Le contrôle des actes de l’Organisation”, in La Charte des Nations Unies, Constitution mondiale? (eds. R. Chemain and A. Pellet), Paris, Pédone, 2006; Chen, Ti-Chiang, The International Law of Recognition, London, Stevens, 1951; Claude Jr., I.L., Swords into Plowshares, 4th. ed., N.Y., Random House, 1971; Cohen-Jonathan, G., and Flauss, J.-F. (eds. – Various Authors), La réforme du système de contrôle contentieux de la Convention Européenne des droits de l’homme (Le Protocole n. 14 et les Recommendations et Résolutions du Comité de Ministres), Bruxelles, Bruylant/Nemesis, 2005;

Select Bibliography Couvreur, Ph., “Développements récents concernant l’accès des organisations intergouvernementales à la procédure contentieuse devant la Cour Internationale de Justice”, in Liber Amicorum Judge M. Bedjaoui (eds. E. Yakpo and T. Boumedra), The Hague, Nijhoff, 1999; Crawford, J., The Creation of States in International Law, Oxford, Clarendon Press, 1979; Dabin, J., El Derecho Subjetivo, Madrid, Ed. Rev. de Derecho Privado, 1955; Descamps, Baron, “L’influence de la condamnation de la guerre sur l’évolution juridique internationale”, RCADI, 1930, vol. 31; Draetta, U., Principi di Diritto delle Organizzazioni Internazionali, Milano, Giuffrè, 1997; Drost, P.N., Human Rights as Legal Rights, Leyden, Sijthoff, 1965; Drzemczewski, A.Z., European Human Rights Convention in Domestic Law, Oxford, Clarendon Press, 1983; Drzemczewski, A.Z., “A Major Overhaul of the European Human Rights Convention Control Mechanism: Protocol n. 11”, Collected Courses of the Academy of European Law, 1997-II, vol. 6; Dupuy, P.-M., “Humanité, communauté, et efficacité du Droit”, in Humanité et Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991; Dupuy, P.-M., “The Constitutional Dimension of the Charter of the United Nations Revisited”, Max Planck Yearbook of United Nations Law, 1997, vol. 1; Durante, F., Ricorsi Individuali ad Organi Internazionali, Milano, Giuffrè, 1958; Eissen, M.-A., El Tribunal Europeo de Derechos Humanos, Madrid, Civitas, 1985; Ermacora, F., “The Protection of Minorities before the United Nations”, RCADI, 1983, vol. 182; Eustathiades, C.Th., “Les sujets du Droit international et la responsabilité internationale – Nouvelles tendances”, RCADI, 1953, vol. 84; Fassbender, B., The United Nations Charter as the Constitution of the International Community, Leiden, Nijhoff, 2009; Fassbender, B., U.N. Security Council Reform and the Right of Veto – A Constitutional Perspective, The Hague, Kluwer, 1998; Fassbender, B., “Quis Judicabit? The Security Council, Its Powers and Its Legal Control”, EJIL, 2000, vol. 11; Fleischhauer, C.-A., “The United Nations and the Progressive Development and Codification of International Law”, Indian Journal of International Law, 1985, vol. 25; Flauss, J.-F., “Le droit de recours individuel devant la Cour européenne des droits de l’homme – Le Protocole n. 9 à la Convention Européenne des Droits de l’Homme”, AFDI, 1990, vol. 36; Flauss (ed.), J.F., La mise en oeuvre du Protocole n. 11: le nouveau Règlement de la Cour Européenne des Droits de l’Homme, Bruxelles, Bruylant, 2000; J.-L. Florent, “Les destinataires non-étatiques des résolutions du Conseil de Securité”, in Le sujet en Droit international (Colloque du Mans de 2004 de la SFDI), Paris, Pédone, 2005; Friedmann, W., The Changing Structure of International Law, London, Stevens, 1964; Frowein, J.A., “Reactions by Not Directly Affected States to Breaches of Public International Law”, RCADI, 1994, vol. 248;

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Select Bibliography Gentili, A., De Jure Belli Libri Tres [1612], vol. II, Oxford/London, Clarendon Press/H. Milford – Carnegie Endowment for International Peace, 1933; Gómez Robledo, A., Fundadores del Derecho Internacional, México, UNAM, 1989; Grotius, H., De Jure Belli ac Pacis [1625], The Hague, Nijhoff, 1948; Guggenheim, P., Traité de droit international public, 2nd. ed., vol. I, Geneva, Georg, 1967; and vol. II, Geneva, Georg, 1954; Gutiérrez Espada, C., Derecho Internacional Público, Madrid, Ed. Trotta, 1995; Hambro, E., “Some Notes on the Development of the Sources of International Law”, Scandinavian Studies in Law, 1973, vol. 17; Hennebel, L., Le régionalisme comme garant de l’universalisme des droits de l’homme (doctoral thesis), vols. I-II, Brussels, Université Libre de Bruxelles, 2005; Heydte, F.A. von der, “L’individu et les tribunaux internationaux”, RCADI, 1962, vol. 107; Highet, K., Rights and Duties of States under the 1982 Law of the Sea Convention, Washington D.C., OAS General Secretariat/Inter-American Juridical Committee, 2000; Hilpold, P., “The Duty to Protect and the Reform of the United Nations – A New Step in the Development of International Law?”, Max Planck Yearbook of United Nations Law, 2006, vol. 10; Hofmann, R., and Geissler (eds.), N., Non-State Actors as New Subjects of International Law (Proceedings of the Kiel Symposium of 1998), Berlin, Duncker & Humblot, 1999; Paris, Pédone, 2001; Jenks, C.W., The Proper Law of International Organisations, London, Stevens/Oceana, 1962; Jennings, R.Y., “The International Court of Justice after Fifty Years”, AJIL, 1995, vol. 89; Jessup, Ph.D., A Modern Law of Nations – An Introduction, New York, MacMillan Co., 1948; Jiménez de Aréchaga, E., Derecho Constitucional de las Naciones Unidas, Madrid, E.F.I., 1958; Jouannet, E., Emer de Vattel et l’émergence doctrinale du droit international classique, Paris, Pédone, 1998; Kasme, B., La capacité de l’Organisation des Nations Unies de conclure des traités, Paris, LGDJ, 1960; Khan, R., Implied Powers of the United Nations, New Delhi/Bombay/Bangalore, Vikas Publ., 1970; Kirgis Jr., F.L., “The Security Council’s First Fifty Years”, AJIL, 1995, vol. 89; Klabbers, J., An Introduction to International Institutional Law, Cambridge, University Press, 2002; Klabbers, J., “The Life and Times of the Law of International Organizations”, Nordic Journal of International Law / Acta Scandinavica Juris Gentium, 2001, vol. 70; Klein, P., La responsabilité des organisations internationales dans les ordres juridiques internes et en droit des gens, Bruxelles, Bruylant/Éd. Univ. de Bruxelles, 1998; Lachs, M., “Le rôle des organisations internationales dans la formation du Droit international”, in Mélanges offerts à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964;

Select Bibliography Lador-Lederer, J.J., International Group Protection, Leyden, Sijthoff, 1968; Lauterpacht, H., International Law and Human Rights, London, Stevens, 1950; Lauterpacht, H., Recognition in International Law, Cambridge, University Press, 1947; Lauterpacht, H., “The Grotian Tradition in International Law”, BYBIL, 1946, vol. 23; Lee (ed.), R.S., The International Criminal Court – The Making of the Rome Statute, The Hague, Kluwer, 1999; Legaz y Lacambra, L., “La Humanidad, Sujeto de Derecho”, in Estudios de Derecho Internacional Público y Privado – Homenaje al Profesor L. Sela Sampil, vol. II, Oviedo, Universidad de Oviedo, 1970; Lemmens, P., and Vandenhole, W. (eds. – Various Authors), Protocol n. 14 and the Reform of the European Court of Human Rights, Antwerpen/Oxford, Intersentia, 2005; López-Jacoiste Díaz, M.E., Actualidad del Consejo de Seguridad de las Naciones Unidas – La Legalidad de Sus Decisiones y el Problema de Su Control, Madrid, Univ. Navarra/ Thomson/Civitas, 2003; Mahoney, P., and Prebensen, S., “The European Court of Human Rights”, in The European System for the Protection of Human Rights (eds. R.St.J. Macdonald, F. Matscher and H. Petzold), Dordrecht, Nijhoff, 1993; Mandelstam, A.N., Les droits internationaux de l’homme, Paris, Éds. Internationales, 1931; Marek, K., Identity and Continuity of States in Public International Law, 2nd. ed., Geneva, Droz. 1968; Mazeron, F., “Le contrôle de légalité des décisions du Conseil de Sécurité – Un bilan après les ordonnances Lockerbie et l’arrêt Tadic”, Revue québécoise de Droit international, 1997, vol. 10; Meijknecht, A., Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law, Antwerpen/Groningen, Intersentia, 2001; Meron, Th., “The Humanization of Humanitarian Law”, AJIL, 2000, vol. 94; Mosler, H., “Réflexions sur la personnalité juridique en Droit international public”, in Mélanges offerts à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964; Mubiala, M., “La Cour Africaine des Droits de l’Homme et des Peuples: mimetisme institutionnel ou avancée judiciaire?”, Revue générale de Droit international public, 1998, vol. 102; Mubiala, M., “L’accès de l’individu à la Cour africaine des droits de l’homme et des peuples”, in La promotion de la justice, des droits de l’homme et du règlement des conflits par le Droit international – Liber amicorum L. Caflisch (ed. M.G. Kohen), Leiden, Nijhoff, 2007; Musila, G.M., “The Right to an Effective Remedy under the African Charter on Human and Peoples’ Rights”, African Human Rights Law Journal, 2006, vol. 6; Norgaard, C.A., The Position of the Individual in International Law, Copenhagen, Munksgaard, 1962; Oberthür, S., and Ott, H.E., The Kyoto Protocol – International Climate Policy for the 21st Century, Berlin/Heidelberg, Springer-Verlag, 1999; Orakhelashvili, A., “The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions”, European Journal of International Law, 2005, vol. 16;

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Select Bibliography Ouguergouz, F., The African Charter on Human and Peoples’ Rights, The Hague, Nijhoff, 2003; Owada, H., “The United Nations and the Maintenance of International Peace and Security – The Current Debate in the Light of Reform Proposals”, Japanese Annual of International Law, 2006, vol. 48; Paniagua Redondo, R., La Reforma del Consejo Económico y Social de las Naciones Unidas (1945-2000), Madrid/Barcelona, Marcial Pons Ed., 2001; Parry, C., “Some Considerations upon the Protection of Individuals in International Law”, RCADI, 1956, vol. 90; Parry, C., “The Treaty-Making Power of the United Nations”, BYBIL, 1949, vol. 26; Pastor Ridruejo, J.A., “Le droit international à la veille du vingt et unième siècle: normes, faits et valeurs – Cours général de Droit international public”, RCADI, 1998, vol. 274; Pellet, A., “La formation du droit international dans le cadre des Nations Unies”, EJIL, 1995, vol. 6; Petit de Gabriel, E.W., Las Exigencias de Humanidad en el Derecho Internacional Tradicional (1789-1939), Madrid, Tecnos, 2003; Podestá Costa, L.A., and Ruda, J.M., Derecho Internacional Público, vol. I, Buenos Aires, Tipogr. Ed. Argentina, 1979; Politis, N., Les nouvelles tendances du Droit international, Paris, Libr. Hachette, 1927; Pufendorf, S., Elementorum Jurisprudentiae Universalis Libri Duo [1672], vol. II, Oxford/ London, Clarendon Press/H. Milford – Carnegie Endowment for International Peace, 1931; Quadri, R., “Cours général de Droit international public”, RCADI, 1964, vol. 113; Radbruch, R., Introducción a la Filosofía del Derecho [Vorschule der Rechtsphilosophie], 3rd. Spanish edition, Mexico, Fondo de Cultura Económica, 1965; Rajan, M.S., United Nations and Domestic Jurisdiction, New Delhi, Orient Longmans, 1958; Rajan, M.S., The Expanding Jurisdiction of the United Nations, Bombay/Dobbs Ferry N.Y., N.M. Tripathi/Oceana, 1982; Rama-Montaldo, M., “International Legal Personality and Implied Powers of International Organizations”, BYBIL, 1970, vol. 44; Ranjeva, R., “Les organisations non-gouvernementales et la mise-en- oeuvre du Droit international”, RCADI, 1997, vol. 270; Remec, P.P., The Position of the Individual in International Law according to Grotius and Vattel, The Hague, Nijhoff, 1960; Reuter, P., Droit international public, 7th. ed., Paris, PUF, 1993; Reuter, P., “Quelques remarques sur la situation juridique des particuliers en Droit international public”, in La technique et les principes du Droit public – Études en l’honneur de G. Scelle, vol. II, Paris, LGDJ, 1950; Rey Aneiros, A., Una Aproximación a la Responsabilidad Internacional de las Organizaciones Internacionales, Valencia, Ed. Tirant lo Blanch/Univ. da Coruña, 2006; Rosenne, S., “Reflections on the Position of the Individual in Inter-State Litigation in the International Court of Justice”, in International Arbitration Liber Amicorum for M. Domke (ed. P. Sanders), The Hague, Nijhoff, 1967;

Select Bibliography Ross, A., Constitution of the United Nations, Copenhagen, E. Munksgaard, 1950; Rothwell, D.R., and Bateman (eds.), S., Navigational Rights and Freedoms and the New Law of the Sea, The Hague, Nijhoff, 2000; Roucounas, E., “Facteurs privés et Droit international public”, RCADI, 2002, vol. 299; Rousseau, Ch., “Le droit international et l’idée de justice”, in Le droit international au service de la paix, de la justice et du développement – Mélanges M. Virally, Paris, Pédone, 1991; Ruddy, F.S., International Law in the Enlightenment – The Background of E. de Vattel’s Le Droit des Gens, Dobbs Ferry/N.Y., Oceana, 1975; Sands, Ph., and Klein, P., Bowett’s Law of International Institutions, 5th. ed., London, Sweet & Maxwell, 2001; Sarooshi, D., International Organizations and Their Exercise of Sovereign Powers, Oxford, University Press, 2005; Sato, T., Evolving Constitutions of International Organizations, The Hague, Kluwer, 1996; Scelle, G., “Some Reflections on Juridical Personality in International Law”, in Law and Politics in the World Community (ed. G.A. Lipsky), Berkeley/L.A., University of California Press, 1953; Schachter, O., “United Nations Law”, AJIL, 1994, vol. 88; Schachter, O., “Discours: The United Nations and International Law”, AIDI, 1995-II, vol. 66; Schermers, H.G., “We the Peoples of the United Nations”, Max Planck Yearbook of United Nations Law, 1997, vol. 1; Schermers, H,G., “International Organizations as Members of Other International Organizations”, in Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte – Festschrift für H. Mosler (eds. R. Bernhardt et alii), Berlin, Springer- Verlag, 1983; Schermers, H.G., and Blokker, N.M., International Institutional Law, 3rd. ed. rev., The Hague, Nijhoff, 2001; Schneider, J.W., Treaky-Making Power of International Organizations, Geneva, Droz, 1963; Schreuer, Ch., “The Waning of the Sovereign State: Towards a New Paradigm for International Law?”, EJIL, 1993, vol. 4; Schröder, H., Negotiating the Kyoto Protocol – An Analysis of Negotiation Dynamics in International Negotiations, Münster/Hamburg, LIT, 2001; Seara Vázquez (ed.), M., Las Naciones Unidas a los Cincuenta Años, Mexico, Fondo de Cultura Económica, 1995; Séfériadès, S., “Le problème de l’accès des particuliers à des juridictions internationales”, RCADI, 1935, vol. 51; Seidl-Hohenveldern, I., and Loibl, G., Das Recht der Internationalen Organisationen, Köln/ Berlin, C. Heymanns Verlag, 2000; Seyersted, F., Objective International Personality of Intergovernmental Organizations, Copenhagen, 1963; Seyersted, F., “Basic Distinctions in the Law of International Organizations: Practice versus Legal Doctrine”, in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996;

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Select Bibliography Simma, B., “From Bilateralism to Community Interest in International Law”, RCADI, 1994, vol. 250; Simma et alii (eds.), B., The Charter of the United Nations – A Commentary, 2nd. ed., vol. I, Oxford, University Press, 2002; Skubiszewski, K., “Remarks on the Interpretation of the United Nations Charter”, in Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte – Festschrift für H. Mosler (eds. R. Bernhardt et alii), Berlin, Springer- Verlag, 1983; Soto, J. de, “L’individu comme sujet du droit des gens”, in La technique et les principes du Droit public – Études en l’honneur de G. Scelle, vol. II, Paris, LGDJ, 1950; Sperduti, G., L’Individuo nel Diritto Internazionale, Milano, Giuffrè Ed., 1950; Sperduti G.,, Il Dominio Riservato, Milano, Giuffrè, 1970; Spiropoulos, J., L’individu en Droit international, Paris, LGDJ, 1928; Starace, V., “La responsabilité résultant de la violation des obligations à l’égard de la communauté internationale”, RCADI, 1976, vol. 153; Stein, T., “Kosovo and the International Community – The Attribution of Possible Internationally Wrongful Acts: Responsibility of NATO or of Its Member States?”, in Kosovo and the International Community – A Legal Assessment (ed. C. Tomuschat), The Hague, Kluwer, 2002; Stone, J., International Guarantees of Minorities Rights, Oxford, University Press, 1932; Tammes, A.J.P., “The Legal System as a Source of International Law”, Nederlands Tijdschrift voor Internationaal Recht, 1954, vol. 1; Tammes, A.J.P., “Decisions of International Organs as a Source of International Law”, RCADI, 1958, vol. 94; Thornberry, P., International Law and the Rights of Minorities, Oxford, Clarendon Press, 1992 [reprint]; Tomuschat, C., “Obligations Arising for States Without or Against Their Will”, RCADI, 1993, vol. 241; Toussaint, C.E., The Trusteeship System of the United Nations, London, Stevens, 1956; Tunkin, G.I., Droit international public – problèmes théoriques, Paris, Pédone, 1965; United Nations, A More Secure World: Our Shared Responsibility – Report of the High-Level Panel on Threats, Challenges and Change (Executive Summary), U.N., N.Y., 2004; United Nations, In Larger Freedom: Towards Development, Security and Human Rights for All – Report of the Secretary General, document A/59/2005, of 21.03.2005; United Nations, 2005 World Summit Outcome, document A/60/L.1, of 15.09.2005; [Various Authors,] International Law on the Eve of the Twenty- First Century – Views from the International Law Commission / Le droit international à l’aube du XXe siècle – Réflexions de codificateurs, N.Y., U.N., 1997; [Various Authors,] International Law as a Language for International Relations / Le Droit international comme langage des relations internationales (Proceedings of the U.N. Congress on Public International Law, New York, 13- 17.03.1995), The Hague, Kluwer/ U.N., 1996; [Various Authors,] Los Desafíos de la Acción Humanitaria – Un Balance, Barcelona, Icaria/ Antrazyt, 1999;

Select Bibliography [Various Authors,] Quel droit international pour le 21e. siècle? (ed. Y. Sandoz), Bruxelles, Bruylant, 2007; Verdross, A., “Idées directrices de l’Organisation des Nations Unies”, RCADI, 1953, vol. 83; Vignes, D. “The Impact of International Organizations on the Development and Application of Public International Law”, in The Structure and Process of International Law: Essays in Legal Philosophy Doctrine and Theory (eds. R.St.J. MacDonald and D.M. Johnston), The Hague, Nijhoff, 1983; Viljoen, F., International Human Rights Law in Africa, Oxford, Univ. Press, 2007; Visscher, Ch. de, Les effectivités du Droit international public, Paris, Pédone, 1967; Vitoria, F. de, De Indis – Relectio Prior [1538-1539], in: Obras de Francisco de Vitoria – Relecciones Teológicas (ed. T. Urdanoz), Madrid, BAC, 1960; Vitoria, F. de, La Ley (De Lege – Commentarium in Primam Secundae), Madrid, Tecnos, 1995; Wadham, J., and Said, T., “What Price the Right of Individual Petition: Report of the Evaluation Group to the Committee of Ministers on the European Court of Human Rights”, European Human Rights Law Review, 2002, vol. 2; Waldock, C.H.M., “The Plea of Domestic Jurisdiction before International Legal Tribunals”, BYBIL, 1954, vol. 26; Weissberg, G., The International Status of the United Nations, London/N.Y., Stevens/ Oceana, 1961; Wellens, K., Remedies against International Organisations, Cambridge, University Press, 2002; Wet, E. de, “Judicial Review of the United Nations Security Council and General Assembly through Advisory Opinions of the International Court of Justice”, Schweizerische Zeitschrift für internationales und Europaïsches Recht, 2000, vol. 10; White, N.D., The Law of International Organizations, Manchester, University Press, 1996; Wildhaber, L., “Some Reflections on the First Year of Operation of the ‘New’ European Court of Human Rights”, in Millennium Lectures – The Coming Together of the Common Law and the Civil Law (ed. B.S. Markesinis), Oxford, Hart Publ., 2000; Wolff, C., Jus Gentium Methodo Scientifica Pertractatum [edition of 1764], vol. II, Oxford/ London, Clarendon Press/H. Milford – Carnegie Endowment for International Peace, 1934; Wright, Quincy, International Law and the United Nations, Bombay/Calcutta/New Delhi, 1960; Wright, Quincy, Mandates under the League of Nations, Chicago, University Press, 1930; Yasseen, M.K., “Création et personnalité juridique des organisations internationales”, in Manuel sur les organisations internationales/ A Handbook on International Organizations (ed. R.-J. Dupuy), The Hague/ Dordrecht, Hague Academy International Law/ Nijhoff, 1988; Zanghi, C., Diritto delle Organizzazioni Internazionali, Torino, G. Giappichelli Ed., 2001; Zemanek (ed.), K., Agreements of International Organizations and the Vienna Convention on the Law of Treaties, Vienna, Springer-Verlag, 1971.

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V.

Part V (Chapters XII-XV)

Abi-Saab, G., “‘Humanité’ et ‘communauté internationale’ dans la dialectique du Droit international”, in Humanité et Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991; Abi-Saab, G., “The Uses of Article 19”, EJIL, 1999, vol. 10; Ago, R., “Le délit international”, RCADI, 1939, vol. 68; Alexidze, L., “Legal Nature of Jus Cogens in Contemporary International Law”, RCADI, 1981, vol. 172; Alkema, E.A., “The Third-Party Applicability or ‘Drittwirkung’ of the European Convention on Human Rights”, in Protecting Human Rights: The European Dimension – Studies in Honour of G.J. Wiarda (eds. F. Matscher and H. Petzold), Köln/Berlin, C. Heymanns, 1988; Allain, J., “The Jus Cogens Nature of Non-Refoulement”, International Journal of Refugee Law, 2002, vol. 13; Amnesty International, Universal Jurisdiction: The Duty of States to Enact and Implement Legislation (ch. II: The History of Universal Jurisdiction), London, A.I., 2001; Annacker, C., “The Legal Regime of Erga Omnes Obligations in International Law”, Austrian Journal of Public and International Law, 1994, vol. 46; Bailleux, A., La compétence universelle au carrefour de la pyramide et du réseau, Bruxelles, Bruylant, 2005; Barberis, J.A., Los Sujetos del Derecho Internacional Actual, Madrid, Tecnos, 1984; Barberis, J.A., “La liberté de traiter des États et le jus cogens”, Z.f.a.o.R.u.V., 1970, vol. 30; Barboza, J., “International Criminal Law”, RCADI, 1999, vol. 278; Bardonnet, D., and Virally (eds.), M., Le nouveau Droit international de la mer, Paris, Pédone, 1983; Baslar, K., The Concept of the Common Heritage of Mankind in International Law, The Hague, Nijhoff, 1998; Bassiouni, M.Ch., “The History of Universal Jurisdiction and Its Place in International Law”, in Universal Jurisdiction – National Courts and the Prosecution of Serious Crimes under International Law (ed. S. Macedo), Philadelphia, Univ. of Pennsylvania Press, 2004; Bassiouni, M.C., and Wise, E.M., Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, Dordrecht, Nijhoff, 1995; Bedjaoui, M., “Le génome humain comme patrimoine commun de l’humanité, ou la génétique de la peur à l’espérance”, in F. Mayor Amicorum Liber, vol. II, Bruxelles, Bruylant, 1995; Besné Mañero, R., El Crímen Internacional – Nuevos Aspectos de la Responsabilidad Internacional de los Estados, Bilbao, Universidad de Deusto, 1999; Blanc Altemir, A., El Patrimonio Común de la Humanidad – Hacia un Régimen Jurídico Internacional para Su Gestión, Barcelona, Bosch, 1992; Brown Weiss, E., In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, Tokyo/Dobbs Ferry N.Y., U.N.U./Transnational Publs., 1989;

Select Bibliography Bruneteau, B., Le siècle des génocides – Violences, massacres et processus génocidaires de l’Arménie au Rwanda, Paris, A. Colin Éd., 2004; Buirette-Maurau, P., La participation du tiers-monde à l’élaboration du droit international, Paris, LGDJ, 1983; Bulajic, M., Principles of International Development Law, Dordrecht, Nijhoff, 1986; Byers, M., “Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules”, Nordic Journal of International Law, 1997, vol. 66; Cançado Trindade, A.A., Évolution du Droit international au droit des gens – L’accès des particuliers à la justice internationale: le regard d’un juge, Paris, Pédone, 2008; Cançado Trindade, A.A., A Humanização do Direito Internacional, Belo Horizonte/Brazil, Edit. Del Rey, 2006; Cançado Trindade, A.A., Derecho Internacional de los Derechos Humanos – Esencia y Trascendencia (Votos en la Corte Interamericana de Derechos Humanos, 1991-2006), Mexico, Edit. Porrúa/Universidad Iberoamericana, 2007; Cançado Trindade, A.A., O Esgotamento de Recursos Internos no Direito Internacional, 2nd. ed., Brasília, Edit. University of Brasília, 1997; Cançado Trindade, A.A., “La Ampliación del Contenido Material del Jus Cogens”, in XXXIV Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano – 2007, Washington D.C., General Secretariat of the OAS, 2008; Cançado Trindade, A.A., “Complementarity between State Responsibility and Individual Responsibility for Grave Violations of Human Rights: The Crime of State Revisited”, in International Responsibility Today – Essays in Memory of O. Schachter (ed. M. Ragazzi), Leiden, M. Nijhoff, 2005; Cançado Trindade, A.A., “Le nouveau Règlement de la Cour Interaméricaine des Droits de l’Homme: quelques réflexions sur la condition de l’individu comme sujet du Droit international”, in Libertés, justice, tolérance – Mélanges en hommage au Doyen G. Cohen-Jonathan, vol. I, Bruxelles, Bruylant, 2004; Cançado Trindade, A.A., “The Voluntarist Conception of International Law: A Re-Assessment”, Revue de droit international de sciences diplomatiques et politiques – Geneva, 1981, vol. 59; Cançado Trindade, A.A., “The Case-Law of the Inter-American Court of Human Rights: An Overview”, in Studi di Diritto Internazionale in Onore di G. Arangio-Ruiz, vol. III, Napoli, Ed. Scientifica, 2004; Cançado Trindade, A.A., “Environment and Development: Formulation and Implementation of the Right to Development as a Human Right”, Asian Yearbook of International Law, 1994, vol. 3; Carrillo Salcedo, J.A., “Le concept de patrimoine commun de l’humanité”, in Ouvertures en Droit international – Hommage à R.-J. Dupuy, Paris, SFDI/Pédone, 2000; Castañeda, J., “La Charte des droits et devoirs économiques des États”, AFDI, 1974, vol. 20; Cassese, A., and Delmas-Marty (eds.), M., Crimes internationaux et juridictions internationales, Paris, PUF, 2002; Clapham, A., Human Rights in the Private Sphere, Oxford, Clarendon Press, 1996 (reed.); Cohen-Jonathan, G., “Du caractère objectif des obligations internationales relatives aux droits de l’homme – Quelques observations”, in Les droits de l’homme et la Constitu-

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Select Bibliography tion – Études en l’honneur du Prof. G. Malinverni (eds. A. Auer et alii), Genève/Zurich/Bâle, Schulthess, 2007; Cohen-Jonathan, G., “Le rôle des principes généraux dans l’interprétation et l’application de la Convention Européenne des Droits de l’Homme”, in Mélanges en hommage à L.E. Pettiti, Bruxelles, Bruylant, 1998; Colliard, C.-A., “Espace extra-atmosphérique et grands fonds marins”, in Humanité et Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991; Condorelli, L., and Boisson de Chazournes, L., “Quelques remarques à propos de l’obligation des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances’”, in Études et essais sur le droit international humanitaire et sur les principes de la Croix- Rouge en l’honneur de Jean Pictet (ed. C. Swinarski), Genève/La Haye, CICR/Nijhoff, 1984; Danilenko, G.M., “International Jus Cogens: Issues of Law-Making”, EJIL, 1991, vol. 2; D’Estéfano Pisani, M.A., Derecho de Tratados, 2nd. ed., Havana/Cuba, Edit. Pueblo y Educación, 1986 [reprint]; Dinstein, Y., “The Erga Omnes Applicability of Human Rights”, Archiv des Völkerrechts, 1992, vol. 30; Dupuy, R.-J., “Droit de la mer et communauté internationale”, in Mélanges offerts à P. Reuter – Le Droit international: unité et diversité, Paris, Pédone, 1981; El Kouhene, M., Les garanties fondamentales de la personne en droit humanitaire et droits de l’homme, Dordrecht, Nijhoff, 1986; Ferrer, S.P.A., “Los conceptos de ius cogens y ius dispositivum y la labor de la Comisión de Derecho Internacional”, Revista Española de Derecho Internacional, 1968, vol. 21; Gaja, G., “Jus Cogens beyond the Vienna Convention”, RCADI, 1981, vol. 172; García Amador, F.V., “State Responsibility – Some New Problems”, RCADI, 1958, vol. 94; Gómez Robledo, A., El Jus Cogens Internacional (Estudio Histórico Crítico), Mexico, UNAM, 1982; Gounelle, M., “Quelques remarques sur la notion de ‘crime international’ et sur l’évolution de la responsabilité internationale de l’État”, in Mélanges offerts à P. Reuter – Le droit international: unité et diversité, Paris, Pédone, 1981; Gros Espiell, H., “The Common Heritage of Humanity and the Human Genome”, Law and the Human Genome Review, 1995, vol. 3; Hannikainen, L., Peremptory Norms (Jus Cogens) in International Law – Historical Development, Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus/Finnish Lawyers’ Publ. Co., 1988; Haopei, Li, “Jus Cogens and International Law”, in Selected Articles from Chinese Yearbook of International Law, Beijing/China, Chinese Society of International Law, 1983; Henzelin, M., Le principe de l’universalité en droit pénal international, Genève/Munich/ Bruxelles, Univ. Genève/Helbing & Lichtenhahn/Bruylant, 2000; Hoogh, A.J.J. de, “The Relationship between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective”, Austrian Journal of Public and International Law, 1991, vol. 42; Jaspers, K., El Problema de la Culpa, Barcelona, Ed. Paidós/Universidad Autónoma de Barcelona, 1965 [reed. in Spanish, 1998];

Select Bibliography Jorgensen, N.H.B., The Responsibility of States for International Crimes, Oxford, University Press, 2003; Joyner, C.C., “Legal Implications of the Concept of the Common Heritage of Mankind”, ICLQ, 1986, vol. 35; Joyner (ed.), C.C., The United Nations and International Law, Cambridge, University Press/ ASIL, 1999 [reprint]; Jurovics, Y., Réflexions sur la spécificité du crime contre l’humanité, Paris, LGDJ, 2002; Juste Ruiz, J., “Las Obligaciones ‘Erga Omnes’ en Derecho Internacional Público”, in Estudios de Derecho Internacional – Homenaje al Profesor Miaja de la Muela, vol. I, Madrid, Tecnos, 1979; Kalshoven, F., “The Undertaking to Respect and Ensure Respect in All Circumstances: from Tiny Seed to Ripening Fruit”, Yearbook of International Humanitarian Law, 1999 vol. 2; Kamminga, M.T., “Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses”, Human Rights Quarterly, 2001, vol. 23; Keith Hall, C., “Universal Jurisdiction: New Uses for an Old Tool”, in Justice for Crimes against Humanity (eds. M. Lattimer and Ph. Sands), Oxford/Portland, Hart, 2007 [reprint]; Kelsen, H., Principles of International Law, N.Y., Rinehart & Co. Inc., 1952; Kiss, A.Ch., “The Common Heritage of Mankind: Utopia or Reality?”, International Journal, 1985, vol. 40; Kolb, R., Théorie du jus cogens international, Paris, PUF, 2001; Kutukdjian, G.B., “Le génome humain: patrimoine commun de l’humanité”, in Personne humaine et Droit international – H. Gros Espiell Amicorum Liber, vol. I, Bruxelles, Bruylant, 1997; Lachs, M., The Law of Outer Space, Leiden, Sijthoff, 1972; Lauterpacht, H., “Règles générales du droit de la paix”, RCADI, 1937, vol. 62; Leckie, S., “The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or Wishful Thinking?”, 10 Human Rights Quarterly, 1988, vol. 10; Lévy, J.-P., La Conférence des Nations Unies sur le Droit de la Mer – Histoire d’une négotiation singulière, Paris, Pédone, 1983; Macdonald, R.St.J., “Fundamental Norms in Contemporary International Law”, Annuaire canadien de Droit international, 1987, vol. 25; Marek, K., “Contribution à l’étude du jus cogens en Droit international”, in Recueil d’etudes de Droit International en hommage à P. Guggenheim, Geneva, I.U.H.E.I., 1968; M’Baye, K., “Le droit au développement comme un droit de l’homme”, Revue des droits de l’homme/Human Rights Journal, 1972, vol. 5; McNair, A.D., “Treaties Producing Effects ‘Erga Omnes’”, in Scritti di Diritto Internazionale in Onore di T. Perassi, vol. II, Milano, Giuffrè, 1957; Meyer, J. De, “The Right to Respect for Private and Family Life, Home and Communications in Relations between Individuals, and the Resulting Obligations for States Parties to the Convention”, in Privacy and Human Rights (ed. A.H. Robertson), Manchester, University Press, 1973;

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Select Bibliography Mosler, H., “Ius cogens im Völkerrecht”, Schweizerisches Jahrbuch für internationales Recht, 1968, vol. 25; Nicoloudis, E.P., La nullité de jus cogens et le développement contemporain du Droit international public, Athens, Éd. Papazissi, 1974; O’Keefe, O., “World Cultural Heritage: Obligations to the International Community as a Whole?”, ICLQ, 2004, vol. 53; Orakhelashvili, A., Peremptory Norms in International Law, Oxford, University Press, 2008; Oriolo, A., La Responsabilità Penale Internazionale degli Individui: tra Sovranità Statale e Giurisdizione Universale, Napoli, Ed. Scient. Italiane, 2008; Paquerot, S., Le statut des ressources vitales en Droit international – Essai sur le concept de patrimoine commun de l’humanité, Bruxelles, Bruylant, 2002; Parlett, K., “Universal Civil Jurisdiction for Torture”, European Human Rights Law Review, 2007, vol. 4; Pellet, A., “Can a State Commit a Crime? Definitely, Yes!”, European Journal of International Law, 1999, vol. 10; Peyró Llopis, A., La compétence universelle en matière de crimes contre l’humanité, Bruxelles, Bruylant, 2003; Pinto, M.C.W., “‘Common Heritage of Mankind’: From Metaphor to Myth, and the Consequences of Constructive Ambiguity”, in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996; Pureza, J.M., O Património Comum da Humanidade: Rumo a um Direito Internacional da Solidariedade?, Porto, Ed. Afrontamento, 1998; Ragazzi, M., The Concept of International Obligations Erga Omnes, Oxford, Clarendon Press, 1997; Ragazzi, M., “Alexidze on Jus Cogens (Selected Considerations”, in Theory and Practice of Contemporary International Law – Essays in Honour of Prof. L. Alexidze on the 80th Birthday Anniversary, Tbilisi, Inovatia, 2007; Ratner, S.R., and Abrams, J.S., Accountability for Human Rights Atrocities in International Law, Oxford, Clarendon Press, 1997; Remiro Brotons, A., “La Responsabilidad Penal Internacional por Crímenes Internacionales y el Principio de Jurisdicción Universal”, in Creación de una Jurisdicción Penal Internacional (ed. C. Escobar Hernández), Madrid, Escuela Diplomática (Colección n. 4), 2000; Reydams, L., Universal Jurisdiction – International and Municipal Legal Perspectives, Oxford, University Press, 2004 [reprint]; Ricoeur, P., La mémoire, l’histoire, l’oubli, Paris, Éd. du Seuil, 2000; Rosenne, S., “Decolonisation in the International Court of Justice”, African Journal of International and Comparative Law, 1996, vol. 8; Rozakis, Ch.L., The Concept of Jus Cogens in the Law of Treaties, Amsterdam, North Holland Publ. Co., 1976; Salvia, M. de, “L’élaboration d’un ‘jus commune’ des droits de l’homme et des libertés fondamentales dans la perspective de l’unité européenne: l’oeuvre accomplie par la Commission et la Cour Européennes des Droits de l’Homme”, in Protection des droits de

Select Bibliography l’homme: la dimension européenne – Mélanges en l’honneur de G.J. Wiarda (eds. F. Matscher and H. Petzold), 2nd. ed., Köln/Berlin, C. Heymanns Verlag, 1990; Scheuner, U., “Conflict of Treaty Provisions with a Peremptory Norm of International Law”, Z.f.a.o.R.u.V., 1967 and 1969, vols. 27 and 29; Schiffer, W., The Legal Community of Mankind, N.Y., Columbia University Press, 1954; Schweitzer, M., “Ius cogens im Völkerrecht”, Archiv des Völkerrechts, 1971, vol. 15; Shelton, D., Remedies in International Human Rights Law, Oxford, University Press, 2000; Spielmann, D., L’effet potentiel de la Convention Européenne des Droits de l’Homme entre personnes privées, Bruxelles, Bruylant/Nemesis, 1995; Suy, E., “The Concept of Jus Cogens in Public International Law”, in Papers and Proceedings of the Conference on International Law (Langonissi, Greece, 03-08.04.1966), Geneva, C.E.I.P., 1967; Sztucki, J., Jus Cogens and the Vienna Convention on the Law of Treaties – A Critical Appraisal, Viena, Springer-Verlag, 1974; Tavernier, P., and Renaut (eds.), C., Actualité de la jurisprudence pénale internationale à l’heure de la mise en place de la Cour Pénale Internationale, Bruxelles, Bruylant, 2004; Thiam, D., “Responsabilité internationale de l’individu en matière criminelle”, in International Law on the Eve of the Twenty- First Century – Views from the International Law Commission / Le droit international à l’aube du XXe siècle – Réflexions de codificateurs, N.Y., U.N., 1997; Tomuschat, C., “International Crimes by States: An Endangered Species?”, in International Law: Theory and Practice – Essays in Honour of Eric Suy (ed. K. Wellens), The Hague, M. Nijhoff, 1998; UNESCO, Birth of the Universal Declaration on the Human Genome and Human Rights, Paris, UNESCO, 1999; U.N. Centre for Human Rights, The Realization of the Right to Development, N.Y., U.N., 1991; U.N./Office of Legal Affairs, The Law of the Sea – Concept of the Common Heritage of Mankind (Legislative History of Articles 133 to 150 and 311(6) of the U.N. Convention on the Law of the Sea), N.Y., U.N., 1996; [Various Authors,] Le Droit au développement au plan international (Colloque – Académie de droit international de La Haye, 1979), The Hague, Sijthoff/Nijhoff, 1980; [Various Authors,] Environmental Change and International Law: New Challenges and Dimensions (ed. E. Brown Weiss), Tokyo, U.N.U. Press, 1992; [Various Authors,] The Fundamental Rules of the International Legal Order – Jus Cogens and Obligations Erga Omnes (eds. C. Tomuschat and J.-M. Thouvenin), Leiden, Nijhoff, 2006; [Various Authors,] Quel droit international pour le 21e. siècle? (ed. Y. Sandoz, Colloque de Neuchâtel de 2007), Bruxelles, Bruylant, 2007; Verdross, A., “Jus dispositivum and Jus Cogens in International Law”, AJIL, 1966, vol. 60; Verhaegen, J., Le Droit international pénal de Nuremberg: acquis et régressions, Bruxelles, Bruylant, 2003; Virally, M., “Réflexions sur le jus cogens”, AFDI, 1966, vol. 12;

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Select Bibliography Visscher, Ch. de, “Positivisme et jus cogens”, RGDIP, 1971, vol. 75; Voeffray, F., L’actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales, Paris/Genève, PUF/IUHEI, 2004; Waart, P. de, Peters, P., and Denters (eds.), E., International Law and Development, Dordrecht, Nijhoff/Kluwer, 1988; Weiler, J.H.H., Cassese, A., and Spinedi (eds.), M., International Crimes of State – A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility, Berlin, W. de Gruyter, 1989; Wet, E. de, “The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for National and Customary Law”, EJIL, 2004, vol. 15; Wolff, C., Principes du droit de la nature et des gens, vol. I, Amsterdam, Ed. M. Michel Rey, 1758 [reprint]; Wolff, C., Jus Gentium Methodo Scientifica Pertractatum (1764 – Series The Classics of International Law, ed. J. Brown Scott), Prolegomena; Zemanek, K., “How to Identify Peremptory Norms of International Law”, in Völkerrecht als Wertordnung – Festschrift für C. Tomuschat (eds. P.-M. Dupuy et alii), Kehl, N.P. Engel Verlag, 2006; Zemanek, K., “New Trends in the Enforcement of Erga Omnes Obligations”, Max Planck Yearbook of United Nations Law, 2000, vol. 4; Zweig, S., Érasme – Grandeur et décadence d’une idée, Paris, Grasset, 2002 [reed.].

VI. Part VI (Chapters XVI-XXIII) Adeniji, O., The Treaty of Pelindaba on the African Nuclear-Weapon- Free Zone, Geneva, UNIDIR, 2002; Alfredsson, G., and Macalister-Smith (eds.), P., The Living Law of Nations – Essays in Memory of A. Grahl-Madsen, Kehl/Strasbourg, N.P. Engel Publ., 1996; Barberis, J.A., El Territorio del Estado y la Soberanía Territorial, Buenos Aires, Ed. Ábaco de Depalma, 2003; Basdevant, J., “Règles générales du droit de la paix”, RCADI, 1936, vol. 58; Bello, E.G., “International Equity with Particular Reference to Treaty Law and State Succession”, Revue de droit international de sciences diplomatiques et politiques, 1980, vol. 58; Bermejo García, R., and Gutiérrez Espada, C., La Disolución de Yugoslavia, Pamplona, Ed. Univ. de Navarra, 2007; Bing Jia, B., “The Independence of Kosovo: A Unique Case of Secession?”, Chinese Journal of International Law, 2009, vol. 8; Blix, H., Why Nuclear Disarmament Matters, Cambridge/Mass., MIT Press, 2008; Bothe, M., and Marauhn, T., “U.N. Administration of Kosovo and East Timor: Concept, Legality and Limitations of Security Council- Mandated Trusteeship Administration”, in Kosovo and the International Community – A Legal Assessment (ed. C. Tomuschat), The Hague, Kluwer, 2002; Bourquin, M., “L’humanisation du droit des gens”, in La technique et les principes du Droit public – Études en l’honneur de G. Scelle, vol. I, Paris, LGDJ, 1950;

Select Bibliography Bowett, D.W., “Reservations to Non-Restricted Multilateral Treaties”, BYBIL, 1976-1977, vol. 48; Brownlie, I., System of the Law of Nations – State Responsibility – Part I, Oxford, Clarendon Press, 1983; Brownlie, I., “The Rights of Peoples in Modern International Law”, in The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon Press, 1988; Burroughs, J., The (Il)legality of Threat or Use of Nuclear Weapons, Münster, Lit Verlag/International Association of Lawyers against Nuclear Weapons, 1997; Byrnes, A., Hong Kong and the Continuation of International Obligations Relating to Human Rights after 1997, Hong Kong, University of Hong Kong, 1996; Cahier, Ph., “Quelques aspects de la Convention de 1978 sur la succession d’États en matière de traités”, in Mélanges G. Perrin, Lausanne, Payot, 1984; Calogeropoulos-Stratis, S., Le droit des peuples à disposer d’eux- mêmes, Bruylant, Bruxelles, 1973; Cançado Trindade, A.A., El Acceso Directo del Individuo a los Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001; Cançado Trindade, A.A., “O Caso do Timor-Leste (1999): O Direito de Autodeterminação do Povo Timorense”, Revista de Derecho de la Universidad Católica del Uruguay, 2000, vol. 1; and in Revista da Faculdade de Direito da Universidade do Estado do Rio de Janeiro, 1998-1999, vol. 6/7; Cançado Trindade, A.A., “The Birth of State Responsibility and the Nature of the Local Remedies Rule”, Revue de Droit international de sciences diplomatiques et politiques – Sottile, 1978, vol. 56; Cançado Trindade, A.A., “The Humanization of Consular Law: The Impact of Advisory Opinion n. 16 (1999) of the Inter-American Court of Human Rights on International Case-Law and Practice”, Chinese Journal of International Law, 2007, vol. 6; Cançado Trindade, A.A., and Ruiz de Santiago, J., La Nueva Dimensión de las Necesidades de Protección del Ser Humano en el Inicio del Siglo XXI, 3rd. ed., San José of Costa Rica, UNHCR, 2004; Cançado Trindade, A.A., Peytrignet, G., and Ruiz de Santiago, J., Las Tres Vertientes de la Protección Internacional de los Derechos de la Persona Humana, México, Ed. Porrúa/ Univ. Iberoamericana, 2003; Carasales, J.C., “El Cambiante Valor de las Zonas Libres de Armas Nucleares: La Experiencia de Tlatelolco y Rarotonga”, in XVI Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano (1989), Washington D.C., Secretaría General de la OEA, 1991; Castañeda, J., Legal Effects of United Nations Resolutions, N.Y., Columbia University Press, 1969; Chesterman, S., “Justice under International Administration: Kosovo, East Timor and Afghanistan”, Finnish Yearbook of International Law, 2001, vol. 12; Chetail (ed.), V., La Convention de Genève du 28 juillet 1951 relative au Statut des Réfugiés 50 ans après: bilan et perspectives, Bruxelles, Bruylant, 2001; Cohen-Jonathan, G., and Flauss (eds.), J.-F., Le rayonnement international de la jurisprudence de la Cour européene des droits de l’homme, Bruxelles, Bruylant/Nemesis, 2005; Conforti, B., Diritto Internazionale, 5th. ed., Napoli, Ed. Scientifica, 1997;

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Select Bibliography Crawford, J., The International Law Commission’s Articles on State Responsibility, Cambridge, University Press, 2002; Crawford, J., The Creation of States in International Law, 2nd. ed., Oxford, Clarendon Press, 2007; Daudet, Y., “L’action des Nations Unies en matière d’administration territoriale”, Cursos Euromediterráneos Bancaja de Derecho Internacional, 2002, vol. 6; Daudet, Y., and Mehdi (eds.), R., Les Nations Unies et l’Ex- Yougoslavie (Colloque d’Aix-enProvence of 1997), Paris, Pédone, 1998; Decaux, E., “La protection consulaire et les droits de l’homme”, in Société française pour le Droit international, La protection consulaire (Journée d’études de Lyon de 2005), Paris, Pédone, 2006; Delissen, A.J.M., and Tanja (eds.), G.J., Humanitarian Law of Armed Conflict: Challenges Ahead – Essays in Honour of F. Kalshoven, Dordrecht, Nijhoff, 1991; Dembinski, L., “Le territoire et le développement du droit international”, Annuaire suisse de droit international, 1975, vol. 31; Dunshee de Abranches, C.A., Proscrição das Armas Nucleares, Rio de Janeiro, Livr. Freitas Bastos, 1964; Dupuy, P.-M., “Le fait générateur de la responsabilité internationale des États”, RCADI, 1984, vol. 188; Dupuy, P.-M., “Les ‘considérations élémentaires de l’humanité’ dans la jurisprudence de la Cour Internationale de Justice”, in Mélanges en l’honneur de N. Valticos – Droit et justice (eds. R.J. Dupuy and L.A. Sicilianos), Paris, Pédone, 1999; Eisemann, P.M., and Koskenniemi (eds.), M., La succession d’États: codification à l’épreuve des faits / State Succession: Codification Tested against the Facts, The Hague, Nijhoff/ Académie de Droit International de La Haye, 2000; Epstein, W., “The Making of the Treaty of Tlatelolco”, Journal of the History of International Law / Revue d’histoire du Droit international, 2001, vol. 3; Evrigenis, D., “Institutionnalisation des droits de l’homme et droit universel”, in Internationales Colloquium über Menschenrechte (Berlin, Oktober 1966), Berlin, Deutsche Gesellschaft für die Vereinten Nationen, 1966; Falk, R.A., and Mendlovitz (ed.), S.H., Toward a Theory of War Prevention (Series The Strategy of World Order), vol. I, N.Y., World Law Fund, 1966; Federer, J., The U.N. in East Timor: Building Timor Leste, a Fragile State, Darwin/Australia, Ch. Darwing University Press, 2005; Fischer, H., and Oraá, J., Derecho Internacional y Ayuda Humanitaria, Bilbao, Universidad de Deusto, 2000; Flauss (ed.), J.-F., Les nouvelles frontières du Droit international humanitaire, Bruxelles, Bruylant, 2003; Furet, M.-F., Le désarmement nucléaire, Paris, Pédone, 1973; Garcia, T., “La Mission d’administration intérimaire des Nations Unies des Nations Unies au Kosovo (MINUK)”, RGDIP, 2000, vol. 104; García Amador, F.V., Principios de Derecho Internacional que Rigen la Responsabilidad – Análisis Crítico de la Concepción Tradicional, Madrid, Escuela de Funcionarios Internacionales, 1963;

Select Bibliography García Robles, A., “Mesures de désarmement dans des zones particulières: le Traité visant l’interdiction des armes nucléaires en Amérique Latine”, RCADI, 1971, vol. 133; Glaser, S., L’arme nucléaire à la lumière du droit international, Paris, Pédone, 1964; Goodwin-Gill, G.S., The Refugee in International Law, 2nd. ed., Oxford, Clarendon Press, 1996; Gowlland-Debbas, V. “Judicial Insights into Fundamental Values and Interests of the International Community”, in The International Court of Justice: Its Future Role after Fifty Years (eds. A.S. Muller et alii), The Hague, Kluwer, 1997; Guerrero, J.G., La codification du Droit international, Paris, Pédone, 1930; Hannikainen, L., “The Case of East Timor from the Perspective of Jus Cogens”, in International Law and the Question of East Timor, London, CIIR/IPJET, 1995; Hansen, K.A., The Comprehensive Nuclear-Test-Ban Treaty – An Insider’s Perspective, Stanford, Univ. Press, 2006; Haraszti (ed.), G., Questions of International Law, Budapest, Progresprint, 1971; Hilpold, P., “The Kosovo Case and International Law: Looking for Applicable Theories”, Chinese Journal of International Law, 2009, vol. 8; Holloway, K., Les réserves dans les traités internationaux, Paris, LGDJ, 1958; Horn, F., Reservations and Interpretative Declarations to Multilateral Treaties, Uppsala, Swedish Institute of International Law, 1988; Imbert, P.-H., Les réserves aux traités multilatéraux, Paris, Pédone, 1979; Ingravallo, I., Il Consiglio di Sicurezza e l’Amministrazione Diretta di Territori, Napoli, Edit. Scientifica, 2008; Irmscher, T.H., “The Legal Framework for the Activities of the United Nations Interim Administration Mission in Kosovo: The Charter, Human Rights, and the Law of Occupation”, GYIL, 2001, vol. 44; Jaspers, K., Die Atombombe und die Zukunft des Menschen, München, R. Piper & Co. Verlag, 1958; Jenks, C.W., “Liability for Ultra Hazardous Activities in International Law”, 117 RCADI, 1966, vol. 117; Kalshoven (ed.), F., The Centennial of the I International Peace Conference – Reports and Conclusions, The Hague, Kluwer/UNITAR, 2000; Kirsch, Ph., “La Conférence de 1983 sur la succession d’États et le processus de codification: accident de parcours ou reflet d’une tendance”, in Selected Papers in International Law – Contribution of the Canadian Council on International Law (eds. Y. Le Bouthillier, D.M. McRae and D. Pharand), The Hague, Kluwer, 1999; Knoll, B., The Legal Status of Territories Subject to Administration by International Organisations, Cambridge, University Press, 2008; Lang, W., “Les règles d’interprétation codifiées par la Convention de Vienne sur le Droit des Traités et les divers types de traités”, Österreichische Zeitschrift für öffentliches Recht, 1973, vol. 24; Lauterpacht, H., The Function of Law in the International Community, Oxford, Clarendon Press; Lellouche, P., “The Nuclear Tests Cases: Judicial Silence versus Atomic Blasts”, Harvard International Law Journal, 1975, vol. 16;

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Select Bibliography Leurdijk, D., and Zandee, D., Kosovo: from Crisis to Crisis, Aldershot, Ashgate Publ., 2001; Lijnzaad, L., Reservations to U.N. Human Rights Treaties – Ratify and Ruin?, Dordrecht, Nijhoff, 1995; Lysén, G., “The Adequacy of the Law of Treaties to Arms Control Agreements”, in Avoidance and Settlement of Arms Control Disputes – Arms Control and Disarmament Law (ed. J. Dahlitz), vol. II, N.Y./Geneva, U.N., 1994; Mahiou, A., “Rapport général: Les objectifs de la codification”, in Société Française pour le Droit International, La codification du Droit international (Colloque d’Aix-enProvence), Paris, Pédone, 1999; Marchesi, A., Obblighi di Condotta e Obblighi di Risultato – Contributo allo Studio degli Obblighi Internazionali, Milano, Giuffrè, 2003; Maritain, J., The Person and the Common Good, Notre Dame, University of Notre Dame Press, 1966 (reprint 1985); Mazzeschi, R.P., Esaurimento dei Ricorsi Interni e Diritti Umani, Torino, Giappichelli, 2004; Monnier, J., “Observations sur la codification et le développement progressif du Droit international”, in Mélanges G. Perrin (eds. B. Dutoit and E. Grisel), Lausanne, Payot, 1984; Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, N.Y./Geneva, U.N.OPANAL/UNIDIR, 1997; Nascimento e Silva, G.E. do, Diplomacy in International Law, Leiden, Sijthoff, 1972; Nascimento e Silva, G.E. do, “A Codificação do Direito Internacional”, BSBDI, 1972-1974, vol. 28-30, ns. 55/60; Oeter, S., “State Succession and the Struggle over Equity: Some Observations on the Laws of State Succession with Respect to State Property and Debts in Cases of Separation and Dissolution of States”, GYIL, 1995, vol. 38; OPANAL/UNIDIR, Las Zonas Libres de Armas Nucleares en el Siglo XXI, N.Y., U.N., 1997; Ortiz Ahlf, L., Derecho Internacional Público, 3rd. ed., Mexico, OUP, 2004; Pastor Ridruejo, J.A., Curso de Derecho Internacional Público y Organizaciones Internacionales, 6th. ed., Madrid, Tecnos, 1996; Pazartzis, P., La succession d’États aux traités multilatéraux à la lumière des mutations territoriales récentes, Paris, Pédone, 2002; Perkovich, G., and Acton, J.M., Abolishing Nuclear Weapons, London, IISS (Adelphi Paper n. 396), 2008; Pocar, F., “Patto Internazionale sui Diritti Civili e Politici ed Estradizione”, in Diritti dell’Uomo, Estradizione ed Espulsione – Atti del Convegno di Ferrara per Salutare G. Battaglini (ed. F. Salerno), Padova/Milano, CEDAM, 2003; Popper, K., The Lesson of This Century, London, Routledge, 1997; Prawitz, J., “Nuclear-Weapon-Free Zones: Their Added Value in a Strengthened International Safeguards System”, in Tightening the Reins – Towards a Strengthened International Nuclear Safeguards System (eds. E. Häckel and G. Stein), Berlin/Heidelberg, Springer-Verlag, 2000; Ragazzi (ed.), M., International Responsibility Today – Essays in Memory of O. Schachter, Leiden, Nijhoff, 2005;

Select Bibliography Ramaker, J., Mackby, J., Marshall, P.D., and Geil, R., The Final Test – A History of the Comprehensive Nuclear-Test-Ban Treaty Negotiations, Vienna, PrepCom CTBT Secr., 2003; Ramos Horta, J., Funu – The Unfinished Saga of East Timor, Trenton/New Jersey, Red Sea Press, 1987; Rasulov, A., “Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?”, EJIL, 2003, vol. 14; Redgwell, C., “Universality or Integrity? Some Reflections on Reservations to General Multilateral Treaties”, BYBIL, 1993, vol. 64; Roscini, M., Le Zone Denuclearizzate, Torino, G. Giappichelli Ed., 2003; Ruda, J.M., “Reservations to Treaties”, RCADI, 1975, vol. 146; Ruffert, M., “The Administration of Kosovo and East Timor by the International Community”, ICLQ, 2001, vol. 50; Ruiz Ruiz, F., “The Succession of States in Universal Treaties on the Protection of Human Rights and Humanitarian Law”, International Journal of Human Rights, 2003, vol. 7; Russell, B., L’homme survivra-t-il?, Paris, Éd. J. Didier, 1963; Salmon, J., “Le problème des lacunes à la lumière de l’avis ‘Licéité de la menace ou de l’emploi d’armes nucléaires’ rendu le 8 juillet 1996 par la Cour Internationale de Justice”, in Mélanges en l’honneur de N. Valticos – Droit et justice (ed. R.-J. Dupuy), Paris, Pédone, 1999; Sandoz, Y., Swinarski, C., and Zimmermann (eds.), B., Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, ICRC/Nijhoff, 1987; Schreuer, C.H., “The Interpretation of Treaties by International Courts”, BYBIL, 1971, vol. 45; Sepúlveda, C., Derecho Internacional, 13th. ed., Mexico, Ed. Porrúa, 1983; Simma, B., “Bilateralism and Community Interest in the Law of State Responsibility”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989; Singh, Nagendra, Nuclear Weapons and International Law, London, Stevens, 1959; Stahn, C., The Law and Practice of International Territorial Administration, Cambridge, University Press, 2008; Stahn, C., “The United Nations Transitional Administrations in Kosovo and East Timor: A First Analysis”, Max Planck Yearbook of United Nations Law, 2001, vol. 5; Stern (ed.), B., Dissolution, Continuation and Succession in Eastern Europe, The Hague, M. Nijhoff, 1998; Stokke, O.S., and Vidas (eds.), D., Governing the Antarctic – The Effectiveness and Legitimacy of the Antarctic Treaty System, Cambridge, University Press, 1996; Sucharipa-Behrmann, L., “The Legal Effects of Reservations to Multilateral Treaties”, Austrian Review of International and European Law, 1996, vol. 1; Suy, E., “Développement progressif et codification du Droit international: le rôle de l’Assemblée Générale revisité”, in Proceedings of the United Nations Congress on Public International Law – International Law as a Language for International Relations (New York, 1995), The Hague, Kluwer, 1996; Sur (ed.), S., Le droit international des armes nucléaires, Paris, Pédone, 1998;

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Select Bibliography Szurek, S., “Zones exemptes d’armes nucléaires et zones de paix dans le tiers-monde”, RGDIP, 1984, vol. 88; Tanaka, K., “The Character of World Law in the International Court of Justice” [translated from Japanese into English by S. Murase], Japanese Annual of International Law, 1971, vol. 15; Thakur (ed.), R., Nuclear Weapons-Free Zones, London/N.Y., MacMillan/St. Martin’s Press, 1998; Touzé, S., La protection des droits des nationaux à l’étranger – Recherches sur la protection diplomatique, Paris, Pédone, 2007; Toynbee, A.J., Civilization on Trial, Oxford, University Press, 1948; Truyol y Serra, A., “L’expansion de la société internationale aux XIXe. et au XXe. siècles”, RCADI, 1965, vol. 116; UNHCR, Memoria del Vigésimo Aniversario de la Declaración de Cartagena sobre los Refugiados (1984-2004), Mexico City/San José of Costa Rica, UNHCR, 2005; Vargas Carreño, E., “El Futuro de la No Proliferación Nuclear con Especial Énfasis en América Latina”, in Seminario Regional sobre el Protocolo Adicional de Salvaguardias Nucleares (Lima/Peru, 04-07.12.2001), Lima, [OPANAL], 2001; [Various Authors,] Études et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet (ed. C. Swinarski), Genève/La Haye, CICR/Nijhoff, 1984; [Various Authors,] Le sujet en Droit international (Colloque de Mans, 2004 – Société française pour le Droit international), Paris, Pédone, 2005; Verhoeven, J., “L’État et l’ordre juridique international – remarques”, RGDIP, 1978, vol. 82; Visscher, Ch. de, Problèmes d’interprétation judiciaire en Droit international public, Paris, Pédone, 1963; Visscher, P. de, “Cours général de Droit international public”, RCADI, 1972, vol. 136; Wilde, R., “Representing International Territorial Administration: A Critique of Some Approaches”, European Journal of International Law, 2004, vol. 15; Wilde, R., “From Danzig to East Timor and Beyond: The Role of International Territorial Administration”, American Journal of International Law, 2001, vol. 95; Zemanek, K., “The Legal Foundations of the International System – General Course on Public International Law”, RCADI, 1997, vol. 266; Zemanek, K., “Some Unresolved Questions Concerning Reservations in the Vienna Convention on the Law of Treaties”, in Essays in International Law in Honour of Judge M. Lachs (ed. J. Makarczyk), The Hague, Nijhoff, 1984; Ziemele, I., “State Continuity, Succession and Responsibility: Reparations to the Baltic States and Their Peoples?”, Baltic Yearbook of International Law, 2003, vol. 3.

VII. Part VII (Chapters XXIV-XXV) Alexandrov, S.A., Reservations in Unilateral Declarations Accepting the Compulsory Jurisdiction of the International Court of Justice, Dordrecht, Nijhoff, 1995; Allain, J., A Century of International Adjudication: The Rule of Law and Its Limits, The Hague, T.M.C. Asser Press, 2000;

Select Bibliography Allain, J., “The Future of International Dispute Resolution – The Continued Evolution of International Adjudication”, in Looking Ahead: International Law in the 21st Century (Proceedings of the 29th Annual Conference of the Canadian Council of International Law, Ottawa, October 2000), The Hague, Kluwer, 2002; Anand, R.P., Compulsory Jurisdiction of the International Court of Justice, New Delhi/Bombay, Asia Publ. House, 1961; Adede, A.O., The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea, Dordrecht, Nijhoff/Kluwer, 1987; Arrighi, J.-M., “Les réformes à la Charte de l’Organisation des États Américains: Problèmes de droit de traités”, AFDI, 1997, vol. 43; Baena Soares, J.C., “Aspectos Jurídico-Políticos das Recentes Reformas da Carta da Organização dos Estados Americanos (OEA)”, BSBDI, 1993, ns. 87/90; Bardonnet, D., “Problèmes intéressant les États nouveaux – l’État des ratifications des Conventions de La Haye de 1899 et de 1907 sur le règlement pacifique des conflits internationaux”, AFDI, 1961, vol. 7; Bar-Yaacov, N., The Handling of International Disputes by Means of Inquiry, London, RIIA/ O.U.P., 1974; Benadava, S., Recuerdos de la Mediación Pontificia entre Chile y Argentina (1978-1985), Santiago de Chile, Edit. Universitaria, 1999; Bensalah, T., L’enquête internationale dans le règlement des conflits, Paris, LGDJ, 1976; Bierzanek, R., “Some Remarks on the Function of International Courts in the Contemporary World”, Polish Yearbook of International Law, 1975, vol. 7; Bipoun-Woum, J.-M., Le droit international africain, Paris, LGDJ, 1970; Bosco, G., “40 Years of U.N.: The Evolution of International Law Concerning the Peaceful Settlement of Disputes”, in The Evolution of International Law since the Foundation of the U.N., with Special Emphasis on the Human Rights – Thesaurus Acroasium – vol. XVI, Thessaloniki, IIPLIR, 1990; Briggs, H.W., “The Optional Protocols of Geneva (1958) and Vienna (1961, 1963) Concerning the Compulsory Settlement of Disputes”, in Recueil d’études de Droit international en hommage à P. Guggenheim, Genève, IUHEI, 1968; Brus, M.M.T.A., Third Party Dispute Settlement in an Interdependent World, Dordrecht, Nijhoff, 1995; Caflisch, L., “Cent ans de règlement pacifique des différends interétatiques”, RCADI, 2001, vol. 288; Caicedo Castilla, J.J., “El Arbitraje en las Conferencias Panamericanas hasta el Pacto de Bogotá de 1948 sobre Soluciones Pacíficas”, BSBDI, 1948, vol. 4, n. 8; Caminos, H., “The Creation of Specialised Courts: The Case of the International Tribunal for the Law of the Sea”, in Liber Amicorum Judge S. Oda (eds. N. Ando, E. McWhinney and R. Wolfrum), vol. I, The Hague, Kluwer, 2002; Cançado Trindade, A.A., “Mécanismes de règlement pacifique des différends en Amérique Centrale: de Contadora à Esquipulas- II”, AFDI, 1987, vol. 33; Cançado Trindade, A.A., “Regional Arrangements and Conflict Resolution in Latin America”, in Conflict Resolution: New Approaches and Methods, Paris, UNESCO, 2000;

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Select Bibliography Cançado Trindade, A.A., Bases para un Proyecto de Protocolo a la Convención Americana sobre Derechos Humanos, para Fortalecer Su Mecanismo de Protección, vol. II, 2nd. ed., San José of Costa Rica, IACtHR, 2003; Cançado Trindade, A.A., and Ventura Robles, M.E., El Futuro de la Corte Interamericana de Derechos Humanos, 3rd. ed., San José of Costa Rica, IACtHR/UNHCR, 2005; Charney, J.I., “Is International Law Threatened by Multiple International Tribunals?”, RCADI, 1998, vol. 271; Chayes, A., The Cuban Missile Crisis, Oxford, University Press, 1974; Collier, J., and Lowe, V., The Settlement of Disputes in International Law – Institutions and Procedures, Oxford, University Press, 2000; Cot, J.-P., La conciliation internationale, Paris, Pédone, 1968; David Davies Memorial Institute of International Studies, International Disputes: the Legal Aspects (Report of a Study Group), London, Europa Publs., 1972; Delbez, L., Les principes généraux du contentieux international, Paris, LGDJ, 1962; Donelan, M.D., and Grieve, M.J., International Disputes: Case Histories 1945-1970, London, Europa Publs., 1973; Dupuy, R.J., “Codification et règlement des différends – Les débats de Vienne sur les procédures de règlement”, AFDI, 1969, vol. 15; Elias, T.O., “The Commission of Mediation, Conciliation and Arbitration of the Organization of African Unity”, BYBIL, 1964, vol. 40; Fernandes, R., Nonagésimo Aniversário – Conferências e Trabalhos Esparsos, vol. I, Rio de Janeiro, M.R.E., 1967; Fischer, G., and Vignes, D., L’inspection internationale – quinze études de la pratique des États et des organisations internationales, Bruxelles, Bruylant, 1976; Fleischhauer, C.-A., “The Relationship between the International Court of Justice and the Newly Created International Tribunal for the Law of the Sea in Hamburg”, Max Planck Yearbook of United Nations Law, 1997, vol. 1; Gharbi, H., “Le règlement des différends dans le cadre de l’Organisation de l’Unité Africaine (OUA)”, in Règlement pacifique des différends internationaux (ed. F. Horchani), Tunis/ Bruxelles, Centre de Publication Universitaire/Bruylant, 2002; Gross, L., “Compulsory Jurisdiction under the Optional Clause: History and Practice”, The International Court of Justice at a Crossroads (ed. L.F. Damrosch), Dobbs Ferry/N.Y., ASIL/Transnational Publs., 1987; Gross (ed.), L., The Future of the International Court of Justice, vol. I, Dobbs Ferry N.Y., Oceana Publs., 1976; Gutiérrez, C.J., La Corte de Justicia Centroamericana, San José of Costa Rica, Ed. Juricentro, 1978; Hayner, P.B., “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study”, Human Rights Quarterly, 1994, vol. 16; Herik, L.J. van den, The Contribution of the Rwanda Tribunal to the Development of International Law, Leiden, Nijhoff, 2005; Herrarte, A., “Solución Pacífica de las Controversias en el Sistema Interamericano”, VI Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano (1979), Washington D.C., OAS General Secretariat, 1980;

Select Bibliography Horn, F., Reservations and Interpretative Declarations to Multilateral Treaties, The Hague/ Uppsala, T.M.C. Asser Instituut/Swedish Institute of International Law, 1988; Hudson, M.O., International Tribunals – Past and Future, Washington, Carnegie Endowment for International Peace/Brookings Institution, 1944; Janis (ed.), M.W., International Courts for the Twenty-First Century, Dordrecht, Nijhoff, 1992; Jenks, C.W., The World beyond the Charter, London, G. Allen and Unwin, 1969; Jenks, C.W., The Prospects of International Adjudication, London, Stevens, 1964; Jiménez de Aréchaga, E., “La coordination des systèmes de l’ONU et de l’OEA pour le règlement pacifique des différends et la sécurité collective”, RCADI, 1964, vol. 111; Jones, J.R.W.D., The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd. ed., Ardsley/N.Y., Transnational Publs., 2000; Kerr, R., The International Criminal Tribunal for the Former Yugoslavia, Oxford, OUP, 2004; Knoops, G.-J.A., An Introduction to the Law of International Criminal Tribunals – A Comparative Study, Ardsley/N.Y., Transnational Publs., 2003; Kolb, R., La bonne foi en Droit international public – Contribution à l’étude des principes généraux de Droit, Paris/Genève, PUF/IUHEI, 2000; Koskenniemi, M., and Leino, P., “Fragmentation of International Law? Postmodern Anxieties”, Leiden Journal of International Law, 2002, vol. 15; Lachs, M., “Some Thoughts of the Role of Good Faith in International Law”, in Declarations on Principles, A Quest for Universal Peace – Liber Amicorum Discipulorumque B.V.A. Roling, Leyden, Sijthoff, 1977; Lagos, E., “Los Nuevos Mecanismos Procesales para la Eficacia de la Solución Pacífica de las Controvérsias, con Particular Referencia a la Práctica de la OEA en los Últimos Años”, in Perspectivas del Derecho Internacional Contemporáneo, vol. II, Santiago, Universidad de Chile/Instituto de Estudios Internacionales, 1981; Lescure, K., Le Tribunal Pénal International pour l’ex-Yougoslavie, Paris, Montchrestien, 1994; Linton, S., “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, Criminal Law Forum, 2001, vol. 12; Merrills, J.G., International Dispute Settlement, 3rd. ed., Cambridge, University Press, 1998; Merrills, J.G., “The Optional Clause Today”, BYBIL, 1979, vol. 50; Metcalf, K.N., and Papageorgiou, I., Regional Integration and Courts of Justice, Antwerpen/ Oxford, Intersentia, 2005; Morin, J.Y., “L’état de Droit: émergence d’un principe du Droit international”, RCADI, 1995, vol. 254; Nakamura, K., “The Convention for the Pacific Settlement of International Disputes in Historical Perspective – In Commemoration of the Centennial of the I Hague Peace Conference”, Japanese Annual of International Law, 2000, vol. 43; Northedge, F.S., and Donelan, M.D., International Disputes: the Political Aspects, London, Europa Publs., 1971;

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Select Bibliography Novak Talavera, F., and Moyano, L.G.-C., Derecho Internacional Público, vol. III, Lima, PUC/Peru, 2005; Oellers-Frahm, K., “Multiplication of International Courts and Tribunals and Conflicting Jurisdiction – Problems and Possible Solutions”, Max Planck Yearbook of United Nations Law, 2001, vol. 5; Pechota, V., Complementary Structures of Third-Party Settlement of International Disputes, N.Y., UNITAR, 1971; Pechota, V., The Quiet Approach – A Study of the Good Offices Exercised by the United Nations Secretary-General in the Cause of Peace, N.Y., UNITAR, 1972; Permanent Court of Arbitration, The Hague Peace Conferences of 1899 and 1907 and International Arbitration – Reports and Documents (ed. S. Rosenne), The Hague, T.M.C. Asser Press, 2001; Peters, A., “International Dispute Settlement: A Network of Cooperational Duties”, EJIL, 2003, vol. 14; Politis, N., La justice internationale, Paris, Libr. Hachette, 1924; Romano, C.P.R., Nollkaemper, A., and Kleffner (eds.), J.K., Internationalized Criminal Courts – Sierra Leone, East Timor, Kosovo, and Cambodia , Oxford, University Press, 2004; Rosenne, S., The Law and Practice of the International Court, vols. I-II, Leyden, Sijthoff, 1965; Sahovic, M., “La Déclaration de Manille sur le règlement pacifique des différends internationaux”, in Essays in International Law in Honour of Judge M. Lachs (ed. J. Makarczyk), The Hague, Nijhoff, 1984; Simpson, J.L., and Fox, H., International Arbitration, London, Stevens, 1959; Société française pour le Droit international, La juridictionnalisation du Droit international (Colloque de Lille), Paris, Pédone, 2003; Steiger, H., “Plaidoyer pour une juridiction internationale obligatoire”, in Theory of International Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996; Stone, J., Legal Controls of International Conflict, N.Y., Rinehart & Co. Publ., 1954; Stuyt, A.M., Survey of International Arbitrations 1794-1970, 2nd. printing, Leiden/N.Y., Sijthoff/Oceana, 1976; Tanaka, N., “Some Observations on the Southern Bluefin Tuna Arbitration Award”, Japanese Annual of International Law, 2001, vol. 44; Treves, T., “Recent Trends in the Settlement of International Disputes”, Cursos Euromediterráneos Bancaja de Derecho Internacional – Castellón/Spain, 1997, vol. 1; U.N., Handbook on the Peaceful Settlement of Disputes between States, N.Y., U.N. Office of Legal Affairs/Codification Division, 1992; [Various Authors,] Report on the Connally Amendment – Views of Law School Deans, Law School Professors, International Law Professors (compiled under the auspices of the Committee for Effective Use of the International Court by Repealing the Self-Judging Reservation), New York, [1961]; Valencia Rodríguez, L., Arreglo de Controversias Según el Derecho del Mar, Caracas, UNESCO, 1989;

Select Bibliography Vasak, K., “Le droit international des droits de l’homme”, RCADI, 1974, vol. 140; Venkata Raman (ed.), K., Dispute Settlement through the United Nations, Dobbs Ferry N.Y., Oceana, 1977; Visscher, Ch. de, Aspects récents du droit procédural de la Cour Internationale de Justice, Paris, Pédone, 1966; Waart, P.J.I.M. de, The Element of Negotiation in the Pacific Settlement of Disputes between States, The Hague, Nijhoff, 1973; Waldock, C.H.M., “Decline of the Optional Clause”, BYBIL, 1955- 1956, vol. 32; Witenberg, J.C., L’organisation judiciaire, la procédure et la sentence internationales – Traité pratique, Paris, Pédone, 1937; Zoller, E., La bonne foi en Droit international public, Paris, Pédone, 1977.

VIII. Part VIII (Chapters XXVI-XXVIII [Conclusions]): Abi-Saab, G., “La Commission du Droit International, la codification et le processus de formation de Droit international”, in Making Better International Law: the International Law Commission at 50 – Proceedings of the U.N. Colloquium on Progressive Development and Codification of International Law (Colloquium of New York, 1997), N.Y., U.N., 1998; Ago, R., “Nouvelles réflexions sur la codification du Droit international”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989; Álvarez, A., La Reconstrucción del Derecho de Gentes – El Nuevo Orden y la Renovación Social, Santiago de Chile, Ed. Nascimento, 1944; Álvarez, A., El Nuevo Derecho Internacional en Sus Relaciones con la Vida Actual de los Pueblos, Santiago, Editorial Jurídica de Chile, 1961; Álvarez, A., Exposé des motifs et Déclaration des grands principes du Droit international, 2nd. ed., Paris, Éditions Internationales, 1938; Álvarez, A., “Méthodes de la codification du Droit international public – Rapport”, in Annuaire de l’Institut de Droit International, 1947; Amnesty International, The International Criminal Court: Making the Right Choices, Part I, Jan. 1997; Part II, July 1997; Part III, July 1997; Part IV, March 1998; Aquinas, Thomas, Treatise on Law, Washington D.C., Regnery Publs./Gateway Eds., 2001 [reprint]; Bassiouni, M.C., “International Crimes: Jus Cogens and Obligatio Erga Omnes”, in Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights (Proceedings of the Siracusa Conference, September 1998, ed. C.C. Joyner), Ramonville St.-Agne, Érès, 1998; Bos, M., “Aspects phénomenologiques de la codification du Droit international public”, in Le Droit international à l’heure de sa codification – Études en l’honneur de Roberto Ago, vol. I, Milano, Giuffrè, 1987; Bustamante y Sirvén, A.S. de, La Segunda Conferencia de la Paz Reunida en el Haya en 1907, vol. II, Madrid, Libr. Gen. de V. Suárez, 1908;

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Select Bibliography Caflisch, L., “Immunité des États et droits de l’homme: Évolution récente”, in Internationale Gemeinschaft und Menschenrechte – Festschrift für Georg Ress (eds. J. Bröhmer et alii), Köln/Berlin, C. Heymanns Verlag, 2005; Calero Rodrigues, C., “O Trabalho de Codificação do Direito Internacional nas Nações Unidas”, Boletim da Sociedade Brasileira de Direito Internacional, 1996, n. 101/103; Cançado Trindade, A.A., Direito das Organizações Internacionais, 4th. ed., Belo Horizonte/ Brazil, Edit. Del Rey, 2009; Cançado Trindade, A.A., O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002; Cançado Trindade, A.A., El Derecho Internacional de los Derechos Humanos en el Siglo XI, Santiago, Editorial Jurídica de Chile, 2001; Cançado Trindade, A.A., Direitos Humanos e Meio Ambiente – Paralelo dos Sistemas de Proteção Internacional, Porto Alegre/Brazil, S.A. Fabris Ed., 1993; Cançado Trindade, A.A., “The Presence and Participation of Latin America at the II Hague Peace Conference of 1907”, in Actualité de la Conférence de La Haye de 1907, II Conférence de la Paix (Colloque de 2007) (éd. Y. Daudet), Leiden/La Haye, Académie de Droit International/Nijhoff, 2008; Cançado Trindade, A.A., “Sustainable Human Development and Conditions of Life as a Matter of Legitimate International Concern: The Legacy of the U.N. World Conferences”, in Japan and International Law – Past, Present and Future (International Symposium to Mark the Centennial of the Japanese Association of International Law), The Hague, Kluwer, 1999; Cançado Trindade, A.A., “The Voluntarist Conception of International Law: A Re-Assessment”, Revue de droit international de sciences diplomatiques et politiques (Sottile), Geneva, 1981, vol. 59; Cançado Trindade, A.A., “Elementos para uma Sistematização da Prática do Direito Internacional”, Arquivos do Ministério da Justiça, Brasília, 1981, n. 158; Caplan, L.M., “State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory”, American Journal of International Law, 2003, vol. 97; Cassese, A., International Law in a Divided World, Oxford, Clarendon Press, 1986; Cede, F., “New Approaches to Law-Making in the U.N. System”, Austrian Review of International and Comparative Law, 1996, vol. 1; Cicero, On the Commonwealth and on the Laws (ed. J.E.G. Zetzel), Cambridge, University Press, 2003 [reprint]; Dupuy, R.-J., Dialectiques du Droit international – souveraineté des États, communauté internationale, et droits de l’humanité, Paris, Pédone, 1999; Edwards, Ch.S., Hugo Grotius, the Miracle of Holland – A Study of Political and Legal Thought, Chicago, N.-Hall Publs., 1981; Eustathiades, C.Th., “Unratified Codification Conventions”, in Gilberto Amado Memorial Lectures, Brasília, FUNAG/M.R.E., 1998; Fassbender, B., U.N. Security Council Reform and the Right of Veto – A Constitutional Perspective, The Hague, Kluwer, 1998, Fernandes, R., “A Responsabilidade dos Estados em Direito Internacional” (1952), Boletim da Sociedade Brasileira de Direito Internacional, 1995, vol. 48, n. 95/97 [reprint];

Select Bibliography Fleischhauer, C.-A., “The United Nations and the Progressive Development and Codification of International Law”, Indian Journal of International Law, 1985, vol. 25; Gómez del Prado, J.L., La Conferencia Mundial contra el Racismo – Durban, Sudáfrica 2001, Bilbao, University of Deusto, 2002; Guerrero, J.G., La codification du Droit international, Paris, Pédone, 1930; Hilpold, P., “The Duty to Protect and the Reform of the United Nations – A New Step in the Development of International Law?”, Max Planck Yearbook of United Nations Law, 2006, vol. 10; Huber, M., La pensée et l’action de la Croix-Rouge, Genève, CICR, 1954; Keith Hall, C., “U.N. Convention on State Immunity: The Need for a Human Rights Protocol”, International and Comparative Law Quarterly 2006, vol. 55; Kolosov, Y.M., “Overview of the International Law-Making Process and the Role of the International Law Commission”, in U.N., Making Better International Law: the International Law Commission at 50 (Proceedings of the U.N. Colloquium, New York, 1997), N.Y., U.N., 1998; Lachs, M., The Teacher in International Law, 2nd. rev. ed., Dordrecht, Nijhoff, 1987; Linton, D., “Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, Criminal Law Forum, 2001, vol. 12; Mahiou, A., “Rapport général: Les objectifs de la codification”, in Société Française pour le Droit International, La codification du Droit international (Colloque d’Aix-enProvence), Paris, Pédone, 1999; McGregor, L., “State Immunity and Jus Cogens”, International and Comparative Law Quarterly, 2006 vol. 55; McGregor, L., “Addressing the Relationship between State Immunity and Jus Cogens Norms: A Comparative Assessment”, in International Prosecution of Human Rights Crimes (eds. W. Kaleck et alii), Berlin, Springer, 2007; McWhinney, E., Les Nations Unies et la formation du droit, Paris, Pédone/UNESCO, 1986; Monnier, J., “Observations sur la codification et le développement progressif du Droit international”, in Mélanges Georges Perrin, Lausanne, Université de Lausanne/Payot, 1984; Münch, F., “La codification inachevée”, in Le Droit international à l’heure de sa codification – Études en l’honneur de Roberto Ago, vol. I, Milano, Giuffrè, 1987; Nascimento e Silva, G.E. do, “A Codificação do Direito Internacional”, Boletim da Sociedade Brasileira de Direito Internacional, 1972-1974, vol. 28-30, ns. 55/60; Nascimento e Silva, G.E. do, “The Influence of Science and Technology on International Law”, in Gilberto Amado Memorial Lectures, Brasília, FUNAG/M.R.E., 1998; Owada, H., “The United Nations and the Maintenance of International Peace and Security – The Current Debate in the Light of Reform Proposals”, Japanese Annual of International Law, 2006, vol. 48; Parry, C., The Sources and Evidences of International Law, Manchester, University Press, 1965; Parry, C., “The Practice of States”, Transactions of the Grotius Society, 1958-1959, vol. 44; Pellet, A., “La formation du droit international dans le cadre des Nations Unies”, European Journal of International Law, 1995, vol. 6; Rosenne, S., Practice and Methods of International Law, London/N.Y., Oceana Publs., 1984;

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Select Bibliography Rosenne, S. (ed.), League of Nations – Committee of Experts for the Progressive Codification of International Law [1925-1928], vol. II, Dobbs Ferry/N.Y., Oceana Publs., 1972; Rosenne, S., “The Codification of the Law of State Responsibility (1924-1990)”, The International Law Commission’s Draft Articles on State Responsibility (ed. S. Rosenne), Dordrecht, Nijhoff, 1991; Rousseau, Ch., Droit international public, 11th. ed., Paris, Dalloz, 198; Rousset, B., “La ‘Recta Ratio’”, in La Recta Ratio: Criticiste et spinoziste? – Hommage en l’honneur de B. Rousset (ed. L. Bove), Paris, Presses de l’Univ. Paris-Sorbonne, 1999; Saraiva Guerreiro, R., “Métodos e Processos de Codificação e Desenvolvimento do Direito Internacional nas Nações Unidas”, Boletim da Sociedade Brasileira de Direito Internacional 1975-1979, n. 61/66; Schechter, M.G., United Nations Global Conferences, London/N.Y., 2005; Singh, Nagendra, “Sustainable Development as a Principle of International Law”, in International Law and Development (ed. P. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff, 1988; Suy, E., “Développement progressif et codification du Droit international: Le rôle de l’Assemblée Générale revisité”, in U.N., International Law as a Language for International Relations – Proceedings of the U.N. Congress on Public International Law (New York, March 1995), The Hague, U.N./Kluwer, 1996; Tamanaha, B.Z., On the Rule of Law – History, Politics, Theory, Cambridge, University Press, 2004; Tavernier, P., C. Renaut, C. (eds.), Actualité de la jurisprudence pénale internationale à l’heure de la mise en place de la Cour Pénale Internationale, Bruxelles, Bruylant, 2004; Tomka, P., “Major Complexities Encountered in Contemporary International Law-Making”, in Making Better International Law: the International Law Commission at 50 (Proceedings of the U.N. Colloquium, New York, 1997), N.Y., U.N., 1998; Tunkin, G.I., “Remarks on the Primacy of International Law in Politics”, in Le droit international au service de la paix, de la justice et du développement – Mélanges M. Virally, Paris, Pédone, 1991; United Nations, The World Conferences – Developing Priorities for the XXIst Century, N.Y., U.N., 1997; United Nations, The Work of the International Law Commission, 7th. ed., vol. I, N.Y., U.N., 2007; United Nations, 2005 World Summit Outcome, document A/60/L.1, of 15.09.2005; United Nations, Multilateral Treaty Framework: An Invitation to Universal Participation – Focus 2005: Responding to Global Challenges, N.Y., U.N., 2005; United Nations, Claiming the Millenium Development Goals: A Human Rights Approach, N.Y./Geneva, UNHCHR, 2008; [Various Authors,] United Nations-Sponsored World Conferences – Focus on Impact and Follow-up (ed. M.G. Schechter), Tokyo, U.N.U. Press, 2001; [Various Authors,] Internationalized Criminal Courts – Sierra Leone, East Timor, Kosovo and Cambodia (eds. C.P.R. Romano, A. Nollkaemper and J.K. Kleffner), Oxford, University Press, 2004;

Select Bibliography [Various Authors,], Le droit international des immunités: contestation ou consolidation? (ed. J. Verhoeven), Paris/Bruxelles, LGDJ/Larcier, 2004; Verma, D.P., “Rethinking about New International Law-Making Process”, Indian Journal of International Law, 1989, vol. 29; World Commission on Environment and Development, Our Common Future, Oxford, University Press, 1987; Yankov, A., “Strengthening the Process of Codification and Development of International Law: the Evolving Functions of the International Law Commission and Increasing the Commitments of States”, in International Law as a Language for International Relations – Proceedings of the United Nations Congress on Public International Law (N.Y., 1995), U.N., N.Y., 1996; Yepes, J.-M., “Les problèmes fondamentaux du Droit des gens en Amérique”, Recueil des Cours de l’Académie de Droit International de La Haye, 1934, vol. 47; Zemanek, K., “Does Codification Lead to Wider Acceptance?”, in U.N., International Law as a Language for International Relations – Proceedings of the U.N. Congress on Public International Law (New York, March 1995), U.N./Kluwer, The Hague, 1996; Zemanek, K., “Codification of International Law: Salvation or Dead End?”, Le Droit international à l’heure de sa codification – Études en l’honneur de Roberto Ago, vol. I, Milano, Giuffrè, 1987.

691

Table of Cases

I.

Parts I-II (Chapters I-IV)

PCIJ, S.S. “Lotus” case (France vs. Turkey, 1927) ICJ, Temple of Preah Vihear case (Cambodia vs, Thailand, 1962) ICJ, first (atmospheric) Nuclear Tests cases (Australia and New Zealand vs. France, 1974) ICJ, Aegean Sea Continental Shelf case (Greece vs. Turkey, 1978) ICJ, Advisory Opinion on Namibia (1971) ECtHR, Marckx vs. Belgium case (1979) ECtHR, Airey vs. Ireland case (1979) ECtHR, Dudgeon vs. United Kingdom case (1981) IACtHR, Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999) IACtHR, Advisory Opinion on the Interpretation of the American Declaration of the Rights and Duties of Man (1989) ECtHR, Tyrer vs. United Kingdom case (1978) ECtHR, Loizidou vs. Turkey case (Prel. Objs., 1995) ICJ, Anglo-Iranian Oil Company case (United Kingdom vs. Iran, Prov. Measures, 1951) ICJ, Application of the Convention against Genocide case (BosniaHerzegovina vs. Yugoslavia [Serbia and Montenegro], Prov. Measures, 1993) ICJ, Breard case (Paraguay vs. United States, Prov. Measures, 1998) ICJ, LaGrand case (Germany vs. United States, Prov. Measures, 1999) ICJ, Fisheries Jurisdiction case (United Kingdom vs. Iceland, 1972) ICJ, Hostages (U.S. Diplomatic and Consular Staff in Teheran) case (United States vs. Iran, 1979) ICJ, Nicaragua vs. United States case (Prel. Objs., 1984)

p. 17 p. 33 pp. 34 (n.12), 43-44 (n. 55), 79, 84 pp. 36, 43 (n. 55) pp. 38, 82, 84 p. 38 (n. 31) p. 38 (n. 31) p. 38 (n. 31)

pp. 39 and 60 (n. 31) p. 39 (n. 34) p. 39 (n. 32) p. 39 (n. 33) p. 41 (n. 46) pp. 42 (n. 49), 43 (n. 55), 44 (n. 56) p. 42 (n. 49) p. 42 (n. 49) p. 43 (n. 55) p. 43 (n. 55) p. 43 (n. 55)

694

Table of Cases ICJ, Frontier Dispute case (Burkina Faso vs. Mali, 1986) ICJ, Trial of Pakistani Prisoners of War (Pakistan vs. India, 1973) ICJ, Land and Maritime Boundary case (Cameroon vs. Nigeria, Prov. Measures, 1996) ICJ, Armed Activities on the Territory of the Congo case (Congo vs. Uganda, Prov. Measures, 2000) ICJ, Application of the Convention on the Elimination of All Forms of Racial Discrimination case (Georgia vs. Russia, Prov. Measures, 2008) IACtHR, Community of Peace of San José of Apartadó vs. Colombia case (Prov. Measures, 2000-2005) IACtHR, Haitians and Dominicans of Haitian Origin vs. Dominican Republic case (Prov. Measures, 2000-2001) IACtHR, Indigenous People Kankuamo vs. Colombia case (Prov. Measures, 2004) IACtHR, Communities of the Jiguamiandó and of the Curbaradó vs. Colombia case (Prov. Measures, 2003-2005) IACtHR, Indigenous People Sarayaku vs. Ecuador case (Prov. Measures, 2004) ECtHR, Ocalan vs. Turkey case (Prov. Measures, 1999) ECtHR, Cruz Varas and Others vs. Sweden case (1991) ITLS, Southern Bluefin Tuna cases (New Zealand and Australia vs. Japan, 1999) ITLS, M/V Saiga case (Saint Vincent and the Grenadines vs. Guinea, 1998) ITLS, Mox Plant case (Ireland vs. United Kingdom, 2001) IACtHR, Advisory Opinion on the Juridical Condition and the Rights of Undocumented Migrants (2003) IACtHR, Advisory Opinion on the Juridical Condition and Human Rights of the Child (2002) IACtHR, Five Pensioners vs. Peru case (2003) ICJ, Advisory Opinion on the Western Sahara (1975) ICJ, Nicaragua vs. United States case (Merits, 1986) ICJ, Corfu Channel case (United Kingdom vs. Albania, 1949) ICJ, East Timor case (Portugal vs. Australia, 1995) ICJ, Certain Phosphate Lands case (Nauru vs. Australia, 1992) Arbitral Tribunal, Maritime Delimitation case (Guinea vs. GuineaBissau, 1983) Arbitration, Island of Palmas case (United States vs. Netherlands, 1928) Negotiation, Cuban Missile Crisis case (1961-1962) Negotiation, Armed Conflicts in Central America case (1989-1994)

pp. 43 (n. 55), 44 (n. 56) p. 44 (n. 55) p. 44 (n. 56) p. 44 (n. 56)

p. 44 (n. 56) pp. 44-45 pp. 44 (n. 58), 45 p. 45 p. 45 (ns. 60 and 63) p. 45 (ns. 60 and 64) pp. 45-46 p. 45 (n. 65) pp. 46-47 p. 46 (ns. 67-68) p. 46 (n. 67) pp. 56 (n. 6), 60 (n. 31), 88 p. 60 (n. 31) p. 60 (n. 31) pp. 75, 82, 84 pp. 80, 92, 109 (n. 103) pp. 80, 91 pp. 81-82, 84 (n. 161) p. 84 p. 83 pp. 32, 38 (n. 27) p. 94 pp. 58-59

Table of Cases

II.

Part III (Chapters V-VI)

PCIJ, S.S. “Lotus” case (France vs. Turkey, 1927) ICJ, Asylum case (Colombia vs. Peru, 1950) ICJ, North Sea Continental Shelf cases (Denmark and The Netherlands vs. F.R. Germany, 1969) ICJ, Continental Shelf case (Libya vs. Malta, 1985) ICJ, Advisory Opinion on Threat or Use of Nuclear Weapons (1996) PCIJ, “Wimbledon” case (Germany vs. France and Others, 1923) ICJ, Advisory Opinion on the Western Sahara (1975) ICJ, Advisory Opinion on Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO (1956) ICJ, Advisory Opinion on Certain Expenses of the United Nations (1962) ICJ, Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) PCIJ, Advisory Opinion on the Status of Eastern Carelia (1923) ICJ, Advisory Opinion on the Interpretation of Peace Treaties (1950) ICJ, Advisory Opinion on Namibia (1971) ICJ, Nicaragua vs. United States case (Merits, 1986) ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area case (Canada vs. United States, 1984) IACtHR, Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999) IACtHR, Haitians and Dominicans of Haitian Origin vs. Dominican Republic case (Prov. Measures, 2000) IACtHR, Bámaca Velásquez vs. Guatemala case (Merits, 2000)

pp. 116, 136, 147 p. 117 pp. 119, 127-128 (n. 81), 147 p. 119 pp. 119, 130-131, 152-153 p. 119 p. 130 p. 130 (n. 97) p. 130 (n. 97) p. 131 p. 132 p. 132 p. 132 pp. 132-133 p. 133 pp. 153 (n. 61), 159 (n. 91) pp. 153 (n. 61), 159 (n. 91) pp. 153 (n. 61), 159 (n. 91)

IACtHR, Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants (2003) p. 159 (n. 91)

III. Part IV (Chapters VII-XI) ICJ, Advisory Opinion on Namibia (1971) p. 170 PCIJ, Advisory Opinion on Nationality Decrees in Tunis and Morocco (1923) pp. 172-173, 176 ICJ, Advisory Opinion on Reparations for Injuries (1949) pp. 178, 185-186, 193, 196 ICJ, Advisory Opinion on Interpretation of the Agreement of 1951 between the WHO and Egypt (1980) p. 187 ICJ, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) pp. 190-191 ICJ, Lockerbie cases (Libya vs. United Kingdom, 1992) p. 204 IACtHR, Castillo Petruzzi and Others vs. Peru case (Prel. Objec- pp. 232 (n. 88), 252tions, 1998) 253, 254, 267 (n. 81)

695

696

Table of Cases IACtHR, “Street Children” (Villagrán Morales and Others) vs. Guatemala case (Merits, 1999) IACtHR, Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999) IACtHR, Advisory Opinion on the Juridical Condition and Human Rights of the Child (2002) ICJ, Adv. Opinion on Reparations for Injuries (1949) IACtHR, Community Mayagna (Sumo) Awas Tingni vs. Nicaragua (2001) IACtHR, Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants (2003) ICJ, Nottebohm case (Liechtenstein vs. Guattmala case, 1955) ICJ, Application of the Convention of 1902 Governing the Guardianship of Infants case (The Netherlands vs. Sweden, 1958) ICJ, Trial of Pakistani Prisoners of War case (Pakistan vs. India, 1973) ICJ, Hostages (U.S. Diplomatic and Consular Staff ) in Teheran case (United States vs. Iran, 1980) ICJ, East Timor case (Portugal vs. Australia, 1995) ICJ, Application of the Convention against Genocide case (BosniaHerzegovina vs. Yugoslavia [Serbia and Montenegro], Prel. Objections, 1996) ICJ, Breard case (Paraguay vs. United States, 1998) ICJ, LaGrand case (Germany vs. United States, 2001) ICJ, Avena case (Mexico vs. United States, 2004) EComHR, Scientology Kirche Deutschland e.V. vs. Germany case (1997) ECtHR, Norris vs. Ireland case (1988) EComHR, Greek Federation of Customs Officials, N. Gialouris, G. Christopoulos, and 3333 Other Customs Officials vs. Greece case (1995) EComHR, K. Sygonnis, I. Kotsis and Police Union vs. Greece case (1994) EComHR, Association of Air Pilots of the Republic, J. Mata et al. vs. Spain case (1985) IACtHR, Constitutional Tribunal vs. Peru case (Competence, 1999) IACtHR, I. Bronstein vs. Peru case (Competence, 1999) IACtHR, Brothers Gómez Paquiyauri vs. Peru case (Merits, 2004)

pp. 232 (n. 90), 237 pp. 233, 237-238, 263-264, 267 (n. 81), 278 p. 233 p. 233 (n. 95) p. 238 (n. 115) p. 239 p. 245 (n. 13) p. 245 (n. 13) p. 245 (n. 13) p. 245 (n. 13) p. 245 (n. 13)

pp. 245-246 (n. 13) p. 246 (n. 13) p. 246 (n. 13) p. 246 (n. 13) p. 249 (n. 26) p. 249

p. 249 (n. 26) p. 249 (n. 26) p. 249 (n. 26) pp. 253-254 pp. 253-254 pp. 254-255, 270 (n. 92)

IACtHR, Hilaire, Benjamin and Constantine vs. Trinidad and Top. 254 (n. 40) bago case (Prel. Objections, 2001) pp. 255 (n. 44), 267 IACtHR, Castillo Páez vs. Peru case (Prel. Objections, 1996) (n. 81)

Table of Cases IACtHR, Loayza Tamayo vs. Peru case (Prel. Objections, 1996)

pp. 255 (n. 44), 267 (n. 81) ECtHR, Lawless vs. Ireland case (1960) pp. 256-257, 261 ECtHR, Vagrancy vs. Belgium cases (1970) p. 256 ACtHR, Loizidou vs. Turkey case (Prel.Objs., 1995) p. 257 IACtHR, El Amparo vs. Venezuela case (Reparations, 1996) pp. 261-262 IACtHR, Godínez Cruz and Velásquez Rodríguez vs. Honduras pp. 261 (n. 65), 262 cases (Reparations, 1989) (n. 68) IACtHR, Constitutional Tribunal vs. Peru case (Prov. Measures, 2000) p. 264 IACtHR, Loayza Tamayo vs. Peru case (Prov. Measures, 2000) p. 264 IACtHR, Five Pensioners vs. Peru case (2003) pp. 269-270, p. 278 (n. 15) IACtHR, Constitutional Tribunal vs. Peru case (Merits, 2001) p. 270 (n. 95) IACtHR, Ivcher Bronstein vs. Peru case (Merits, 2001) p. 270 (n. 95) IACtHR, Baena Ricardo and Others vs. Panama case (Merits, 2001) p. 270 (n. 95) IACtHR, Blake vs. Guatemala case (Merits, 1998) p. 271 (n. 99) IACtHR, Bámaca Velásquez vs. Guatemala case (Merits, 2000) p. 271 (n. 99) IACtHR, “Street Children” (Villagrán Morales and Others) vs. Guatemala case (Reparations, 2001) pp. 271-272 IACtHR, Myrna Mack Chang vs. Guatemala case (2003) p. 271 (n. 99) ECtHR, Hornsby vs. Greece case (Merits, 1997) p. 273 ICTR, J.-P. Akayesu case (1998) p. 277 ICTR, J. Kambanda case (1998)` p. 277 ICJ, Advisory Opinion on Reservations to the Convention against Genocide (1951) pp. 278, 281 IACtHR, Massacre of Plan de Sánchez vs. Guatemala case (Merits, 2004) p. 278 (n. 10) IACtHR, Advisory Opinion on the Juridical Condition and Rights pp. 264, 278 (n. 10), of Undocumented Migrants (2003) 279 IACtHR, Advisory Opinion on the Juridical Condition and Human Rights of the Child (2002) pp. 278 (n. 15), 287 ICTFY (Appeals Chamber), Mucić et alii case (2001) p. 279 ICTFY (Trial Chamber), Celebici case (1998) p. 280 ICTFY (Trial Chamber), T. Blaskić case (2000) p. 280 ICTFY, Tadić case (1997) p. 285 p. 285 ICTFY, Erdemović case (1996) Negotiation, Aaland Islands case (Finland vs. Sweden, 1920-1921) p. 172 (n. 30) Negotiation, Expulsion of the Oecumenical Patriarch case (Greece vs. Turkey, 1925-1926) p. 172 (n. 30)

IV. Part V (Chapters XII-XV) IACTHR, Advisory Opinion on the Juridical Condition and Rights pp. 292 (n. 1), 295, of Undocumented Migrants (2003) 297, 301-302, 317

697

698

Table of Cases PCIJ, Oscar Chinn case (United Kingdom vs. Belgium, 1934) ICJ, Advisory Opinion on Reservations to the Convention against Genocide (1951) IACtHR, Cantoral Benavides vs. Peru case (Merits, 2000) IACtHR, Maritza Urrutia vs. Guatemala case (2003) IACtHR, Brothers Gómez Paquiyauri vs. Peru case (2004) IACtHR, Tibi vs. Ecuador case (2004) ICTFY (Trial Chamber), Furundzija case (1998) ICTFY (Trial Chamber), Jelisić case (1999) ICTFY (Trial Chamber), A .Kupreski and Others case (2000) ICTFY (Trial Chamber), Kunarac case (2001) ICTFY (Trial Chamber), Krstić case (2001) ICTFY (Trial Chamber II), Simić case (2002) ICJ, Application of the Convention against Genocide case (BosniaHerzegovina vs. Yugoslavia [Serbia and Montenegro], Prel. Objections, 1996) ICJ, Advisory Opinion on Namibia (1971) IACtHR, Blake vs. Guatemala case (Prel. Objections, 1996) IACtHR, Hilaire vs. Trinidad and Tobago case (2001) IACtHR, Barrios Altos vs. Peru case (2001) IACtHR, Sisters Serrano Cruz vs. El Salvador case (2004) IACtHR, Baldeón García vs. Peru case (2006) IACtHR, Caesar vs. Trinidad and Tobago case (2005) ECtHR, Soering vs. United Kingdom case (1989) IACtHR, Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999) IACtHR, Massacre of Plan de Sánchez vs. Guatemala case (2004)

p. 292 (n. 1) pp. 294, 298 pp. 297, 299-300 pp. 297, 300 pp. 297, 300, 303 (n. 43) pp. 297, 300, 303 (n. 43) pp. 297, 301 (n. 40) p. 297 pp. 297, 321 p. 297 p. 297 p. 297

pp. 298, 313 p. 298 (n. 25) p. 300 p. 300 p. 300 p. 300 pp. 301, 303 pp. 301, 303 (n. 43) p. 301 (n. 40)

pp. 302, 307 (n. 56) pp. 302-303 (n. 43), 367-369, 372-373, 379, 381 (n. 56), 389 p. 303 (n. 43) p. 303 (n. 43) p. 303 (n. 43) p. 303 p. 303 (n. 43)

IACtHR, Yatama vs. Nicaragua case (2005) IACtHR, Acosta Calderón vs. Ecuador case (2005) IACtHR, Massacres of Ituango vs. Colombia case (2006) IACtHR, López Alvarez vs. Honduras case (2006) IACtHR, Ximenes Lopes vs. Brazil case (2006) IACtHR, Indigenous Community Sawhoyamaxa vs. Paraguay case (2006) pp. 303 (n. 45), 307 IACtHR, Massacre of Pueblo Bello vs. Colombia case (2006) p. 303 pp. 303-304, 305IACtHR, Goiburú and Others vs. Paraguay case (2006) 306 IACtHR, La Cantuta vs. Peru case (2006) pp. 304-305, 307 (n. 56)

Table of Cases IACtHR, Almonacid Arellano vs. Chile case (2006) pp. 305-306 IACtHR, Institute of Rehabilitation of Minors vs. Paraguay case (2004) p. 306 IACtHR, Indigenous Community Yakye Axa vs. Paraguay case (2006) p. 307 IACtHR, Prison of Castro Castro vs. Peru case (2008) pp. 307-308, 309 (n. 65) IACtHR, Barrios Altos vs. Peru case (2001) p. 307 (n. 56) IACtHR, 19 Tradesmen vs. Colombia case (2004) pp. 307 (n. 56), 367, 372-373, 379, 389 IACtHR, Massacre of Mapiripán vs. Colombia case (2005) pp. 307 (n. 56), 319 (n. 103), 367, 369, 372-373, 379, 389 IACtHR, Moiwana Community vs. Suriname case (2005) pp. 307 (n. 56), 367, 372-373, 379, 389 IACtHR, Montero Aranguren and Others (Retén de Catia) vs. Venezuela case (2006) p. 307 (n. 56) ICJ, Barcelona Traction case (Belgium vs. Spain, 1970) p. 313 ICJ, first (atmospheric) Nuclear Tests cases (Australia and New Zealand vs. France, 1974) p. 313 ICJ, Nicaragua vs. United States case (Merits, 1986) p. 313 ICJ, East Timor case (Portugal vs. Australia, 1995) pp. 313-314 ICJ, Northern Cameroons case (Cameroons vs. United Kingdom, 1963) p. 313 ICJ, South West Africa case (Ethiopia and Liberia vs. South Africa, 1966) pp. 313, 322 ICJ, Advisory Opinion on Namibia (1971) p. 313 ICJ, Advisory Opinion on Threat or Use of Nuclear Weapons (1996) p. 313 ICJ, Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) p. 314 ECtHR, Ireland vs. United Kingdom case (1976-1978) p. 316 IACtHR, Blake vs. Guatemala case (Merits, 1998) pp. 298 (n. 26), 317 (n. 96), 319 (n. 101) IACtHR, Blake vs. Guatemala case (Reparations, 1999) p. 319 (n. 101) IACtHR, Las Palmeras vs. Colombia case (Prel. Objections, 2000) pp. 319 (n. 103), 325 (n. 120) IACtHR, Community of Peace of San José of Apartadó vs. Colombia pp. 319 (n. 103), 326 case (Prov. Measures, 2002) (n. 120) IACtHR, Community of the Jiguamiandó and of the Curbaradó vs. pp. 319 (n. 103), 326 Colombia case (Prov. Measures, 2003) (n. 120) IACtHR, Prison of Urso Branco vs. Brazil case (Prov. Measures, pp. 319 (n. 103), 326 2004) (n. 120) IACtHR, Indigenous People of Sarayaku vs. Ecuador case (Prov. pp. 322 (n. 112), 326 Measures, 2005) (n. 120)

699

700

Table of Cases IACtHR, Indigenous People of Kankuamo vs. Colombia case (Prov. Measures, 2004) p. 326 (n. 120) IACtHR, Television Broadcasting Company ‘Globovisión’ vs. Venezuela case (Prov. Measures, 2004) p. 326 (n. 120) IACtHR, Myrna Mack Chang vs. Guatemala case (2003) pp. 367-368, 372373, 379, 381 (n. 57), 389 IACtHR, Paniagua Morales and Others vs. Guatemala case (1998) p. 370 IACtHR, Loayza Tamayo vs. Peru case (1998) p. 371 (n. 16) IACtHR, Castillo Páez vs. Peru case (1998) p. 371 (n. 16) IACtHR, “Street Children” (Villagrán Morales and Others) vs. Gua- pp. 371 (n. 16), 382 temala case (Reparations, 2001) (n. 58) IACtHR, Cesti Hurtado vs. Peru case (2001) p. 371 (n. 16) IACtHR, Cantoral Benavides vs. Peru case (Reparations, 2001) pp. 371 (n. 16), 382 (n. 58) IACtHR, Bámaca Velázquez vs. Guatemala case (2002) p. 371 (n. 16) IACtHR, Trujillo Oroza vs. Bolivia case (2002) pp. 371 (n. 16), 382 (n. 58) IACtHR, “The Last Temptation of Christ” (Olmedo Bustos and Others) vs. Chile case (2001) p. 372 IACtHR, Juan Humberto Sánchez vs. Honduras case (2003) p. 371 (n. 16) IACtHR, Bulacio vs. Argentina case (2003) pp. 371 (n. 16), 388 IACtHR, Aloeboetoe vs. Suriname case (1993) p. 382 (n. 58) IACtHR, Barrios Altos vs. Peru (2001) pp. 382 (n. 58), 388 IACtHR, Durand and Ugarte vs. Peru (2001) p. 382 (n. 58) ICTFY (Trial Chamber and Appeals Chamber), Tadić case (1995) p. 387 ICTFY (Trial Chamber), Erdemović case (1996) p. 387

V.

Part VI (Chapters XVI-XXIII)

ICJ, Corfu Channel case (United Kingdom vs. Albania, 1949) pp. 395-396 ICJ, Advisory Opinion on Reservations to the Convention against pp. 395, 435, 437 Genocide (1951) (ns. 19 and 21), 443-444 ICJ, Nicaragua vs. United States case (1986) pp. 395-396 ITLOS, M/V Saiga case (1999) p. 396 IACtHR, Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the pp. 396-397, 432, Due Process of Law (1999) 497-508 IACtHR, Advisory Opinion on the Juridical Condition and Rights pp. 396-397, 432, of Undocumented Migrants (2003) 446 (n. 60), 451 (n. 72), 500, 508, 508-509 (n. 75), 519 ICJ, first (atmospheric) Nuclear Tests cases (Australia and New Zealand vs. France, 1974) pp. 414-416

Table of Cases ICJ, second (underground) Nuclear Tests case (New Zealand vs. France, 1995) ICJ, Barcelona Traction case (Belgium vs. Spain, 1970) ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons (1996) ICJ, Advisory Opinion on Reparations for Injuries (1949) ICJ, Advisory Opinion on Reservations to the Convention against Genocide (1951) ICJ, Advisory Opinion on Namibia (1971) PCIJ, S.S.“Lotus” case (France vs. Turkey, 1927) IACtHR, Blake vs. Guatemala case (Reparations, 1999) ECtHR, Ringeisen vs. Austria case (1971) ECtHR, König vs. F.R. Germany case (1978) ECtHR, Le Compte vs. Belgium case (1981-1983) ECtHR, Tyrer vs. United Kingdom case (1978) ECtHR, Airey vs. Ireland case (1979) ECtHR, Marckx vs. Belgium case (1979) ECtHR, Dudgeon vs. United Kingdom case (1981) IACtHR, Advisory Opinion on The Word “Laws” in Article 30 of the American Convention on Human Rights (1986) HRC, Van Duzen vs. Canada case (1982) IACtHR, Advisory Opinion on the Interpretation of the American Declaration on the Rights and Duties of Man (1989) IACtHR, “Street Children” (Villagrán Morales and Others) versus Guatemala case (Merits, 1999) IACtHR, Cantoral Benavides vs. Peru case (Merits, 2000) IACtHR, Bámaca Velásquez vs. Guatemala case (Merits, 2000) IACtHR, Community Mayagna (Sumo) Awas Tingni vs. Nicaragua case (2001) IACtHR, Bámaca Velásquez vs. Guatemala case (Reparations, 2002) ECtHR, Wemhoff vs. F.R. Germany case (1968-1969) ECtHR, Belgian Linguistics case (1968) ECtHR, Golder vs. United Kingdom case (1975) ECtHR, Ireland vs. United Kingdom case (1978) ECtHR, Soering vs. United Kingdom case (1989) ECtHR, Loizidou vs. Turkey case (Prel. Objections, 1995) ECtHR, Belilos vs. Switzerland case (1988) ECtHR, I. Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa vs. Moldovia and the Russian Federation case (2001) IACtHR, Constitutional Tribunal vs. Peru case (Competence, 1999) IACtHR, Ivcher Bronstein vs. Peru case (Competence, 1999) IACtHR, Hilaire, Constantine and Benjamin and Others vs. Trinidad and Tobago cases (Prel. Objections, 2001)

pp. 414-416 p. 415 pp. 416-419, 420421, 423-424 p. 422 (n. 119) pp. 422-423 (n. 119) p. 423 (n. 119) pp. 426-427 p. 431 p. 431 p. 431 p. 431 p. 431 (n. 6) p. 431 (n. 6) p. 431 (n. 6) p. 431 (n. 6) p. 431 p. 431 pp. 431-432 (n. 7) pp. 432 (n. 7), 434 p.432 (n. 7) p.432 (n. 7) p.432 (n. 7) p.432 (n. 7) p.432 (n. 8) p.432 (n. 8) p.432 (n. 8) pp. 432 (n. 8), 435 p. 432 (n. 8) pp. 432 (n. 9), 434 pp. 434, 439 p. 434 p. 434 p. 434 p. 434

701

702

Table of Cases IACtHR, Barrios Altos vs. Peru case (2001) IACtHR, Bulacio vs. Argentina case (2003) ECtHR, Greek case (1967-1970) HRC, I.Gueye et alii vs. France case (1989) IACtHR, Advisory Opinion on Restrictions to the Death Penalty (1983) IACtHR, Advisory Opinion on the Effect of Reservations on the Entry into Force of the American Convention (1982) ECtHR, Weber vs. Switzerland case (1990) IACtHR, Hilaire, Constantine and Benjamin and Others vs. Trinidad and Tobago cases (2001-2002) IACtHR, Brothers Gómez Paquiyauri vs. Peru case (2004) PCIJ, Certain German Interests in Polish Upper Silesia case (Germany vs. Poland, 1926) PCIJ, Advisory Opinion on German Settlers in Poland (1923) ECtHR, Klass and Others vs. F.R. Germany case (1978) ECtHR, Marckx vs. Belgium case (1979) ECtHR, Johnston and Others vs. Ireland case (1986) ECtHR, Dudgeon vs. United Kingdom case (1981) ECtHR, Silver and Others vs. United Kingdom case (1983) ECtHR, De Jong, Baljet and van den Brink vs. The Netherlands case (1984) ECtHR, Malone vs. United Kingdom case (1984) ECtHR, Norris vs. Ireland case (1988) IACtHR, “The Last Temptation of Christ” (Olmedo Bustos and Others) vs. Chile case (2001) IACtHR, Suárez Rosero vs. Ecuador case (1997-1999) IACtHR, Loayza Tamayo vs. Peru case (1997-1998) IACtHR, Castillo Petruzzi and Others vs. Peru case (1998-1999) HRC, Aumeeruddy-Cziff ra and Others vs. Mauritius case (1981) HRC, Handicapped Italians vs. Italy case (1984) HRC, J. Ballentyne, E. Davidson and G. McIntyre vs. Canada case (1993) HRC, N. Toonen vs. Australia case (1994) AfComHPR, Constitutional Rights Project vs. Nigeria cases (1994) ICTFY (Appeals Chamber), Celebici case (2001) ICTFY (Appeals Chamber), Tadić case (Jurisdiction, 1997) ICJ, Application of the Convention against Genocide case (BosniaHerzegovina vs. Yugoslavia [Serbia and Montenegro], Prel. Objections, 1996) ICJ, Advisory Opinion on the Western Sahara (1975) ICJ, Advisory Opinion on the International Status of South West Africa (1950)

p. 434 p. 434 p. 435 p. 439 p. 439 (n. 29) p. 439 (n. 29) p. 439 (n. 28) p. 447 p. 451 (n. 72) p. 457 p. 457 p. 457 (n. 22) p. 457 (n. 22) p. 457 (n. 22) p. 457 (n. 22) p. 457 (n. 22) p. 457 (n. 22) p. 457 (n. 22) p. 457 (n. 22) pp. 457-458 (n. 22), 461 p. 458 (n. 22) p. 458 (n. 22) p. 458 (n. 22) p. 458 (n. 23) p. 458 (n. 23) p. 458 (n. 23) p. 458 (n. 23) p. 458 (n. 23) pp. 475-476 p. 476 (n. 27)

p. 475 (n. 26) p. 481 p. 483

Table of Cases ICJ, Advisory Opinion on Voting Procedure on Questions Relating to Reports and Petitions Concerning South West Africa (1955) ICJ, Advisory Opinion on Admissibility of Hearings of Petitioners by the Committee on South West Africa (1956) ICJ, Hostages (U.S. Diplomatic and Consular Staff ) in Teheran case (United States vs. Iran, 1979-1980) ICJ, A. Sadio Diallo case (Guinea vs. D.R. Congo, Prel. Objections, 2007) ICJ, LaGrand case (Germany vs. United States, 2001) ICJ, Avena and Other Mexican Nationals (Mexico vs. United States, 2004) ICJ, Breard case (Paraguay vs. United States, Prov. Measure, 1998) IACtHR, Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999) IACtHR, Haitians and Dominicans of Haitian Origin in the Dominican Republic case (Prov. Measures, 2000) ECtHR, Soehring vs. United Kingdom case (1989) ECtHR, Vilvarajah vs. United Kingdom case (1991) CAT, Mutombo vs. Switzerland case (1994) ECtHR, Monstaquim vs. Belgium case (1991) ECtHR, Beldjoudi vs. France case (1992) ECtHR, Djeroud vs. France case (1991) ECtHR, Lamguindaz vs. United Kingdom case (1992-1993) IACtHR, Las Palmeras vs. Colombia case (Prel. Objections, 2000) ECtHR, Ireland vs. United Kingdom case (1981) HRC, Hong Kong (continuity of obligations) case (1996-1997) HRC, Former Yugoslavia (continuity of obligations) case (19921993) District Court of Tokyo, Shimoda and Others vs. Japan case (1963) Arbitration, Island of Palmas case (Netherlands vs. United States, 1925) Council of Europe, Legal Opinion on the Minsk Convention / Commonwealth of Independent States (CIS) case (1995) Negotiation, Cuban Missiles Crisis case (1962)

p. 483 (n. 18) p. 483 (n. 19) pp. 494-496 p. 496 (n. 16) pp. 500-503, 507 pp. 501,507 pp. 506-507

p. 519 p. 521 p. 522 p. 522 p. 522 p. 522 (n. 51) p. 522 (n. 51) p. 522 (n. 51) p. 522 (n. 51) p. 524 p. 524 (n. 63) pp. 472-474 pp. 473-475 pp. 425-426, 427 pp. 459-460 pp. 470-471, 527 p. 406

VI. Parts VII-VIII (Chapters XXIV-XXVIII) ICJ, Nicaragua vs. United States case (Jurisdiction and Admissibility, 1984) ICJ, Aegean Sea Continental Shelf case (Greece vs. Turkey, 1978) ICJ, Land and Maritime Boundary case (Cameroon vs. Nigeria, Prel. Objections, 1998) ICJ, North Sea Continental Shelf cases (Denmark and The Netherlands vs. F.R. Germany, 1969)

pp. 534, 535 (n. 23) p. 534 pp. 534, 535 (n. 23) p. 535

703

704

Table of Cases ICJ, Hostages (U.S. Diplomatic and Consular Staff ) in Teheran case (United States vs. Iran, 1980) ICJ, Frontier Dispute case (Burkina Faso vs. Mali, 1986) PCIJ, Advisory Opinion on the Compatibility of Certain DecreeLaws of Danzig with the Constitution of the Free City of Danzig (1935) ICJ, Advisory Opinion on the Obligation to Arbitrate by Virtue of Section 21 of the 1947 U.N. Headquarters Agreement (1988) ICJ, Norwegian Loans case (France vs. Norway, 1957) ECtHR, Loizidou vs. Turkey case (Prel. Objections, 1995)

p. 535 p. 543

pp. 546-547 p. 567 p. 572 (n. 20) pp. 574, 581, 590 (n. 81) p. 574 (n. 24) p. 574 (n. 24)

EComHR, Chrysostomos et alii vs. Turkey (1991) EComHR, Belgian Linguistics case (1966-1967) EComHR, Kjeldsen, Busk Madsen and Pedersen vs. Denmark cases (1976) p. 574 (n. 24) ECtHR, Belilos vs. Switzerland case (1988) pp. 574 (n. 26), 578 (n. 36), 590 (n. 81) ICJ, Fisheries Jurisdiction case (Spain vs. Canada, 1998) p. 574 (n. 26) IACtHR, Constitutional Tribunal vs. Peru case (Competence, 1999) pp. 575, 581, 590 (n. 82) IACtHR, Ivcher Bronstein vs. Peru case (Competence, 1999) pp. 575, 581, 590 (n. 82) IACtHR, Castillo Petruzzi and Others vs. Peru case (Prel. Objections, 1998) p. 575 (n. 27) IACtHR, Hilaire vs. Trinidad and Tobago case (Prel. Objections, pp. 576-579, 5812001) 582, 590 (n. 82) IACtHR, Blake vs. Guatemala case (Reparations, 1999) pp. 579, 581 (n. 48) ICJ, Arbitral Award of the King of Spain of 1906 case (Honduras vs. Nicaragua, 1960) p. 579 (n. 39) ECtHR, Tyrer vs. United Kingdom case (1978) p. 589 (n. 77) ECtHR, Airey vs. Ireland case (1979) p. 589 (n. 77) ECtHR, Marckx vs. Belgium case (1979) p. 589 (n. 77) ECtHR, Dudgeon vs. United Kingdom case (1981) p. 589 (n. 77) IACtHR, Advisory Opinion on The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law (1999) p. 589 (n. 78) IACtHR, Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants (2003) p. 589 (n. 78) ECtHR, I.Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa vs. Moldovia and the Russian Federation case (2001) p. 590 (n. 81) Arbitration, Lac Lanoux case (France vs. Spain, 1957) pp. 540, 543 (n. 63) Arbitration, Algeria vs. Morocco case (1962) pp. 533, 540 Arbitration, Rann of Kutch case (India vs. Pakistan, 1968) p. 540 Arbitration, Delimitation of the Continental Shelf case (United Kingdom vs. France, 1977) p. 540

Table of Cases Arbitration, Dubai/Sharjah Boundary case (1981) Arbitration, Maritime Delimitation case (Guinea vs. Guinea-Bissau, 1985) Arbitration, La Bretagne case (Canada vs. France, 1986) Arbitration, Taba case (Egypt vs. Israel, 1988) Arbitration, Maritime Delimitation case (Guinea-Bissau vs. Senegal, 1989) Arbitration, St. Pierre and Miquelon case (Canada vs. France, 1992) Arbitration, Laguna del Desierto case (Argentina vs. Chile, 19941995) Arbitration, Behring Sea Fur Seals case (United Kingdom vs. United States, 1893) Arbitration, Southern Bluefin Tuna case (Australia and New Zealand vs. Japan, 1993-2000) Mediation, Beagle Channel case (Argentina vs. Chile, 1977-1984) Mediation, El Salvador vs. Honduras case (1980) Conciliation, Mali vs. Haute Volta case (1975) Good-offices, Central American Crisis case (1983-1987) Good-offices, Ecuador vs. Peru case (1994-1998) Fact-finding, Institutional Crisis of Nicaragua case (1993-1994) Fact-finding, Red Crusader case (Denmark vs. United Kingdom, 1961-1962)

p. 540 p. 540 p. 540 p. 540 p. 540 p. 540 p. 540, 553 p. 543 (n. 63) p. 548 pp. 533, 538-540, 553 pp. 538, 548 p. 543 pp. 549-550 pp. 550-552 pp. 546-547 p. 537

705

Index

Actio popularis emergence of, 320-322 Roman law, in, 321 African Court of Human and Peoples’ Rights individual right of direct access to, 264265 African Union internal structure, 201 international conventions, 192 Aggression U.N. definition 76 Ago, Roberto, 377-380, 458, 465-466 Alvarez, Alejandro, 630 American Convention on Human Rights contentious jurisdiction, 575-578 Antarctica common interests of international community, 485 natural reserve, as, 485 non-militarization, 484-486 peaceful uses of, 484-486 Treaty, 484-485 Protocol, 485 Arbitral decisions international criminal tribunals, of, 124 source of international law, as, 123-124 Arbitration settlement of disputes by, 539-540 Armed force prohibition of, 68-70 renunciation as instrument of national policy, 89-91 threat and use of, 95 Bello, Andrés, 227

Bioethics common heritage of humanity, 338 concept of, 336-339 genetic heritage, rights and duties over, 337 law, evolving, 336 Universal Declaration on the Human Genome and Human Rights, 336-338 Biological weapons repugnant use of, 152 Bynkershoek, Cornelius van, 216 Cassin, René, 230 Child juridical condition and rights of, 233, 237-238 Cicero, M.T., 11-12, 102 Common concern of mankind common heritage of mankind, co-existence of, 348-350 concept of contribution of, 346-347 emergence of, 344-346 intention of, 351 origins, content, rationale and implications of, 345 proprietary connotations, avoiding, 347 growing interest of States in, 345 international Conventions, underlying, 347 responsibilities, sharing, 351-352 universal solidarity and social responsibility, embodying, 349 Common good pursuit of, 11-14

708

Index Common heritage of mankind basic principles, 350 bioethics. See Bioethics common concern of mankind, co-existence of, 348-350 common good or interest underlying, 328 concept, content and significance of, 327-344 concept of, 641 environmental law. See International environmental law law of the sea. See Law of the sea legislative history of, 332 outer space. See Outer space province of all mankind, and, 329 rationale, 351 responsibilities, sharing, 351-352 scope, 328 universal solidarity and social responsibility, embodying, 349 Conciliation compulsory procedure, 542 settlement of disputes by, 535-536, 542543, 565 Conscience injustice and oppression, opposition to, 141 juridical. See Juridical conscience law emanating from, 291 mankind, of, 281 meanings attributable to, 142-143 notion of, 142 Council of Europe international conventions, 192 Crime of State configuration, 374-376 fundamental or superior interests of international community, in relation to, 377-379 juridical consequences of, 379-383 punitive damages for, 381-383 reality of, 389 reparations, 371, 380-383 systematic occurrences of, 382 Cultural diversity common heritage of mankind, concept of, 343 human rights, relevance to, 344 universalism, and, 598-599

Cultural heritage common heritage of mankind, concept of, 343 destruction of, 341-342 intangible, preservation of, 342-343 preservation of, 341 Customary international law decolonization, proof at time of, 117 instant, 118 norms of, 118 position of, 115 treaties, in, 115 de Vitoria, Francisco, 9-10, 13 Debts use of force for recovery of, 89 Decolonization advent of, 47-48 customary international law, proof of, 117 new States, emergence of, 158 period of, 18 Development human, conceptual construction of, 361-363 right to African Charter, in, 358-359 crystallisation as human right, 360-361 crystallisation as human right, lessons from, 364-365 elements of, 357-360 existing rights, reinforcement of, 359 formulation of, 357-363 human beings and peoples, perspective of, 358 market forces, and, 360 U.N. Declaration, 359 United Nations Development Programme, 361-363 Diplomatic and consular law basic considerations of humanity, 493509 Central America, in, 505-507 codification, 495-496 consular assistance, right to information on, 497-501 contemporary international practice, 501-507 foreigner under detention, rights of, 498 Hostages case, 494-495

Index humanization, 501-507, 643 IACtHR, Advisory Opinion of, 497-501 General Assembly, reference by, 501 impact of, 507-508 individual rights, opinio juris as to, 507 inter-State outlook, beyond, 493-495 Mexican nationals condemned to death in U.S., defence of, 503-504 trinational consular protection, Central American States forming, 505 universal international law, and, 495-496 Vienna Conventions, 493-494 Disarmament biological weapons, 411 categories of weaponry, abolition, 411 general and complete, endeavour towards, 410-413 humanity, basic considerations 401-428 nuclear age, in, 401 nuclear weapons. See Nuclear weapons treaties, 412-413, 418-419 U.N. Conference, 412 Doctrine humanity, basic considerations of, 398399 juridical conscience, invocation and assertion of, 153-156 scope of, 126 source of international law, as, 125-126 East Timor independent statehood of, 492 protection of populations, centrality of, 490-492 self-determination, 81 transitional administration of 489-490 Environmental law international, temporal dimension, 35 Environmental protection international, 171 Equity individualized expression of justice, as, 127 source of international law, as, 127 Erga omnes obligations actio popularis, emergence of, 320-322 breach, regulation of claims from, 453 common and superior interests, incorporating, 326

contemporary international law areas, in, 316 crystallization of, 318 emergence and scope of, 312-317 free exercise of rights. respect for, 319 general duty as to, 322 grave breaches of, 326 horizontal and vertical dimensions, 317-321 human beings, protection of, 318 human rights treaties, parties to, 315 humans and beneficiaries of, 325 ICJ case-law, 313-314 international community, owed by, 324 international law, presence in, 323 juridical recognition of, 641 jus cogens, and, 311 legal regime, 313, 315, 324 protected rights, respect for, 325 scope of, 316 self-determination, right to, 314 European Convention on Human Rights compulsory jurisdiction, 584 European Court of Human Rights admissibility requirement, 260 case load, 589 contentious jurisdiction, optional clause of recognition of, 573-575 convergence of case law with IACtHR, 588 European Convention on Human Rights, safeguarding integrity of, 581 filtering of cases, 259 individuals jus standi of, 269 locus standi of, 256-260 new, establishment of, 258 number of cases before, 259 provisional measures of protection, orders for, 45-46 State behaviour, setting standards of, 590 treaties, interpretation, 431-432 universalist principles, assertion of, 587 Eustathiades, Constantin, 228 Force, regulation of use of authorization ex post facto, 96 colonial situations, in, 69 condemnation of, 109

709

710

Index force, generating, 105 implicit authorization, 96 indiscriminate ending of, 88-89 primitivism of, 108 international community, view of, 91 international law, primacy of armed attack on Iraq, and, 87-88 belief in, 87-92 contemporary international law, as cornerstone of, 93-97 humanitarian assistance, provision of, 101 imperative of jus cogens, non-use as, 106-109 interventions in, 93 meaning and scope of term, 69-70 military technique, effect of improvement of, 105 peaceful settlement of disputes, and, 555-556 principle of non-use, crystallization and continuing validity of, 87-92 prohibition, 68-70 fundamental principle, as, 92 jus cogens, character of, 92 recovery of debts, for, 89 self-defence. See Self-defence States, unilateral recourse by, 174 threat of, 95 prohibition, 68-70 unwarranted, decivilizing effects of, 101-106 Geneva Conventions denunciation 445-446 derogation, prohibition, 221 grave breaches of, 385 Genocide condemnation of, 215, 277 Convention, 278, 385 application of, 298 special characteristics of, 395 Gentili, Alberico, 215 Grotius, Hugo, 214 Guggenheim, Paul, 229 Hague Conventions Martens clause, historical significance of, 150-152

Hesse, Herman, 47, 106 Human rights atrocities, 636-637 basic foundation of legal order, as, 308 cultural diversity, 598-599 relevance of, 344 declaration, Institut de Droit International debates, 154 development, to, crystallisation as, 360361 lessons from, 364-365 dignity of human beings, principle of respect for, 60 evolution of public international law, impact of law on, 500 framework, relevance of, 286 grave violations of, 277 absolute prohibition of, 323 criminalization of, 234-235, 369-372 international community, as concern of, 379, 389 reparations, 371, 380-383 State responsibility for, 368-369 systematic practices of, 376 human dignity safeguarding, 279 humanitarian law and refugee law, convergence of regimes American content, in, 516-518 basic considerations of humanity, 511-528 consolidated, 511-514 developments in, 525 Europe, in, 515 identity of purpose, 511 intensification of, 514-518 non-refoulement, principle of, 520524 norms, application of, 515 preventive dimension, 512 protection, law of, 525-526 uprootedness, contemporary problem of, 518-520, 527 inalienability, 60-61 individual petition, right of assessment of, 249 conditions governing, 249 European Convention, under, 250 inter-American system, in, 250-255 juridical nature and scope of, 247-251 inhuman treatment, meaning, 280

Index international law emergence and consolidation of, 47 emergence and development of, 150 specificity of, 433 international legal order, impact of law on, 233 international responsibility, 455-456 international supervision, 513 international tribunals case-law, evolution of, 38 individuals, access of, 247 duty of, 576 individual direct right of access African system, in, 264-265 developments in international law, 267268 domestic law antecedents, 266 subjective, 266 locus standi of individuals European system of protection, in, 256260 inter-American system of protection, in, 261-264 new outlook, 255 life, right to, 421 natural law, and, 225 norms, application of, 515 obligations, natural law outlook contribution to, 58 positive obligations of States, 320 post-war emergence of law, 400 preventive dimension, 40 protection of human person regimes, convergence of, 514-518 provisional measures, 43-45 treaties denunciation, 446-447 derogations, 433 domestic law norms, harmonization of, 460 effectiveness, principle of, 573 integrity, preservation of, 435 international supervisory organs, methodology of, 451 interpretation, 430-432, 449-451 limitations, 433 living instruments, as, 38-39 mutual reinforcement of, 590 object and purpose, consideration of, 579

obligations erga omnes partes, 315-317 petitions, mechanism of, 316, 320-321 procedural issues, 433-434 reservations, 440, 443-445 State responsibility, 460-461 State succession to obligations, 472476 substantive law, 434-435 supervision, methods of, 317 termination and suspension of operation, 448-449 uniform interpretation, 590 undocumented migrants, 239, 302, 317 Universal Declaration, 60 universalities, 598-599 World Conferences, 595-598, 601-602 Human security universal concern, as, 363 Humanitarian assistance basic needs of victims, and, 99 criterion for, 99 diversification of sources, 100 emerging right to, 97-101 enhancement, need for, 98 Humanity basic considerations of, 642-643 cultivation of, 399 diplomatic and consular law, in relation to, 493-509. See also Diplomatic and consular law disarmament, in relation to, 401-428. See also Disarmament human person, regimes of protection, 511-528 international case-law, illustrations of, 395-397 international legal doctrine, illustrations of, 398-399 law of the sea, and, 396 nuclear-weapon-free zones, creation of, 405-409 omnipresence of, 395-399 relevance of, 393-394 State responsibility, in relation to, 453-468. See also International responsibility state succession, in relation to, 469477. See also State succession territory, in relation to, 479-492. See also Territory

711

712

Index treaties, law of, 429-451. See also Treaties considerations of, 280-281 crimes against, 277, 284-285 grave nature of, 376 nuclear weapons, use of, 421 specificity, 375-376 war as, 630 fundamental principle of, 276-280, 284 rights of, 142 Humankind common law of mankind, 10, 285 creativity of, 159 crises and disasters affecting, 159 dignity of human person, principle of respect for, 279 fundamental unity of, 10 humanity, considerations of, 280-281 international law for, conceptual achievements, 291 meaning, 281 needs and aspirations, law fulfilling, 50 opinions for, 396-397 subject of international law, as, 350 emergence of, 640 capacity to act, 286-288 common and superior interests, perceptions of, 275-276 emergence of, 281-285 human rights framework, relevance of, 286 legal consequences of acknowledgement of, 286-288 legal representation, 286-288 whole, as, 24 world cultural patrimony of, 23-24 Indigenous peoples rights, recognition of, 238-239 Individuals attribution of duties to, 234-236 defence of rights by, 271 diplomatic protection of, 226 duties, as subject of, 229 final subject of law, as, 228 international access to justice, 236-239 international criminal responsibility, 235 affirmation and crystallization of, 370 determination of, 371

international responsibility of State, and, 367 reparations, 371 State responsibility, complementarity, 372-374 international criminal tribunals, before, 234 international human rights tribunals locus standi before European system of protection, in, 256260 new outlook, 255 right of direct access to African system, in,’ 264-265 developments in international law, 267268 domestic law antecedents, 266 subjective, 266 international instances of protection, access to, 230 international justice, rights of access lato sensu, 268-270, 272 international legal order alienation of, 221 attempted exclusion of, 217-219 presence and participation of, 220-224 international legal personality, 227 accountability, 232, 236 assertion of, 273 consolidation of, 235 forceful assertion of, 238 need of international community, as response to, 232-234 international procedural capacity, 226 international tribunals, access to, 243247 justice, right to obtain, 268-270 legal capacity, 640 defence of rights, for, 245 human rights tribunals, access to, 247 individual petition, juridical nature and scope of right of, 247-251 International Court of Justice, procedural capacity before, 244-245 international law experiments granting, 246 legal foundations of, 243-247 present domain of protection, in, 273 national society and inter-State society, contraposition of, 227

Index national tribunals, right of direct access to, 266 norms of international law, participation in elaboration of, 240 opinio juris communis, role in formation of, 222 own State, emancipation from, 251-255 rights and duties of, 226 subjects of international law, as, 165 consolidation of, 213 denial, past attempts, 221 direct exercise of rights, 231 emerging law of nations, of, 213-217 exclusion from international legal order, attempted, 217-219 historical significance of, 239-241 legal capacity. See legal capacity, above presence and participation of, 220-224 reconstruction of law in recognition of, 225 rescue of, 224-232 ultimate subjects of law, as, 237 victim, notion of, 271-272 Inter-American Court of Human Rights advisory procedure, 263-264 American Convention on Human Rights, safeguarding integrity of, 581 contentious jurisdiction, optional clause of recognition of, 573, 575-578 convergence of case law with ECtHR, 588 humankind, opinions for, 396-397 individual petition, right of, 250-255 individuals jus standi of, 269-270 locus standi of, 261-264 juridical conscience, invocation of, 153 jus cogens, case-law on, 299-309 provisional measures of protection, 264 orders for, 44-45 Rules of Court, 262-263 State behaviour, setting standards of, 590 universalist principles, assertion of, 587 victim, notion of, 271-272 International community erga omnes obligations owed by, 324 fundamental or superior interests, crime of State in relation to, 377-379 fundamental values of, 291-292

fundamental values, safeguarding, 276 grave violations of human rights, concern of, 379, 389 interests of, State responsibility, 453-456 needs and aspirations of, 208-211 objective law, guardian of, 282 State succession, general interests on, 471-472 universal values, 4 International cooperation duty of, 72 growth of, 196-200 International Court of Justice erga omnes obligations of protection, development of, 313-314 general principles of law acknowledgement of, 62-65 international legal system, as pillars of, 63-65 quest for justice, and, 62-63, 84-86 individuals, procedural capacity of, 244245 inter-State character, 245-246 international law applied by, 114 optional clause of compulsory jurisdiction acceptance of, 569-570 decline of, 572 effect of, 585 formula, 570 ideal and practice of, 568-572 origins of, 569 purpose of, 571 reflections lex lata, 572-579 States subject to, 571 provisional measures, indication of, 42-44 Statute, reference to sources of international law, 113-128. See also Sources of international law International crimes concept of, 378 international community, reaction by, 466 International Criminal Court compulsory jurisdiction, 584 Statute general principles of international criminal law, setting out, 608

713

714

Index individual international criminal responsibility, recognition of, 235 U.N. Conference on establishment of, 607-609 International criminal responsibility centre of imputation, 373 individual, of affirmation and crystallization of, 370 determination of, 371 international responsibility of State, and, 367 reparations, 371 State responsibility, complementarity, 372-374 International criminal tribunals establishment of, 210-211 individuals, judging, 234 international jus cogens, contribution to development of, 296-297 judicial decisions as source of international law, 124 juridical conscience, invocation of, 153 reflections de lege ferenda, 580 international custom creation of norms, 118 norms, proof of existence of, 117 proof of, 117 source of international law, as, 116-119 International environmental law common good of mankind, reference to, 339 common heritage of mankind, concept of, 339-344 commonness, new idea of, 340 cultural heritage, preservation of, 341343 Group of Legal Experts, report of, 344 instruments of, 340 Stockholm Declaration, 339 UNCED, 600-601 UNESCO Convention, 340-341 International humanitarian law armed conflicts, application in, 514 customary, survey of, 97 evolution of, 220 Geneva Conventions, Additional protocols, 75, 148 human dignity safeguarding, 279 human rights law and refugee law, convergence of regimes

American content, in, 516-518 basic considerations of humanity, 511-528 consolidated, 511-514 developments in, 525 Europe, in, 515 identity of purpose, 511 intensified, 514-518 non-refoulement, principle of, 520524 norms, application of, 515 preventive dimension, 512 protection, law of, 525-526 uprootedness, contemporary problem of, 518-520, 527 jus cogens, 59 Martens clause, historical significance of, 150-152 norms, application of, 515 respect for, requirement of, 420 universal common core, 97 victim-oriented, being, 59 International Labour Organization Constitution, 184 International law accelerated development and universalization of, 21 anticipatory nature of, 40 classic, expansion of, 25 codification and progressive development of, aim of, 627 areas of, 625 duration of Conventions, 627 evolution of, 629 German historical school, influence of, 629 historical perspective, 623-636 individual inability to resolve issues, disclosure of, 626 intermingling, 627 lessons and projections, 626-628 new impulse for, 624 sensitivity, need for, 632 systemization of discipline, 623 universal juridical conscience, moved by, 628-633 conceptual constructions, 640-642 contemporary challenge of, 636 contemporary trends, survey of, 19

Index contemporary, formation of, 113 domains of protection, preventive dimension of, 39-40 domestic law, primacy over, 461 evolution on twentieth century, 158 expansion function, of, 171 impact on States, 170-172 juridical recognition, 170 law of international organizations, by law of, 190-200 new areas of activity, 170 normative level, at, 170 scope of application, of, 170 subjects, of, 20 force, primacy over armed attack on Iraq, and, 87-88 belief in, 87-92 contemporary international law, as cornerstone of, 93-97 humanitarian assistance, provision of, 101 imperative of jus cogens, as, 106-109 foreseeability, degree of, 32, 34 formation, study of, 132-134 foundations, 637-639 abstraction of, 55 future, optimism as to, 3 growth of, 3 historical evolution, 32 human person and humankind, concerns of, 394 humanization of, 280, 291, 482, 591 process of, 635-637 inter-state dimension, 3 inter-State outlook, 15 jurisdictional immunities of States, 628 last three decades, in, 2 making of. See International law-making manifestations of, 113 normative system, as, 55 norms. See Norms of international law objective, relevance of, 26 obligation to conform to rules of, 19 pluralism and universalism, 22-24 primacy of, 629, 631 principles. See Principles of international law protection, law of, 525-526 reconstruction of, 633, 635

reconstruction, necessity, 157 sources. See Sources of international law spaces, regulation of, 35 subjects of. See Subjects of international law systemization of practice, 21 temporal dimension contents and effectiveness of norms, 38 incidence of, 34-36 intertemporal problem, 32 interpretation and application of law, 50 manifestations of, 34 new needs of protection, in face of, 36-39 passage of time, impact or influence of, 32 political realism, myopia of, 47-50 precisions and lessons, 31-34 present and future generations, common responsibilities to, 51 provisional measures. See Provisional measures of protection relationship with time, 31 World Conferences, presence during, 50 traditional, abuse of, 177 universal, development of, 623-633 universal jurisdiction, principle of, 383388 universalist conception of, 27-29 universality, 141-145 universalization, 36 progressive, 97 validity, acknowledgement of, 18 voluntary community of States, 16 International Law Commission areas of successful work, 624-625 basis for work of, 183 Draft Code of Offences against Peace and Security of Mankind, 284 establishment of, 183 international responsibility, work on, 188-189 reservations to treaties, work on, 441442 State responsibility, work on, 453-454 International law-making consent, role of, 134

715

716

Index international organizations, contribution of, 187 jus gentium, reconstruction of, 20-22 objective and subjective elements, 133 obligations, source of, 132 opinio juris, role of, 134-138 process of, 132-134 International legal order advent of international organizations, modification by, 181-182 common and superior values, 22 contradictory world, in, 595-599 human rights law, impact of, 233 individuals alienation of, 221 attempted exclusion of, 217-219 presence and participation of, 220-224 juridical minimum, 226 provisional measures. See Provisional measures of protection transformation of, 248 International legal personality expansion of, 165, 240-241, 280, 639-640 effect of, 271 individuals, of, 227 accountability, 232, 236 assertion of, 273 consolidation of, 235 forceful assertion of, 238 need of international community, as response to, 232-234 juridical category of, 233 new horizons, 177-179 non-State actors, of, 222 statehood, 165-167 States, of, 165 United Nations, of, 185 International legal systems assumptions, reconsideration of, 19 International organizations advent and growth of, 129 advent and multiplication of, 181 areas of work, 187 associate members of, 196 bilateral agreements between, 197 composition of, 194-196 constitutive charters, interpretations of, 187-188 contribution of, 187

corpus of international law, effect on, 181 decisions, externalizing, 187 expansion of international law by law of 190-200 ideal of realization of justice, and, 182185 international claims by, 196 international community, responses to needs and aspirations of, 208-211 international cooperation, fostering duty of, 198 international legal personality, 639 international legal personality and responsibility, expansion of, 185-190 international responsibility of, 188 law of, 35 legality of acts, regime of control, 207 matters within competencies of, 198-199 mutual obligations with member States, recognition of, 187 operation, expansion of, 204 opinio juris, ascertainment of, 191-193 politicization, 197 pressures exerted on, 197 progressive development of international law, contribution to, 206-211 projected reforms, 200-206 resolutions contents of 206-208 declaratory, 131 legal effects of, 206-208 recommendatory, 131 source of international law, as, 129-132 specificity, 130 subjects of international law, as, 165 structure of international legal order, modification of, 181-182 territories and regions as members of, 194 treaty-making capacity, 193-194 International political organs regime of control, 204 International practice scope of, 118 International relations democratization of, 223 International responsibility aggravated, 379 Articles on, 454

Index basic considerations of humanity, 453468 centre of imputation, 189 countermeasures, 454-455, 462 criminalization, 377 determination of, 389 evolution of law, 372 expansion of, 188 grave violations of human rights, for, 368-372 international community, general interests of, 453-456 International Law Commission work on, 188-189, 453-454 multiple aspects of, 453 objective, 298, 372 reparations, 371, 380-383 source of, 456 State, behaviour and conduct, obligations of, 460 birth of, 456-462 censorship, 461 competences, distribution of, 459-460 General Assembly agenda, on, 468 general recognition of, 458 human rights treaty, to, 460-461 implementation of, 462-464 international law, central place in, 467 origin of, 457-459 relevance of, 467-468 report on, 465 result, obligations of, 460 serious breaches of obligations, 464467 wrongfulness, circumstance precluding, 462 State and individuals, of, 367-369 coexistence of, 371 complementarity, 372-374 universal jurisdiction, principle of, 383388 States and individuals, of, 641 International Tribunal for the Law of the Sea provisional measures of protection, orders for, 46-47 International tribunals co-existence of, 587

criminal. See International criminal tribunals individuals, access by, 243-247 multiplication of, 587 realization of justice as international level, mission of, 588 universalist principles, assertion of, 587 Iraq intangible cultural heritage, preservation of, 342-343 Jaspers, Karl, 374 Judicial decisions source of international law, as, 123-124 Juridical conscience excesses of persons holding political power, limiting, 156 fundamental principles of international law, giving expression to, 157 international, 145-147 international case-law, invocation in, 152-153 international legal doctrine, invocation and assertion in, 153-156 international treaties, invocation and assertion in, 147-150 judicial proceedings, invocation in, 152153 Martens clause, historical significance of, 150-152 metajuridical, being, 160 recourse to, 158 universal, 147-149, 156-161 Jus cogens crimes of State, resisting, 305 foundations of, 150 general principle, 61 international humanitarian law, 59 international law case-law, 296-297 content of, 292-295 emergence of, 292-295 equality and non-discrimination, 302 evolution of, 322-323 evolving scope of, 295-299 Inter-American Convention to Prevent and Punish Torture, reference in, 296 law, right to, 303-309 manifestations of, 299

717

718

Index material content, expansion of, 299309, 323-324 new jus gentium, as pillar of, 310-311 primacy over force, 106-109 Vienna Convention, recognition in, 294 norms, importance of, 149-150 objective illegality, concept of, 298 peremptory norms, as, 278 prohibitions, jurisprudential development of, 300 scope of, 297-298 ultimate aim of, 275 universal conscience, expression of, 147-148 voluntarist conception of international law, and, 149 Jus gentium common law of humankind, as, 10 common principles, 9 emergence of, 10 emerging law of nations, association with, 11 evolving, legacy of, 11-14 historical emergence of, 9-11 ideal of universality, rescuing, 25 jus inter gentes, fragmentation into, 14-15 natural reason, approved by, 12 new, 4 ambit of, 27 basic considerations of humanity, 642-643 basic feature, identification of, 24-27 conceptual constructions, 640-642 construction of, 86 foundations, 637-639 international law for humankind, as, 637-644 jus cogens as pillar of, 310-311 spatial and temporal dimensions, 28 subjects of, 639-640 private law origins, 9 reconstruction, 20-22 universal, 10 universalist conception, 11 Jus inter gentes jus gentium, fragmentation of, 14-15 Justice

international level, access by individuals, 236-239 realization of, 369-372 imperative of, 184 international organizations, impact of, 182-185 search for, 179 right of access to, 303-309 standard of, 51 universal, 325 Kant, Immanuel, 102 Kelsen, Hans, 140 Kosovo protection of populations, centrality of, 490-492 transitional administration of 487-489 Lauterpacht, Hersch, 49, 228 Law of nations contributions to, 144 individuals and subjects of, 213-217 jus gentium, association with, 11 will of States, based on, 26 Law of the sea common heritage of mankind, 35 concept of, 331-336 humanity, basic considerations of, 396 international law, expression of, 328 international regulation, 35 International Seabed Authority, 333 seabed, exploration of, 333 universality of regime, 334 Law of the Sea Convention dispute settlement under, 534, 542 jurisdiction under, 584 States, rights and duties of, 199 Mandelstam, André, 226 Markets free, 28 Medication settlement of disputes by, 538-539 Migrants protection of, 509 undocumented exploitation of, 527 human rights of, 239, 302, 317 Multilateralism growth of, 196-200

Index Namibia pre-independence status, 195 Natural law basis of international law, as, 227 human rights, and, 225 justification derived from common character, 14 law of nations, importance for, 139 objective content, 139 re-birth, 135, 224 right reason, discoverable by, 12 Non-governmental organizations opinio juris communis, role in formation of, 222 treaty-making, role in, 223 Non-intervention principle of, 70-72, 80 Norms of international law application of, 87 customary, 118 elaboration of, individuals participating in, 240 erga omnes obligations. See Erga omnes obligations formation and application, individual role in, 224 formation, process of, 157 jus cogens. See Jus cogens peremptory, serious breaches of obligations, 464-467 principles, and, 65 universal acceptance of, 283 validity of, 135 Nuclear weapons Advisor Opinion on Threat or Use of, 416-418 compensation for injuries suffered, 425426 elimination, need for, 424 free zones, creation of, 405-409 illegality of, 413-424 indiscriminatory nature of, 419 non-proliferation, 410 prohibition opinio juris communis, 414, 418 U.N. General Assembly resolution, 420-421 repugnant use of, 152-153 specific prohibition, absence of general treaty of, 419

testing interim measures of protection, 415 key points at issue 416 psychological injury caused by 415 undefended cities, us against, 427 use of, 401 crime against humanity, as, 421 Opinio juris ascertainment of, 191-193 conception, emergence of, 137 formation of international law, role in, 134-138 formation, non-state actors in, 222 German historical school, thinking of, 137 principles of international law reflecting, 59 role of conscience in giving expression of, 631 scope of, 134-138 universal jurisdiction, as to, 385 Organisation of American States internal structure, 201 international conventions, 192 Outer space common heritage of mankind, concept of, 329-331 development of law of, 200 geostationary orbit, character and utilization of, 330-331 humankind, for benefit of, 329 international law of domain of, 329-331 expression of, 328 legal regime, formation of, 329-330 moral unity of human kind, developments reflecting, 283 peaceful uses of, 331 regulation of, 35 space objects, damages caused by, 330 Pacta sunt servanda principle of, 78-79 Palestine Liberation Organisations United Nations, observer status in, 195 Peace attainment, goal of, 401-404 coexistence in, right to, 354 Hague Agenda, 401-402

719

720

Index law of, 171-172 right to antecedents of, 355 construction of, 353 elements of, 353-355 formulation of, 353, 641 official recognition of, 356 recent developments in formulation of, 355-357 zonal initiatives for, 486 zones, creation of, 401-405 Peoples rights of, 83-84 Permanent Court of International Justice general principles of law acknowledgement of, 62-65 international legal system, as pillars of, 63-65 quest for justice, and, 62-63, 84-86 individuals, procedural cacapity of, 244245 optional clause of compulsory jurisdiction, 569 Statute drafting, 62 sources of international law, reference to, 113-128. See also Sources of international law voluntarist conception, 17-20, 33 Piracy universal jurisdiction, principle of, 384 Pluralism collective, 23 international community, origins of, 22-23 international law, of, 22-24 Political realism criticism of, 49-50 critique of, 48 myopia of, 47-50 permanent and inevitable reality, premise of, 48 pragmatism, 48 prevalence of, 50 regime of, 620 temporal dimension, oblivious of, 47 thoughtlessness of, 349 Positivism history of, 16 law against the codes, revolt of, 37

legal permanent and inevitable reality, premise of, 48 pragmatism, 48 temporal dimension, oblivious of, 47 limitations of, 229-230 material sources of international law beyond, 145-147 thoughtlessness of, 349 time, law independent of, 36 voluntarist fallacy of, 16-20, 33 general principles of law, position on, 86 Principles of international law basic abstraction of, 55 identification of, 56 specialized regimes, of, 56-57 States’ acts against, 178 contemporary doctrine, importance in, 65 equality of rights and self-determination of peoples, 72-73, 81-83, 85. See also Self-determination formulation of, 68-74 general foundations of international law, as, 121-123 full validity of, 638 legal culture, in. 56 position and role of, 56-59 quest for justice, and, 62-63, 84-86 source of, 86 Statute of Hague Court, acknowledgement by, 62-65 voluntarists-positivists, position of, 86 general content, 65 international cooperation, duty of, 72, 79 international disputes, peaceful settlement of, 70 international juridical conscience, as manifestation of, 55 international legal system, as pillars of, 63-65 international obligations, good faith in compliance with, 74, 79 interpretation and application of international law, shedding light on, 77

Index interrelationship between, 78 juridical equality of States, 85, 168 jurist, functions of, 61 non-intervention, 70-72, 80 norms, and, 65 operation of legal system on basis of, 58 opinio juris communis, identification of, 74-76 opinio juris, reflecting, 59 pacta sunt servanda, 78-79 sovereign equality of states, 73, 76 substratum of legal order, as, 59-61 sustained validity, 77-81 threat or use of force, prohibition of, 68-70 U.N., Charter, in, 66-67 U.N. Declaration, in currency of, 68 equality of rights and self-determination of peoples, 72-73, 81-83, 85. See also Self-determination formulation and adoption of, 66 formulation of, 68-74 fundamental, 67 general considerations, 65-68 historical perspective, 65-68 identification of opinio juris communis, as contribution to, 74-76 international cooperation, duty of, 72, 79 international disputes, peaceful settlement of, 70 international obligations, good faith in compliance with, 74 law-declaring resolution, as, 77 non-intervention, 70-72, 80 sovereign equality of states, 73, 76 Special Committee, 67 threat or use of force, prohibition of, 68-70 universal juridical conviction, as expression of, 75 universal importance, 78 universality of international law, and, 84-86 Provisional measures of protection binding nature of, 42 European Court of Human Rights, orders by, 45-46 expansion of, 41-47

historical transposition to international legal order, 41 human rights law, in, 43-45 Inter-American Court of Human Rights, in, 264 orders by, 44-45 inter-State litigation, transposition to, 42-43 International Court of Justice, indication by, 42 international jurisdictional guarantee, as, 41 international practice, in, 41 International Tribunal for the Law of the Sea, case-law of, 46-47 international tribunals, case-law of, 41 juridical nature of, 42 power of tribunal to indicate, 43-44 Recta ratio classic international legal thinking, of, 143-144 evolving jus gentium, legacy of, 11-14 lack or absence of, 143 meaning, 12 prevalence of, 141 Refugees Cartagena Declaration, principles in, 58 Central American, protection and assistance to, 513 Declarations on, 516-517 humanitarian law and human rights law, convergence of regimes American content, in, 516-518 basic considerations of humanity, 511-528 consolidated, 511-514 developments in, 525 Europe, in, 515 identity of purpose, 511 intensified, 514-518 non-refoulement, principle of, 520524 preventive dimension, 512 protection, law of, 525-526 uprootedness, contemporary problem of, 518-520, 527 international law of, 527 Latin America, protection in, 528 minimum protection of rights, 523

721

722

Index movement and norms of human rights, relationship of, 512 non-discrimination, principle of, 518 non-refoulement concept of, 298 imperative character of, 521 jus cogens character of, 520-524 preventive dimension, 521-522 principle of, 58 scope of, 526 rights of, 518-520 uprootedness, contemporary problem of, 518-520, 527 Vienna Declaration and Programme of Action, 513 Relativism historical, 50 Rolland, Romain, 103 Rule of law international, 644 national and international level, at, 614619 United Nations, and, 614-619 Scelle, Georges, 227 Security Declaration on Security in the Americas, 403-404 human, 403 Self-defence anticipatory, 95 permissible, 95 preventive, 94-96 U.N. Charter provision, 93-94 Self-determination consolidation of principle, 85 East Timor case, 81 emerging right of, 158 evolving principle of, 81-84 external and internal right of, 83 Geneva Conventions, Additional protocols, 75, 148 mandate system, 82 non-self-governing territories, applicability to, 84 right of, 72-73, 81-83 acknowledgement of, 481 crystallized, 483 exercise of, 483 rights erga omnes, 314

secession, and, 73 U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples, 82 will of people of territory, expression of, 481 Settlement of disputes, peaceful ad hoc solutions, search for, 547-552 American Treaty of Peaceful Settlement, 552 arbitration, 539-540 Cairo Protocol, 543 Commission of Jurists of OAS for Nicaragua, work of, 546-547 compulsory jurisdiction foundation of, 582 judicial decisions, 579 optional clause, 568-582 problem of, 531-533, 583 quest for, 582-585 reality of, 584 recurring need for, 582-585 reflections de lege ferenda, 579-582 reflections lex lata, 572-579 reservations and interpretative declaration distinguished, 578 resolution in favour of, 583 States subject to, 571 studies on, 575 conciliation, 535-536, 542-543, 565 Contadora, experience of, 549-550 current developments, 544-547 exhaustion of, 103 fact-finding, 535-536, 544-547, 557, 565 free choice of means, 558-559 general duty, 562 global level, at, 537 good offices, development of, 537 Guarantor States, experience of, 550-552 human rights cases, 564 institutional mechanisms, outside, 548 institutionalization, initiatives, 560-561 interaction of complementarity of means of, 533-540 interests of contending States, transcending, 564 international adjudication, 560 international adjudication, expansion of, 567-568, 580

Index international community, general interests of, 559-562 international cooperation, duty of, 565 international jurisdiction, growth of, 586-591 international level, at, 562 international practice, 535 international rule of law beyond, 567568 international rule of law, 644 justice, search for, 544-547 Law of the Sea Convention, under, 534, 542 League of Nations, advent of, 560 Manila Declaration, 561, 563 means, choice of, 562-564 mediation, 538-539 methods of, 35 efficacy of, 532-533 Montego Bay Convention, 541-542 multilateral treaties, in, 541-544 multiple instruments of, 531-532 negotiations and recourse to judicial settlement, 534-536 nuclear age, importance in, 566 OAS Charter, reform of, 553-554 OAU Charter, 544 Pact of Bogotá, 552 positive results, 548 presumption in favour of, 97 prevention, importance of, 560-561 principle of, 71 regional level, at, 537 responsibility and obligation, sense of, 566 rule of law on basis of, 562 prevalence of, 544-547 Special Committee of the United Nations, work of, 554-555 State voluntarism, vulnerability to manifestations of, 531 State voluntarism, beyond, 556-559 systemization, endeavours of, 552-555 Truth Commissions, 544-545 U.N. Charter, provisions of, 563 U.N. Security Council procedures, 532 use of force in international relations, renunciation of, 555-556

World Trade Organization, mechanisms within, 557-558 Slave trading universal jurisdiction, principle of, 384 Societas gentium unity of, 9 Sources of international law categorization of, 31 formal Article 38, in, 116-128 classic theory of, 134 consideration of, 638 doctrine, 125-126 equity, 127 general considerations, 114-116 general principles of law, 121-123 inadequacy of, 136 insufficiencies of, 139-141 international custom, 116-119 international organizations, resolutions of, 129-132 judicial and arbitral decisions, 123-124 law-making going beyond, 638 treaties, 119-121 unilateral juridical acts of States, 128129 hierarchy of, 115 international practice, scope of, 118 material human conscience, 141-145 legal positivism, beyond, 145-147 recta ratio, 141-145 relevance of, 139-141 universal juridical conscience as, 159 natural law, 139 new outlook, 133 non-exhaustive enumeration of, 116 PCIJ and ICJ Statutes, Article 38, 113-115 treaties and custom, positions of, 115 Spontaneous law school of, 136 State responsibility. See International responsibility State sovereignty concern for securing, 146-147 denial of existence, 390 restrictions, 17 spectre of, 390 treaties, relationship with notion of, 119-120

723

724

Index State succession basic considerations of humanity, 469477, 643 contexts of, 469-471 distinct moments of, 469-471 Hong Kong, in respect of, 472 human rights obligations, continuity of, 472-476 international community, general interests of, 471-472 international practice, 476 Vienna Conventions, 469, 471 Yugoslav, 471, 473 States acts against principles of international law, 178 domestic jurisdiction determination of matters within, 176177 erosion of, 172-177 international practice, 176 League of Nations Covenant Article 15(8), 172 matters within, 172-174 objections of, 177 U.N. Charter, clause of 173-174 emergence of, 170 emancipation of individuals from, 251255 existence of, 166-167 expansion of international law, and, 170-172 force, unilateral recourse to, 174 identity and continuity of, 482 independence, 168 international legal personality, 165-167 international responsibility of, 188 juridical equality of, 85 juridical equality, 168 monopoly on conduct of international relations, loss of, 198 new, emergence of, 158 personification of, 15 personification, beginning of, 217 politically-emancipated, emergence of, 170 preconditions for, 165 rights and duties of, 167-169 riparian, rights and duties of, 169 self-preservation, right of, 168

sovereign equality of, 73, 76 statehood basic criteria for, 482 prerequisite of, 479-482 recognition, 165-167 unilateral juridical acts, 128-129 voluntary community of, 16 will of, 291 Suárez, Francisco, 10, 13, 214 Subjects of international law expansion of, 639-640 human person as, 639 humankind as, 276-288, 350, 640 individuals. See Individuals international organizations, 165, 182-211. See also International organizations personality. See International legal personality persons or entities being, 222 Tanaka, Kotaro, 229 Territory basic considerations of humanity, 479492, 643 changes, effect of, 481 concept of in traditional international law, 479 integrity, duty to respect, 479-480 mandate system, under, 482 non-self-governing, 482-484 respect for, 479 transitional administration of development of, 486 East Timor, 489-490 historical precedents, 486-487 Kosovo, 487-489 protection of populations, centrality of, 490-492 trusteeship, under, 480, 482 zonal initiatives for peace, and, 486 Torture crime of, definition, 434-435 Inter-American Convention to Prevent and Punish, 296 international juridical regime prohibiting, 300-301 Toynbee, Arnold, 105 Treaties basic considerations of humanity, 642 codification conventions 121

Index corpus of general international law, provisions in, 120 denunciation of, 642 considerations, 445-448 effects, 447 Geneva Conventions, of, 445-446 human rights treaties, 446-447 human rights. See Human rights individuals and non-governmental organizations, role of, 223 international custom found in, 115 international law, forming, 25 international organizations, capacity of, 193-194 interpretation general remarks, 429-433 human rights treaties, 430-432, 449451 international law, 430 procedural issues, 433-434 substantive law, 434-435 juridical conscience, invocation and assertion of, 147-150 law of, basic considerations of humanity, 429-451 notions of State sovereignty, relationship with, 119-120 position of, 115 pre-existing custom, position as to, 116 reservations collegial system for acceptance of, 441 considerations, 435-445 dissatisfaction with, 438 human rights treaties, 440, 443-445 ILC work on, 441-442 lists of, 438 multilateral treaties, 438 object and purpose of treaty, incompatible with, 436-438 objective determination, 443 periodic review of, 442 present system of, 437 regional treaties, 439-440 wide scope, of, 436 settlement of disputes, 541-544 source of international law, as, 119-121 specialized U.N. agencies, of, 157 termination and suspension of operation 448-449 United Nations Series, 120

Vienna Convention, 78, 120-121, 557 second, 193-194 U.N. Economic and Social Council (ECOSOC) facilities, broadening of, 183 UNESCO Constitution, 185 dialogue between civilizations, fostering, 23 United Nations Charter authentic interpretations, 192 basic principles in, 66-67 domestic jurisdiction clause, 80 domestic jurisdiction clause, 173-174 international law, reference to, 183 interpretation by U.N. organs, 205 interpretation, competence for, 175 non-member States acting in accordance with, 210 preamble, 633 principles of international law, expression of, 77 self-defence, article on, 93-94 collective action, enhancement of, 612 Conference on Disarmament, 412 Development Programme, 361-363 economic and social domain, attention to, 636 financial crisis, 205 Food and Agriculture Organization, request for membership by EEC, 208209 full membership, 196 High Level Panel, report of, 202 Human Rights Council, 202-203 implied powers, doctrine of, 186, 188 individual petitions, system of, 246 internal structure, 201 international criminal tribunals, establishment of, 210-211 international legal personality, objective, 185 law, perspective of, 190 members, relationship with, 175 Millenium Declaration, 202, 610-616 normative production of, 191-192 peace operations, 210-211 Peacebuilding Commission, 202-203

725

726

Index permanent representative, non-State entities having, 195 projected reforms, 200-206 rule of law, and, 614-619 security, attention shifting to, 403-404 Security Council, authorization of use of force, 96 social agenda, 206 specialized agencies bilateral agreements between, 197 normative production of, 191-192 treaties of, 157 strengthening, 614 threats and challenges, High Level Panel to study, 611 treaty event, 616 Treaty Series, 120 World Conferences challenge addressed in, 622 cycle of, 595 developmental and environmental considerations, 600 Environment and Development, on, 600-601 Establishment of International Criminal Court, on, 607-609 final documents, 595 Human Rights, on, 595-598, 601-602 Human Settlements, on, 606-607 issues, 621 legacy of, 595, 599-614, 645 message of, 621 Millennium Summit, 610-614 Population and Development, on, 602-603 Racism, Racial Discrimination, Xenophobia and Related Intolerance, against, 609-610 Social Development, Summit for, 603605 spirit of epoch, 597-598 transformation of epoch, 596-597, 619, 645 universal dialogue and concert, generation of, 619-620 Women, on, 605-606 world scenario for, 595 World Summit Outcomes, 203, 613-614 Universal jurisdiction cases in which applied, 384

International Criminal Tribunal for the Former Yugoslavia, case-law of, 387 legal reasoning in support, 386 non-applicability of statutory limitations, 388 opinio juris communis, 385 principle of, 383-388 self-amnesty laws, and, 388 Universalism international law, of, 22-24 Verdross, Alfred 146 War Briand-Kellog Pact, 354 crime against humanity, as, 630 illicit act, condemnation as, 171 inutility, 105 law of, 171-172 preventive, 96, 101, 104, 109 renunciation as instrument of national policy, 89-91 superior interests of international community to protect, 155 twentieth century, in, 106 War crimes universal jurisdiction, principle of, 384 Weapons of mass destruction condemnation of, 421-422 illegality of, 427-428 prohibition, opinio juris communis, 414 proliferation, avoidance of, 404 threat of, 402 undefended cities, us against, 427 Wolff, Christian, 215-216, 325 World Trade Organization dispute settlement mechanism, 557-558 Zweig, Stefan, 105, 349-350

THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS

1. 2. 3. 4. 5. 6.

Ian Brownlie, The Rule of Law in International Affairs: International Law at the Fiftieth Anniversary of the United Nations, 1998 isbn 90 411 1068 2 Shabtai Rosenne, The Perplexities of Modern International Law, 2004 isbn 90 04 13692 4 Theodor Meron, The Humanization of International Law, 2006 isbn 90 04 15060 9 Symeon C. Symeonides, The American Choice-of-Law Revolution: Past, Present and Future, 2006 isbn 90 04 15219 9 Arthur T. von Mehren, Adjudicatory Authority in Private International Law: A Comparative Study, 2007 isbn 978 9004 15881 8 Antônio Augusto Cançado Trindade, International Law for Humankind Towards a New Jus Gentium, 2010 isbn 978 9004 18428 2