GENERAL INTRODUCTION

The humans right according to Rene CASSIN, are defined « as a particular branch of social sciences which has the aim of studying the relationship between the men according to human dignity, by determining the rights and faculties whose whole is necessary to the blooming of the personality of each human being »^1(*). On the other hand for Yves MADIOT, « The object of the humans right is the study of the rights of the person recognized at the level national and international and which- in a certain state of civilization- ensure the conciliation enters, on the one hand, the assertion of the dignity of the person and her protection and, on the other hand, the maintenance of law and order »^2(*). Lastly, according to the constitutional dictionary, the humans right are «  rights of the individual seized in his abstracted universal gasoline, they are conceived like former and higher than the substantive law in order to being the standard of its validity and the limit fixed at the legitimate capacity of the State »^3(*).

Compared to the substantive law, the doctrines retain that the humans right in their current dimension would have developed by stages. With each one of those would correspond to a certain type of identified right, obvious mark of their progressive evolution.^4(*)

Formulated overall and in their universal dimension at the end of XIIIe century, the humans right were almost exclusively civil laws and political, those which aimed at ensuring it « freedom », while allowing the men to release itself from the constraints and the limitations of Ancien Régime feudal ; they are them « rights of freedom ». Appeared under the socialist and Christian inspiration with the Mexican revolution and especially the Russian Revolution, the humans right were to make it possible to the men to become equal, in the their grateful economic rights, social and cultural : it is about « rights of the equality ».

The first generation, that of the civil laws and political^5(*) contains rights attributes of the human person, rights which are, essentially opposable to the State whose they suppose initially an attitude of abstention so that they can be respected.

The second generation of the humans right who is that of the economic rights, social and cultural^6(*), contains the rights of credit on the State and the Nation as a community and international organized, rights which are thus exigible from the State to be able to be realized.

The rights of the third generation as for them are new, because the aspirations which they express are new under the angle of the humans right aiming at making penetrate the human dimension of which it missed too often up to now, being abandoned in the State ; it is of the development, peace, the environment, and the common inheritance of humanity and the humane assistance in the event of human distress. The rights of the third generation finally are opposable at the State and exigible from him ; but especially (and it is their essential characteristic there) they can be to realize only by the conjunction of the efforts of all the actors of the social play : the individual, the State, public and private entities and international community. Their recognition supposes that there is a minimum of social consensus at the national and international level, so that an action interdependent founded on the recognition of an interdependent responsibility, can be undertaken for their realization. Rights of freedom, right of the equality, right of fraternity and solidarity : such are the three generations of the human adventure.

Thus, the need for taking care that the humans right are protected by a legal status, was underlined by the United Nations since the development of the Universal Declaration of the Humans right^7(*) and guided UNO in its activities of promotion and protection of the humans right. The preamble to the Charter of the United Nations proclaims the faith of the people in the basic human rights, the dignity and the value of the human person, in the equality of humans right and of the women. The goals and objectives of the Charter contained in articles 1 and 2 go in the same direction, these provisions are made more explicit with the article 55c which declares than the United Nations aim « the universal and effective respect of the humans right and of fundamental freedoms for all, without reference of race, sex, language or religion ». As almost all the human problems have an aspect which interests the humans right, all the principal bodies of the United Nations approach in a way and the another question of the humans right.

During this study, we will dwell too long primarily on the way in which the International Court of Justice (CIJ) approaches the problems of the humans right. But above all, it will be necessary for us to make a short outline of the CIJ.

Contrary to Court permanent of justice international (CPJI) which was juridically independent of the Company of the Nations (SDN), the CIJ is the principal legal body of the United Nations^8(*) instituted by the Charter whose organization, competence and operation are regulated by a Statute annexed to the Charter of the United Nations and whose mission is on the one hand, to settle in accordance with the international law the disagreements between the States which are subjected to him, on the other hand to give advisory opinions on legal questions which are asked to him by the international bodies qualified to this end.

If the International Court of Justice is bound by provisions of its Statute annexed to the Charter, it is on the other hand the author of its own payment, which fixes in particular the procedure. It can constantly, if it considers it necessary to make modifications^9(*) to the payment in accordance with article 30 of its Statute.

With regard to the procedure in front of the CIJ, there are two of them : contentious procedure and consultation procedure.

In the contentious procedure^10(*) , only the States can ester before the Court, this one can know of a disagreement only if the States in question accepted its competence of the one in the three following ways :

- Under the terms of an agreement (compromised) concluded between them with a precise aim to submit their disagreement to the Court^11(*) ;

- Under the terms of an arbitration clause^12(*) , one also speaks about conventional clause of jurisdiction established like precondition to the sasine of the CIJ^13(*).

- By the declaration of acceptance of the obligatory jurisdiction, the jurisdiction of the CIJ remains optional and the States must accept its competence so that it can rule. « The States left with the Statute can, at any moment, to state to recognize like obligatory automatically and without special convention, with regard to any other State accepting the same obligation, the jurisdiction of the Court »^14(*).

Like source of the applicable duty^15(*), the Court applies :

- International Conventions establishing of the rules expressly recognized by the States in litigation ;

- The international habit like proof of a general practice, accepted as being right ;

- Court orders and doctrines of the most qualified publicity agents various nations.

Contrary to the contentious procedure, the consultation procedure is not opened in the States, only the international organizations have access there. Article 96 of the Charter of the United Nations provides that apart from the General meeting^16(*) and of the Security Council^17(*), can also ask an opinion the Court, any body of UNO and any specialized agency^18(*) which would have been authorized there by the General meeting. This authorization was rather liberally granted, except notable for the Secretary General of the United Nations.

The advisory opinion is not a legal measure. Not having the obligatory force of the stop, it is analyzed like a decision, an opinion of the Court, intended to light the body which consults it. In practice, the advisory opinions generally are essential because of their moral authority. They contain with the surplus one of the components of any legal measure, namely the observation of the right in force. As, the opinions are placed on the same plan as the stops in the determination of « jurisprudence » of the Court. It can occur that advisory opinions acquire obligatory force, but because of a particular legal base. Such a result can be reached by « the acceptance of the opinion by the interested States^19(*). Their obligatory force can also rest on a constitutional basis^20(*).

After this short presentation of the missions and competence of the International Court of Justice, it should be stressed that this one plays an important part as for the pacification of the international company. On the other hand as regards the humans right, the Court it plays only one incidental part because the States hesitate to subject the dispute to him relating to it, taking into account the political connotation which characterizes the disagreements relating to the humans right.

Thus for better determining our study relating to the International Court of Justice and the problems of the humans right, we will consider initially the framework of the study (I), in which we will examine the interest of the subject, the problems and the assumptions. Then, we will see the control of the study (II), which will enable us to work out a review of literature, a methodological process and to adopt a scheme of work.

I- TALLY OF THE STUDY

To tally the study is to set up the elements which enable us to circumscribe it. These elements turn around its interest (A) and of its problems (B).

A- INTEREST OF THE STUDY

This interest is at the same time social (1) and scientist (2).

1- Social interest

This study comprises a social interest in the direction where the humans right are rights available to all the people, under the terms of their human condition to live free in dignity.

The fact even human being confers rights, with the man, thus the humans right concentrate on the value of the people having the right to expect to enjoy certain freedoms and certain forms of protection.

John LOCKE for example thought that the protection of the private laws could ensure the protection of the common good, people having the right to protect itself and to respect this same right at the others^21(*).

The social interest within the framework of this work is manifest in the direction where, the company is regarded as being the receptacle and the field of application of all the implications which can rise from the decisions of the States, the international organizations and the international jurisdictions in particular here the International Court of Justice.

The Court, can be brought to come to a conclusion about a demand for indication of academies measurements of a State left to the litigation, when this one is confronted with massive violations of the humans right, which can cause irrevocable injuries^22(*). The life and the activities of the populations thus remain related to marked of the international judge vis-a-vis the humans right.

2- Scientific interest

The scientific interest here supposes the contribution of this study in the world of science and research, with regard to the problems of the humans right before the International Court of Justice. This study makes some proposes to consider the role that the Court vis-a-vis the questions of the humans right plays. It is a question for us of initially examining the scientific step, then the legal reasoning and finally the legal assessment of the Court when it is brought to come to a conclusion about the problems of the humans right.

Indeed, it is interesting to note within the framework of this work that the International Court of Justice which, at the end of article 92 of the Charter of the United Nations, is the legal body « the main thing » (and nonsupreme) of UNO (and not of the international company), plays a role determining as regards the protection of the humans right.

B- PROLEMATIQUE AND ASSUMPTIONS

The definition of the problems (A) induces that of the assumptions (B).

1- Problems

The International Court of Justice which is the principal legal body of the United Nations had the occasion on several occasions to come to a conclusion about aspects touching with the humans right. It did it by advisory way^23(*) , but also by contentious way^24(*) . If jurisprudence accredits the idea that the standards relating to the humans right from now on are more integrated into the general international law^25(*), it does not remain about it less than the international judge, by « legal prudence » undoubtedly to tendency to identify say them standards by themselves or their wording, but at all by their source^26(*).

Therefore, no stop or opinion of the International Court of Justice comprises assertion express in favor of the membership of the principles relating to the protection of the humans right, either with the common law, or with the category of the general principles of right^27(*). In addition, it should well be been appropriate that the standpoint of the jurisdiction of The Hague is made conspicuous especially by their generic character. This is why the essential question that we will consider within the framework of our study is that of knowing how is what the International Court of Justice approaches the problems of the humans right? Therefore, we then will reflect on the effectiveness of its action in comparison with the universal protection of the humans right, and finally we will consider the means of improving its intervention as regards the humans right.

2- Assumptions

Within the framework of the problems of the humans right, the International Court of Justice plays an incidental part, taking into account not only the missions which are assigned to him by its Statute and the Charter of the United Nations, but also because of the political implications which the disagreements of the humans right cause. Indeed, the role of the Court is that to interpret the international law and the practice of the States in the event of disagreement. What means that the Court does not have a competence specialized as regards the humans right.

has - Principal assumption

Although it intervenes in an incidental way, the International Court of Justice plays a determining part as regards protection of the humans right taking into consideration the international law and practice of the States.

b- Secondary assumptions

· At the time of its interventions, the Court worked out certain constraining standards in favor of human dignity to knowing : the juice cogens, the obligations erga omnes or elementary considerations of humanity.

· The Court intervenes efficiently with the pacification of the international company and the emergence of the new fields of international law like the right to the environment and of the right to health.

II THE CONTROL OF THE STUDY

Our study will be undertaken through a review of literature (A), a methodology (A), and a beforehand definite plan (C).

A- THE REVIEW OF THE LITERATURE

The International Court of Justice, body legal principal of the United Nations, has a general and universal competence to know the litigations between States. It has of this fact competence to rule on the problems raised by the respect of the humans right in times of peace as in the event of wars. In addition its decisions are final and obligatory for the parts and the Security Council holds of article 94 of the Charter authority to ensure the execution of it. But it is quite rare that a State voluntarily agrees to see disputing its action in the field of the humans right. It is also rare that a State disputes in front of the judge the behavior of a State in similar field. It results from it that the Court hardly had the occasion to rule on such behaviors in the device of its judgments and to try to rectify them^28(*).

At the time of its interventions as regards the humans right, the Court often bases itself on the core of the activity of the United Nations to knowing the international Charter of the humans right consisted the universal Declaration of the humans right adopted on December 10, 1948 by the General meeting, the two Pacts of 1966 and the optional protocol annexed to the Pact relating to the civil laws and political. In addition to these fundamental texts, there are also many protective conventions of the humans right^29(*). However, the International Court of Justice was not satisfied only with the Texts existing, it also launched out in the development of certain standards relating to the humans right. There is initially : the juice cogens. For Serge ON, the juice cogens « conduit, under the badly defined conditions, at least with the nullity of the treaties, and can be with particular forms of international responsibility. Beyond the particular subjects, it aims at as a whole protecting the interest from the international community of the States, of which it proceeds. But it is not alone to take into account »^30(*). Then, the Court devoted the obligations erga omnes which are essential with regard to all the States. Francesco SALERNO estimates that « the Court for a long time recognized that the duty of repair rises like corollary from any violation from an international obligation. It does not seem that the obligations erga omnes make exception at this point »^31(*). It adds that « the legal function of the Court does not relate to only the complaints of the States left to the procedure but also contributes to affirm the effectivity of the international standards concerned »^32(*). Lastly, within the framework of the humane right the Court devoted the elementary principles of humanity ; Pierre Marie DUPUY, thinks that « the new reference made by the Court to these elementary considerations of humanity thus proves the remanence of a reference to this concept undoubtedly as fertile as ambiguity since it is not always known if it indicates a source of right or if it remains only one legal extra inspirer of the judge. The analysis of its jurisprudential occurrence, though relatively rare, appears at all events justified by the fact that its considerations are not taken into account, in all assumptions, that at the time of the invocation by the Court of rules for which it intends to stress the extreme importance and the need for seeing them applied by all »^33(*). Always in the field of the humane right, Vincent CHETAIL was very clear in his article entitled : « The contribution off the international international Court off justice to humanitarian law »^34(*). This article indeed, evaluates the contribution of the International Court of Justice to the humane international law. The author thinks that the International Court of Justice contributes to highlight the fundamental values of the community that the international community expressed in the humane international law. Its jurisprudence represents an essential contribution, because, on the one hand, it clarifies the relation between the humane international law and the general international law, and on the other hand, it specifies the contents of the fundamental principles of the humane international law. The article examines the judgments and advisory opinions of the Court and evaluates perception that this one has complex relation between the treaties of humane right, the rules usual and the juice cogens.

In a general way, « it should be recognized that the law of nations is concentrated more on the human problems and is thus worried directly individual interests which are committed there, it is normal that he grants to the individual a considerable place in the technical mechanism of his realization. One has the right to suppose that, in a form or in another, its intervention will become more frequent and more active there "^35(*). It is necessary to note by-there an increase in the normative activity of the International Court of Justice as regards the humans right. And, « with regard to the number of the humans right on the which Court had the occasion de' to decide, it goes without saying that the access to the Court limited to the States, its jurisprudence particular could not, essentially, develop in an abundant way. Nevertheless the Court was obliged to discuss some subjects which, nowadays, gained or found, because of the international events, their pressing topicality ; let us quote for example the right of the minorities, the prohibition of racial discriminations or the discussed sector of the humane intervention ». ^36(*)

B- METHODOLOGY

1- Method of analysis

The methodological process that we chose in the development of this work is the research-action. This method is not a simple methodological misadventure of traditional sociology, it expresses on the contrary a true transformation in the manner of conceiving and of making research in social sciences. It is a research inside which there is an action deliberated on the transformation of reality, but more especially to produce knowledge to carry out these transformations.

The research-action can be defined with Benoît GAUTHIER like « a method of research, which makes the actor enquiring, and who directs research towards the action and which brings back the action towards the considerations of research »^37(*). On the other hand, Louis LEWIN defines research action « while referring to three components, namely research, the formation and the action »^38(*). The research-action leads to a new inscription of the researcher in the company, by the recognition of one competence in the search of expert of the social one. Accordingly, it agrees to enquérir place of the man in nature and the action organized to give him direction. It is defined then in his relationship with the complexity of the human life taken in its dynamic totality and does not deny oneself in front of the relation unknown which the finitude of any existence discovers to him.

The research-action integrates in its logic theoretical specificities of sciences anthroposociales and the various systems of sensitivities and intelligibility suggested by the cultures of the world. Accordingly, the researcher cannot be defined any more simply as a sociologist or a social psychologist. In its practice, he is a sometimes sociologist, social psychologist, philosophical, historian, economist, inventor or militant. He discovers the areas of the knowledge of a thought galiléenne accepted in his meaning plenitude. The researcher plays a professional part in dialectical which unceasingly articulates the implication and the distance, affectivity and rationality, symbolism and the imaginary one, the mediation and the challenge, science and art, trainer and trained. The researcher is neither agent, of an institution, neither an actor of an organization, nor an individual without social membership, on the other hand it accepts these various roles at certain times of its action and its reflection. It is at the same time autonomous and an actor of its practice and its speech.

This method of research-action will enable us to plan in a clear way without anything to leave randomly, all the legal implications which rise from the role of the International Court of Justice as regards the humans right, in order to give place to a thorough study of the intervention of the International Court of Justice.

2- Techniques of investigation

The techniques of investigation return in the practical conditions of collection of information. We chose in the development of this work with two techniques of research to knowing : the information retrieval and maintenance.

· The information retrieval

The information retrieval consists in excavating in the works and various publications like the reviews or the newspapers : texts of law, elements of doctrines and jurisprudence which make it possible to encircle and to tame the object of a study. This type of research is realizable in the libraries and the research and studies centers. We chose this technique, because it tallies perfectly with the object of our study. It is simply a question for us of examining the reasoning and the contribution of the Court when this one is confronted with the problems of the humans right. Thus, for better encircling the object of this study, our attention will be focused on the texts, the doctrines and the decisions of the Court as regards the humans right. The information retrieval proceeded in the libraries of the Catholic Institute of Yaounde and the APDHAC^39(*), which together have about ten thousand works in their data bases.

· Maintenance

The various talks concerned the lawyers in a general way, and a particular way, the teachers and researchers in international law. It is generally acts of individual talks semi-directing lasting on average an hour. The choice of semi-directing maintenance is explained by the fact why it is maintenance procedures which are neither entirely open, nor channeled by a great number of precise questions. It made it possible to let come inquired so that this one can speak openly, in the words which it wishes and in the order which is appropriate to him. We simply endeavoured to center maintenance on the objectives of research each time our person interviewed deviated some, in order to ask him questions to which it did not manage to answer the most suitable moment, and in a way as natural as possible. It was sometimes necessary to turn over to see the people interviewed for a further information.

C- JUSTIFICATION OF THE PLAN

Our study starts with an introduction into which present we the framework and control of it. The framework enabled us to locate this study in its context, the control indicates to us in addition how it will be carried out.

The choice of a plan with two parts answers a preoccupation of harmonization of the ideas and especially with a coherence of the analyzes. It is indeed logical within the framework of this work, to initially consider the role of the International Court of Justice as regards the humans right, before appreciating the contribution of its interventions.

Indeed, it is after having elucidated and clarified the role if not the contribution of the Court, that one will be able to appreciate the relevance of his interventions, or the implications which result from this on the international law in general, and in particular on the States and the international organizations.

The first part is primarily analytical, it analyzes the step of the interventions of the Court in its incidental role as regards the humans right, on the basis of the standards which it worked out. On the other hand, the second part is much more critical ; it is based on the effectivity and the implementation of the principles worked out by the Court, but also on the incidences which rise from the use of these principles. From where :

First part : the role of the CIJ as regards the humans right ;

Second part : the evaluation of the role of the CIJ as regards the humans right.

FIRST PART : THE ROLE OF THE INTERNATIONAL COURT OF JUSTICE AS REGARDS THE HUMANS RIGHT

The International Court of Justice is not a Court of the humans right to the current direction of the term, the private people cannot show the States before the Court due to violations of the humans right.

Nevertheless, a certain number of businesses raised important questions relating to the humans right, and gave place to decisions of the Court which made date.

Thus, the International Court of Justice which has as a role to interpret the international law by the means of the International Conventions and the practice of the States, has at the time of its interventions as regards the humans right, elaborate certain standards known as imperative (Chapter 1), and others in favor of human dignity (Chapter 2), within the framework of the protection of the humans right.

CHAPTER I : The INTERVENTION OF the CIJ AND

DEVELOPMENT OF the IMPERATIVE STANDARDS

The International Court of Justice in the interpretation of the international law worked out certain imperative standards which apply today as regards the humans right to know the standards of juice cogens (section 1), and the obligations erga omnes (section 2).

SECTION I : DEVELOPMENT OF the JUICE COGENS STANDARDS

The development of the contemporary international law takes into account today several standards worked out by the International Court of Justice, it acts for example here of the juice cogens. This standard which is the subject of doctrinal debates since the XXe century, remains still disputed nowadays. Thus, we will consider here the contents of the juice standard cogens (paragraphe1), before analyzing its implementation by the Court, within the framework of the protection of the humans right (paragraphe2).

Paragraph 1 : Contents of the juice cogens standard

For better determining the concept of juice cogens, we will examine initially his dedication (A), then its determination (B).

A- Dedication and contents of the juice cogens standard

The juice cogens can be regarded as the legal device (concept of imperative standard) being used as document in proof for cancellation of a treaty or some of its provisions, i.e. for the invalidation of an international legal document at a rate of its illicit object.

Devoted in 1969 to the conference of Vienna on the right of the treaties, the concept of juice cogens is vague on the legal level, even if article 53 of the Convention of Vienna tries to give him an official definition. According to this article : « Null is very treated which, at the time of its conclusion, is in conflict with an imperative standard of the general international law. For purposes of this Convention, an imperative standard of international law is a standard accepted and recognized by the international community of the States as a whole as a standard which no exemption is allowed and which can be modified only by one new standard of international law having the same character »^40(*).

The juice cogens is universal and applies to the profit of all the members of the international company, it acts of a kind of international law and order, i.e. the defense of a general interest which is essential on the particular interest States.

The Convention of Vienna of 1969 does not enumerate in an exhaustive way the cases of juice cogens in its articles. However, the Commission of international law limited itself to give of them some examples, we will mention some without taking account of an order preferably or hierarchical, there is for example :

- certain principles of humane right

- the principle of non-intervention,

- the sovereignty of the States,

- the respect of the word given (principle pacta sunt servanda),

- the peaceful payment of the disagreements,

- the respect of the diplomatic and consular right,

- illiceity of the genocide, slavery, the draft and piracy,

- the principle of the responsibility and compensation for the damage caused with others,

- the autonomy of the will of the States and contractual freedom in conformity with the international law,

- the respect of the minimum standard in the treatment granted the abroads.

The juice cogens striking of nullity all the treaties which are not subjected to it, and article 64 Convention of Vienna of 1969, lays out that if a new standard of general international law occurs, very treated existing which is in conflict with this standard becomes null and does not have any more a legal force. It should be recognized that the Convention of Vienna of 1969 crystallizes a mode of nullity which existed already at the internal level.

Indeed, the various legal orders intern apply two types of nullity as regards contract : absolute nullity and relative nullity. Absolute nullity on the other hand sanctions the serious illegalities which affect the general interest and disturb the law and order, relative nullity, strikes the violation of the rules posed with an only aim of protecting the contractors as private people.

According to the traditionally allowed opinion in doctrines, the international order would be unaware of this distinction between relative nullity and absolute nullity. Any nullity would be relative there because the principle of the effectivity would play there the part of a general process, cover and irregular situation in the beginning which profited from a durable application. These doctrines appear confirmed by the jurisprudence which abstained from striking absolute nullity an award sullied with abuse of power or of violation of compromise, irregularities however serious which it would have been of public interest to sanction severely^41(*).

The authors of the Convention of Vienna let themselves influence neither by this practice, nor by these doctrines. They cumulatively retained these two types of nullity by assigning with each one a precise field of application and by determining the differences in mode, which relate to the possibility of making play the principle of divisibility and of agreeing to the irregularity for the State victim, and on the right to call upon the vice one which sullies the treaty. Thus by relative nullity all the irregularities of the assent other than are sanctioned the constraint, i.e. the non-compliance with the constitutional procedures^42(*), the error^43(*), the fraud and the corruption of the representative of a State.

Absolute nullity as for it relates to for example the constraint exerted on the person of the representative of the State^44(*), or the treaties vitiated by the constraint exerted on the State^45(*).

Paragraph 2: The CIJ and the implementation of the juice cogens standard

We will consider in this part the implementation of the juice cogens standard by the International Court of Justice (A), before noting that this setting works residence a hesitant practice (B).

A- The implementation of the juice cogens standard by the CIJ

Without using the term of juice cogens, the International Court of Justice decided for the first time on this concept in a stop of February 5, 1970, by affirming that « an essential distinction must in particular be established between the obligations of the States towards the international community as a whole and those which are born with respect to another State within the framework from diplomatic protection. With their nature even, the first relate to all the States »^46(*).

Last nine years later, the Court adds in an ordinance of December 15, 1979, « that no State has the obligation to maintain the diplomatic relations or consular with another States, but what under no circumstances would it miss recognizing the imperative obligations which they comprise and who are now codified in Conventions of Vienna of 1961 and of 1963 to which Iran and the United States left »^47(*).

The consultation of the jurisprudence of the International Court of Justice, makes it possible to note that there exists, among the humane legal provisions to which a usual range is recognized of long date, of the principles equipped with a particular authority. Thus in the business relating to the military and paramilitary activities in Nicaragua and against this one (Nicaragua against the United States, bottom)  ; the Court considered that « the behavior of the United States could be to appreciate according to the basic general principles of humane right whose, in his opinion, Conventions of Geneva constitute in certain connections the development and which in certain connections they do nothing but express »^48(*).

Indeed, the International Court of Justice estimates that the principles of the humane international law contained to article 3 commun run with Conventions of Geneva « intransgressibles principles of the usual international law constitute »^49(*).

In that, it takes again the general observation n° 24 of the Committee of the humans right according to whom « the provisions of the Pact which represent rules of the usual international law (a fortiori when they have the character of imperative standards) cannot be the subject of reserve »^50(*). The role thus is seen that the International Court of Justice as regards the humans right plays, in the transformation of the contemporary international law, this role contributes to forge standards of international law in which the values of justice and humanity precede. This role also contributes to the integration of the States in a community of membership ; work of professor Rene Jean DUPUY magistralement showed that this community of membership is humanity^51(*). Humanity as a community of membership fits moreover in the current evolution of universalization and allows to reach with the universalization of the humans right.

The man must be able to be protected where that it is and the States have for this reason, from the particular obligations. From these particular obligations rises for example « interest to act » that each State for the safeguarding of the basic rights has of the human person. The interest to act before the International Court of Justice was the subject of a jurisprudence abundant, but not always constant. Indeed, November 4, 1960, Ethiopia and Liberia deposited a request before the Court, requiring a judgment of the policy followed by South Africa in the African western South (under mandate). They were the two only African States which before were members of the Company of Nations (SDN). In its stop of December 21 of the 1962, the Court reaffirmed the recognition « of a crowned mission of civilization falling on the Company as an organized international community and its members »^52(*). The legal recourse, initiated by a member of the SDN constituted the ultimate means of protection against the violations of provisions of the mandate. The Court stated itself qualified to know disagreement at the bottom. But four years later, it declared «that the applicants could not be like having established the existence with their profit a right or legal interest with the glance of the object of these requests ; consequently, the Court must refuse to take action pursuant to it. By the casting vote of its president (Sir Percy Spender), the voices being shared, the Court decide to refuse the applications of the Empire of Ethiopia and the Republic of Liberia »^53(*). The Court recognized that all the nations could have an interest with the achievement of the crowned mission of civilization, but that it would not be about legal interest, constituting the base of an action in front of it.

This completely negative conclusion constituted a watershed, blocking in an absolute way the interest to act before the international Court, for any State in connection with the protection of the people under mandate. But the contribution of the Court towards the broadest possible protection of the humans right will not stop, in spite of the decision of 1966.

Indeed, in one of its observations most famous and most important about the protection of the basic rights for the States, the Court declared that « considering the importance of the rights in question, all the States can be regarded as having a legal interest so that these rights are protected ; the obligations in question are obligations erga omnes »^54(*).

B- Hesitant practice of the juice cogens standard

In its advisory opinion on the admissibility of the threat or the use of the nuclear weapons, the Court took care to avoid coming to a conclusion about the recognition of the juice cogens character, while at the same time it insists on fundamental, cardinal and intransgressibles principles. The Court notes that it was constant that these humane principles and legal provisions belong to the juice cogens, but it affirms that it « does not have to come to a conclusion about this point »^55(*). However, in his declaration, President Bedjaoui considers that « he is not doubt... that the majority of the principles and rules of the humane right... form part juice cogens »^56(*).

To solve the misunderstandings as for the difficulty in identifying a standard like imperative, article 66 of the Convention of Vienna stipulates that in the event of disagreement concerning the application or the interpretation of articles 53 and 54, and if it is not regulated within twelve months from the day when it is noted, very part « can, by a request, to subject it to the decision the International Court of Justice, unless the parts do not decide by mutual agreement to subject the disagreement to the arbitration »^57(*). Michel VIRALLY estimates for its part, that there are great practical difficulties of application of the juice cogens, because this one « do not constitute (...) natural right. It evolves/moves according to the situation socio-history of the international company and the amendments to the political, ethical, ideological designs which are referred to it. In other words, the juice cogens standards are standards of substantive law »^58(*).

The effects of the inaccuracy of the juice cogens standard involved, of many controversies thus for example, France did not adopt the Convention of Vienna on the right of the treaties in opposition to the introduction of the juice cogens. According to the French delegate, « he is not thinkable, to admit the existence present and to come from a supreme law and to attach effects as serious to him as to involve the ab.initio nullity of the international agreements, without defining the substance of this rule of substantive law, the conditions of his development and the control of his application »^59(*).

In spite of a certain ambiguity and a hesitation in the implementation of the juice cogens standards, it should be noted that those are of a capital range in the direction where, two characters are clean for them : in first, the juice cogens rules are all prohibitory ; in the second place they have a strong ethical connotation insofar as the juice cogens tends to make higher certain values. These characters are fundamental since they contributed without any doubt, with the progressive acceptance of the idea that there exists in contemporary international law of the standards which, being of imperative and nondispositive nature, are placed above the will of the States. The evolution in favor of the existence of juice cogens rules is certainly irresistible, because it answers a need for the international world of today : the promotion of the values morals, like those of solidarity and human dignity, by making respect of certain fundamental obligations by each one of the States, the business of all.

The concept of juice cogens invests, the judge enonciator of social ethics, a magistrature either only technical but also moral, « the Court judges the right, and can take account of the moral principles only insofar as them a sufficient form were given. The right says one, answers a social need, but it is precisely for this reason which it cannot answer it that within the framework and inside the limits of the disciplines that it constitutes »^60(*).

The judge does not say only any more the right, because it affirms at the same time the elementary etic requirements of the Community life. All the ideological load contained in the right originating and derived from the United Nations encourages it to recall their duties to the States and one includes/understands whereas the Court inclines to take some height compared to the official conduits, vis-a-vis the inconsistencies of the practice of the ideologies or the competition of the interests.

The assertion of the juice cogens place indeed the judge in the middle of a contradictory tension enters, on the one hand a company still entirely attached to the subjectivism of sovereignties, competitors, having spontaneously built a system of contingent standards and dérogeables, and, on the other hand the introduction within this system of an objective right per definition, marked by the imperativity of its social need^61(*).

The International Court of Justice, while using of the juice standard cogens, not only limit the sovereignty of the States, but renders also service to the international community, the Court serves the interests of humanity : those of the Man and all the men^62(*).

SECTION II : OBLIGATIONS ERGA OMNES

The obligations erga omnes are a legal corpus of standards which have an effect forcing and which apply with regard to all the States. We will show initially the characteristics of the obligations erga omnes (paragraphe1), before considering their applicability (paragraph 2).

Paragraph 1 : Characteristics of the obligations erga omnes

The International Court of Justice marked a decisive step in the protection of the humans right, by devoting the obligations erga omnes. In this paragraph, we will define the obligations erga omnes (A), before seeing their extent (B).

A- Definition

The international law always recognized the concept of « right erga omnes », even if the expression were seldom used. For example, the Coastal states always have a right erga omnes to a certain width of territorial sea. All the States have a right erga omnes to make sail in open sea of the ships beating their house. However, these rights give rise to purely bilateral relations of responsibility if they are violated by another State. The concept of obligations erga omnes has distinct and broader implications.

The obligations erga omnes were devoted for the first time in a stop of February 5, 1970^63(*) of the International Court of Justice. The Court in this decision declared in substance that the obligation to respect a certain core lasts of the humans right - of which rise in particular from the setting out the law of the acts of aggression, the genocide, the principles and rules concerning the basic rights of the human person, practice of slavery and racial discrimination- corresponds to an obligation erga omnes, and which this obligation falls in any State with respect to the international community as a whole.

In the business of the Application of Convention on the genocide (preliminary exceptions), the Court, after having quoted a passage of its advisory opinion in the business of the Reserves to Convention on the genocide, declared that « the rights and the obligations devoted in Convention are rights and obligations erga omnes »^64(*). This observation contributed to the conclusion according to which its competence rationae temporis concerning the request was not limited to the moment from which the parts became dependant inter by convention.

It is necessary to acknowledg that the opposability of the obligations erga omnes in the States beat in breach voluntarism and the interetatism, the lawyer cannot that to note the passage to the superetatism even if it is only implicit, empirical and fragmentary.

B- Contents and wide

The existence of the treaties producing of the effects, not only with regard to some Non-member states, but still with regard to « all States » is not contestable any more. Indeed, article 36 paragraphe1 of the Convention of Vienna on the right of the treaties lays out that «a right is born for a Non-member state of a provision of a treaty if the parts with this treaty hear, by this provision, to confer this right is at the third State or a group of States to which it belongs, that is to say in all the States, and if the Non-member state agrees to it. The assent is supposed as much as it there with step of contrary indication, unless the treaty does not have which it differently »^65(*). But, it should all the same be recognized that the International Court of Justice by devoting the existence of the obligations erga omnes, took care to warn the States against an extensive interpretation of this concept, it declares for example that « on the universal level, the instruments which devote the humans right do not recognize quality in the States to protect the victims from these rights independently of their nationality »^66(*). This means can be that the field of the obligations erga omnes does not coincide completely with that of the humans right, or can be acts it simply of an observation concerning the terminology actually used in the treaties of general nature relating to the humans right. That's no problem, that at the time when the International Court of Justice made this statement, the interest to act with regard to the obligations erga omnes was limited only to the level of the regional instruments, it should be noticed is the example of the European Convention of the humans right who authorizes each State left with Convention to carry felt sorry for against any other State contracting, at a rate of the violation of Convention without regard of the nationality of the victim.

Today, it is certain that each State is allowed to complain and to ask the sanction in the event of violation of an obligation erga omnes. Indeed, the Court in its opinion of May 28, 1951 affirms that « in such a convention, the contracting States do not have clean interest ; they only have and each one, a common interest, that to preserve the higher ends which are the raison d'être of convention. It results from it that one would not know, for a convention from this type, speech of advantages or individual disadvantages of the States, either that of an exact contractual balance to maintain between the rights and the loads »^67(*). In this opinion, the request addressed to the Court on the basis of obligation erga omnes, blames the obligations interdependent^68(*) of the States. These bonds remain however enclosed in the particular characteristics of the international legal procedure. For this reason, the principle of assent as titrates competence (principle of consensual jurisdiction) remains impossible to circumvent. That was recalled in the business of Eastern Timor^69(*), in which the Court refused to rule on the bottom, whereas Portugal had taken advantage of the right to self-determination of the local population. Although it is about an opposable right erga omnes, the Portuguese request had obliged the Court to make a decision on an allegedly illicit act of Indonesia which had not left to the authority.

Paragraph 2 : The applicability of the obligations erga omnes

With regard to the applicability of the obligations erga omnes, we will consider initially the extent of their implementation (A), before examining the implementation in the event of recourse to the force (B).

A- Extent of the implementation

The International Court of Justice carries an interest particular to applicability or the implementation of the obligations erga omnes.

In the business relating to the Application of Convention for the prevention and the repression of the crime of genocide, the Court declares that « being finally the territorial problems involved in the application of Convention, the Court will note that only the relevant provision on this subject, article VI, are satisfied to provide that the marked people of the one of the acts prohibited by Convention will be translated in front of the courts of competent jurisdiction of the State on the territory of which the act was made ... (...). It results from it that the rights and obligations devoted by Convention are rights and obligations erga omnes. The Court notes that the obligation that in thus each State to prevent and repress the crime of genocide is not limited territorialement for Convention »^70(*).

The extension of the applicability of the obligations erga omnes is manifest also in the recent opinion given by the International Court of Justice on : « Legal consequences of the construction of a wall in the occupied Palestinian territory »^71(*).

In this opinion, the Court considers that the obligations erga omnes violated by Israel are the obligation to respect the right of the Palestinian people to self-determination as certain obligations which are them his under the terms of the humane international law.

That moreover, considering the importance of the rights and obligations in question, the Court thinks that all the States are obliged not to recognize the illicit situation rising from the construction of the wall in the occupied Palestinian territory, including inside and on the circumference of Jerusalem-Is. They are obliged also not to lend assistance or assistance to the maintenance of the situation created by this construction^72(*). It in addition rests on all the States to take care, in the respect of the Charter of the United Nations, and the international law, so that he is put an end to the obstacles, resulting from the construction of the wall, with the exercise by the Palestinian people of its right to self-determination. Lastly, all the States left with the Convention of Geneva relating to protection the civil people in times of war, of August 12, 1949, have the obligation, in the respect of the Charter of the United Nations and the international law, to make respect by Israel the humane international law built-in in this Convention^73(*).

B- The implementation in the event of recourse to the force

Indeed, the principle of nonthe intervention devoted in article 2 § 4 of the Charter of the United Nations, brings into play the right of any Sovereign state to lead its business without external interference ; although the examples of attacks to the principle are not rare, the Court estimates nevertheless that it forms integral part of the usual international law. It declares that « between independent States, the respect of territorial sovereignty is one of the essential bases of the international reports/ratios »^74(*).

The massive violation of the humans right causes initially the revolt and requires to answer urgently. And these are only once the healed wounds that one can consider the establishment of the political conditions suitable to guarantee the humans right. It is this double track which the action of the international community borrows while answering the humane requirement initially, then with the democratic requirement. But here, it is primarily the humane requirement which interests us.

Indeed, the International Court of Justice judged that « the supply of a strictly humane help... could not be regarded as an illicit intervention »^75(*). On the other hand, it judged that « if the United States can... carry their own appreciation on the situation of the humans right to Nicaragua, the use of the force could not be the suitable method to check and ensure the respect of the humans right »^76(*).

Thus, the armed intervention, was it of humanity, in order to carry help to the nationals of the State where the intervention takes place, cannot be allowed in contemporary international law « whatever deficiencies present of the international organization »^77(*).

The Court in the business of the Strait of Corfou, estimates that the alleged right of intervention can be considered only like the demonstration of a policy of force, policy which, in the past, gave place to the most serious abuses and which could not find any place in the international law. The intervention east can be less acceptable still in the particular form than it would present here, since held by the nature of the things in the most powerful States, it could easily result in distorting the administration of international justice itself.

Actually, any State intervening which uses of the recourse of the force, must especially be entitled to act as this direction by a Council Decision of safety which precisely fixes the limits and the control of their actions. Because the massive violation of the humans right melts from now on the competence of the Security Council under chapter VII of the Charter of the United Nations^78(*).

Thus, apart from a given conventional system, the scarcity of the international practice does not make it possible to affirm that the common law is definitively established with regard to the implementation of the obligations erga omnes, nor especially that it could relate to any type of violations.

CHAPTER II : The INTERVENTION OF the CIJ IN FAVOR OF HUMAN DIGNITY

The concept of human dignity indicates an ideological evolution of the international company and its legal kind which results from the progress of the interdependence and which is changing the international law. « It is obvious that it is an increased conscience of the human dignity which is with the base of the movement of proclamation and protection of the humans right on the international level, in particular after the horrors of the second World war. The international texts on the matter are more explicit remainder in this respect. »^79(*).

The International Court of Justice by devoting the concept of humanity or elementary considerations of humanity, refers indeed, with the common interests of all the men, with the universal good common and the existence of a more interdependent international community. Rules of humanity and reinforcement of protection on the practical level of the individuals and the populations within the framework of the action inter official ; these rules reveal the cardinal importance which the protection of the basic rights must have of the human person and the rules of the humane right in the interetatic relations, and they contribute, by doing this, to concretely guarantee the compliance with the fundamental rules of humanity in all circumstances.

Thus, we will consider the elementary considerations of humanity (section 1), before examining their impact in academies measurements, which also tighten they to protect human dignity (section 2).

SECTION I : ELEMENTARY CONSIDERATIONS Of HUMANITY

Our will examine initially in this section, the humane character of the legal provision (paragraph 1), before considering the range of the concept of elementary considerations of humanity (paragraph 2).

Paragraph 1: Humane character of the legal provision

Here, we initially will define the elementary considerations (A), before examining their contents (B).

A- Definition and dedication

The International Court of Justice was brought to take part in the field of the humane right just a few years after its creation, that initially appeared with the business of the Strait of Corfou in which the Court affirmed the existence of « certain principles general and recognized, such as the elementary considerations of humanity, more absolutes still in times of peace that in times of war »^80(*). It deduced from it that Albani should have made known the existence of a minefield in the Strait of Corfou and « to inform the British warships, at the moment when they approached, of the imminent danger to which this minefield exposed »^81(*).

The considerations of humanities are a whole of background information which tighten with the protection of the fundamental needs human being (life, physical integrity, to be well, etc...). These considerations are likely to influence the interpretation and the application of international legal provisions, for example in the right of the war like in the humane right.

The elementary considerations of humanity thus evoked will be it again in several other decisions of the Court, for example in the stop of May 24, 1980 concerning the diplomatic and consular Personnel from the United States in Teheran^82(*), or at the time of the mining of the ports of Nicaragua by the United States^83(*). In this last business, the Court estimated that not only the behavior of the States can be appreciated according to the basic general principles of the humane right, but still that article 3 commun run with four Conventions of Geneva of August 12, 1949 states certain rules having to be applied in the wars not presenting an international character. It added that these rules also constitute, in the event of war international, a minimum independently of those more elaborate which come to be added to it for such conflicts. It thereafter condemned the United States to have produced and spread among the forces « countered » a handbook of guerilla encouraging to make contrary acts with the principles thus pointed out.

However, it sied to recognize that « the right of The Hague is not the only one to be thus inspired by principles or elementary habits of humanity. It shares this privilege with the right of Geneva, at least concerning article 3 commun run with four Conventions of Geneva of August 12, 1949 »^84(*). Ten years after the stop of 1986, the Court, on the request the General meeting, gave an opinion on July 8, 1996 on the admissibility of the use of the nuclear weapons by a State in a war. The Court in this opinion lengthily analyzed the applicable humane right in the event of war to conclude that the use of nuclear weapons would be generally contrary with this right, but that in the current state of this right, it could not decide on the assumption or the survival even of a State would be in question.

B- Contents of the elementary considerations

In the advisory opinion of July 8, 1996, the Court recalls that the control of the military operations is subjected to a whole of legal regulations limiting in particular the choice for the belligerents the means of harming the enemy. Is proscribed in particular, the use of the weapons which would be appropriate so that the Court does not call any more them « basic general principles of the humane right », as in the species 1986, but, in a similar way, « cardinal principles  contents in the texts forming fabrics of the humane right ». It identifies these principles, this time independently of Convention VIII of The Hague as in 1949, or article 3 commun run with four Conventions of Geneva of 1949, as in 1986, but by reference to the Declaration of Petersbourg Saint of 1868 and to the additional Payment with Convention VI of The Hague of 1907, concerning the laws and habits of the war on ground^85(*).

The Court, this time Ci, identifies « cardinal principles » like consistent in protection of the population and the goods of civil nature and in prohibition to cause superfluous evils with the combatants. However, it does not leave it there. As it had done into 1986 in connection with the four Conventions of Geneva from which it recalled that the denunciation did not cause to draw aside the obligations under the terms of the principles of the law of nations such as they result from the uses established between civilized nations, of the laws of humanity and of the requirements of the public conscience, the Court connects in 1996 them « cardinal principles » under the clause of Martens. It is in this context particularly emphatic that one will find them « considerations », but this time in the following terms : « it is undoubtedly because a great number of rules of the humane right applicable in the wars are so fundamental for the respect for human dignity and elementary considerations of humanity (...) that Convention IV of The Hague and Conventions of Geneva profited from a broad adhesion of the States »^86(*).

Paragraph 2: The range of the elementary considerations of humanity

The elementary character of the considerations often carries to confusion as for their hierarchisation within the standards of international law, but a thing is sure, they have an effect erga omnes in the direction where they apply with regard to all the States. However, acting to know if they are dependant on juice cogens standard, the answers are diversified according to cases'.

The Court declares that « generally, indeed, the considerations are indeed always treated like legal sources of obligations. They incorporate they same the general international legal provisions whose common denominator is the obligation to respect the human dignity of the human person, but whose concrete applications, generally defined in relation to other general international legal provisions (principles or habits) can be individually defined, according to the circumstances of each species »^87(*).

The elementary considerations of humanity in any case are very generally called upon by the International Court of Justice, to indicate imperative standards, because according to it, they are « absolute »^88(*), they are then « minimal »^89(*) and finally they are « intransgressibles »^90(*).

The considerations are in any event, of the general international legal provisions not leaving article 38 of the Statute of the CIJ. The judge will be able by of inspired, in particular to avoid being vis-a-vis a situation of nonliquet which distorts it observation of a violation of the international law will be able to generate^91(*). The Court often calls upon the considerations in order to indicate to the States concerned which they could not escape the application from the regulations from right which are contained there or rising directly from their application. These rules provide to the judge the legal inspiration enabling him to underline if need be the fundamental character of a legal provision or precise obligations which result from this.

« Included/understood well and balanced well, the use by the judges of « elementary considerations of humanity » can thus constitute one of the means allowing him to achieve as need, this work of adequacy between the ethical principles, the rules legal which incorporate them and a concrete appreciation of the control of the States ; without it being granted for so many the normative capacities of which it is deprived ». ^92(*)

As a whole, concept of humanity to which is built-in them « considerations », indicates not only the solidarity and the interdependence of the people, it adds to it also a transtemporelle dimension, by including the generations passed, present and future. The international community, said professor Jean Rene DUPUY, is a current concept, humanity a concept transtemporel^93(*). The recourse to the concept of humanity encourages indeed, like suggested it Pierre Marie DUPUY, to imagine legal and institutional formulas of positive internationalization in which will be entrusted to a body representing the interests of humanity the capacities necessary. Creation of the international penal courts and on all the international penal Court is a confirmation of this positive internationalization.

SECTION II : ACADEMIES MEASUREMENTS AND CONSOLIDATION OF the CONSIDERATIONS Of HUMANITY

Modern justice requires that any litigation be distinct within a reasonable time, but that is not always possible for several reasons. Thus, like the adjective « academy » indicates it clearly, academies measurements are intended to prevent that the rights of each part to the disagreement are compromised throughout authority. They make it possible to freeze the situation so that the International Court of Justice can return its decision of court. Indeed, in certain cases of massive violations of humans right, or in the event of frontier conflict between two States ; in the absence of academies measurements, the situation on the ground would be likely to be modified by an armed intervention. Then the war solves the problem and the Court is put in front of an accomplished fact : it is with an aim of avoiding these problems which the States ask of academies measurements or which the Court enacts them itself, « landlord motu ».

We will consider here, the impact of academies measurements in the protection of the humans right (paragraphe1), before approaching their application (paragraph 2).

Paragraph 1: Impact of academies measurements in the protection of the humans right

We will define initially measurements academies (A), before examining their request for indication by the States (B).

A- Definition of academies measurements

Academies measurements are a legal technique making it possible to sterilize the situation between two parts and to avoid an aggravation of the litigation. According to article 41 of its Statute, the Court can indicate « if it estimates that the circumstances require it, which academies measurements of the right of each one must be taken on a purely provisional basis ». Thus in its ordinance of December 15, 1979, relating to the business of the diplomatic and consular Personnel from the United States in Teheran, the Court considers that : « the persistence of the situation which is the subject of the request exposes the human beings concerned to deprivations, a fate painful and distressing and even to dangers to their life and their health and consequently, a serious possibility of irrevocable damage, the Court with the need for indicating academies measurements »^94(*).

To know the extent of the circumstances which can require the indication of academies measurements by the Court, we will refer to his own jurisprudence in the business of Competence as regards fisheries : « considering that right for the Court to indicate academies measurements, envisaged with article 41, of its Statute, with for object to safeguard the rights of the parts while waiting for that the Court returns its decision, that it presupposes that an irrevocable injury should not be caused with the rights in litigation in front of the judge and that no initiative relating to litigious measurements must pre-empt the judgment of the Court »^95(*).

Thus, it is necessary thus to indicate academies measurements when the behavior of a part is likely to cause an irrevocable injury with the rights in question, that is to say to undertake on the decision to come. It is finally by preoccupations of humanity and a safeguard of human dignity that the International Court of Justice indicates academies measurements. Indeed, it is seldom that the Court remained of marble or confined in dumbness, when there is on behalf of the belligerents to the litigation, the violations serious, massive and repeated humans right, or in the event of war violent one.

However, the decision of the Court as regards academies measurements « do not prejudge of anything competence Court to know the bottom of the business and leaves intact the right of the defendant to put forward his means to dispute this competence »^96(*).

B- The demand for indication of academies measurements

Apart from the action of the International Court of Justice, academies measurements come from a demand for indication of the one of the parts in litigation. Indeed, according to article 73 of the Payment of the Court, this request can be made by one of the parts constantly of the procedure, in writing. It relates to the business to engage before the Court. It must indicate « the reasons on which they are based, possible consequences of its rejection and requested measurements » (article 73 Al 2 Payment). This request is examined before any other business and can require an emergency procedure to rule (article 86 Payment). It is the Court which decides then (article 41 Payment). If the Court does not sit, the President can take the ordinance necessary to face the situation. When the Court estimates that the circumstances require it, it with the faculty of its own chief, to indicate measurements academies landlord motu ; even if the CPJI nor the CIJ did not use of provision 41 of the Statute of the Court which does not oblige that this one either seized by such requests. In practice of the Court, the regulation of academies measurements generally intervenes at the request of the parts.

Having for object, in particular to prevent the extension or the aggravation of the disagreement, academies measurements can be different from those which are requested, or be even imposed on the part whose the request emanates. The Court has a discrétionnaire capacity to prescribe or refuse academies measurements^97(*).

It is starting from the examination of the circumstances carried to its attention that the Court decides. In the business of the disagreement frontier (Burkina Faso/Republic of Mali) the ad hoc room had shown not only the existence from a capacity, but also from one « to have of the room... to indicate academies measurements contributing to ensure the good administration of justice »^98(*).

Paragraph 2 : The application of academies measurements

We will study here implementation of measurements academies (A), before considering their range (B).

A- The implementation of academies measurements

From the start, it should be said here that the implementation of academies measurements by the States in conflict is not often effective. Within the framework for example of the business of the military and paramilitary Activities in Nicaragua^99(*), Nicaragua requires the protection of the rights which are reached by the acts of the United States : support « with the mercenaries » and resort direct to the force or the threat of use of the force. Three series of rights are thus called upon, whose holders are respectively the citizens, the State and the people of Nicaragua :

- Civil right Nicaraguan to the life, freedom and safety ;

- Right of Nicaragua constantly to be protected from employment or the threat from the force on behalf of a foreign State ;

- Right of Nicaragua to sovereignty ;

- Right of Nicaragua to lead its business and to decide questions concerned with its internal jurisdiction without interference nor intervention of an unspecified foreign State ;

- Right of the Nicaraguan people to self-determination.

The United States as for them tried to show, without convincing the Court, that the indication of academies measurements would be inappropriate. Their thesis rests entirely on the idea that the conflicts in Central America are the subject of an attempt at payment within the framework of the process of Contadora, and thus the bilateral judicial action would be likely to compromise the prospects for this negotiation. At all events, the Court left itself not influenced by the American argumentation. The existence of a risk, which is sometimes difficult to establish, concerns the obviousness here, in this business the condition is not setting, the facts speak about themselves. The Court estimates that the facts pled by Nicaragua are sufficiently established for the needs for the indication of academies measurements : among all evidence, the official declarations of the American authorities, which are expressly mentioned, appear to have determined the conviction of the Court.

The Court had the occasion to interpret Convention on the genocide for the second time by two demands for indication of academies measurements of the government of Sarajevo. The Court indicated such measurements by ordinances of April 8 and September 13, 1993^100(*). It raised in substance that when Convention on the genocide is applicable, it is not necessary to seek if the reproached acts were made or not during a war intern or international. It added that the obligation that has each State to prevent and repress the crime of genocide according to Convention is not limited territorialement, while recalling that Convention gives competence only to the courts of the territorial State to continue the presumed authors such crimes. It has finally to specify that this instrument made it possible to still engage the responsibility for a State not only on the assumption that this State would have missed with the obligations prevention and of repression envisaged with the text, but if it would have perpetrated itself the crime of genocide.

In the business relating to the Convention of Vienna on the consular relations (Paraguay C. the United States of America)^101(*), Paraguay asked for an indication of academies measurements the International Court of Justice. In the request of Paraguay, it is indicated that into 1992 the authorities of the State of Virginia stopped a Paraguayan national, Mr. Angel Breard, who had been shown, considered, declared guilty of genocide and had been condemned to the capital punishment by a jurisdiction of Virginia in 1993, without to be informed of these rights under subparagraph B of the §1 of article 36 of Convention of Vienna^102(*) ; It is specified that, among these rights, appear the right for the interested party to ask that the qualified consular station of the State to which it is amenable be informed of its arrest and its detention, and its right to communicate with the known as station ; It is also pled that the authorities of the State of Virginia do not have an advised advantage the qualified Paraguayan consular civils servant of Mr. Breard, and those were able to provide him an assistance only since 1996, when the government of Paraguay A learned by its own means that Mr. Breard was imprisoned in the United States.

The Court points out in its reasoning^103(*) that the order of execution of Mr. Breard was given for April 14 and it notes that such an execution would make impossible the adoption of the solution required by Paraguay and would thus carry an irrevocable damage to the rights asserted by this one. Taking into account the above-mentioned considerations, the Court concludes that the circumstances require that it indicate academies measurements urgently, in accordance with article 41 of its Statute.

One year after, the Court was to rule on a request for indication of academies measurements concerning the LaGrand brothers^104(*). In this business as in the preceding one, it is about the violation by the United States of article 36 §1, B, according to which in the event of arrest or of placement in detention of a foreign national, the proper authorities of the State must inform without delay the person of her right to profit from the consular assistance of its country. Thus, hardly the ordinance of the International Court of Justice requiring the stay of execution of Walter LaGrand returned^105(*), the governor of the State of Arizona gave the order for the execution, in spite of the recommendation of the Commission of graces which proposed also the deferment. Just like in the Breard business, the ordinance of the International Court of Justice remained dead letter. This execution carried an irrevocable damage to Germany, damage that the indication of academies measurements by the Court wanted to avoid.

B- The range of academies measurements

In a general way, academies measurements have obligatory force with same title as the judgments of the Court, but in practice, their application appears ineffective, because the States do not lend themselves to it goodwill^106(*). If academies measurements are temporary, they can nevertheless be renewed by a new ordinance. They can be indicated for all the procedure and to take then fine with it at the time of a decision of incompetence or inadmissibility (as in the business of the nuclear Tests), or at the time of the stop at the bottom (for example with the stop of July 25, 1974 in the business of competence as regards Pêcheries)^107(*).

The obligatory character of academies measurements often poses problem in the direction where the CIJ does not have means of execution at its disposal and cannot give the order of their execution. Like it indicated with prudence in the business of the military and paramilitary activities, « when the Court concludes that its situation requires the adoption of measurements of this kind, it falls on each part to seriously take into account the indications thus given and not to base its control solely on what it believes being its rights »^108(*).

SECOND PART : The EVALUATION OF the ROLE OF the CIJ IN

MATTER OF THE HUMANS RIGHT

The assertion of the promotion and the protection of the humans right aimed by the Charter of the United Nations and developed in the Universal Declaration of the Humans right constituted already a value internationalized in 1948. But since then, as Hubert THIERRY notes it : « the development of the right relating to the humans right was considerable and can one say exponential it is there undoubtedly one of the major aspects and undoubtedly most remarkable of the evolution of the international law... ». ^109(*)

The International Court of Justice took part in a considerable and effective way in the development of the promotion and the protection of the humans right. Thus, during many decisions, it had the occasion to recall that the respect of the humans right is an international obligation which engages all the States.

The international judge indeed, occupies an important place in the technical construction of the protection of the humans right ; it is enough to mention known the goods examples of the Court of Strasbourg or the Court inter American of the humans right. Their jurisprudence based on the conventional instruments, does not constitute only one irreplaceable element, but it contributes in a way increasingly major and sophisticated to protection of the humans right.

Within the specific framework of the interventions of the CIJ as regards the humans right, several appreciations can be made as for the incidence of these interventions on the States and the organizations and international institutions. This is why in this second part of our work, our attention will be focused on the appreciation of the impacts of the interventions of the CIJ. Thus, we will appreciate initially the contribution of the CIJ as regards the humans right to the level of the States, the international organizations and the international penal jurisdictions (chapter 1), then on the contribution of these interventions to international pacification and the emergence of the new fields of right (chapter 2).

CHAPTER I : A CONTRIBUTION LIMITEE BY THE INTERNATIONAL PRACTICES

The decisive contribution as regards the humans right of the interventions of the International Court of Justice appears as decreased by the practice of the States and the international Organizations. Indeed, if these entities are the privileged places of the application and the taking into account of the decisions of the Court, they are on the other hand not exemplary as for the implementation of the decisions of court. It is from this point of view that we consider initially the practice of the States and the international Organizations (section 1), then that for the international penal jurisdictions (section 2).

SECTION I : PRACTICE OF THE STATES AND THE ORGANIZATIONS

INTERNATIONAL

The States and the international organizations are not only the first receptacles of the decisions of the International Court of Justice, but they are also the first which have the duty to put these decisions into practice. Within the framework of this analysis, we will examine initially the practice of the States (paragraph 1), before leaning on that of the international organizations (paragraphe2).

Paragraph 1 : Practice of the States

We will see here that the practice of the States is not only refractory with the implementation of the decisions of the CIJ (A), but which it is then contrary out of conventional matter (B).

A- A refractory practice with the implementation of the decisions of the CIJ

It is necessary to acknowledg that the contribution of the International Court of Justice as regards the humans right is really limited as for its setting in execution by the States. Indeed, far from behaving like « children of heart », the States are rather reticent with the execution of the decisions of the CIJ.

At July 31, 1999, 62 States only (that is to say less than one third of the Member States of UNO) had made the statement of acceptance of the obligatory competence of the Court under the terms of article 36, §2 of the Statute,^110(*) and in more these declarations are matched for certain reserves of very broad range sometimes. ^111(*) So several States in litigation often do without the decisions of the Court. The business of the diplomatic and consular Personnel from the United States in Teheran undoubtedly represents one of the precedents emblématiques in this respect. Indeed, in addition to the importance owing to the fact that the parts had a common vision of different so that the Court can fulfill its role in an effective way, the business of « hostages » clarifies the limits of the effectiveness of the recourse to international justice in the situations where the judges have to at least know only one shutter of the disagreement conceived like broader by one of the parts^112(*).

In the species, one knows indeed whom the decision of the Court for important that it was on the plan of the principles, at all did not cause to put an end to the crisis « hostages », nor more largely, with that of the American relations irano. The overall arrangement of this litigation occurred only later on, following a process to which the Court is remained entirely foreign^113(*).

The inexecution of pronounced Court on the bottom of the litigation also appeared in the business of Nicaragua. In the species, the refusal of the United States to take part in the phase of the procedure devoted to the bottom of the business was accompanied by a complete rejection of the decision at the bottom, returned by the Court in 1986^114(*). As a whole, the reserve and the refusal of the States as for the implementation of the decisions of the CIJ, enable us to include/understand the limits of the action of Court. Indeed, although it is equipped with a universal competence, the Court once more does not have any dissuasive means which can oblige a State to put in execution its jurisprudence, Ainsi, the principle of the sovereignty of the States takes precedence over the international law.

B- A contrary conventional matter Practice

The traditional doctrines of the absolute sovereignty of the States always called upon the concept of « reserved field of the States » in order to prevent the development of new rules or even the discussion of a question, a problem, a situation, by an unspecified international body. But it should be said that on the whole, the assent of the States constitutes the initial and ultimate base of any international legal provision. If there is no progressive development of the international law.

In was the business of the decrees of nationality in Tunisia and in Morocco, the permanent Court of international justice seized by the Council of the SDN in order to know if the disagreement between France and the United Kingdom about the decrees of nationalities promulgated in Tunis and in Morocco (French zone) on November 8, 1921, and of their application to the British nationals, is or is not, according to the international law, a business exclusively of an interior nature? (Article 15, paragraph 8 of the pact). The permanent Court already answered in 1923, that « the question of knowing if a certain matter returns or does not return in the exclusive field of a State is a primarily relative question, it depends on the development of the international relations »^115(*).

On the one hand, it added rightly that « besides to draw aside the exclusive competence of a State does not prejudge at all the final decision on the right which this State would have to take measurements in question »^116(*). It is there the primarily evolutionary character of the notion of the reserved field.

Thus, at the time when a question forms part, even partially, of an international regulation, it is impossible for the State, having accepted this regulation, to regard it as still forming integral part of its reserved field.

Generally with regard to the decisions returned by the International Court of Justice on the aspects touching with the humans right, it is necessary to notice a certain voluntarism on behalf of the States in conflict, with the implementation and the execution of these decisions^117(*). This report is worth with the first chief for the businesses introduced by compromise. Logically, the States which are intended to submit in question the result reached for the Court. That is justified even in the Head of the State for which the decision would be entirely unfavourable^118(*).

The increasing use by the States of incidental procedures in front of the CIJ also carries testimony of the current success of the Court at the States. Thus, the latter frequently presented these last years of the demands for indication of academies measurements, in spite of the uncertainties attached to the legal effect of these last^119(*)

With regard to the implementation, it should be said that the recognition of the international obligation to respect the humans right is founded on a general principle of usual nature, and its effect erga omnes the place under the collective guarantee of the other States and the international community as a whole. The International Court of Justice in its stop of June 27, 1986 notes that : « the inexistence of an engagement (on the matter) does not mean that State can violate the humans right with impunity »^120(*). In this way, the Court tends to confirm the existence of a general international obligation to respect the humans right whose base is consequently usual. This design was systematized by the Institute of International law in its resolution of September 13, 1989, in Saint-Jacob de Compostelle^121(*).

Such an obligation relates to the whole of the humans right of usual or conventional origin, by taking as starting point article 55 of the Charter of the United Nations. Applying as well the abroads as with the nationals, it limits sovereignty by drawing aside, of this chief, in the event of violation, any exception resulting from the sacro-saint principle of non-intervention in the interior businesses, as we saw higher.

Thus, the State which violates a conventional obligation, engages its international responsibility with regard to any injured State and one cannot claim any more that this field comes under its national responsibility primarily. To take again the terminology of the Commission of the international law, « done everything internationally illicit, ascribable in a State engages its international responsibility »^122(*). There are obvious examples of violation of the conventional obligations, it is the case of the United States which does not cease violating article 36 §1, B, of the Convention of Vienna on the consular relations of April 24, 1993^123(*), according to which in the event of arrest or of placement in detention of a foreign national, the proper authorities of the State must inform without delay the person of her right to profit from the consular assistance of its country. In a general way, and for the serious and generalized violations, the international practice tends to admit the possibility of « against measurement » in order to make respect essential standards. A State or a group of States can consequently react vis-a-vis a serious violation by taking the constraining measurements adapted on the diplomatic or economic level.

Paragraph 2: Timid practice of the international organizations

The international organizations are important actors for the emergence and the development of the promotion of the humans right. But their role remains still timid. For better illustrating our remarks, we will consider initially the possibility of the sasine of the CIJ (A), then the emergence of the role of these organizations (B).

A- International organizations and the sasine of the CIJ

An international organization is one « association of States consisted treaty, equipped with a common constitution and bodies, and having a legal personality distinct from that of the Member States »^124(*).

This definition could appear too much « doctrinal » and too reducing of the differences noted in practice international to reflect concrete reality. Catch literally in a reasoning a contrario it would oblige can be to draw aside from the category of the organizations, those of them which do not profit from the whole of the criteria retained in the definition^125(*).

In addition, all the international organizations are charged to collect near the Member States or to directly obtain information in the field of their competence. The development of the statistics, the reports/ratios and preliminary studies constitutes an essential task which is in particular used to support the normative and operational activities.

With regard to the practice of the international organizations as for the implementation of the decisions returned by the International Court of Justice, it would be important to make a classification between the specialized organizations of the United Nations and the other international institutions.

With the difference of the other international organizations, those of the system of UNO have the possibility of requiring an advisory opinion at the CIJ. Indeed, it is chapter IV of the Charter of the United Nations which has the consultation procedure in front of the CIJ. This procedure is open only to the international organizations. Article 96 §2 provides that apart from the General meeting and of the Security Council, can also ask an opinion the CIJ, any body of UNO and any specialized agency which would have been authorized there by the General meeting. This authorization was rather liberally granted, except notable for the Secretary-general of UNO.

Therefore, the World Health Organization asked the Court, September 3 1993^126(*) to give an advisory opinion on the following question : « taking into account the effects of the nuclear weapons on health and the environment, their use by a State during a war or of another war would constitute it a violation of its obligations taking into consideration international law, including the constitution of WHO ? » On January 6, 1995^127(*), it is the General meeting of the United Nations which pressed the Court of saying « as soon as possible » if it is « allowed in international law to resort to the threat or the use of nuclear weapons in any circumstance ». After a long reflection, July 8, 1996, the Court will give two advisory opinions : one rejects the request of WHO and the other provided an answer on the question of the General meeting. The request of WHO was rejected because the Court estimates that « whatever is the effects of the use of the nuclear weapons on health, the competence of WHO to treat some is not dependant on the admissibility of the acts which produce them »^128(*). Admittedly that WHO is qualified as regards co-operation for the improvement and the protection of the health of all the people^129(*). What is essential for us here, it is not as well the decision of the Court, but especially the possibility as with a body of the system of the United Nations to request an advisory opinion at the Court. Indeed, it is necessary to say that all the bodies of the United Nations practically work in synergy, in order to lead to a good coordination and a good implementation of the decisions taken by the Security Council, by the CIJ by the other jurisdictions of the system.

But it would be very interesting to undertake this time Ci a study on the practice of the institutions and organizations nongovernmental not belonging to the system of the United Nations.

B- The emergence of the role of the international organizations

We will begin this part while speaking about an organization not like the others, namely the International Committee of the Red Cross (ICRC). Indeed, the ICRC is a neutral, impartial and independent organization. By its nature and its composition, the ICRC is a nongovernmental organization. Its mandate, which is to protect and to assist the victims of the wars was conferred to him by the States, through four Conventions of Geneva of 1949 and their additional protocols of 1977. Such an amount of its mandate that its legal statute confer a character particular to the ICRC, which dissociates at the same time intergovernmental agencies, such as the institutions of the United Nations, and other nongovernmental organizations. Indeed, the ICRC was seen recognizing the statute of observer- reserved in theory for the intergovernmental organizations and the States non-member- by the General meeting^130(*). This statute extended to the international Federation of the companies of the Red Cross and the Red Crescent^131(*). In the majority of the countries where it works, the ICRC concluded an agreement from seat with the authorities. These agreements which raise of the international law, grant the ICRC the privileges and immunities from which profit normally the intergovernmental organizations (immunities of jurisdiction, in particular, which protects it from the procedures administrative and legal, and inviolability of its buildings, files and other documents).

The ignorance of the right being the enemy of his application, the ICRC recalls to the States that they were committed making known some the contents. It is also given the responsability to diffuse it itself. It still points out that they must take all measurements necessary to ensure its effective application, therefore its respect to them. It does it in particular by its advisory services, of which the goal is to provide a technical aid to the authorities for the adoption of the laws and national payments of application of this right in the internal order.

However, it sied to recognize that the ICRC, is engaged more on the humane action, and does not have coercive means. Apart from the case of the ICRC, there are several other NonGovernmental Organizations (ONG) activists and militant of the humans right, which become today of true partners of the public action, cooperate permanemment with the institution, and with the effective relay of mass media attracted by the glare of information, they exert a sufficient pressure on the legal mechanism.

One raised in a recent past the presence of ONG in connection with the problems of the environment, mines anti personnel and even in the legal context of the Opinion on the admissibility of the threat or the use of nuclear weapons, for which, they weighed not only on the request addressed to the Court, but still largely held feather in the drafting of many official talks. One knows for example that the Conference of Rome on the international penal Court was marked by the influence of many ONG, which were true partners of the negotiation, either directly or indirectly by investing certain delegations by defining their position and in their providing the corresponding argumentations, sometimes even while expressing oneself on their behalf, via members integrated in the official representation of the State. The generalization and the systematization of the engagement of these organizations make to some extent these last are the third « key character » and the international authorities which do not concern an official logic in addition, like, in the precise case, international penal Court^132(*).

SECTION II: A POSITION CLAIRE AS FOR THE CREATION OF THE INTERNATIONAL PENAL JURISDICTIONS

The International Court of Justice in its role of « juice dicere » as regards humans right, largely contributed to the creation and today to the operation of the international penal jurisdictions. In connection with international penal jurisdictions, we hear, the first two international penal courts create by the Security Council of the United Nations, and the international penal Court. This is why for determining our reflection well, we will examine initially the contribution of the CIJ to the creation of these jurisdictions (paragraphe1), before then seeing the operation of the international penal jurisdictions in the light of the decisions returned by the CIJ (paragraphe2).

Paragraph 1 : The contribution to the operation of the international penal jurisdictions

We will consider in this paragraph, the action of the International Court of Justice in competence rationae materae of the international penal jurisdictions, but we will take only the example of the crime of genocide.

Indeed, article 6 of the Convention of December 9, 1948 on the prevention and the repression of the crime of genocide had laid down the introduction of an international criminal court which, actually, was born only fifty years later, at the time of the Conference of Rome of June- July 1998. During this period, only the establishment of two ad hoc penal tribunals intervened, because of the disinterest of the States. However cruel crimes running up against the conscience human and threatening « peace, safety and the good being of the world », according to the preamble to the statute of Rome of the international penal Court, did not disappear, far is necessary oneself some! The range of these various stages of the international criminal law can be evaluated in the light of the jurisprudence of the CIJ relating to Convention on the genocide.

In the business relating to the application of Convention for the prevention and the repression of the crime of genocide, the CIJ had found a unique opportunity to reinforce its role as a principal legal body of the United Nations^133(*). The Court will bring a precision on the practices of genocide by affirming that « the essential characteristic of the genocide is (the intentional destruction of a group national, ethnic, racial or religious and not the disappearance of a State as a subject of international law or the fact of modifying its constitution or its territory ; that, consequently, (it) cannot admit, for purposes of this demand for indication of academies measurements, that the partition and dismemberment or the annexation of a Sovereign state, or its absorption by another State, could in oneself constitute an act of genocide (...) »^134(*). It recalls that it had raised in the ordinance of April that the crime of genocide « upset the human conscience, inflicts great losses with humanity... and is against morals like with the spirit and purposes of the United Nations »^135(*). Lastly, it will recognize in its stop of July 1996 the existence of one « genocide of State »^136(*).

In 1993 and 1994, the Security Council decided establishment of two ad hoc penal tribunals. The atrocities made on the territory of old Yugoslavia were condemned firmly in several Council Resolutions of safety and by many humane international organizations. The creation of the TPIY in 1993 by resolution 808 and the adoption of its statute by resolution 827 follow upon a French initiative. Its legal activity proves to be complementary to that of the CIJ in ex-Yugoslavia, although their respective jurisprudences can cause « first cracks with the unit of the right »^137(*). On the same model as the TPIY, the Security Council A creates in 1994 the TPIR by adopting resolution 955, after the recognition of massacres and the commission of a genocide in Rwanda. By their mode of creation, their competence and their operation, the courts are registered despite everything clearly in the same logic of repression of the international crimes in their action with the service of peace.

Paragraph 2 : Contrarieties of judgments : case of the Tadic business

The International Court of Justice strongly influenced in a positive way as we saw higher, creation and the operation of the international penal jurisdictions, the international penal courts on several occasions mentioned decision returned by the CIJ. However, that did not prevent that one observes sometimes some contradictions of interpretation of the international standard, it would be thus interesting here to study a specific case of divergence of interpretation between the CIJ and the TPI. The case of the Tadic business appears suitable to us compared to the matter of our study. Thus, we will consider initially the position of the problem (A), before analyzing the effects of contrarieties of judgments (B).

A- The position of the problem

It is advisable to recall first of all that the Tadic business is the first judgment given by the room of first authority of the international penal Court for the ex Yugoslavia on May 7, 1997. In this business how much emblematic by the history, the principles and the judgment which characterize it, we will consider here the principal problem of right which is that of the several liability for the violation for the rules for the humane international law. The jurisprudence of the first room practically had been aligned on that of the CIJ (Nicaragua C. the United States), in the species, the United States was shown to support to maintain and to encourage the forces countered to rebel against the government of Nicaragua by making massive violations of the humans right. In this business, the Court estimates that the United States had not exerted on countered in all their activities an authority such as one can consider countered them like acting as their name, it adds that to engage the responsibility the responsibility for the United States, it was to be established in theory that they had the effective control of the military and paramilitary operations during which the violations in question would have occurred.

But the room of call of the TPIY reversed this report in its stop of call on the bottom of 15 July 1999 and called into question the applicability of « criterion of Nicaragua control ». According to the room of call, it is advisable to distinguish according to whether it is a question to allot in a State the acts of isolated individuals, Nicaragua jurisprudence being then applicable or to allot to him the activities of organized individuals in way such as they can be qualified bodies de facto of this State. In this last case, the applicable criterion that of an overall control of the organic apparatus in question, criterion filled for the Serb ones of Bosnia, is controlled by the Yugoslav Federal Republic^138(*).

B- Effects of opposed judgments

The XIXe century was the century of the development of the right and the international arbitration. International justice was born at the XXe century with the permanent Court from international justice, become in 1945 the International Court of Justice. The international courts since then multiplied. This phenomenon translates a confidence increased in justice and makes it possible the international law to grow rich in increasingly various fields. It does not make any less run risks of race to the courts, sometimes called « forum shopping » and of contrariety of jurisprudence^139(*). The international jurisdictional overlappings increase moreover the risks of contrarieties of judgments, two courts being able to be seized jointly by the same question and to make decisions contradictory.

The systems of national laws for a long time had to face such problems. They solved them essentially by creating authorities of call or cassation. The international system is in this respect deprived fort. Thus, as we saw, the penal court for ex-Yugoslavia, while ruling at the bottom of the Tadic business, recently drew aside the jurisprudence created by the International Court of Justice in the disagreement having opposed in front of it Nicaragua to the United States of America.

Whatever the appreciation which one can carry on this solution, contradiction thus raised shows the risks obviously that the unit of the international law court because of multiplication of the jurisdictional authorities. Judge Gilbert GUILLAUME estimates, to avoid these contradictions that before creating a new jurisdiction, the international legislator should wonder whether the functions which it intends to entrust to the judge could not advantageously be filled by an existing jurisdiction. As for the magistrates themselves, they must become aware of the danger of fragmentation of the right, even of jurisprudential inconsistency born from the multiplication of the courts. A dialog interjudiciaire is essential. The International Court of Justice, legal body principal of the United Nations, is ready to get busy there if the means are given to him. One sometimes suggested entrusting to the Court the responsibility to know in call or cassation of the judgments given by all the other courts. Such a solution would however imply a strong political good-will of the States of which it is not certain that it exists. Or, would not be advisable it to encourage the various jurisdictions to ask in certain businesses of the advisory opinions for the Court via the Security Council or of the General meeting ? ^140(*)

CHAPTER II : A DECISIVE CONTRIBUTION TO the PACIFICATION OF the INTERNATIONAL COMPANY AND A the EMERGENCE OF the NEW FIELDS OF RIGHT

To maintain peace and safety international is the prime objective assigned with the United Nations, the base even of its existence, the imperative reason of its creation. With various recoveries, the bodies of the United Nations adopted resolutions establishing a bond between the pleasure of the humans right and the maintenance of peaces and safety international. One of first was resolution 110 (II) of the General meeting of November 3, 1947, in which the Parliament recalling that all the Member States were committed acting as well jointly as separately to support the universal and effective respect fundamental freedoms which include/understand in particular the freedom of expression, to condemn « any propaganda... which is intended or which is likely to cause or to encourage, within the framework of the constitution, the diffusion of any information intended to express the undeniable desire of peace and all the people.

The participation of the International Court of Justice in this dynamics of peace is not any more to show. We will also see that beyond international pacification (section 1), the International Court of Justice by its jurisprudence was used as a basis for emergence of new fields of international law such as : right to the environment and right to health (section 2).

SECTION I : THE CIJ, JUSTICE OF THE PEACE

The importance of international peace for the pleasure of the humans right and of fundamental freedoms is highlighted in several businesses of the International Court of Justice, we will thus consider in this section, the consolidation of the right to peace (paragraph 1) and the problems of the right of interference (paragraph 2).

Paragraph 1 : Consolidation of the right to peace

We will consider here the role of the CIJ in the consolidation of the right to peace (A), before noting that this role is shared with the Security Council (B).

A- The role of the CIJ in the consolidation of the right to peace

The obvious and massive violations of the humans right including the economic, social and cultural rights, can involve the world in wars, thus, the full respect of the promotion of the humans right and fundamental freedoms requires the reign of peaces and safety international. The concept of consolidation of peace, just as it is appears in the Diary for peace^141(*), constitutes the conceptual base of the operations tending to the construction of the State. To take again the terms of its author, « in the range of the efforts of peace, the concept of consolidation of peace, as an introduction of an environment, new, must be regarded as forming part with the preventive diplomacy, which aims at avoiding a crisis ; the consolidation of peace after the conflicts aims at preventing that it does not reproduce^142(*).

The International Court of Justice has certainly a role- difficult but indisputable as regards maintenance of peace, which is unanimously allowed since the business of « military and paramilitary activities ». Because it is « the decisive criterion of the existence of an international legal order »^143(*), the CIJ has a key role to play so that the anarchistic character is moderate. It can, parallel to the political and economic instruments of the re-establishment of peace, to make the international relations surer, to alleviate the fatal instincts which break out at the time of a war or to support the reconciliation in the States torn by one or more conflicts.

B- A role shared with the Security Council

It frequently happens that the CIJ and the Security Council are seized at the same time by the same business. Businesses of « Diplomatic and consular personnel from the United States in Teheran » and of « military and paramilitary activities in Nicaragua and against this one » showed that disagreements carried before the Court were treated under other aspects by the Council. At the time of this second dispute opposing the United States to Nicaragua, the Court had the occasion to specify that the Council had « political attributions » and itself of « purely legal functions », two bodies thus being able « to discharge their functions distinct but complementary in connection with the same events »^144(*). Despite everything, a possible competition between the two can appear, especially if the Court plans to exert a control of legality of the acts of the Council. If the Court hesitated until now venturing over this ground, the TPIY showed much more audacity in the business « Tadic »^145(*).

If the Court to the point agreed to control the legality of the acts of the Council, it would be able to contribute in a decisive way to the re-establishment of peace. For the moment, it did not yet really dare to cross Rubicon, its attitude being explained by the difficulty of control and the prudence of which it makes proof in its exercise, which weakens the range of its contribution as regards maintenance of peace.

With the acceleration of the rate/rhythm of adoption of resolutions by the Security Council since the conflict of the Golf, the debate on the control of its actions takes all its direction. Its recent practice enabled him to devote a particularly extensive design of the concept of peace. It would thus seem logical that the CIJ can develop its role under the maintenance of peace, thanks to a widening of the operative field of the international bankruptcy proceedings, including a control of legality of the acts of the Council. The place of the CIJ, « principal legal body of the United Nations », makes an instrument completely ready of it to take part in the system of maintenance of peace, envisaged by the Charter. According to Professor A. Pellet, this reasoning is essential « insofar as the objective first of the Charter is to subject the exercise of the force by the States to an international control, the CIJ is without any doubt, one of the possible instruments of this control ». However, as each one knows it, the recourse to the force remains at the time current a persistent data in the international relations. The fact that the disagreements subjected to the CIJ relate to this use of the force and are directly in relation to the maintenance of peace and of safety an obstacle with the exercise of its jurisdiction does not constitute at all. The Court for example affirmed recently in connection with the construction of the Israeli wall in Palestine, which it is «anxious to give its support for the goals and the principles registered in the Charter of the United Nations, in particular the maintenance of peaces and safety international and the peaceful payment of the disagreements, holds to underline the urgent need that the United Nations as a whole redoubles its efforts in order to quickly put a term at the israélo-Palestinian conflict, which continues to pose a threat with international peaces and safety, and thus to establish a peace fair and lasting in the area »^146(*).

Paragraph 2 : The problem of the interference

We will define initially the concept of interference (A), before seeing on the matter the intervention of the Court (B).

A- Definition

Since the States exist, they intervene in their neighbor and, inevitably, they endeavor to justify their failure with the principle of non-interference by the existence of one departures from the rule whose traditional expression would be the admissibility of « interventions of humanity » with the profit of their own nationals or certain categories of people sharing with them values common and oppressed by a foreign State, or being the massive and repeated violations humans right. But that the right says on this subject and which is the contribution of the International Court of Justice on this subject ?

The interference does not indicate a given legal concept, in the literature of the international law. Under this denomination, the works rather treat intervention, action of a State or an international organization which aims to the examination and the solution of a business coming under the responsibility of one or several other States. The terminological proximity is due to the definition of the interference to the common direction. It means the action there to be involved unduly, without in being required or having the right of it, in the businesses of others.

Article 2 paragraph 7 of the Charter of the United Nations, lays out on this subject that « no provision of this Charter authorizes the United Nations to intervene in businesses which primarily come under the national responsibility of a State nor does not oblige the members to subject businesses of this kind to a procedure of payment under the present Charter... «.

Therefore, the International Court of Justice in the business of the Strait of Corfou on April 9, 1949, sanctioned the internationally illicit act which consisted, for the United Kingdom-, to intervene in Albanian territorial waters to proceed to a mine clearance whose object was to ensure it a navigation without danger for the human lives. The problem of the interference causes often conflict, but can cause also peace, all depends on the reasons which animate the State or the organization which is involved. The International Court of Justice contributed in a decisive way to the legal establishment of certain legal bases which make it possible to intervene with an aim of promoting safety, international pacification and the protection of the humans right.

« The humans right constitute certainly a noble reason for intervention but they raise multiple questions as those of the methods (the end justifies the means), of the selectivity (political two-speed) or the direction (universality reduced to the Western values) of the action. One sees as well as the action of the international community is registered on the plan of the procedures, in dialectical legality/legitimacy whereas, on the plan of the values, it does not escape the suspicions to deal with certain States while others would be  resolutely in margin of the international relations »^147(*).

B- The intervention of the Court as regards interference

The International Court of Justice intervened in a rigorous way as regards interference, in the business of Nicaragua ; in the species, the United States to found their intervention in Nicaragua, showed this one to have violated engagements concerning the protection of the humans right. But the Court declares that « in any case, if the United States can certainly carry their own appreciation on the situation of the humans right to Nicaragua, the use of the force could not be the suitable method to check and ensure the respect of this right. As for measurements which were taken in fact, the protection of the humans right, considering his strictly humane character, is not in any way compatible with the drive, the armament and the equipment of « countered ». The Court concludes that the reason drawn from the safeguarding of the humans right to Nicaragua cannot justify the control of the United States juridically »^148(*).

The interference actually does not constitute a right, and that applies for all the subjects of international law. Within the framework of the Security Council of the United Nations, the interference in the businesses of a State can take place only on the basis of article 2 paragraph 7 of the Charter, but it should be added that the action must be placed within the framework of chapter VII, i.e. within the framework of its competences as regards maintenance of peace. It is in this right wire that the massive violation of the humans right melts from now on the competence of this Council.

Thus, several coercive actions were undertaken for situations constituting of the threats for peace, under the terms of article 39 of the Charter.

Indeed, the principle of noninterference in the interior businesses is not opposable any more in the event of violation of « great scale » of the basic human rights, to take again expressions used by many States before resolution 688 of April 5, 1991 concerning the minorities in Iraq (Kurdish, Shiites...). In fact considerations of this kind inspire the Council Resolutions of Safety concerning the ex Yugoslavia and Somalia. Very instructive appears to us to be resolution 929 of 22 June 1994 authorizing France (and the other countries wishing to take part in the humane operation in Rwanda) with « to employ » all means necessary for two months in order to protect the civil ones and to stop a dramatic massacre. Very significant also appears to us to be the resolution 1556 (2004) authorizing a military intervention in Sudan in order to restore peace in Darfour.

The problems of the concept of interference are also posed within the framework of the humane assistance. The International Court of Justice judged that « the supply of a strictly humane help... could not be regarded as an illicit intervention »^149(*). The Security Council confirmed this jurisprudence in his resolution 733 (1992), while asking all the parts to facilitate the routing by UNO of the humane assistance towards all those which need some^150(*). He make in the same way in Bosnia-Herzégovine in his resolution 758 (1992) by requiring that « all the parts and different interested immediately create the conditions necessary to the distribution without humane obstacle of supply in Sarajevo »^151(*).

The humane assistance is however the source of regrettable confusions (actually of the political and economic interests subjacent) because of the practice as well of the States as of the international organizations^152(*).

SECTION II : CONTRIBUTION A the EMERGENCE OF NEW

FIELDS OF INTERNATIONAL LAW

The international law is a matter which is in perpetual evolution because of its effectivity, but especially of the topicality of which it is the object. The daily practice of the international law allowed the emergence of the new fields of international law to know the right of the environment (paragraphe1) and that of health (paragraphe2). The International Court of Justice by its jurisprudence deeply consolidated the emergence of these fields.

Paragraph 1 : Consolidation of the right to the environment

We will see initially the dedication of the international law of the environment (A), before examining the intervention of the environmental matter CIJ (B).

A- Dedication of the international law of the environment

The international law of the environment is the whole of the international rules and interns aiming at the environmental protection. The environmental protection is, it should be raised a rather recent concern. Indeed while passing by STOCHKOLM in 1972, RIO in 1992, and many other conventions even more recent, the international community is worried more and more by the safeguarding of the environment. From where the interest to found international institutions as well intern as external, to work out mechanisms of very serious protection to preserve fauna, the flora, the surface, water, the ground, and the basement and all the ecosystems existing.

In order to reinforce the environmental protection, the International Court of Justice in the opinion on the nuclear weapons established the existence of a right of the usual environment, which constitutes a capital fact : « the general obligation which have the States to take care that the activities carried on within the limits of their jurisdiction or under their control respect the environment in other States or in zones concerned with no national jurisdiction now forms part of the body of rules of the international law of the environment »^153(*). The Court adds that them « States must take account of the ecological considerations today when they decide what necessary is proportioned in the continuation of legitimate military objectives »^154(*).

The Court then developed a very evolutionary reasoning tending with the protection of the right to the environment in the Gabcikovo-Nagimaros business of which the judgment was handed down on September 25, 1997. The essential problem that this stop presents is that to determine if a country can, by calling upon reasons for environmental protection, to withdraw itself from the effect of a treaty.

B- The intervention of the environmental matter CIJ

The Court indeed, makes a point of raising that new standards of the right of the environment, recently appeared are relevant for the execution of the treaty binding the parts to the litigation. These standards impose on the parts, by discharging their obligations to take care that the quality of water of the Danube is not compromised so that the nature conservancy is assured. The Court estimates that while inserting in the treaty these evolutionary provisions, the parts recognized the need for possibly adapting the project.

Consequently, the treaty is not a fixed instrument and is likely to adapt to new standards of the international law of the environment. The conscience that the environment is vulnerable and recognition of what it is continuously necessary to evaluate the ecological risks continued more and more in the years which followed the conclusion of the treaty. Recognition that the parts agree on the need for worrying seriously about the environment and to take measurements which are essential.

With regard to the legal consequences of the stop, the Court does not lose sight of the fact that, in the field of the vigilance, environmental protection and prevention impose themselves because of the often irresistible character of the damage caused on the environment and the limits inherent in the mechanism even of repair of this type of damage. New standards and requirements were developed, which were stated in a great number of instruments during two last decades, it acts of the principle pollutant payer of the principle of prevention, the principle of precaution or that of participation.

The Court estimates that these new standards must be taken in suitably appreciated consideration and these new requirements, not only when the States consider new activities, but also when they engaged in the past. For purposes of this species, that means that the parts would have together, to again examine the effects on the environment of the exploitation of the power station of Gabcikovo. In particular, they must find a solution satisfactory with regard to the volume of water to be poured in the bed of the Danube and the arms located on both sides of the river.

The individual opinion of Weeramantry judge is very relevant as for the emergence of the right of the environment. Indeed, this one tackles in its opinion three questions relating to certain aspects of the right of the environment: the principle of the development which reconciles the rival requirements of the development and the environmental protection, and advisability of being useful itself of an applicable legal principle inter partes as the estoppel to solve problems which present a character erga omnes, like the damage caused with the environment.

Paragraph 2 : Consolidation of the right to health

We will examine initially the recognition of the right to health (A), before seeing the contribution of CIJ on the matter (B).

A- Recognition of the right to health

The recognition of the right of all human being to the best health than it is able to reach within the framework of the international law relating to the humans right implies a series of social installations- standards, institutions, laws, favorable environment- which as well as possible allow the pleasure of this right. The best interpretation of the right to health is in article 12 of the international Pact relating to the economic, social and cultural rights which, in May 2002 had been ratified by 145 countries. This article lays out that :

« 1 - the States left with the present Pact recognize the right which has any person to enjoy the best physical and mental health that it is able to reach.

2- Measurements that the States left with the present Pact will take in order to ensure the full exercise of this right will have to include/understand measurements necessary to ensure :

a) reduction in the infantile still birth, as well as the healthy development of the child ;

b) improvement of all the aspects of the hygiene of the medium and the occupational hygiene ;

c) the disease prevention and treatment of the epidemic, professional and different diseases, as well as the fight against these diseases ;

d) the creation of conditions suitable to ensure all of the medical departments and medical aids in the event of request.

The right to health was evoked for the first time in the constitution of WHO (1946) and was reaffirmed in the Declaration of Alma ATA of 1978 and in the world Declaration on the health adopted by the world Parliament on health in 1998. The right to health was devoted with force in a great number of international and regional instruments of the human rights. The International Court of Justice for its part did not remain in margin of this dedication, and it tends today by its jurisprudence to consolidate this emergent right. We will be based primarily on the opinion of July 8, 1996 on the nuclear weapons to show the implication of the Court in the evolution of the right to health.

B- The contribution of the CIJ as regards health

It is first of all advisable to recall that on July 8, 1996, the Court had returned two decisions ; the first related to the refusal to answer at the request of opinion of the World Health Organization (WHO), the second answered at the request of opinion of the General meeting. The Court in fact had refused to answer at the request of WHO because it had estimated that its question did not relate to legal problems arising within the framework of the activity of this organization, as article 96 required it, paragraph 2, of the Charter of the United Nations^155(*), even if WHO dealt with the nuclear weapons since 1983.

Indeed, the use of the nuclear weapons carries reached as well to the physical integrity of the human beings as to the territorial integrity of the Non-member states. That can be explained by radiations, the electromagnetic impulse and the radioactive dusts which do not know borders. Among the hostile arguments with the admissibility of the use of the nuclear weapons, the Court drew aside those based on prohibition to use chemical or poisoned weapons^156(*). The Court notes indeed that the convention of 13 January 1993 prohibiting the chemical weapons was negotiated and adopted « in a clean context and for clean reasons »^157(*). It recalls that during negotiations, which preceded the adoption by this instrument, it forever be question of nuclear weapons. It would be thus abusive to seek there the source of a prohibition of the threat or use of the nuclear weapons. This reasoning is correct, because it reflects reality. On the other hand, one is more skeptic when the Court says that article 23 has/Payment of The Hague of 1907 (which prohibits the use of the poisoned weapons) and the protocol of Geneva of 1925 (which prohibits the use of the nuclear weapons).

Because these texts do not define what it is necessary to understand by « poisoned weapons » and by « similar matters or processes » (protocol of 1925)^158(*), how can - it then to forget that this radiation, which is specific to the only nuclear weapons^159(*), affects only the living matter, which is diffusion even chemical weapons ? However, the effects of the nuclear weapon which rise from the initial and induced radioactivity are similar to those of the poison, like that was recognized by the scientific circles and the States themselves, when they defined the nuclear weapon as being « any weapon which contains, or is designed to contain or use a nuclear fuel or radioactive isotopes and which, by not controlled explosion or other nuclear transformations or by radioactivity of nuclear fuel or the radioactive isotopes, is capable of massive destruction, generalized damage or poisoning solid masses »^160(*). In other words, even if the effects first of the nuclear weapon are effects of breath and heat, it does not produce of them less subsequent effects of poisoning ; it is thus prohibited under the terms of article 23 has/Payment of The Hague as well as an arrow or a poisoned ball, of which the effect first is to however wound the body of the victim, does not deliver of it less poison which makes it fall under the blow from prohibition.

In a general way, it should be recognized that in this business, the Court shone by several gaps of interpretation of the International Conventions. But if in the field of the application of the treaties, the decision of the Court were characterized by one nonliquet, that was not the case on the plan of the principles.

The Court declares that « it is thus interdict to use weapons causing them such evils or unnecessarily worsening their sufferings higher than the inevitable evils than the achievement of legitimate military objectives supposes »^161(*). The majority of the judges do not have fears to be less circumspect, and formulated a general evaluation. Thus, Fleischhauer judge declares that of such « incommensurable sufferings » return to « negation of the humane considerations which inspire the duty applicable to armed »^162(*). President Bedjaoui affirms that these weapons « cause (...) useless sufferings »^163(*) and Herczegh judges it estimates that the fundamental principles of the humane right prohibit the use of the nuclear weapons^164(*). Koroma judge, after having described the effects of the atomic weapons in Hiroshima, in Nagasaki and in the Marshall Islands, declares that since the radioactive effects are worse than those of pollutant gases, « the observations which precede should necessarily have led the Court to conclude that any use of nuclear weapons is illicit in international law »^165(*). Weeramantry judge is even firmer : « facts (...) are more than sufficient to establish that the nuclear weapon causes superfluous evils exceeding of much what the goals of the war require »^166(*).

Ultimately, the contribution of the Court as regards health much proved on the plan of the principles proclaimed than on the decisions taken.

GENERAL CONCLUSION

In the light of what precedes, the International Court of Justice as a principal legal body of the United Nations, plays a considerable part in the protection of the humans right, its role is also dominating with the pacification of the international company and the emergence of the new fields of international law.

No matter what this role as regards protection of the humans right is only incidental, it is appropriate to recognize that in this dynamics, the place of the Court is a place of choice, this is why one has the right to wonder whether it is not possible, allocate to him a particular responsibility as regards the humans right to avoid contrarieties of judgments between it and the other judicial bodies of the humans right, like international penal Courts or of the committees of humans right.

Indeed, it would be a pity for the evolution of the protection of the humans right, whom one witnesses contrarieties of judgments between these various jurisdictions, like that was the case between the stop of the CIJ on « Nicaragua », and that of the TPIY on « Tadic ». Judge Gilbert GUILLAUME estimates for that « that no new international jurisdiction must be created without wondering beforehand about the question of knowing if the functions that the international legislator intends to entrust to them could not advantageously be filled by an existing jurisdiction. The international judges must become aware of the dangers of fragmentation of the right and get busy to avoid them. But such efforts are likely to be insufficient and the International Court of Justice, only judicial body with universal and general competence, has a role to play in this field. In order to maintain the unit of the right, the various existing jurisdictions or to create could, seems to me it, being authorized, even encouraged to require in certain businesses of the advisory opinions of the Court via the Security Council or of the General meeting »^167(*). Thus, it would not be possible to allot to the Court a vocation universal jurisdiction as regards the humans right ?

With this question, the reflections must be carried out on two angles :

- Initially in the light of the business of the military and paramilitary activities in Nicaragua and against this one ;

- Then in the light of the Yerodia business of February 14, 2002.

With regard to the first business, the CIJ contributed in a very significant way to the evolution of the protection of the humans right by devoting several principles to humane character, and for this reason, it can be devoted well like a universal jurisdiction of the humans right. On the other hand, with regard to the second stop, the Court allowed itself to say the right while basing itself on what at all does not represent the right to know : « comity of nations », no matter what this stop is stop of principle, it is really not an example for a jurisdiction which wants to be « universal » as regards the humans right.

Being at the end of our study it falls to us to check our assumptions. Therefore, we note that our assumptions are checked indeed, in the direction where the Court plays indeed a part determining as regards protection of the humans right, this role is solidified by the various standards which it worked out and finally this role has a remarkable incidence in the pacification of the international company and the emergence of the new fields of international law namely the right to the environment and the right to health.

BIBLIOGRAPHY

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· AGO R., « Obligatory advisory opinions of the International Court of Justice, problem of yesterday and today », Mixtures Michel VIRALLY, international law to the service of peace, justice and the development, Paris, A. PEDONE, 1991, pp. 9-24.

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III international Texts

· Universal declaration of the Humans right of December 10, 1948.

· International pact relating to the civil laws and political of December 16, 1966.

· International pact relating to the economic, social and cultural rights of December 16, 1966.

· Convention for the prevention and the repression of the crime of genocide of December 9, 1948.

· Declaration of the Conference of the United Nations on the environment, Stockholm of June 16, 1972.

· Declaration of Rio on the environment and the development of June 13, 1992.

IV Reviews and other documents

· GUILLAUME G., « The International Court of Justice and humans right », Seminar of the Foundation Asia Europe in Denpasar (Indonesia).

· International review of the Red- Cross, special number : « The advisory opinion of the International Court of Justice concerning the admissibility of the nuclear weapon and the humane international law », n° 823, January-February 1997, 128p. 800, pp. 99-128.

V- Jurisprudences of the International Court of Justice

A- Advisory opinions

· Reserves with Convention for the prevention and the repression of the crime of genocide of December 9, 1948, opinion of May 28, 1951, Collection, 1951.

· Legal consequences for the States of the presence continues of South Africa in Namibia, advisory opinion of June 21, 1971, Recueil, 1971.

· Admissibility of the threat or the use of the nuclear weapons, advisory opinion of July 8, 1996, Collection, 1996.

· Camaraswamy (different relating to immunity from jurisdiction of a special rapporteur of the Commission of the humans right), advisory opinion of April 29, 1999, Collection, 1999.

· Legal consequences of the construction of a wall in the occupied Palestinian territory, advisory opinion of July 9, 2004, Collection, 2004.

B- Stops

· Business of the Strait of Corfou, stop of April 9, 1949, Collection, 1949.

· Business of the African Western south (Ethiopia against South Africa ; Liberia counters South Africa), stop of July 18, 1966, Recueil, 1966.

· Business of Barcelona traction light and power, limited, stop of February 5, 1970, Collection, 1970.

· Business of the diplomatic and consular Personnel from the United States in Teheran (the United States of America against Iran), academies measurements, ordinance of December 15, 1979, Collection, 1979.

· Business of the diplomatic and consular Personnel from the United States in Teheran, stop of May 24, 1980, Recueil, 1980.

· Business of the military and paramilitary activities in Nicaragua and against this one (Nicaragua against the United States), ordinance in academies measurements of January 10, 1986, Collection, 1986.

· Business of the military and paramilitary activities in Nicaragua and against this one (Nicaragua against the United States), stop of June 27, 1986, Collection, 1986.

· Guinea-Bissau counters Senegal, stop of November 12, 1991, Recueil, 1991.

· Application of Convention for the prevention and the repression of the crime of genocide, schedules in academies measurements of April 8, 1993, Recueil, 1993.

· Business of Eastern Timor (Portugal against Australia), stop of June 30, 1996, Collection, 1996.

· Application of Convention for the prevention and the repression of the crime of genocide (Bosnia-Herzégovine against Yugoslavia), preliminary exceptions of July 11, 1996, Collection, 1996.

· Business of the Project Gabcikovo Nagimaros (Hungary/Slovakia), stop of September 25, 1997, Collection, 1997.

· Business relating to the Convention of Vienna on the consular relations (Paraguay against the United States of America), ordinance in academies measurements of April 9, 1998, Collection, 1998.

· Business Walter LaGrand (Germany counters the United States of America), demand for indication of academies measurements of March 3, 1999, Recueil, 1999.

· Business relating to certain committed penal procedures in France (Republic of Congo against France), demand for indication of academies measurements, June 17, 2003, Collection, 2003.

Business relating to the warrant for arrest of April 11, 2000 (DRC against Belgium), stop of February 14, 2002, Recueil, 2002.

CONTENTS

DEDICATE ............................................................................................. I

THANKS .................................................................................. II

SYNOPSIS .......................................................................................... III

INITIALS AND ABBREVIATIONS ..................................................................... iv

SUMMARY ................................................................................................ v

ABSTRACT ........................................................................................... VI

SYNOPSIS ......................................................................................... vii

GENERAL INTRODUCTION 1

I- TALLY OF THE STUDY 7

A- INTEREST OF THE STUDY 8

1- Social interest 8

2- Scientific interest 9

B- PROLEMATIQUE AND ASSUMPTIONS 10

1- Problems 10

2- Assumptions 11

has - Principal assumption 11

b- Secondary assumptions 11

II THE CONTROL OF THE STUDY 12

A- THE REVIEW OF THE LITERATURE 12

B- METHODOLOGY 15

1- Method of analysis 15

2- Techniques of investigation 16

C- JUSTIFICATION OF THE PLAN 18

FIRST PART : THE ROLE OF THE INTERNATIONAL COURT OF JUSTICE AS REGARDS THE HUMANS RIGHT 19

CHAPTER I : THE INTERVENTION OF THE CIJ AND 20

DEVELOPMENT OF THE IMPERATIVE STANDARDS 20

SECTION I : DEVELOPMENT OF the JUICE COGENS STANDARDS 20

Paragraph 1 : Contents of the juice cogens standard 20

A- Dedication and contents of the juice cogens standard 20

Paragraph 2: The CIJ and the implementation of the juice cogens standard 23

A- The implementation of the juice cogens standard by the CIJ 23

B- Hesitant practice of the juice cogens standard 26

SECTION II : OBLIGATIONS ERGA OMNES 29

Paragraph 1 : Characteristics of the obligations erga omnes 29

A- Definition 30

B- Contents and wide 31

Paragraph 2 : The applicability of the obligations erga omnes 33

A- Extent of the implementation 33

B- The implementation in the event of recourse to the force 34

CHAPTER II : THE INTERVENTION OF THE CIJ IN FAVOR OF HUMAN DIGNITY 36

SECTION I : ELEMENTARY CONSIDERATIONS Of HUMANITY 37

Paragraph 1: Humane character of the legal provision 37

A- Definition and dedication 37

B- Contents of the elementary considerations 39

Paragraph 2: The range of the elementary considerations of humanity 40

SECTION II : ACADEMIES MEASUREMENTS AND CONSOLIDATION OF THE CONSIDERATIONS OF HUMANITY 42

Paragraph 1: Impact of academies measurements in the protection of the humans right 42

A- Definition of academies measurements 42

B- The demand for indication of academies measurements 44

Paragraph 2 : The application of academies measurements 45

A- The implementation of academies measurements 45

B- The range of academies measurements 48

SECOND PART : THE EVALUATION OF THE ROLE OF THE CIJ IN 50

MATTER OF THE HUMANS RIGHT 50

CHAPTER I : A CONTRIBUTION LIMITEE BY THE INTERNATIONAL PRACTICES 52

SECTION I : PRACTICE OF THE STATES AND THE ORGANIZATIONS 52

INTERNATIONAL 52

Paragraph 1 : Practice of the States 52

A- A refractory practice with the implementation of the decisions of the CIJ 52

B- A contrary conventional matter Practice 54

Paragraph 2: Timid practice of the international organizations 57

A- International organizations and the sasine of the CIJ 57

B- The emergence of the role of the international organizations 59

SECTION II: A POSITION CLAIRE AS FOR THE CREATION OF THE INTERNATIONAL PENAL JURISDICTIONS 61

Paragraph 2 : Contrarieties of judgments : case of the Tadic business 63

A- The position of the problem 64

B- Effects of opposed judgments 65

CHAPTER II : A DECISIVE CONTRIBUTION TO THE PACIFICATION OF THE INTERNATIONAL COMPANY AND A THE EMERGENCE OF THE NEW FIELDS OF RIGHT 67

SECTION I : THE CIJ, JUSTICE OF THE PEACE 67

Paragraph 1 : Consolidation of the right to peace 68

A- The role of the CIJ in the consolidation of the right to peace 68

B- A role shared with the Security Council 69

Paragraph 2 : The problem of the interference 70

A- Definition 71

B- The intervention of the Court as regards interference 72

SECTION II : CONTRIBUTION A THE EMERGENCE OF NEW 74

FIELDS OF INTERNATIONAL LAW 74

Paragraph 1 : Consolidation of the right to the environment 75

A- Dedication of the international law of the environment 75

B- The intervention of the environmental matter CIJ 76

Paragraph 2 : Consolidation of the right to health 77

A- Recognition of the right to health 77

B- The contribution of the CIJ as regards health 79

GENERAL CONCLUSION 82

BIBLIOGRAPHY 84

I- WORKS 84

II ARTICLES 84

III INTERNATIONAL TEXTS 88

IV REVIEWS AND OTHER DOCUMENTS 88

V- JURISPRUDENCES OF THE INTERNATIONAL COURT OF JUSTICE 89

A- Advisory opinions 89

B- Stops 89

CONTENTS 92

* ¹ J. Mr. BECET, D. COLARD, «  Humans right, national and international dimensions  », Paris, Economica, 1982, pp. 9-10.

* ² Ibidem, pp. 10-11.

* ³ O. DUHAMEL and Y. MENY,  «  Constitutional dictionary  », Paris, PUF, 1992, p. 33.

* ⁴ B. BOUMAKANI,  «  Democracy, human right, and State of right  », Annals of the Faculty of legal and political sciences, University of Dschang, Volume 1, vol. 2, PUA, 1997, pp. 5-22.

* ⁵ International pact relating to the civil laws and political, adopted and opened to the signature, the ratification and adhesion by the General meeting of the United Nations in her resolution 2200 A (XXI) of December 16, 1966. This Pact came into effect since March 23, 1976, in accordance with the provisions of article 49.

* ⁶ International pact relating to the social and cultural economic rights, adopted and opened to the signature, the ratification and adhesion by the General meeting of the United Nations in her resolution 2200 A (XXI) of December 16, 1966. This Pact came into effect on January 3, 1976, in accordance with the provisions of article 27.

* ⁷ The Universal Declaration of the Humans right was adopted and proclaimed by the Parliament of the United Nations on December 10, 1948, in its Resolution 217 A (III).

* ⁸ Article 92 of the Charter of the United Nations, and article 1 of the Statute of the International Court of Justice.

* ⁹ It was the case in 1978 when the Court revised its payment thus replacing the original payment of 1946 already amended in 1972. The last version of the payment dates from December 5, 2000.

* ¹⁰ Article 34 of the Statute of the International Court of Justice.

* ¹¹ CIJ, business of the Project Gabcikovo-Nagimaros (Hungary/Slovakia), stop of September 25, 1997, Rec., 1997 p. 3.

* ¹² Article 40 of the Statute of the International Court of Justice.

* ¹³ Article 66 of the Convention of Vienna on the right of the Treaties of May 23, 1969 with regard to the interpretation and the application of the standard of the juice cogens.

* ¹⁴ Article 36 §2 of the Statute of the CIJ.

* ¹⁵ Article 38 of the Statute of the International Court of Justice.

* ¹⁶ CIJ, Reserves with Convention for the prevention and the repression of the crime of genocide of December 9, 1948, advisory opinion of May 28, 1951, Rec., 1951, p. 22.

CIJ, legal Consequences of the construction of a wall in the occupied Palestinian territory, advisory opinion of July 9, 2004, Rec., 2004, p. 1.

* ¹⁷ CIJ, legal Conséquences for the presence continues of South Africa in Namibia, advisory opinion of June 21, 1971, Rec., 1971, p. 16.

* ¹⁸   At the request of the Economic and Social Council    ; CIJ, Camaraswamy (different relating to immunity from jurisdiction of a special rapporteur of the Commission of the humans right), advisory opinion of April 29, 1999, Rec., 1999, p. 10.

-   At the request of UNESCO; CIJ, judgment of the administrative Court of ILO on request against UNESCO, advisory opinion of October 23, 1956, Rec. 1956.

-   At the request of WHO  ; CIJ, admissibility of the threat or the use of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996, p. 4.

* ¹⁹ It is the case of the opinion of the CPJI of 1923 on the Decrees of nationality, series B n°4, between France and the United Kingdom.

* ²⁰ Article 37 § 2, of the Deed of partnership of ILO provides an illustration of it  : failing to subject to the CIJ a litigation relating to the interpretation of the charter constitutive or the conventions concluded under the auspices of ILO, the Board of directors can subject to a special jurisdiction  ; this one will be bound by any judgment and any advisory opinion of the relevant CIJ.

For further information, to see Roberto AGO,  «  Obligatory advisory opinions of the International Court of Justice  : problems of yesterday and today  », Mixtures Michel VIRALLY, international law to the service of peace, justice and the development, Paris, A. PEDONE, 1991, pp. 9-24.

* ²¹ One will find a good presentation of the various theories on the humans right in J. SHESTACK,  «  The jurisprudence off Human Rigths  », in T. MERON, ED. Human Rigths in international law, Oxford University Near, London, 1984, vol.1, p. 69.

* ²² Claude RUCZ,  «  The indication of academies measurements by the International Court of Justice in the business of the military and paramilitary activities in Nicaragua and against this one  », RGDIP, Volume 89/1985/1, p. 99.

* ²³ CIJ, reserves with Convention for the prevention and the repression of the crime of genocide of December 9, 1948, advisory opinion of May 28, 1951, Rec., 1951

CIJ, admissibility of the threat or the use of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996  ;

CIJ, legal Consequences of the construction of a wall in the occupied Palestinian territory, advisory opinion of July 9, 2004.

* ²⁴ CIJ, military and paramilitary Activities in Nicaragua and against this one (Nicaragua against the United States), stop of June 27, 1986, Rec., 1986.

CIJ, Barcelona traction, light and power, limited, stop of February 5, 1970, Rec, 1970  ;

CIJ, Business relating to certain committed penal procedures in France (Republic of Congo against France), demand for indication of academies measurements, June 17, 2003, Rec., 2003  ;

CIJ, Business relating to the warrant for arrest of April 11, 2000 (DRC against Belgium), stop of February 14, 2002, Rec., 2002.

* ²⁵ Caçado TRINIDADE, «  the jurisprudence of the International Court of Justice on the intangible rights  », in D. Prémont and others, Right intangible and states of exception, Bruylant, 1996, p.69.

* ²⁶ G. ABI-SAAB, «  sources of the international law  : test of déconstruction  », Amicorum Liber, E  ; Jiménez de Aréchaga, Montevideo FCU, 1994, p. 43.

* ²⁷ B.SIMMA and pH. ALSTON, «  The sources off human rights law: Darmouth, 1996, p.26.

* ²⁸ Gilbert GUILLAUME  : «  The International Court of Justice and humans right  », Made Conference on July 12, 2001 at the time of the fourth seminar of the Foundation Asia Europe in Denpasar (Indonesia).

* ²⁹ See in particular  : Convention for the prevention and the repression of the crime of genocide of December 9, 1948  ; convention for the repression of the draft of the human beings and the exploitation of the prostitution of 1950, or Convention against torture and other acts inhuman or degrading of December 10, 1984.

* ³⁰ Serge ON, «  Some observations on the international legal standards  », RGDIP, 1985, Volume 89, p. 911.

* ³¹ Francesco SALERNO, «  Counterclaim in the procedure of the International Court of Justice  », RGDIP, 1999, Volume 103 p. 355.

* ³² Ibidem.

* ³³ Pierre Marie DUPUY,  «  Elementary considerations of humanity in the jurisprudence of the International Court of Justice in Mixtures Nicolas VALTICOS, Right and justice, Paris  , PEDONE, 1999, p. 118.

* ³⁴ Vincent CHETAIL,  «  The contribution off the international international Court off justice to humanitarian law  », IRRC june 2003, vol. 85 n° 850.

* ³⁵ Maurice BOURQUIN, «  The humanization of the law of nations  », technique and principles of public law, LGDJ, Paris, 1950, Volume first, p. 42.

* ³⁶ K. WELLENS, «  The International Court of Justice and the protection of the humans right  », incidences of international jurisprudences on the Dutch and French rights in particular on the humans right, Paris, PUF 1992, p. 8.

* ³⁷ B. GAUTHIER,  «  Social research  », ED. Press University of Quebec, Quebec, 1987, p. 464.

* ³⁸ L. LEWIN,  «  Seek Action and consultation in public management, Module I  : What R A  ?  », in Guide of the expert to the professional training scheme in public management, Flight. III, December 1993.

* ³⁹ Association for the promotion of the Humans right in Africa Centrale whose seat is in Yaounde and who is located in the buildings of the Catholic University of Africa Centrale (campus of Ekounou).

* ⁴⁰ Article 53 of the Convention of Vienna of May 23, 1969 on the right of the treaties.

* ⁴¹ See in particular the stop of the CIJ in the business of the award of the King d' Espagne, Rec., 1960, pp. 209-213.

* ⁴² The Court made up to come to a conclusion about the determination of the maritime border Guinea-Bissau/Senegal refused to examine the allegation of GuinéeBissau- according to which the free-Portuguese Agreement of 1960 would be null because of violation by France of its national law  : «  the only State which could call upon this cause of nullity is Senegal  » as a successor of France (Award of July 31, 1989, RGDIP, 1990, p. 250  ; to also see p. 232.

* ⁴³ With regard to the error, in its judgment delivered in the business of the Temple of Préah Vihear, the CIJ also admitted the possibility of a confirmation express or tacit (stop of June 15, 1962, bottom), Rec., 1962, pp. 23-24, 29-32.

* ⁴⁴ In order to retain the sanction of absolute nullity, the TDCI stated that  «  the use of the constraint on the representative of the State in order to obtain the concluding of a treaty would be thing of such a gravity that the article should lay down the absolute nullity of the assent to a treaty obtained under such conditions  » (Year. TDCI. , 1996, flight. II, pp. 268-269).

* ⁴⁵ Article 52 of the Convention of Vienna of May 23, 1969 declares that  «  null is very treated whose conclusion was obtained by the threat or the use of the force in violation of the principles of international law built-in in the Charter of the United Nations  ».

* ⁴⁶ CIJ, Barcelona traction, light and power company, limited (Belgium counters Spain), stop of February 5, 1970, Rec., 1970, p. 32.

* ⁴⁷ CIJ, Business of the diplomatic and consular personnel from the United States in Teheran (the United States of America against Iran), academies measurements, ordinance of December 15, 1979, Rec., 1979, p. 20.

* ⁴⁸ CIJ, military and paramilitary Activities in Nicaragua and against this one (Nicaragua against the United States, bottom), stop of June 27, 1986, Rec., 1986, p.113.

* ⁴⁹ CIJ, Admissibility of the threat or the use of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996, p. 257 §79.

* ⁵⁰ Committee of the humans right, general observation n°24 (November 2, 1994), RUDH, 1995, p. 60.

* ⁵¹ The work of professor Rene Jean DUPUY on this subject from which some of the following developments are borrowed, is too dense to be completely evoked. We return only to two of its building owner  ; The international system closure, (PUF., Paris, 1989, 159 p.) and humanity in the imaginary one of nations (Juillard, Paris, coll.  «  Conferences, tests and lesson of the college of France  », 1991, 284 p.).

* ⁵² CIJ, Business of the African Western south (Ethiopia against South Africa  ; Liberia counters South Africa), stop of December 21, 1962, Rec., 1962, p. 329.

* ⁵³ CIJ, Business of the African western south (Ethiopia against South Africa  ; Liberia counters South Africa), stop of July 18, 1966, p. 51.

* ⁵⁴ CIJ, Business of Barcelona traction, light power company, limited (Belgium C/Spain), stop of February 5, 1970, Rec., 1970, p. 32.

* ⁵⁵ CIJ, Admissibility of the threat or the use of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996, p. 258.

* ⁵⁶ Ibidem, p. 273.

* ⁵⁷ Article 66 of the Convention of Vienna on the right of treaties of May 23, 1969.

* ⁵⁸ Michel VIRALLY, «  Reflections on the juice cogens  », AFDI, 1996, pp. 15-16.

See also article 71 of the Convention of Vienna of May 23, 1969, in particular with regard to the supervening of a juice cogens standard.

* ⁵⁹ DEBATEs A/Conf.39/II p. 326 §6.

* ⁶⁰ CIJ, Business of the African western South (Ethiopia against South Africa  ; Liberia counters South Africa), stop of July 18, 1966, Rec., 1966, p. 34.

* ⁶¹ Jean COMBACAU, «  International law, odds and ends or system  ?  », Files of philosophies of right, pp. 85-105.

* ⁶² D. COLLARD, «  First reflections on the treaty of the treaties  », in international newspaper, n°2, April, May, June, 1970.

* ⁶³ CIJ, Business of Barcelona traction, light power company, limited (Belgium C/Spain), stop of February 5, 1970, Rec., 1970, p. 32.

* ⁶⁴ CIJ, Application of Convention for the prevention and the repression of the crime of genocide (Bosnia-Herzégovine against Yugoslavia), preliminary exceptions of July 11, 1996, Rec., 1996, p. 616.

* ⁶⁵ Article 36 §1 of the Convention of Vienna on the right of the treaties of May 23, 1969.

* ⁶⁶ CIJ, Business of Barcelona traction, light power company, limited (Belgium C/Spain), stop of February 5, 1970, Rec., 1970, p. 32 §33

* ⁶⁷ CIJ, reserves with Convention for the prevention and the repression of the crime of genocide of December 9, 1948, advisory opinion of May 28, 1951, Rec., 1951, p. 23.

* ⁶⁸ CIJ, Business of the terrestrial, insular disagreement frontier maritime, stop of September 11, 1992, Rec., 1992, p. 610 § 424.

* ⁶⁹ CIJ, Business of Eastern Timor (Portugal against Australia), stop of June 30, Rec., 1996, p. 90.

See too  : CIJ, Guinea-Bissau counters Senegal, stop of November 12, 1991, Rec., 1991, p. 52.

* ⁷⁰Business relating to the Application of Convention for the prevention and the repression of the crime of genocide (Bosnia-Herzégovine C. Yugoslavia), exceptions preliminary, C.I.J. Rec., 1996, p. 612.

* ⁷¹ CIJ, legal Consequences of the construction of a wall in the occupied Palestinian territory, advisory opinion of July 9, 2004, Rec., 2004, p. 60.

* ⁷² CIJ, legal Conséquences for the States of the presence continues of South Africa in Namibia, advisory opinion of June 21, 1971, Rec., 1971, p. 37.

* ⁷³ CIJ, legal Consequences of the construction of a wall in the occupied Palestinian territory, advisory opinion of July 9, 2004, Rec., 2004, pp. 60-61 §154.

* ⁷⁴ CIJ, Strait of Corfou, melts, stop of April 9, 1949, Rec., 1949, p. 35.

* ⁷⁵CIJ, military and paramilitary Activities in Nicaragua and against this one (Nicaragua C. the United States of America), bottom, stop of June 27, 1986 Rec., 1986, p. 35.

* ⁷⁶ Ibidem, p. 134 §268.

* ⁷⁷ CIJ, Business of the Strait of Corfou, stop of April 9, 1949, Rec., 1949, p. 35.

* ⁷⁸The Tadic business of the international penal Court for the ex Yugoslavia of October 2, 1995 reconsiders largely the competence which an ad hoc jurisdiction in the event of massive violation of the humans right has the Security Council to create.

* ⁷⁹Alain Didier OLINGA, «  Concept of dignity in international law of the humans right, principle of unification or pretext with handling  ?  » Human Dignity in Africa, Book of the UCAC n°1,  Yaounde, PUCAC, 1996, pp. 233-234.

* ⁸⁰ CIJ, Strait of Corfou, stop, bottom, stop of April 9, 1949, Rec., 1949, p. 21.

* ⁸¹ Ibidem.

* ⁸²CIJ, diplomatic and consular Personnel from the United States in Teheran, stop of May 24, 1980, Rec., 1980, p. 42 and 43.

* ⁸³CIJ, military and paramilitary Activities in Nicaragua and against this one, bottom, stop of June 27, 1986, CIJ, Rec., 1986, p. 112.

* ⁸⁴TOKEN ENTRY DUPUY, «  Elementary considerations of humanity in the jurisprudence of the International Court of Justice  », Mixtures Nicolas VALTICOS, Paris, A. PEDONE, 1999, p. 122.

* ⁸⁵CIJ, admissibility of the use or the threat of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996, §77.

* ⁸⁶ Ibidem, p. 26.

* ⁸⁷P.M. DUPUY,  «  Elementary considerations of humanity in the jurisprudence of the International Court of Justice  », Mixtures Nicolas VALTICOS, Paris, A. Pedone, 1999, p.125.

* ⁸⁸ CIJ, military and paramilitary Activities in Nicaragua and against this one, bottom, stop of June 27, 1986, Rec. 1986, p.114, §219.

* ⁸⁹The Court developed the absolute character of the elementary considerations of humanity in its Détroit stop of Corfou of 1949 and in that of Nicaragua to the academies measures.

* ⁹⁰CIJ, admissibility of the use or the threat of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996, §79.

* ⁹¹Ibidem, §105.

* ⁹²TOKEN ENTRY DUPUY,  COp. Cit., p. 130.

* ⁹³ Jean Rene DUPUY  : Run of general international law to the Academy of The Hague, 1979.

* ⁹⁴ CIJ, diplomatic and consular Personnel from the United States in Teheran (Iran against the United States), ordinance in academies measurements of December 15, 1979, Rec., 1979, p. 19. It is indeed at the Court to estimate if the provisional measures are essential, within sight of the situation  : it orders them only if it is convinced of the imminence of a not easily reparable damage.

* ⁹⁵CIJ, Competence as regards fisheries (the United Kingdom C. Iceland, the Federal Republic of Germany C. Iceland), ordinance of August 17, 1972, Rec., 1972, p.16 §21 and p. 34 §22.

* ⁹⁶ CIJ, Interhandel Business, ordinance in academies measurements of October 24, 1957, Rec., 1957, p. 111.

* ⁹⁷ CIJ, Affaire relating to certain penal procedures engage in France (Republic of Congo against France), demand for indication of academies measurements, of June 17, 2003, Rec., 2003. p. 10. Here the Court sees in the circumstances of the species, no need for indicating academies measurements.

* ⁹⁸CIJ, Business of the military and paramilitary activities in Nicaragua and against this one (Nicaragua C. the United States), Ordinance of January 10, 1986, Rec., 1986, p. 10.

* ⁹⁹ CIJ, military and paramilitary Activities in Nicaragua and against this one (Nicaragua against the United States), ordinance in academies measurements of May 10, 1984, Rec., 1984, p. 169.

* ¹⁰⁰Application of Convention for the prevention and repression of the crime of genocide, academies measurements, ordinance of April 8, 1993, CIJ. Rec., 1993, p. 3 and 325.

* ¹⁰¹ CIJ, Business relating to the Convention of Vienna on the consular relations (Paraguay C. the United States of America), ordinance in academies measurements of April 9, 1998, Rec., 1998, § 1-22.

* ¹⁰² Article 36 paragraphe1 subparagraph B of the Convention of Vienna on the consular relations of April 24, 1993.

* ¹⁰³ CIJ, Business relating to the Convention of Vienna on the consular relations (Paraguay C. the United States of America), demand for indication of academies measurements of April 9, 1998, Rec., 1998, § 23-41.

* ¹⁰⁴ CIJ, Business Walter LaGrand (Germany C. the United States of America), demand for indication of academies measurements of March 3, 1999, §8.

* ¹⁰⁵ It is necessary to announce the speed with which the Court came to a conclusion about the German request, considering the gravity and the extreme urgency of the situation. The German request having been deposited on March 2, 1999 with 19h 30 (The Hague time) and the execution of Walter LaGrand being planned for the following day with 15h (hour of Phoenix), the Court returned its ordinance in the day of March 3, just a few hours before the fateful hour.

* ¹⁰⁶ We will quote here like examples  : the attitude of France with regard to the ordinance of June 22, 1973 in the business of the nuclear Tests (Rec. 1973, p. 99 and 135), it is also the case of Iran in the business of the diplomatic and consular personnel from the United States in Teheran (ordinance of December 15, 1979, Rec. 1979, p. 7) or of the United States in the business of the military and paramilitary activities in Nicaragua and against this one (ordinance of May 10, 1984, Rec., 1984, p. 169.) and in several other businesses which we examined in this paragraph.

* ¹⁰⁷ CIJ, Competence as regards fisheries, stop on the bottom of July 25, 1974, Rec., 1974, p. 175.

* ¹⁰⁸ CIJ, military and paramilitary activities in Nicaragua and against this one (Nicaragua C. the United States, bottom), stop of June 27, 1986, Rec., 1986, § 289.

* ¹⁰⁹Hubert THIERRY, «  Evolution of the international law  », general course of public international law. RCADI, 1990, III.

* ¹¹⁰For an update of this information, to see Internet site of the CIJ, http://www.icj-cij.org/c.i.j.www/cdocumentbase/cbasicdeclarations.htm

* ¹¹¹See as example the declaration of India, which does not count less than 11 reserves.

* ¹¹² See also Philippe WECKEL,  «  Continuations of the decisions of the International Court of Justice  », AFDI, 1996, pp. 439-440.

* ¹¹³See in a general way on this point Bernard TO THAT, «  Agreements of Algiers of 19 June 1981 tending to the settlement of the disputes between the United States and Iran  », Clinet, 1981 pp. 713-775.

* ¹¹⁴See to this end the statement made by the permanent representative of the United States to the Security Council (Doc. S/pv.2704 of July 31, 1986, 2704° Session, P. 58).

* ¹¹⁵The business of the decrees of nationality in Tunisia and in Morocco, C.P.J.I., Series B, n° 4, p.24.

* ¹¹⁶ Ibidem.

* ¹¹⁷Jean-Pierre COT and Alain PELLET  : «  Comment of article 94  » in the Charter of the United Nations Comment article by article, 2° ED. Paris, Economica, 1991, §18.

* ¹¹⁸See the continuations of the judgments delivered by the Court in the businesses of the territorial Disagreement (Libya/Chad) (Collection 1994, p.6) and of the Island of Kasikili/Sedudu (Namibia Botswana) (Collection 1999).

* ¹¹⁹The ordinances 2mars 1990  : Award of July 31, 1989, Guinea-Bissau C. Senegal, rec.1990, p.64  ; July 29, 1991  : Passage by Grant Belt-Finland C. Denmark, rec.1991, p.12  ; 14 avril1992  : Air incident of Lockerbie, rec.1992, p.3  ; March 15, 1996  : Terrestrial and maritime border enters Cameroun and Nigeria, rec.1996, p.13  ; 3mars 1999  : large Germany c.Etats-plain, rec. 1999, p.9  ; June 23, 2003  : Republic of Congo C. France, rec.2003 and others.

* ¹²⁰Military and paramilitary activities against Nicaragua and this one (Nicaragua C. the United States), bottom, stop of June 27 CIJ Rec., 1986 § 267.

* ¹²¹G. COHEN-JONATHAN,  «  The responsibility for infringement of the humans right  », the responsibility in the international system, Paris, A. PEDONE, 1991, p.120 and following.

* ¹²² See, Articles 1 and 3 of the article draft adopted by the TDCI 1996, flight. II, 2° Left, pp. 62-63.

* ¹²³ We can quote here several businesses which we saw in our first part with knowing  : the Breard business of 1998, the LaGrand business of 1999 or the Avena business of 2003.

* ¹²⁴ Sir Gerald FITZMAURICE, in A/CN. 4/101,  art 3, Year. TDCI. 1956 - II, p. 106.

* ¹²⁵ P. DALLIER and A. PELLET,  «  Public international law  », Paris, L.G.D.J. 1999, 6th ED. p. 572.

* ¹²⁶ Date of the registration at the Clerk's office of the Court of the letter of the general manager of WHO, communicating the reflection resolution WHA 46.40 adopted by the Parliament of WHO the 1e May 1993.

* ¹²⁷Date of the registration of the clerk's office of the letter of December 19, 1994 of the Secretary-general of UNO, communicating resolution 19/75k adopted by the General meeting on December 15, 1994.

* ¹²⁸CIJ, op.cit. §21.

* ¹²⁹Preamble to the constitution of WHO, to also see article 2 enumerating the functions of the organization.

* ¹³⁰ Resolution 45/6 of the General meeting of October 16, 1990.

* ¹³¹ Resolution 49/2 of the General meeting of October 19, 1994.

* ¹³² Article 15 §2 of the Statute of the international penal Court.

* ¹³³ S. MALJEAN-DUBOIS,  «  The business relating to the application of Convention for the prevention of the crime of genocide  », stop of July 11, Exceptions preliminary, Directory france Dr. int. 1996, p. 357  ; See also H. RUIZ-FABRI and J-M. SOREL, «  Chronicle of jurisprudence of the CIJ  » (1996), J.D.I. 1998, p. 837.

* ¹³⁴ CIJ, Application of Convention for the prevention and the repression of the crime of genocide (Bosnia Herzégovine C. Yugoslavia), ordinance of April 8, 1993 on a demand for indication of academies measurements, Rec., 1993, § 42.

* ¹³⁵ Ibidem.

* ¹³⁶ H. RUIZ FABRI and J-M. SOREL, «  Chronicle of jurisprudence of the CIJ  » (1996), JDI, 1998, p. 858.

* ¹³⁷ T. CHRISTAKIS,  «  Relations between the CIJ and the TPIY  : First cracks with the unit of the right  ?  », The United Nations observer, n° 1- 1996, p. 45.

* ¹³⁸ Frederic DOPAGNE, «  The responsibility for the State because of the private individuals  : causes of charge revisited by the articles on the responsibility for the State for internationally illicit fact  », RBDI, 2001-2 pp. 493-525.

* ¹³⁹ Gilbert GUILLAUME  : Speech in front of the General meeting of the United Nations on October 30, 2001.

* ¹⁴⁰ Gilbert GUILLAUME  : Speech in front of the General meeting of the United Nations on October 26, 2000.

See also for more information  : Daniel SOULEZ-LARIVIERE and others,  «  Progress and limits of international justice  », Our justice. The book of French justice, ED. Robert LAFFONT, 2002, p. 385  ; Gilbert GUILLAUME  :  «  The International Court of Justice at the dawn of the XXe century. The glance of a judge  », ED., A. PEDONE, 2003, p. 26.

* ¹⁴¹ B. BOUTROS GHALI,  «  Diary for peace  », 2° editions, N.U., New York, 1995, pp. 64-66.

* ¹⁴²Ibidem, p.65  ; to see in the same direction, O.Paye,  «  Operations of maintenance of peace and new local disorders  »  ; in A. Daen and Al With the research of the new world order. II. UNO  : changes and challenges, Brussels, ED. Complex, 1993, pp.93-136, p.95.

* ¹⁴³C. Leben, «  International jurisdiction  », Right, n° 9, 1989, p.143.

* ¹⁴⁴CIJ, military and paramilitary Activities in Nicaragua and against this one (Nicaragua C. the United States, bottom), stop of June 27, 1986, Rec., 1986, p. 435 § 95.

* ¹⁴⁵Luigi CONDORELLI,  «  Jurisdictions and (dice) legal order in international law  : some remarks about the stop of October 2, 1995 of the room of call of the international penal Court for the ex Yugoslavia in the Tadic business  », Mixtures Nicolas VALTICOS, A. PEDONE 1999, pp. 281-286.

* ¹⁴⁶Legal consequences of the construction of a wall in the occupied Palestinian territory, advisory opinion of July 9, 2004, Rec., 2004, p. 62, §161.

* ¹⁴⁷Philippe CHRESTIA  :  «  The influence of the humans right on the evolution of the contemporary international law  », RTDH n° 40,  1999, p. 723.

* ¹⁴⁸CIJ, military and paramilitary Activities in Nicaragua and against this one, stop of June 27, 1986, CIJ, Rec., 1986, pp. 134-135.

* ¹⁴⁹ CIJ, COp cit., P.125. §242.

* ¹⁵⁰S/res./733 (1992) of January 23, 1992, K. WELLENS, resolutions and declarations of the Security Council (collection set of themes), Bruyant, Brussels, 1993, p. 343.

* ¹⁵¹S/res./758 (1992) of June 8, 1992, RGDIP, 1992/4, p.1047.

* ¹⁵²J.D. BOUKONGOU, «  The coordination of the humane policies  : which lessons starting from the experiments of central Africa  ?  » Stakes n° July-September 8, 2001, p. 9-12.

* ¹⁵³CIJ, admissibility of the use or the threat of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996, § 29.

* ¹⁵⁴Ibidem, §30. In this context, the Court quotes, it to approve, the principle 24 of the Declaration of Rio.

* ¹⁵⁵CIJ, following COp cit., §20 and.

* ¹⁵⁶CIJ, COp cit., §54-57.

* ¹⁵⁷CIJ, COp cit., §57.

* ¹⁵⁸CIJ, COp cit., §35.

* ¹⁵⁹Overall study of the nuclear weapons, Report/ratio of the Secretary-general, Doc. UNO. With/September 45,/373,18 1990, p. 90, §327.

* ¹⁶⁰Protocol III of the Agreements of Paris of October 23, 1954 on the control of the armaments, Annexe II, in RGDIP, 1963, p. 825.

* ¹⁶¹ Principal opinion, §78.

* ¹⁶² Individual opinion of Fleischhauer judge, §2.

* ¹⁶³ Declaration of Mr. Bedjaoui, president, §20.

* ¹⁶⁴ Declaration of Mr. Herczegh.

* ¹⁶⁵ Dissenting opinion of Koroma judge.

* ¹⁶⁶Dissenting opinion of Weeramantry judge.

* ¹⁶⁷ Gilbert GUILLAUME  : Speech in front of the General meeting of the United Nations on October 30, 2000.