La Cour internationale de justice et la problématique des droits de l'homme

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.

* 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.