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

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(*).

* 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.