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

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.

* 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.