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

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.

* 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.