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

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.

* 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.