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

Paragraph 1 : Practice of the States

We will see here that the practice of the States is not only refractory with the implementation of the decisions of the CIJ (A), but which it is then contrary out of conventional matter (B).

A- A refractory practice with the implementation of the decisions of the CIJ

It is necessary to acknowledg that the contribution of the International Court of Justice as regards the humans right is really limited as for its setting in execution by the States. Indeed, far from behaving like « children of heart », the States are rather reticent with the execution of the decisions of the CIJ.

At July 31, 1999, 62 States only (that is to say less than one third of the Member States of UNO) had made the statement of acceptance of the obligatory competence of the Court under the terms of article 36, §2 of the Statute,^110(*) and in more these declarations are matched for certain reserves of very broad range sometimes. ^111(*) So several States in litigation often do without the decisions of the Court. The business of the diplomatic and consular Personnel from the United States in Teheran undoubtedly represents one of the precedents emblématiques in this respect. Indeed, in addition to the importance owing to the fact that the parts had a common vision of different so that the Court can fulfill its role in an effective way, the business of « hostages » clarifies the limits of the effectiveness of the recourse to international justice in the situations where the judges have to at least know only one shutter of the disagreement conceived like broader by one of the parts^112(*).

In the species, one knows indeed whom the decision of the Court for important that it was on the plan of the principles, at all did not cause to put an end to the crisis « hostages », nor more largely, with that of the American relations irano. The overall arrangement of this litigation occurred only later on, following a process to which the Court is remained entirely foreign^113(*).

The inexecution of pronounced Court on the bottom of the litigation also appeared in the business of Nicaragua. In the species, the refusal of the United States to take part in the phase of the procedure devoted to the bottom of the business was accompanied by a complete rejection of the decision at the bottom, returned by the Court in 1986^114(*). As a whole, the reserve and the refusal of the States as for the implementation of the decisions of the CIJ, enable us to include/understand the limits of the action of Court. Indeed, although it is equipped with a universal competence, the Court once more does not have any dissuasive means which can oblige a State to put in execution its jurisprudence, Ainsi, the principle of the sovereignty of the States takes precedence over the international law.

B- A contrary conventional matter Practice

The traditional doctrines of the absolute sovereignty of the States always called upon the concept of « reserved field of the States » in order to prevent the development of new rules or even the discussion of a question, a problem, a situation, by an unspecified international body. But it should be said that on the whole, the assent of the States constitutes the initial and ultimate base of any international legal provision. If there is no progressive development of the international law.

In was the business of the decrees of nationality in Tunisia and in Morocco, the permanent Court of international justice seized by the Council of the SDN in order to know if the disagreement between France and the United Kingdom about the decrees of nationalities promulgated in Tunis and in Morocco (French zone) on November 8, 1921, and of their application to the British nationals, is or is not, according to the international law, a business exclusively of an interior nature? (Article 15, paragraph 8 of the pact). The permanent Court already answered in 1923, that « the question of knowing if a certain matter returns or does not return in the exclusive field of a State is a primarily relative question, it depends on the development of the international relations »^115(*).

On the one hand, it added rightly that « besides to draw aside the exclusive competence of a State does not prejudge at all the final decision on the right which this State would have to take measurements in question »^116(*). It is there the primarily evolutionary character of the notion of the reserved field.

Thus, at the time when a question forms part, even partially, of an international regulation, it is impossible for the State, having accepted this regulation, to regard it as still forming integral part of its reserved field.

Generally with regard to the decisions returned by the International Court of Justice on the aspects touching with the humans right, it is necessary to notice a certain voluntarism on behalf of the States in conflict, with the implementation and the execution of these decisions^117(*). This report is worth with the first chief for the businesses introduced by compromise. Logically, the States which are intended to submit in question the result reached for the Court. That is justified even in the Head of the State for which the decision would be entirely unfavourable^118(*).

The increasing use by the States of incidental procedures in front of the CIJ also carries testimony of the current success of the Court at the States. Thus, the latter frequently presented these last years of the demands for indication of academies measurements, in spite of the uncertainties attached to the legal effect of these last^119(*)

With regard to the implementation, it should be said that the recognition of the international obligation to respect the humans right is founded on a general principle of usual nature, and its effect erga omnes the place under the collective guarantee of the other States and the international community as a whole. The International Court of Justice in its stop of June 27, 1986 notes that : « the inexistence of an engagement (on the matter) does not mean that State can violate the humans right with impunity »^120(*). In this way, the Court tends to confirm the existence of a general international obligation to respect the humans right whose base is consequently usual. This design was systematized by the Institute of International law in its resolution of September 13, 1989, in Saint-Jacob de Compostelle^121(*).

Such an obligation relates to the whole of the humans right of usual or conventional origin, by taking as starting point article 55 of the Charter of the United Nations. Applying as well the abroads as with the nationals, it limits sovereignty by drawing aside, of this chief, in the event of violation, any exception resulting from the sacro-saint principle of non-intervention in the interior businesses, as we saw higher.

Thus, the State which violates a conventional obligation, engages its international responsibility with regard to any injured State and one cannot claim any more that this field comes under its national responsibility primarily. To take again the terminology of the Commission of the international law, « done everything internationally illicit, ascribable in a State engages its international responsibility »^122(*). There are obvious examples of violation of the conventional obligations, it is the case of the United States which does not cease violating article 36 §1, B, of the Convention of Vienna on the consular relations of April 24, 1993^123(*), according to which in the event of arrest or of placement in detention of a foreign national, the proper authorities of the State must inform without delay the person of her right to profit from the consular assistance of its country. In a general way, and for the serious and generalized violations, the international practice tends to admit the possibility of « against measurement » in order to make respect essential standards. A State or a group of States can consequently react vis-a-vis a serious violation by taking the constraining measurements adapted on the diplomatic or economic level.

* ¹¹⁰For an update of this information, to see Internet site of the CIJ, http://www.icj-cij.org/c.i.j.www/cdocumentbase/cbasicdeclarations.htm

* ¹¹¹See as example the declaration of India, which does not count less than 11 reserves.

* ¹¹² See also Philippe WECKEL,  «  Continuations of the decisions of the International Court of Justice  », AFDI, 1996, pp. 439-440.

* ¹¹³See in a general way on this point Bernard TO THAT, «  Agreements of Algiers of 19 June 1981 tending to the settlement of the disputes between the United States and Iran  », Clinet, 1981 pp. 713-775.

* ¹¹⁴See to this end the statement made by the permanent representative of the United States to the Security Council (Doc. S/pv.2704 of July 31, 1986, 2704° Session, P. 58).

* ¹¹⁵The business of the decrees of nationality in Tunisia and in Morocco, C.P.J.I., Series B, n° 4, p.24.

* ¹¹⁶ Ibidem.

* ¹¹⁷Jean-Pierre COT and Alain PELLET  : «  Comment of article 94  » in the Charter of the United Nations Comment article by article, 2° ED. Paris, Economica, 1991, §18.

* ¹¹⁸See the continuations of the judgments delivered by the Court in the businesses of the territorial Disagreement (Libya/Chad) (Collection 1994, p.6) and of the Island of Kasikili/Sedudu (Namibia Botswana) (Collection 1999).

* ¹¹⁹The ordinances 2mars 1990  : Award of July 31, 1989, Guinea-Bissau C. Senegal, rec.1990, p.64  ; July 29, 1991  : Passage by Grant Belt-Finland C. Denmark, rec.1991, p.12  ; 14 avril1992  : Air incident of Lockerbie, rec.1992, p.3  ; March 15, 1996  : Terrestrial and maritime border enters Cameroun and Nigeria, rec.1996, p.13  ; 3mars 1999  : large Germany c.Etats-plain, rec. 1999, p.9  ; June 23, 2003  : Republic of Congo C. France, rec.2003 and others.

* ¹²⁰Military and paramilitary activities against Nicaragua and this one (Nicaragua C. the United States), bottom, stop of June 27 CIJ Rec., 1986 § 267.

* ¹²¹G. COHEN-JONATHAN,  «  The responsibility for infringement of the humans right  », the responsibility in the international system, Paris, A. PEDONE, 1991, p.120 and following.

* ¹²² See, Articles 1 and 3 of the article draft adopted by the TDCI 1996, flight. II, 2° Left, pp. 62-63.

* ¹²³ We can quote here several businesses which we saw in our first part with knowing  : the Breard business of 1998, the LaGrand business of 1999 or the Avena business of 2003.