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

B- A role shared with the Security Council

It frequently happens that the CIJ and the Security Council are seized at the same time by the same business. Businesses of « Diplomatic and consular personnel from the United States in Teheran » and of « military and paramilitary activities in Nicaragua and against this one » showed that disagreements carried before the Court were treated under other aspects by the Council. At the time of this second dispute opposing the United States to Nicaragua, the Court had the occasion to specify that the Council had « political attributions » and itself of « purely legal functions », two bodies thus being able « to discharge their functions distinct but complementary in connection with the same events »^144(*). Despite everything, a possible competition between the two can appear, especially if the Court plans to exert a control of legality of the acts of the Council. If the Court hesitated until now venturing over this ground, the TPIY showed much more audacity in the business « Tadic »^145(*).

If the Court to the point agreed to control the legality of the acts of the Council, it would be able to contribute in a decisive way to the re-establishment of peace. For the moment, it did not yet really dare to cross Rubicon, its attitude being explained by the difficulty of control and the prudence of which it makes proof in its exercise, which weakens the range of its contribution as regards maintenance of peace.

With the acceleration of the rate/rhythm of adoption of resolutions by the Security Council since the conflict of the Golf, the debate on the control of its actions takes all its direction. Its recent practice enabled him to devote a particularly extensive design of the concept of peace. It would thus seem logical that the CIJ can develop its role under the maintenance of peace, thanks to a widening of the operative field of the international bankruptcy proceedings, including a control of legality of the acts of the Council. The place of the CIJ, « principal legal body of the United Nations », makes an instrument completely ready of it to take part in the system of maintenance of peace, envisaged by the Charter. According to Professor A. Pellet, this reasoning is essential « insofar as the objective first of the Charter is to subject the exercise of the force by the States to an international control, the CIJ is without any doubt, one of the possible instruments of this control ». However, as each one knows it, the recourse to the force remains at the time current a persistent data in the international relations. The fact that the disagreements subjected to the CIJ relate to this use of the force and are directly in relation to the maintenance of peace and of safety an obstacle with the exercise of its jurisdiction does not constitute at all. The Court for example affirmed recently in connection with the construction of the Israeli wall in Palestine, which it is «anxious to give its support for the goals and the principles registered in the Charter of the United Nations, in particular the maintenance of peaces and safety international and the peaceful payment of the disagreements, holds to underline the urgent need that the United Nations as a whole redoubles its efforts in order to quickly put a term at the israélo-Palestinian conflict, which continues to pose a threat with international peaces and safety, and thus to establish a peace fair and lasting in the area »^146(*).

* ¹⁴⁴CIJ, military and paramilitary Activities in Nicaragua and against this one (Nicaragua C. the United States, bottom), stop of June 27, 1986, Rec., 1986, p. 435 § 95.

* ¹⁴⁵Luigi CONDORELLI,  «  Jurisdictions and (dice) legal order in international law  : some remarks about the stop of October 2, 1995 of the room of call of the international penal Court for the ex Yugoslavia in the Tadic business  », Mixtures Nicolas VALTICOS, A. PEDONE 1999, pp. 281-286.

* ¹⁴⁶Legal consequences of the construction of a wall in the occupied Palestinian territory, advisory opinion of July 9, 2004, Rec., 2004, p. 62, §161.