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

Paragraph 2 : Consolidation of the right to health

We will examine initially the recognition of the right to health (A), before seeing the contribution of CIJ on the matter (B).

A- Recognition of the right to health

The recognition of the right of all human being to the best health than it is able to reach within the framework of the international law relating to the humans right implies a series of social installations- standards, institutions, laws, favorable environment- which as well as possible allow the pleasure of this right. The best interpretation of the right to health is in article 12 of the international Pact relating to the economic, social and cultural rights which, in May 2002 had been ratified by 145 countries. This article lays out that :

« 1 - the States left with the present Pact recognize the right which has any person to enjoy the best physical and mental health that it is able to reach.

2- Measurements that the States left with the present Pact will take in order to ensure the full exercise of this right will have to include/understand measurements necessary to ensure :

a) reduction in the infantile still birth, as well as the healthy development of the child ;

b) improvement of all the aspects of the hygiene of the medium and the occupational hygiene ;

c) the disease prevention and treatment of the epidemic, professional and different diseases, as well as the fight against these diseases ;

d) the creation of conditions suitable to ensure all of the medical departments and medical aids in the event of request.

The right to health was evoked for the first time in the constitution of WHO (1946) and was reaffirmed in the Declaration of Alma ATA of 1978 and in the world Declaration on the health adopted by the world Parliament on health in 1998. The right to health was devoted with force in a great number of international and regional instruments of the human rights. The International Court of Justice for its part did not remain in margin of this dedication, and it tends today by its jurisprudence to consolidate this emergent right. We will be based primarily on the opinion of July 8, 1996 on the nuclear weapons to show the implication of the Court in the evolution of the right to health.

B- The contribution of the CIJ as regards health

It is first of all advisable to recall that on July 8, 1996, the Court had returned two decisions ; the first related to the refusal to answer at the request of opinion of the World Health Organization (WHO), the second answered at the request of opinion of the General meeting. The Court in fact had refused to answer at the request of WHO because it had estimated that its question did not relate to legal problems arising within the framework of the activity of this organization, as article 96 required it, paragraph 2, of the Charter of the United Nations^155(*), even if WHO dealt with the nuclear weapons since 1983.

Indeed, the use of the nuclear weapons carries reached as well to the physical integrity of the human beings as to the territorial integrity of the Non-member states. That can be explained by radiations, the electromagnetic impulse and the radioactive dusts which do not know borders. Among the hostile arguments with the admissibility of the use of the nuclear weapons, the Court drew aside those based on prohibition to use chemical or poisoned weapons^156(*). The Court notes indeed that the convention of 13 January 1993 prohibiting the chemical weapons was negotiated and adopted « in a clean context and for clean reasons »^157(*). It recalls that during negotiations, which preceded the adoption by this instrument, it forever be question of nuclear weapons. It would be thus abusive to seek there the source of a prohibition of the threat or use of the nuclear weapons. This reasoning is correct, because it reflects reality. On the other hand, one is more skeptic when the Court says that article 23 has/Payment of The Hague of 1907 (which prohibits the use of the poisoned weapons) and the protocol of Geneva of 1925 (which prohibits the use of the nuclear weapons).

Because these texts do not define what it is necessary to understand by « poisoned weapons » and by « similar matters or processes » (protocol of 1925)^158(*), how can - it then to forget that this radiation, which is specific to the only nuclear weapons^159(*), affects only the living matter, which is diffusion even chemical weapons ? However, the effects of the nuclear weapon which rise from the initial and induced radioactivity are similar to those of the poison, like that was recognized by the scientific circles and the States themselves, when they defined the nuclear weapon as being « any weapon which contains, or is designed to contain or use a nuclear fuel or radioactive isotopes and which, by not controlled explosion or other nuclear transformations or by radioactivity of nuclear fuel or the radioactive isotopes, is capable of massive destruction, generalized damage or poisoning solid masses »^160(*). In other words, even if the effects first of the nuclear weapon are effects of breath and heat, it does not produce of them less subsequent effects of poisoning ; it is thus prohibited under the terms of article 23 has/Payment of The Hague as well as an arrow or a poisoned ball, of which the effect first is to however wound the body of the victim, does not deliver of it less poison which makes it fall under the blow from prohibition.

In a general way, it should be recognized that in this business, the Court shone by several gaps of interpretation of the International Conventions. But if in the field of the application of the treaties, the decision of the Court were characterized by one nonliquet, that was not the case on the plan of the principles.

The Court declares that « it is thus interdict to use weapons causing them such evils or unnecessarily worsening their sufferings higher than the inevitable evils than the achievement of legitimate military objectives supposes »^161(*). The majority of the judges do not have fears to be less circumspect, and formulated a general evaluation. Thus, Fleischhauer judge declares that of such « incommensurable sufferings » return to « negation of the humane considerations which inspire the duty applicable to armed »^162(*). President Bedjaoui affirms that these weapons « cause (...) useless sufferings »^163(*) and Herczegh judges it estimates that the fundamental principles of the humane right prohibit the use of the nuclear weapons^164(*). Koroma judge, after having described the effects of the atomic weapons in Hiroshima, in Nagasaki and in the Marshall Islands, declares that since the radioactive effects are worse than those of pollutant gases, « the observations which precede should necessarily have led the Court to conclude that any use of nuclear weapons is illicit in international law »^165(*). Weeramantry judge is even firmer : « facts (...) are more than sufficient to establish that the nuclear weapon causes superfluous evils exceeding of much what the goals of the war require »^166(*).

Ultimately, the contribution of the Court as regards health much proved on the plan of the principles proclaimed than on the decisions taken.

* ¹⁵⁵CIJ, following COp cit., §20 and.

* ¹⁵⁶CIJ, COp cit., §54-57.

* ¹⁵⁷CIJ, COp cit., §57.

* ¹⁵⁸CIJ, COp cit., §35.

* ¹⁵⁹Overall study of the nuclear weapons, Report/ratio of the Secretary-general, Doc. UNO. With/September 45,/373,18 1990, p. 90, §327.

* ¹⁶⁰Protocol III of the Agreements of Paris of October 23, 1954 on the control of the armaments, Annexe II, in RGDIP, 1963, p. 825.

* ¹⁶¹ Principal opinion, §78.

* ¹⁶² Individual opinion of Fleischhauer judge, §2.

* ¹⁶³ Declaration of Mr. Bedjaoui, president, §20.

* ¹⁶⁴ Declaration of Mr. Herczegh.

* ¹⁶⁵ Dissenting opinion of Koroma judge.

* ¹⁶⁶Dissenting opinion of Weeramantry judge.