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

II THE CONTROL OF THE STUDY

Our study will be undertaken through a review of literature (A), a methodology (A), and a beforehand definite plan (C).

A- THE REVIEW OF THE LITERATURE

The International Court of Justice, body legal principal of the United Nations, has a general and universal competence to know the litigations between States. It has of this fact competence to rule on the problems raised by the respect of the humans right in times of peace as in the event of wars. In addition its decisions are final and obligatory for the parts and the Security Council holds of article 94 of the Charter authority to ensure the execution of it. But it is quite rare that a State voluntarily agrees to see disputing its action in the field of the humans right. It is also rare that a State disputes in front of the judge the behavior of a State in similar field. It results from it that the Court hardly had the occasion to rule on such behaviors in the device of its judgments and to try to rectify them^28(*).

At the time of its interventions as regards the humans right, the Court often bases itself on the core of the activity of the United Nations to knowing the international Charter of the humans right consisted the universal Declaration of the humans right adopted on December 10, 1948 by the General meeting, the two Pacts of 1966 and the optional protocol annexed to the Pact relating to the civil laws and political. In addition to these fundamental texts, there are also many protective conventions of the humans right^29(*). However, the International Court of Justice was not satisfied only with the Texts existing, it also launched out in the development of certain standards relating to the humans right. There is initially : the juice cogens. For Serge ON, the juice cogens « conduit, under the badly defined conditions, at least with the nullity of the treaties, and can be with particular forms of international responsibility. Beyond the particular subjects, it aims at as a whole protecting the interest from the international community of the States, of which it proceeds. But it is not alone to take into account »^30(*). Then, the Court devoted the obligations erga omnes which are essential with regard to all the States. Francesco SALERNO estimates that « the Court for a long time recognized that the duty of repair rises like corollary from any violation from an international obligation. It does not seem that the obligations erga omnes make exception at this point »^31(*). It adds that « the legal function of the Court does not relate to only the complaints of the States left to the procedure but also contributes to affirm the effectivity of the international standards concerned »^32(*). Lastly, within the framework of the humane right the Court devoted the elementary principles of humanity ; Pierre Marie DUPUY, thinks that « the new reference made by the Court to these elementary considerations of humanity thus proves the remanence of a reference to this concept undoubtedly as fertile as ambiguity since it is not always known if it indicates a source of right or if it remains only one legal extra inspirer of the judge. The analysis of its jurisprudential occurrence, though relatively rare, appears at all events justified by the fact that its considerations are not taken into account, in all assumptions, that at the time of the invocation by the Court of rules for which it intends to stress the extreme importance and the need for seeing them applied by all »^33(*). Always in the field of the humane right, Vincent CHETAIL was very clear in his article entitled : « The contribution off the international international Court off justice to humanitarian law »^34(*). This article indeed, evaluates the contribution of the International Court of Justice to the humane international law. The author thinks that the International Court of Justice contributes to highlight the fundamental values of the community that the international community expressed in the humane international law. Its jurisprudence represents an essential contribution, because, on the one hand, it clarifies the relation between the humane international law and the general international law, and on the other hand, it specifies the contents of the fundamental principles of the humane international law. The article examines the judgments and advisory opinions of the Court and evaluates perception that this one has complex relation between the treaties of humane right, the rules usual and the juice cogens.

In a general way, « it should be recognized that the law of nations is concentrated more on the human problems and is thus worried directly individual interests which are committed there, it is normal that he grants to the individual a considerable place in the technical mechanism of his realization. One has the right to suppose that, in a form or in another, its intervention will become more frequent and more active there "^35(*). It is necessary to note by-there an increase in the normative activity of the International Court of Justice as regards the humans right. And, « with regard to the number of the humans right on the which Court had the occasion de' to decide, it goes without saying that the access to the Court limited to the States, its jurisprudence particular could not, essentially, develop in an abundant way. Nevertheless the Court was obliged to discuss some subjects which, nowadays, gained or found, because of the international events, their pressing topicality ; let us quote for example the right of the minorities, the prohibition of racial discriminations or the discussed sector of the humane intervention ». ^36(*)

* ²⁸ Gilbert GUILLAUME  : «  The International Court of Justice and humans right  », Made Conference on July 12, 2001 at the time of the fourth seminar of the Foundation Asia Europe in Denpasar (Indonesia).

* ²⁹ See in particular  : Convention for the prevention and the repression of the crime of genocide of December 9, 1948  ; convention for the repression of the draft of the human beings and the exploitation of the prostitution of 1950, or Convention against torture and other acts inhuman or degrading of December 10, 1984.

* ³⁰ Serge ON, «  Some observations on the international legal standards  », RGDIP, 1985, Volume 89, p. 911.

* ³¹ Francesco SALERNO, «  Counterclaim in the procedure of the International Court of Justice  », RGDIP, 1999, Volume 103 p. 355.

* ³² Ibidem.

* ³³ Pierre Marie DUPUY,  «  Elementary considerations of humanity in the jurisprudence of the International Court of Justice in Mixtures Nicolas VALTICOS, Right and justice, Paris  , PEDONE, 1999, p. 118.

* ³⁴ Vincent CHETAIL,  «  The contribution off the international international Court off justice to humanitarian law  », IRRC june 2003, vol. 85 n° 850.

* ³⁵ Maurice BOURQUIN, «  The humanization of the law of nations  », technique and principles of public law, LGDJ, Paris, 1950, Volume first, p. 42.

* ³⁶ K. WELLENS, «  The International Court of Justice and the protection of the humans right  », incidences of international jurisprudences on the Dutch and French rights in particular on the humans right, Paris, PUF 1992, p. 8.