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

Paragraph 1 : Contents of the juice cogens standard

For better determining the concept of juice cogens, we will examine initially his dedication (A), then its determination (B).

A- Dedication and contents of the juice cogens standard

The juice cogens can be regarded as the legal device (concept of imperative standard) being used as document in proof for cancellation of a treaty or some of its provisions, i.e. for the invalidation of an international legal document at a rate of its illicit object.

Devoted in 1969 to the conference of Vienna on the right of the treaties, the concept of juice cogens is vague on the legal level, even if article 53 of the Convention of Vienna tries to give him an official definition. According to this article : « Null is very treated which, at the time of its conclusion, is in conflict with an imperative standard of the general international law. For purposes of this Convention, an imperative standard of international law is a standard accepted and recognized by the international community of the States as a whole as a standard which no exemption is allowed and which can be modified only by one new standard of international law having the same character »^40(*).

The juice cogens is universal and applies to the profit of all the members of the international company, it acts of a kind of international law and order, i.e. the defense of a general interest which is essential on the particular interest States.

The Convention of Vienna of 1969 does not enumerate in an exhaustive way the cases of juice cogens in its articles. However, the Commission of international law limited itself to give of them some examples, we will mention some without taking account of an order preferably or hierarchical, there is for example :

- certain principles of humane right

- the principle of non-intervention,

- the sovereignty of the States,

- the respect of the word given (principle pacta sunt servanda),

- the peaceful payment of the disagreements,

- the respect of the diplomatic and consular right,

- illiceity of the genocide, slavery, the draft and piracy,

- the principle of the responsibility and compensation for the damage caused with others,

- the autonomy of the will of the States and contractual freedom in conformity with the international law,

- the respect of the minimum standard in the treatment granted the abroads.

The juice cogens striking of nullity all the treaties which are not subjected to it, and article 64 Convention of Vienna of 1969, lays out that if a new standard of general international law occurs, very treated existing which is in conflict with this standard becomes null and does not have any more a legal force. It should be recognized that the Convention of Vienna of 1969 crystallizes a mode of nullity which existed already at the internal level.

Indeed, the various legal orders intern apply two types of nullity as regards contract : absolute nullity and relative nullity. Absolute nullity on the other hand sanctions the serious illegalities which affect the general interest and disturb the law and order, relative nullity, strikes the violation of the rules posed with an only aim of protecting the contractors as private people.

According to the traditionally allowed opinion in doctrines, the international order would be unaware of this distinction between relative nullity and absolute nullity. Any nullity would be relative there because the principle of the effectivity would play there the part of a general process, cover and irregular situation in the beginning which profited from a durable application. These doctrines appear confirmed by the jurisprudence which abstained from striking absolute nullity an award sullied with abuse of power or of violation of compromise, irregularities however serious which it would have been of public interest to sanction severely^41(*).

The authors of the Convention of Vienna let themselves influence neither by this practice, nor by these doctrines. They cumulatively retained these two types of nullity by assigning with each one a precise field of application and by determining the differences in mode, which relate to the possibility of making play the principle of divisibility and of agreeing to the irregularity for the State victim, and on the right to call upon the vice one which sullies the treaty. Thus by relative nullity all the irregularities of the assent other than are sanctioned the constraint, i.e. the non-compliance with the constitutional procedures^42(*), the error^43(*), the fraud and the corruption of the representative of a State.

Absolute nullity as for it relates to for example the constraint exerted on the person of the representative of the State^44(*), or the treaties vitiated by the constraint exerted on the State^45(*).

* ⁴⁰ Article 53 of the Convention of Vienna of May 23, 1969 on the right of the treaties.

* ⁴¹ See in particular the stop of the CIJ in the business of the award of the King d' Espagne, Rec., 1960, pp. 209-213.

* ⁴² The Court made up to come to a conclusion about the determination of the maritime border Guinea-Bissau/Senegal refused to examine the allegation of GuinéeBissau- according to which the free-Portuguese Agreement of 1960 would be null because of violation by France of its national law  : «  the only State which could call upon this cause of nullity is Senegal  » as a successor of France (Award of July 31, 1989, RGDIP, 1990, p. 250  ; to also see p. 232.

* ⁴³ With regard to the error, in its judgment delivered in the business of the Temple of Préah Vihear, the CIJ also admitted the possibility of a confirmation express or tacit (stop of June 15, 1962, bottom), Rec., 1962, pp. 23-24, 29-32.

* ⁴⁴ In order to retain the sanction of absolute nullity, the TDCI stated that  «  the use of the constraint on the representative of the State in order to obtain the concluding of a treaty would be thing of such a gravity that the article should lay down the absolute nullity of the assent to a treaty obtained under such conditions  » (Year. TDCI. , 1996, flight. II, pp. 268-269).

* ⁴⁵ Article 52 of the Convention of Vienna of May 23, 1969 declares that  «  null is very treated whose conclusion was obtained by the threat or the use of the force in violation of the principles of international law built-in in the Charter of the United Nations  ».