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

Paragraph 2: The CIJ and the implementation of the juice cogens standard

We will consider in this part the implementation of the juice cogens standard by the International Court of Justice (A), before noting that this setting works residence a hesitant practice (B).

A- The implementation of the juice cogens standard by the CIJ

Without using the term of juice cogens, the International Court of Justice decided for the first time on this concept in a stop of February 5, 1970, by affirming that « an essential distinction must in particular be established between the obligations of the States towards the international community as a whole and those which are born with respect to another State within the framework from diplomatic protection. With their nature even, the first relate to all the States »^46(*).

Last nine years later, the Court adds in an ordinance of December 15, 1979, « that no State has the obligation to maintain the diplomatic relations or consular with another States, but what under no circumstances would it miss recognizing the imperative obligations which they comprise and who are now codified in Conventions of Vienna of 1961 and of 1963 to which Iran and the United States left »^47(*).

The consultation of the jurisprudence of the International Court of Justice, makes it possible to note that there exists, among the humane legal provisions to which a usual range is recognized of long date, of the principles equipped with a particular authority. Thus in the business relating to the military and paramilitary activities in Nicaragua and against this one (Nicaragua against the United States, bottom)  ; the Court considered that « the behavior of the United States could be to appreciate according to the basic general principles of humane right whose, in his opinion, Conventions of Geneva constitute in certain connections the development and which in certain connections they do nothing but express »^48(*).

Indeed, the International Court of Justice estimates that the principles of the humane international law contained to article 3 commun run with Conventions of Geneva « intransgressibles principles of the usual international law constitute »^49(*).

In that, it takes again the general observation n° 24 of the Committee of the humans right according to whom « the provisions of the Pact which represent rules of the usual international law (a fortiori when they have the character of imperative standards) cannot be the subject of reserve »^50(*). The role thus is seen that the International Court of Justice as regards the humans right plays, in the transformation of the contemporary international law, this role contributes to forge standards of international law in which the values of justice and humanity precede. This role also contributes to the integration of the States in a community of membership ; work of professor Rene Jean DUPUY magistralement showed that this community of membership is humanity^51(*). Humanity as a community of membership fits moreover in the current evolution of universalization and allows to reach with the universalization of the humans right.

The man must be able to be protected where that it is and the States have for this reason, from the particular obligations. From these particular obligations rises for example « interest to act » that each State for the safeguarding of the basic rights has of the human person. The interest to act before the International Court of Justice was the subject of a jurisprudence abundant, but not always constant. Indeed, November 4, 1960, Ethiopia and Liberia deposited a request before the Court, requiring a judgment of the policy followed by South Africa in the African western South (under mandate). They were the two only African States which before were members of the Company of Nations (SDN). In its stop of December 21 of the 1962, the Court reaffirmed the recognition « of a crowned mission of civilization falling on the Company as an organized international community and its members »^52(*). The legal recourse, initiated by a member of the SDN constituted the ultimate means of protection against the violations of provisions of the mandate. The Court stated itself qualified to know disagreement at the bottom. But four years later, it declared «that the applicants could not be like having established the existence with their profit a right or legal interest with the glance of the object of these requests ; consequently, the Court must refuse to take action pursuant to it. By the casting vote of its president (Sir Percy Spender), the voices being shared, the Court decide to refuse the applications of the Empire of Ethiopia and the Republic of Liberia »^53(*). The Court recognized that all the nations could have an interest with the achievement of the crowned mission of civilization, but that it would not be about legal interest, constituting the base of an action in front of it.

This completely negative conclusion constituted a watershed, blocking in an absolute way the interest to act before the international Court, for any State in connection with the protection of the people under mandate. But the contribution of the Court towards the broadest possible protection of the humans right will not stop, in spite of the decision of 1966.

Indeed, in one of its observations most famous and most important about the protection of the basic rights for the States, the Court declared that « considering the importance of the rights in question, all the States can be regarded as having a legal interest so that these rights are protected ; the obligations in question are obligations erga omnes »^54(*).

* ⁴⁶ CIJ, Barcelona traction, light and power company, limited (Belgium counters Spain), stop of February 5, 1970, Rec., 1970, p. 32.

* ⁴⁷ CIJ, Business of the diplomatic and consular personnel from the United States in Teheran (the United States of America against Iran), academies measurements, ordinance of December 15, 1979, Rec., 1979, p. 20.

* ⁴⁸ CIJ, military and paramilitary Activities in Nicaragua and against this one (Nicaragua against the United States, bottom), stop of June 27, 1986, Rec., 1986, p.113.

* ⁴⁹ CIJ, Admissibility of the threat or the use of the nuclear weapons, advisory opinion of July 8, 1996, Rec., 1996, p. 257 §79.

* ⁵⁰ Committee of the humans right, general observation n°24 (November 2, 1994), RUDH, 1995, p. 60.

* ⁵¹ The work of professor Rene Jean DUPUY on this subject from which some of the following developments are borrowed, is too dense to be completely evoked. We return only to two of its building owner  ; The international system closure, (PUF., Paris, 1989, 159 p.) and humanity in the imaginary one of nations (Juillard, Paris, coll.  «  Conferences, tests and lesson of the college of France  », 1991, 284 p.).

* ⁵² CIJ, Business of the African Western south (Ethiopia against South Africa  ; Liberia counters South Africa), stop of December 21, 1962, Rec., 1962, p. 329.

* ⁵³ CIJ, Business of the African western south (Ethiopia against South Africa  ; Liberia counters South Africa), stop of July 18, 1966, p. 51.

* ⁵⁴ CIJ, Business of Barcelona traction, light power company, limited (Belgium C/Spain), stop of February 5, 1970, Rec., 1970, p. 32.