The jurisprudence of the International Court of Justice generally demonstrates that no rule of international law can be interpreted and applied without regard to its innate values and the basic principles of human rights. Through its case-law the ICJ has made immense contributions to the development of human rights law, and in so doing continues to provide solutions to mounting international problems, such as terrorism and unilateral use of force. Part I of the book argues that the legislative spirit of contemporary international law lies in the doctrine of human rights and that the spirit of human rights doctrine lies in the principle of human dignity. Furthermore it argues that the processes of international legislation and international adjudication are inseparable, and that there is no norm of international law which does not intertwine the fundamental principle of human dignity with human rights doctrine. Hence human rights law is more a school of law than merely a normative branch of international law, and the ICJ's willingness to engage in the development of human rights law depends upon which judicial ideology its judges subscribe to.In order to evaluate how this human rights spirit is manifested, or occasionally not manifested, through the vast jurisprudence of the ICJ, Parts II and III critically examine the Court's principal contentious and advisory cases in which it has treated human rights questions. The legal reasoning of the Court and the opinions appended to its decisions by its individual judges are analysed in light of the principle of human dignity and the doctrine of human rights.
Author(s): Shiv R.S. Bedi
Series: Studies in International Law
Publisher: Hart Publishing
Year: 2007
Language: English
Pages: 480
City: London
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Contents
1. Introduction
Part I. Perspective: Legislative Role of the Judge and Human Rights Law
2. Legislative Role of the Judge: A Vital Role in the Life of the Law
I. The Core Truth: All Roads Lead to Rome
II. The Core Truth in Retrospect: An International Perspective
III. Legislative Role of the ECJ and the ECHR
IV. Legislative Role of the International Court of Justice
V. The Development of Law and Judicial Ideologies
VI. Appraisal
3. Relationship between Human Rights and International Law: Principle of Human Dignity Versus Principle of State Sovereignty
I. Basis of International Law: The Principleof Sovereignty
II. Basis of Human Rights Law: The Principle of Human Dignity
III. Appraisal: Principle of Human Dignity in Retrospect and Prospect
Part II. The Development of Human Rights Law by the International Court of Justice Contentious Cases
Introduction to the Contentious Procedure of the Court
4. Corfu Channel Case (United Kingdom v Albania) (1947-49)
I. The Principle of Elementary Considerations of Humanity
II. Judge Alvarez: Manifest Misuse of a Right Not Protected by Law
5. South West Africa cases (1960-66): Violation of Human Rights Law Led to Formation of Human Rights Law
I. Prelude
II. Norm of Non-Discrimination and 1962 Judgement: Court Has Jurisdiction to Adjudicate Upon the Merits
III. Judges Jessup and Bustamente: Voting in Favour of 1962 Judgment with Human Rights Additions
IV. Second Phase Judgment: Compositional Politics a Setback to Human Rights
V. Disproportionate Quorum: A Setback to Human Rights
VI. Second Phase Judgment: Legal Formalism Circumvents Human Rights
VII. Judge Tanaka and the Development of Human Rights Law
VIII. Judge Jessup: Principle of Equal Rights is Universal and Apartheid is a Justiciable Issue
IX. Judge Padilla Nervo: The Principle of Non-Discrimination and Obligation to Promote Respect for Human Rights are Internationally Recognized in Most Solemn Form
X. Judge Wellington Koo: A Nation is a Developed Nation only if all its Citizens are Treated on the Basis of Equality before the Law
XI. Judge Koretsky: Racial Discrimination an Issue of Vital Importance
XII. Judge Mbanefo’s Dynamic Interpretation: Mandate and Apartheid
XIII. Judge Forster’s Bold Teleological-Sociological-Natural Interpretation of Law Condemns Apartheid
XIV. Postlude: Violation of Human Rights Law Led to Formation of Human Rights Law
6. Barcelona Traction, Light and Power Co, Ltd (New Application: 1962) case (Belgium v Spain) (1962-70)
I. Human Rights Run Erga Omnes
II. Enforcement of Human Rights
7. United States Diplomatic and Consular Staff in Tehran case (USA v Iran) (1979-81)
I. Human Dignity and Diplomatic Immunity
II. 1948 Universal Declaration of Human Rights is Binding in Character
8. Military and Paramilitary Activities in and Against Nicaragua case (Nicaragua v USA) (1984-91)
I. The Use of Force not an Appropriate Method to Ensure Respect for Human Rights
II. The Principle of Self-Determination: Adherenceto a Particular Doctrine Does not Violate Customary International Law
9. East Timor (Portugal v Australia) Human Rights Versus State Sovereignty
I. Some Preliminary Reflections
II. Human Dignity Through Self-Determination v The Power of State Sovereignty
III. Court Upholds the State Sovereignty in the Face of Human Rights and Human Dignity
IV. Monetary Gold Principle v Human Rights
V. ‘We the Peoples’, Self-Determination andState Sovereignty
VI. Sacred Trust of Civilization v State Sovereignty
VII. Dissent: Internal and Public
VIII. Nevertheless: The Court did Add Authority to the Various Areas of the Principle of Self-Determination which Needed Clarification
IX. Conclusion
10. Application of the Convention on the Prevention and Punishment of the Crime of Genocide case (Bosnia and Herzegovinia v Yugoslavia) (1993-): Prohibition of Genocides as Jus Cogens
11. Legality of Use of Force (Yugoslavia v Belgium; Yugoslavia v Canada; Yugoslavia v France; Yugoslavia v Germany; Yugoslavia v Italy; Yugoslavia v Netherlands; Yugoslavia v Portugal; Yugoslavia v Spain; Yugoslavia v United Kingdom; Yugoslavia v USA) (1999-2004)
I. Yugoshima: Human Rights Issues of the Gravest Nature: Law Remained Silent When the Bombs Spoke
II. Grund Case, Grund Subject, Grund Law and Grund Obligation
III. Obiter Dicta v Ratio Decidendi: Human Rights Could Not Be Protected
IV. Prima Facie Jurisdiction and Human Rights
V. The Development of Human Rights Law: An Analysis of Static Jurisdiction v Dynamic Law
12. Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) An Analysis of Human Dignity of the People, for the People, by the People
I. Some Preliminary Reflections
II. The Factual Background of the Yerodia Case
III. Why Separate the Issues of Universal Jurisdiction and Immunity?
IV. Doctrine of Immunity and the Concept of Human Dignity
V. The Principle of Universal Jurisdiction and the Concept of Human Dignity
VI. Belgian Reaction after the Judgment
VII. Conclusion
13. Vienna Convention on Consular Relations cases: the Convention Does Create Individual Rights (1998-2004)
I. Some Preliminary Observations
II. Three Cases with One Common Fact: Vienna Convention on Consular Relations Creates Human Rights
III. Case Concerning the Vienna Convention on Consular Relations (Paraguay v USA): Individual Rights Remained Undecided
IV. LaGrand Case (Germany v USA): Vienna Convention Does Create Individual Rights
V. The Case Concerning Avena and OtherMexican Nationals (Mexico v USA)38:Individual Rights Further Clarified
VI. General Conclusion
Part III. The Development of Human Rights Law by the International Court of Justice: Advisory Cases
14. International Status of South-West Africa (1949-50) The Principle of Sacred Trust of Civilization
15. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide case (1950-51) Genocide is Supremely Unlawful and its Principles are Binding on all States Irrespective of Being Party to a Convention
16. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (1970-71)
I. Introduction
II. Self-Determination in Retrospect and Prospect
III. Apartheid as a Policy Constitutes a Denial of Fundamental Human Rights
IV. People as Such Can Become Holder of Rights
17. Western Sahara case (1974-75) The Principle of Self-determination
18. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations case (1989)
I. Special Rapporteur of UN Human Rights Commission Entitled to Privileges and Immunities of a UN Expert on Mission
II. Judge Evensen: Integrity of a Person’s Family and Family Life is A Basic Human Right
III. Judge Evensen: Rights of Family and Family Life are Integral Parts of Privileges and Immunities
19. Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request for Advisory Opinion by World Health Organization) (1993-96)
I. Human Right to Health v Use of Power: Separation of Powers is the Answer
II. Judge Weeramantry: to Find Law on Nuclear Weapons is Not to Legislate on the Subject
III. Judge Koroma: Right to Health is a Pillar of Peace
20. Legality of the Threat or Use of Nuclear Threat (Request for Advisory Opinion by UN General Assembly) (1994-96)
I. Judge Oda: Judges Do Not Legislate
II. Right to Life and The Human Rights Component of the Law of War
III. Judge Bedjaoui: Nuclear Weapons v Right to Life:
IV. Judge Weeramantry: Nuclear Weapons Totally Belie Human Dignity
V. Judge Koroma: Both Human Rights Law and International Humanitarian Law Have as their Raison d’être the Protection of the Individual as well as the Worth and Dignity of the Human Person
VI. Genocide and Nuclear Weapons
VII. Judge Higgins: Intent Approximates to Legal Doctrine of Foreseeability
VIII. Judge Weeramantry: Nuclear Weapons are Instruments of Genocide and their Use is Plainly Genocide
IX. Judge Koroma: Quantum of the People Killed by Nuclear Weapons Could be Tantamount to Genocide
X. Human Rights Component of the Law of War
XI. Conclusion
21. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (1998-99)
22. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2003-04) Belligerent Occupation and Human Rights
I. Some Preliminary Observations
II. Facts of the Case in a Nutshell
III. Historical Analysis of the Occupied Territory
IV. Human Rights Law Does Apply in the Occupied Territories
V. International Humanitarian Law Does Apply in the Occupied Territory: The Rules of International Humanitarian Law are Binding on All Nations and the Law is Erga Omnes
VI. Terrorism v Self-Defence: Grave Infringement of Human Rights cannot be Justified by Military Exigencies and National Security
VII. The Court’s Advice to the General Assembly: Human Rights are Violated by Israel and They Must be Enforced by All States
VIII. Conclusion
23. Summary and General Conclusion
General Bibliography
Bibliography of Works by Judges of the Court
Bibliographical Annexes
Index
