Human Rights in the International Court of Justice
Chapter 15
Human Rights in the International Court of Justice
1. Introduction
It is a truism that since the end of the Second World War there has been both a deepening of the substantive law of human rights and a broadening of what is perceived as human rights entitlements…. It is inevitable – and welcome – that all of this should over time have an impact on the International Court of Justice (ICJ). Article 34 of the Statute provides that the Court may only deal with cases between states. Until comparatively recently the Court was a ‘Court of sovereign States’. But, as it is above all a court of international law, it has in recent years become also a court concerned with human rights, as human rights law has finally found its proper place within international law. Advisory Opinions, and interstate cases which claim human rights treaty violations inter se, have provided the vehicle for this development within the Court.1
It should be noted beforehand that there is some literature on the contribution of the International Court of Justice (ICJ) to the development of human rights,2 and a greater amount of literature on specific judgements or advisory opinions delivered by the court.3 Even a quick glance at the case law of the court reveals the variety of issues with clear implications for the development of international human rights law rules and principles that it has dealt with. Nevertheless, assessing the contribution of the court to the interpretation and development of these rules and principles is no easy task. Human rights encompass an array of civil, political, economic, social, and cultural rights whose promotion and protection are considered to be one of the fundamental aims of the United Nations (UN), of which the ICJ is the principal judicial organ. While it is difficult to do justice to such a broad topic in the space available, this chapter tries to provide an overall picture through four components, namely the internationalization of human rights, their development and codification, the case law relating to the 1948 UDHR,4 and a brief general overview of the court’s contribution to the development of human rights.5 That is followed by some concluding remarks.
For our purposes, the international law of human rights is understood as being that part of international law comprising numerous international instruments and to a significant extent also reflected in customary international law norms. They comprise a rather detailed normative framework and give rise to a considerable number of protection mechanisms. Indeed, over a relatively short period of time, international human rights law has developed to ‘create a body of universal standards and values at the service of human dignity, equality and non-discrimination, and human freedoms’.6 It is obvious, not only to the human rights scholar, but also to any layperson, that the body of international human rights law has experienced a large and substantial growth in the decades following the Second World War.7 As Judge Buergenthal has rightly noted, the idea that the protection of human rights knows no international boundaries, and that the international community has an obligation to ensure that governments guarantee and protect human rights wherever they may be violated, has gradually captured the imagination of mankind.8 However, against this impressive development in conceptualization, standard-setting and institutionalization of protection of human rights, practice shows that still quite a lot remains to be done to fully implement these commonly agreed human rights standards.
2. Internationalization of Human Rights
Understanding the ICJ’s contribution to the interpretation and development of the rules and principles of international human rights law requires, besides an analysis of the court’s case law, also knowledge of the development of this branch of law. By way of illustration of the court’s contribution, suffice it to mention here the obiter dictum in the Barcelona Traction case9 about the erga omnes nature of fundamental human rights which lies at the roots of the development and the acquired importance of the international law of human rights. Although the ICJ is restricted in this respect due to the lack of locus standi for individuals, it has been seized with cases where issues of international law of human rights either form the subject matter of the dispute or are closely related to it.
The development of international human rights, like that of any branch of international law, is a process that takes place within the international legal and political framework with its own laws, procedures, and institutions that shape the form and content of human rights. As Steiner and Alston assert, ‘it would be impossible to grasp the character of the human rights movement without a basic knowledge about international law and its contributions to it.’10 Indeed, the development of rules and principles of international human rights law is intrinsically linked with international law and international institutions. National and international human rights promotion and protection represent, respectively, the horizontal and the vertical strands where the attainment of commonly agreed human rights standards takes place. Since the ICJ, which is the focal point of this chapter, is an international judicial body, our focus remains primarily on the vertical strand of the international law of human rights that is meant to bind states. Today, human rights are characteristically imagined as a movement involving international law and institutions, as well as a movement involving the spread of liberal constitutions among states.11 Although, understandably, national governments have a primary responsibility to promote and protect the human rights of persons under their jurisdiction, international promotion and protection of human rights have been and continue to be an essential element of the human rights system.
The importance of human rights, illustrated, among other ways, also by the jus cogens status that certain human rights have achieved, is largely due to the emergence, the development, and the acquired importance of the human rights discourse in the international arena. This development stems from the human rights clauses of the UN Charter and, obviously, from the moral and legal weight that command the duty to respect and to ensure respect for human rights. There is a huge difference between the former situation, in which the individual was considered to be just an object of international law, and now when few would dispute that the individual is a participant in the international legal system.12 Indeed, at present, every individual enjoys a set of rights guaranteed by numerous international human rights instruments, while at the same time also bearing certain duties and responsibilities. While usually individuals do not have specific duties under human rights treaties, international law provides for individual criminal responsibility for violations that constitute internationally recognized crimes such as genocide, war crimes, crimes against humanity, and torture.13 The latest developments in the field of international criminal law seem to suggest that the above-mentioned crimes have come to be subject to universal jurisdiction, just like piracy and the slave trade.
The question of the possibility of individuals being subjects of international law has come before the predecessor of the ICJ, the Permanent Court of International Justice (PCIJ), and has been answered in the positive. In the advisory opinion of the PCIJ in the Jurisdiction of the Courts of Danzig case,14 the court admittedly accepted that the contracting parties might create rights and obligations for private parties. At earlier stages, the exertion by states of the right to diplomatic protection on behalf of their citizens caused, necessarily, a shift of attention to the rights of the individual, better reflected in the words of the PCIJ: ‘the fact that the beneficiary of rights is not authorized to take independent steps in his own name to enforce them does not signify that he is not a subject of the law or that the rights in question are vested exclusively in the agency which possesses the capacity to enforce them.’15 That paradigm shift has paved the way for further advancements regarding the position and the standing of individuals under international law. Whether entitlement is accompanied with the capacity of enforcement of these human rights is an issue which should be answered by a case-by-case approach through reference to the given situation and to the relevant international instrument. While individuals do not have specific duties under human rights treaties, gross violations of human rights entail individual criminal responsibility for internationally recognized crimes such as genocide and crimes against humanity.
3. The ICJ and the Development and Codification of International Human Rights Law
While, on the one hand, the work of the court has exerted a considerable influence upon the development of the international law of human rights, on the other hand, the development of this branch of law itself has also exerted a considerable influence on the jurisprudence and the caseload of the court. Obviously, that mutual interaction takes place in a political, socio-economic, and legal environment, which has formed and continues to form and shape our society. Thus, the findings of the court cannot be properly assessed, or even understood if taken out of the context of the development of our society and the laws in force at that given time. In an advisory opinion, the court stated that an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation.16 Certainly, that very legal system the court refers to is itself the product of political and societal needs and human development and thus, eventually, would have to serve those needs. The development of the international law of human rights has gone through three main phases which have conditioned, to a large extent, the contribution rendered by the court to this branch of international law. The number of cases being brought before the court dealing with human rights issues differs from one period to another. However, it is noteworthy that this number has notably increased since the Nicaragua case,17 and the fall of the Iron Curtain.
A distinguishing characteristic of the first phase of the development of the international law of human rights is the process of standard setting. This important process started in 1945 with the establishment of the UN, which made the protection and the promotion of human rights one of its main purposes.18 In fact, in this period the court’s involvement with human rights issues was at a very low level, as instruments of international law of human rights were scarce. But two of the first advisory opinions, although concerned mainly with treaty interpretation, allowed the court to propagate the concept of internationalization of human rights,19 and of the civilizing purpose of such human rights treaties.20 Furthermore, in this first phase the court helped to clarify a very important principle of human rights law, namely the right of peoples to self-determination.21 This right was to be embedded in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR)22 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)23 adopted in 1966. The latter year marked the beginning of the second phase, namely that of implementation and enforcement of the standards already set by that still small body of international law of human rights. That does not mean that the standard-setting process and the body of international law of human rights instruments stopped developing – for that is an ongoing process accompanying the development of human society – but the main foundations of this branch of law were finally laid with the International Bill of Human Rights24 and the 1948 Genocide Convention. During this period, the court was faced with a considerable number of cases which touched upon many intricate and contentious issues, such as decolonization, immunity of human rights rapporteurs, and diplomatic protection. That second phase of the development of international law of human rights finished in 1989 with the end of the Cold War, which marked an important shift in the international world order.
Indeed, the end of the Cold War marked the beginning of a new phase in the activity of the ICJ when developing countries had shown an increased willingness to have their disputes settled by the court. Furthermore, as mentioned above, the end of this era saved the court from the lurking risk of being trapped in that ideological debate or being perceived as taking sides in it, a perception that would have resulted in undesirable repercussions for its work. From the fall of the Berlin Wall in 1989 to the present, we have entered the third phase of the development of human rights, namely that of the mainstreaming of human rights. According to the UN High Commissioner for Human Rights, mainstreaming human rights refers to the concept of enhancing the human rights programme and integrating it into the broad range of UN activities, including the areas of development and humanitarian action. The contribution that the court can render to mainstreaming human rights from the position of one of the main organs of UN and the principal judicial organ needs no explanation.
The development of international human rights law through the adoption of many international and regional treaties and the ensuing recognition of direct entitlements of individuals to these rights have influenced the frequency of cases dealing with human rights brought before the court. Commenting upon this development, Higgins observed that ‘this vast explosion of human rights conventions could, it might have been thought, lead to a heavy human rights component in the Court’s work. The reality, however, is different.’25 It should be noted though that, while not amounting to an ‘explosion’, the human rights component of cases brought before the ICJ has increased considerably over time. Suffice it to mention here the substantial increase in cases touching upon human rights brought before the court since the 1990s.26 Consequently, a distinguishable and strong human rights element has been present in proceedings before the court both in contentious cases and requests for an advisory opinion. Potentially, the court will receive more cases arising from violations of human rights committed whether in peacetime or during armed conflicts. However, any increased role of the court with regard to the interpretation and development of international human rights rules and principles necessitates also a change in state behaviour, a change in substantive and procedural international law, and, last but not least, a substantial increase of the capacities of the court.
The adoption of numerous instruments of international law of human rights and the importance attached to the protection and promotion of human rights contributed to an upsurge in the case law of the court dealing with issues concerning human rights. While for reasons of space it is not possible to analyse in detail the relevant case law, suffice it to say that the court has generally taken a firm position in favour of human rights and clarified how certain human rights rules and principles were to be understood and applied. Indeed, since the beginning of its work, the court coined and emphasized the importance of elementary considerations of humanity, 27 which lie at the foundation of international human rights law. In the words of Judge Weeramantry:
The enormous developments in the field of human rights in the post-war years, commencing with the Universal Declaration of Human Rights in 1948, must necessarily make their impact on assessments of such concepts as ‘considerations of humanity’ and ‘dictates of the public conscience’. This development in human rights concepts, both in their formulation and in their universal acceptance, is more substantial than the developments in this field for centuries before. The public conscience of the global community has thus been greatly strengthened and sensitized to ‘considerations of humanity’ and ‘dictates of public conscience’. Since the vast structure of internationally accepted human rights norms and standards has become part of common global consciousness today in a manner unknown before World War II, its principles tend to be invoked immediately and automatically whenever a question arises of humanitarian standards.28
Although not an exhaustive list, issues concerning human rights which have come before the court include the right of peoples to self-determination, the status and treatment of special UN rapporteurs, consular relations or diplomatic protection, the application of the Genocide Convention, the immunity of senior state officials, the right to asylum, and the application of human rights treaties in territories under occupation. By interpreting and developing rules and principles of human rights related to these issues the court has contributed to creating more clarity and ultimately to improvement of the human rights protection system.
Some of the above-mentioned issues have been the subject of the work of the International Law Commission (ILC), whose mission is to work towards the codification and progressive development of international law in general. Some of the issues considered by the ILC are diplomatic protection, nationality including statelessness, formulation of the Nuremberg Principles, international criminal jurisdiction, the definition of aggression (as included in the draft code of crimes against the peace and security of mankind), and state responsibility. When identifying diplomatic protection as a topic appropriate for codification and progressive development by the ILC, this body acknowledged the useful dialogue with the ICJ on this issue.29 In clarifying the relation between human rights and diplomatic protection, the ILC referred to quite a few cases decided by the ICJ.30 In fact, the special rapporteur of the ILC on this topic has gone as far as to propose making it obligatory for states to exercise diplomatic protection where a norm of jus cogens has been violated in respect of the individual.31 If this proposal were to be endorsed and further upheld by the ICJ in its case law, it would decisively qualify as a progressive development for the international law of human rights.
A look at the summaries of the work of the ILC reveals that some important issues under consideration are reservations to treaties, the effect of armed conflicts to treaties, the obligation to extradite or prosecute (aut dedere aut judicare), the responsibility of international organizations, and the expulsion of aliens.32 Given the important ramifications that the ILC work on these issues can have for the international law of human rights, the case law of the ICJ can provide some guidance in choosing the right approach and vice versa.33 Indeed, the interaction between the ILC, as a body entrusted with the codification and progressive development, and the ICJ, as an organ of international law, creates the necessary background for the further development of international law in general and human rights norms and principles in particular.