The Elgar Encyclopedia of Human Rights is the most comprehensive reference work in the field of international human rights protection. Comprising over 340 entries, presented alphabetically, and available online and in print, the Encyclopedia addresses the full range of themes associated with the study and practice of human rights in the modern world. The topics range from substantive human rights to the relevant institutions, legal documents, conceptual and procedural issues of international law and a wide variety of thematic entries. The Encyclopedia has a distinct focus on international human rights law but at the same time is enriched by approaches from the broader social, sciences making it a truly unique and multi-disciplinary resource.
I. Introduction
[1] The International Court of Justice (ICJ) is the ‘principal judicial organ of the → United Nations (UN)’, with its legal basis in Chapter XIV of the UN Charter (Arts 92-5). On that foundation, the ICJ operates in accordance with its Statute, a multilateral → treaty which forms an integral part of the Charter. Thus, every member state of the UN is eo ipso a party to the Statute. This, however, does not establish the ICJ’s jurisdiction to solve specific disputes. On the basis of the Statute alone, the Court may only give advisory opinions on legal questions requested by certain organs of the UN, principally the General Assembly and the Security Council, or its Specialized Agencies (Art 65 ICJ Statute in connection with Art 96 UN Charter). These advisory opinions are not legally binding, but obviously enjoy great authority.
[2] If the ICJ is to be used for the settlement of inter-state disputes by decisions binding under international law, its jurisdiction must be established by the consent of the states involved. There are various ways of expressing such consent (Art 36 ICJ Statute). The most important method is that of an international treaty concluded for the purpose of establishing jurisdiction, either for future disputes in the abstract (such as the Revised General Act for the Pacific Settlement of Disputes [1949]), or referring certain specific disputes to the Court (special agreements). Further, hundreds of international agreements dealing with a wide variety of subject-matters contain specific (compromissory) clauses to that effect (see below para 29). Aside from international agreements, ICJ jurisdiction can also be founded by unilateral declarations pursuant to the so-called ‘optional clause’ embodied in Article 36(2) of the Statute. According to that provision, states ‘may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court’ in all legal disputes. As of late 2021, more than 70 states have made use of this clause, most of them on the condition of reciprocity and subject to reservations of various kinds. In sum, and contrary to the case of certain other international courts functioning within particular regions and in charge of circumscribed subject areas (like the → Court of Justice of the European Union (CJEU) or the → European Court of Human Rights (ECtHR)), the jurisdiction of the ICJ is thus not compulsory, but strictly consensual. On the other hand, once the jurisdictional basis is given, the ICJ enjoys general competence ratione materiae, that is, it can decide any question of international law which is in dispute between the litigants. Among these subject-matters one finds controversies about human rights, to whose treatment by the Court this entry will now turn.
[3] Two interrelated questions are to be asked here: first, has the development of international human rights had an impact on the jurisprudence of the ICJ? Second, has the jurisprudence of the Court contributed to this development? The answer to these questions will distinguish two phases in the ICJ’s engagement with human rights: a first phase marked by a certain restraint on the part of the Court and the states parties to its Statute, and following this a second phase marked by recent developments indicating a greater degree of readiness of the Court to decide human rights questions in a direct and straightforward way.
II. Human rights before the Court in a first phase: Hesitation and restraint
[4] In the early years of the United Nations, expectations as to the contribution of its principal judicial organ to the implementation of the organization’s human rights agenda were rather low. As against such foreboding, the ICJ’s early case law dealing with, or at least somehow touching upon, human rights issues turned out to be less marginal than expected. As a matter of course, opportunities for the Court to devote itself to human rights questions will depend on the nature of the cases brought before it. It was natural, therefore, that case law with human rights elements would develop in tandem with the widening and thickening of international human rights within post-World War II international law. However, just as human rights law at the UN level took several decades to develop beyond standard-setting and extend to – still very limited and incomplete – enforcement, the role of the ICJ as an interpreter and applier of that law also unfolded gradually and in rather meandering ways.
[5] In a number of cases, ranging from very early instances to decisions decades later, the actual purport of human rights was modest. In a first group of decisions, human rights considerations appeared in more or less incidental ways; the legal reasoning essentially concerning matters which had nothing to do with human rights, or touching upon issues where human rights played a mere subordinate role and were thus treated more or less obiter, not necessarily in an entirely positive, fully welcoming way. The Corfu Channel case ([1949] ‘elementary considerations of humanity’ at 22), the Barcelona Traction judgment ([1970] ‘obligations erga omnes’ at paras 33-4) and the case of the United States Diplomatic and Consular Staff in Tehran ([1980] ‘fundamental principles enunciated in the Universal Declaration of Human Rights’ at para 91) may be mentioned here.
[6] In a second cluster of cases, human rights considerations occupied somewhat more space, but were still more in the nature of an occasion for the Court to engage in discussion of matters different from human rights law proper, even though the subjects might somehow be linked technically. The Court’s Advisory Opinion on Reservations to the Genocide Convention ([1951] concerning → Reservations to Treaties) is probably the best example; with the Court’s opinion on the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania ([1950] dealing with the functioning of a specific dispute settlement procedure foreseen in a treaty in light of states’ reluctance to appoint their representatives thereto), no less than three opinions on technical questions related to supervision of the international status of South West Africa (International Status of South West Africa [1950]; South West Africa – Voting Procedure [1955]; Admissibility of Hearings of Petitioners by the Committee on South West Africa [1956]), the 1986 Nicaragua judgment (noting at para 268 that ‘the use of force could not be the appropriate method to monitor or ensure [the respect for human rights in Nicaragua]’), as well as the two opinions on the functional immunities of UN Special Rapporteurs on human rights (Mazilu [1989] and Cumaraswamy [1999]), falling into the same category.
[7] In a third group of cases, the Court developed the → right to self-determination of peoples. In the human rights doctrine developed and pursued by the United Nations the realization of self-determination in the context of decolonization was regarded as the conditio sine qua non for the enjoyment of individual human rights (→ Colonialism). Thus, in a number of decisions and Advisory Opinions on South West Africa, the Court dealt with this right in regard to some more technical questions on international supervision, but also drew certain substantive conclusions, carrying both decidedly negative (South West Africa [1966]) and then corrective positive messages for the anti-Apartheid and wider human rights community (Continued Presence of South Africa in Namibia [1971]). These cases were followed by the Advisory Opinion on the Western Sahara (1975), the judgment in the contentious East Timor case (1995), the advisory opinion on the Construction of a Wall (2004) and that on Kosovo (2010), followed most recently by the opinion on Chagos (2019).
[8] At the conclusion of this short tour d’horizon, the two judgments in which the United States was found in breach of the obligation deriving from the 1963 Vienna Convention on Consular Relations to inform detained foreign nationals of their → right to consular assistance from their home country, LaGrand (2001) and Avena and Other Mexican Nationals (2004), deserve a special place – as instances in which the Court avoided taking up human rights questions, even though the character of the right incorporated in the Vienna Convention on Consular Relations as a human right was argued by the claimant countries, Germany and Mexico. The Vienna Convention’s right in question was later confirmed in the Diallo case (see infra at para 15) and played a central role in the recent Jadhav case (2019) brought by India against Pakistan.
III. The more recent picture
[9] Within the last quarter of a century, the picture just presented has begun to change: human rights cases have featured more prominently on the Court’s docket than before. This is true not only from the viewpoint of sheer numbers, but also from that of quality. While in the long first period described above, human rights considerations essentially arose in incidental ways and played subordinate or marginal roles, the Court has now begun to tackle human rights issues in a more straightforward and complete way and has decided cases focusing squarely on allegations of human rights violations. This development also extends to international humanitarian law.
1. A gradual build-up
[10] The story begins with the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons ([1996]), in which the issue of whether and in what circumstances, the threat or use of nuclear weapons could result not only in violations of international humanitarian law but also of human rights law properly so called, constituted one of the angles from which the ICJ approached the question posed to it.
[11] There followed the already mentioned Wall Opinion (2004), in which the Court found that Israel’s construction of the separation barrier/wall on occupied Palestinian territory had given rise to an entire series of violations of obligations → erga omnes and juris cogentis (→ Jus Cogens), prominently among them obligations arising from treaties on human rights and international humanitarian law (paras 155-60).
[12] The Court’s next step was taken in the 2005 Armed Activities (DRC v Uganda) judgment – the first judgment in the Court’s history in which a finding of human rights violations, combined with findings of violations of humanitarian law, was included in the dispositif.
[13] In another of the cases brought by the Democratic Republic of the Congo against its neighbours, the 2006 Armed Activities (DRC v Rwanda), the Claimant, inter alia, alleged violations of the → Genocide Convention by Rwanda, but the Court decided that it did not have jurisdiction because Rwanda had excluded the legal effect of the Convention’s compromissory clause by way of a reservation. While the Court confirmed the substantive obligations of the Genocide Convention as being jus cogens norms, this could not compensate for, or replace, the lack of consent to allow the Court to decide on the allegation of genocide.
[14] Next in the line of ICJ decisions relevant in the human rights context came the Court’s 2007 Judgment in the Genocide Case brought by Bosnia-Herzegovina against Serbia. The Court followed the findings of the → International Criminal Tribunal for the Former Yugoslavia (ICTY), according to which acts of genocide of utmost gravity had occurred at Srebrenica in July 1995, but declared Serbia in breach only of the obligation of prevention embodied in the 1948 Convention. In a second case under the Genocide Convention, this time brought by Croatia against Serbia, the Court, after having confirmed jurisdiction and admissibility in 2008, found seven (!) years later that the mass atrocities committed by the Serbian forces in Croatia had lacked the specific intent (dolus specialis) distinguishing genocide from crimes against humanity (→ International Crimes).
2. The core human rights cases since 2010
[15] Once one leaves the politically-charged instances just mentioned, one arrives at the case of Ahmadou Sadio Diallo, decided on the merits by the Court in 2010. At first glance, it appears as a case involving → diplomatic protection exercised by Guinea through an application to the Court. But a closer look reveals features that are pertinent to human rights. The case arose from the mistreatment of a Guinean businessman in the DRC, mistreatment that Mr. Diallo experienced both personally, in particular by being illegally arrested and detained in the Congo and ultimately expelled from the country, and in the consequences which these and other measures of the Congolese authorities had on the fate of two companies which the victim controlled, regarded by the Claimant as a case of indirect expropriation. The case involved both aspects of economic (company) law and human rights law. The international legal instruments on which Guinea relied as to Mr. Diallo’s human rights in question were the → International Covenant on Civil and Political Rights (ICCPR) and the → African Charter on Human and Peoples’ Rights. In 2007, the Court declared the claims on the mistreatment of Diallo’s two companies inadmissible and thus turned the case into a human rights case proper. In its 2010 judgment it found that the conditions of lawful → expulsion of aliens and of arrest and detention as secured in both of the human rights treaties mentioned had indeed been violated (→ Liberty of Person, Right to). In addition, the Court confirmed its findings in the LaGrand and Avena cases and found a violation of the right to information on consular access. The Court emancipated the case from the straitjacket of diplomatic protection by speaking of Mr. Diallo’s individual human rights as such and not even trying to translate them back into rights of his home state à la Mavrommatis (1924) (→ Permanent Court of International Justice). The only occasion at which an element of traditional diplomatic protection resurfaced was with regard to the question of reparation for the injuries suffered by Mr. Diallo: such reparation was due to the claimant state and was to be determined through negotiations between the parties, for which the Court set a deadline of six months. After this time had passed without the parties having reached agreement, the Court took the case back into its hands and in 2012 awarded Guinea (rather modest) compensation, reminding the claimant state that the sum awarded to it in the context of diplomatic protection was intended to provide reparation for the injury suffered by Mr. Diallo himself (→ State Responsibility; → Reparation for Human Rights Violations).
[16] In 2011, the Court rendered another judgment involving human rights questions, but distinctly less destined to satisfy the protagonists of a forceful role of the Court in support of such rights. It brought to an end the case of the Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russia), submitted in 2008, with Georgia claiming that Russia, by actions of its own organs as well as of the de facto authorities in South Ossetia and Abkhazia on and around Georgian territory, culminating in the armed conflict in August 2008, had violated the → International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) of 1965. After the Court had ordered provisional measures directed at both parties in October 2008 (→ Urgent Measures), Russia put forward preliminary objections against jurisdiction and admissibility, one of which the Court accepted in its Judgment of 1 April 2011 by deciding that Georgia had not fulfilled an indispensable condition of access to the Court set up in Article 22 ICERD, namely to engage in serious and genuine negotiations with the Respondent on the question of violations of that Convention proper before resorting to the Court. In 2019, the Ukraine was more fortunate, when the Court confirmed jurisdiction on the basis of ICERD and admissibility of the Claimant’s allegations of racial discrimination committed by Russia against the Crimean Tatars. As of mid-2020, the case is still pending. In a third ICERD-based case brought in 2018 by Qatar against the United Arab Emirates, the Court in early 2021 denied jurisdiction finding that the measures of the Emirates against Qatari nationals did not constitute racial discrimination (Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Qatar v United Arab Emirates)).
[17] Moving from one extreme to the other, the case on Questions Relating to the Obligation to Prosecute or Extradite brought by Belgium against Senegal in 2009 and decided in 2012, appears as one of the two most clean-cut human rights cases so far handled by the Court, alongside the currently pending The Gambia v Myanmar proceedings (see below paras 20f). Belgium sued Senegal to vindicate its right as a state party to the 1984 UN → Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) as well as under → customary international law, to secure that Hissène Habré, the former dictator in Chad and alleged perpetrator of acts of → torture during his violent reign in Chad in the 1980s, now present in Senegal, would either be prosecuted by Senegal, or, failing such prosecution, would be extradited to Belgium (→ extradition).
[18] This was the first instance in which an important novelty of the International Law Commission’s Articles on State Responsibility (2001) was tested, namely the distinction made in the context of invocation of responsibility between ‘injured States’ and ‘States other than injured States’. Belgium based its litigant status, and thus the admissibility of its claims, on both: first, its position as a state other than an injured state, as it was a party to CAT, a human rights treaty embodying obligations erga omnes partes (Art 48 ILC Articles on State Responsibility) and, second, as a specially affected state within the meaning of Article 42 ILC Articles on State Responsibility, as the Belgian courts had been actively seized, some victims of Habré’s crimes now were of Belgian nationality, and Belgium had requested Senegal to either prosecute or extradite – facts that had led to the dispute between the two countries necessary to establish the Court’s jurisdiction.
[19] In its Judgment, the Court, while not using the ILC terminology, followed the spirit underlying the Commission’s distinction. It identified CAT as a treaty embodying obligations erga omnes partes, in case of which ‘[a]ll the other States parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State party to all the other States parties to the Convention’ (para 68). From this it followed that Belgium, as a party to CAT, had standing to invoke the responsibility of Senegal for a number of breaches of the Convention which the Court then went on to confirm. In another part of its Judgment, the Court stated that the prohibition of torture is part of customary international law and has become a norm of jus cogens (para 99).
[20] In 2019, The Gambia brought a case against Myanmar on the basis of the Genocide Convention, accusing the Respondent of committing genocide against the ethnic group of the (Muslim) Rohinga. As to admissibility, this case bears similarities to Obligation to Prosecute or Extradite (2012), a small remainder of Mavrommatis (PCIJ, [1924]) reflexes being visible in the religious element involved and thus also the support of the Claimant by the → Organisation of Islamic Cooperation (OIC). The Gambia applied for provisional measures based on humanitarian considerations which the Court granted in January 2020 by unanimous vote. It is to be expected that the Court will accept jurisdiction on the basis of the Convention, but the decisive challenge in the subsequent merits stage will be to establish the specific genocidal intent on the part of Myanmar, in whose absence even the most horrendous cases of killing and ethnic cleansing will ‘only’ be defined as war crimes and crimes against humanity, in regard to which the Court does not have jurisdiction in the case at hand.
3. A note of caution
[21] At the end of this overview, one should have a brief look at a very particular category of ICJ human rights cases, namely instances in which the applicant bases (part of) its claims on human rights norms, while the respondent counters with defences resting on other, more traditional, premises of international law. This antinomy has presented itself to the Court so far in the form of claims of responsibility of states via the → attribution of war crimes or crimes against humanity committed by state organs as perpetrators and, on the opposite side, of the claim to jurisdictional immunity of these states, respectively of the responsible state organs. What these cases demonstrate is that in the ICJ human rights arguments do not win the upper hand in all instances.
[22] This became clear for the first time in the Court’s Judgment in the Arrest Warrant (Yerodia) case between the Democratic Republic of the Congo and Belgium rendered in 2002, in which the Court took the – questionable – view that former foreign ministers enjoy absolute immunity from the criminal jurisdiction of national courts including for past official acts constituting grave crimes against humanity, even incitement to genocide (→ Immunities of States and State Officials; → International Crimes).
[23] This leaves the case of the Jurisdictional Immunities of the State (2012) brought in 2008, in which Germany requested the Court to find Italy responsible for the breach of its international obligation to respect Germany’s jurisdictional immunity for sovereign acts, a breach committed by Italy’s Corte di Cassazione in a series of judgments on civil claims denying such immunity, the factual origins of which were to be seen in war crimes and crimes against humanity perpetrated by the Third Reich’s armed forces and authorities during World War II against victims of both Italian and Greek nationality. In 2011, Greece filed an Application for permission to intervene, which was granted by the Court. The ICJ thus faced the delicate task of reconciling the imperatives of the ‘new’ international law of human rights (understood in a broad sense because the case turned on questions of international humanitarian law), elevated by its quality as jus cogens, and the exhortation not to de-stabilize time-honoured rules protecting the → sovereignty of states in their mutual interest.
[24] The Court rendered its Judgment in early 2012. It found Italy in breach of the obligation to respect the immunity enjoyed by Germany and ordered Italy to ensure, by appropriate legislation or other means of its own choosing, that the infringements of Germany’s respective right cease to have effect. The decision, adopted by a great majority, gravely disappointed human rights circles and at the same time put concerns in Foreign Offices to rest.
[25] In order to assess the position of the Court towards the human rights aspects of the case fairly, the limits of its jurisdiction ratione temporis drawn by the European Convention for the Peaceful Settlement of Disputes (1957), on the basis of which Germany brought its case, must be kept in mind. According to Article 27(a) of the Convention, it does not open the way to the ICJ for ‘disputes relating to facts or situations prior to the entry into force of the Convention as between the parties to the dispute’ (in the present case 1961). Thus, the Court did not possess jurisdiction to deal, as such, with the issue of the German war crimes and crimes against humanity, the duty of reparation arising from these acts, the existence of individual rights to compensation on the part of the Italian victims, the effect of the comprehensive waiver by Italy stipulated in its 1947 Peace Treaty and of subsequent agreements concluded between the Parties in 1961.
[26] The Court arrived at the conclusion that neither the territorial tort principle, nor the subject-matter and circumstances of the claims in the Italian courts, that is, the gravity of the violations of the law of → armed conflict involved, the alleged nature of the violated rules as jus cogens, and finally, the claim that recourse to the Italian courts had constituted the last resort available to the victims, had the effect of depriving Germany of its entitlement to immunity for acts iure imperii; customary international law had not changed in this regard; the Italian and Greek court decisions denying Germany such immunity had remained isolated, overwhelming state (court and diplomatic) practice and opinio juris continued to adhere to the time-honoured rules upholding immunity from civil suits for illegal acts of armed forces committed in the course of armed conflicts. Since the Court found that the established rules on state immunity still stood firm and admitted of no human rights-based exception, it did not have to examine the further issues pre-dating 1961 mentioned above.
[27] That the Court was, however, aware of the sensitivity of the case is demonstrated by two paragraphs of the Judgment in which it expressed its ‘surprise and regret’ about the way in which German courts and authorities had dealt with certain claims to compensation by Italian victims of crimes of the Third Reich in World War II (para 99). It also emphasized that the Judgment is not supposed to stand in the way of negotiations between the two countries aiming at a satisfactory settlement of outstanding claims (para 104).
IV. The background and context of the court’s human rights case law
[28] Before any prognosis can be made as to whether the increase of human rights cases might continue in the future, some (sobering) observations are in order.
[29] The first one is to re-emphasize that the Court’s jurisdiction is not compulsory; it presupposes the parties’ consent. In the case of human rights treaties, the most important expression of such consent is to be found in compromissory treaty clauses providing for ICJ jurisdiction. However, among the major human rights treaties, only a small minority contain such a clause (see Art 22 ICERD; Art 29 → Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); Art 30(1) CAT; Art 42(1) → International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED)) and of these few treaties only the oldest, namely the Genocide Convention of 1948, allows states parties immediate, direct access to the Court (Art IX Genocide Convention). The other conventions just mentioned require that states first resort to the treaty-based procedures applied by the respective monitoring body (see above para 16 on the Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russia)). Moreover, states are free to attach a reservation to the compromissory clause (for example, in the case of the Genocide Convention 16 states have done so as of early 2021).
[30] A second reason for caution as to the weight of human rights on the Court’s docket is structural. In a way, one is looking at the ‘wrong relationship’ here: human rights violations viewed from an inter-state perspective can only bring to the fore very limited aspects of these problems. If the ICJ were to deal with violations of human rights in a contentious case, it would do so in terms of state responsibility, and state responsibility is typically ‘law by states for states’. If a state decides to espouse human right claims and exercise diplomatic protection through suing the violator in the Court, the spirit of Mavrommatis (PCIJ, [1924]) will remain present, even if possibly somewhat suppressed. Most human rights violations are committed against a perpetrator’s own population and it is a fact that the preparedness of states to bring human rights violations committed against foreigners in foreign countries before the Court or other international judicial bodies has always been extremely limited (→ inter-state complaint procedures). It is fair to assume that this will remain the case – the few swallows mentioned previously have yet to make a summer. The establishment of a human rights chamber of the present Court would not be able to overcome any of the hurdles described. And, of course, the ICJ would then compete with regional human rights courts which are in many ways already fulfilling a more specialized role and do not suffer from the just described inherent limitations to which the ICJ is subject.
[31] Returning to the Court’s role as an instrument designed for use by and between states, in contentious cases – and these instances constitute an overwhelming majority of the ICJ’s workload – the scope of the Court’s decisions will depend on and essentially be limited by the submissions of the parties: ne eat iudex ultra petita partium. Thus, the Court remains ‘hostage’ to the parties; it is the litigating states which remain the masters of the proceedings, and for a variety of reasons they may be little inclined to elevate human rights to the core of their claims.
V. Prospects for the future
[32] While there are thus important reasons to remain cautious with regard to an active role for the ICJ in the judicial protection of human rights, it is also a fact that the human rights genie has escaped from the bottle. Since human rights considerations permeate more and more areas of international law, including the traditional, inter-state, kind, questions involving human rights will also present themselves to the Court with increasing frequency. The Court’s recent jurisprudence firmly points in this direction.
[33] In contentious proceedings, human rights arguments will continue to be raised beside – or against – more traditional claims. If there ever was a certain hesitancy on the part of the Court to tackle the human rights aspect of a case where this could be avoided, this tendency will grow weaker, if it has not disappeared already. Moreover, from time-to-time additional straightforward human rights cases can be expected to reach the Court. One can also assume that the Court will show greater preparedness to take human rights arguments seriously when such arguments are in line with, or corroborate, or strengthen more traditional modes of international law reasoning. Furthermore, applications for provisional measures will also increasingly be supported by human rights arguments. As a consequence, the question of how the Court will deal with the jurisprudence of specialized human rights courts and treaty bodies will pose itself with greater frequency.
[34] In advisory proceedings, if human rights appear pertinent, it is to be expected that the Court will not hesitate to give them full weight because here traditional inter-state ‘reflexes’, jurisdictional straitjackets and procedural hurdles are much less pronounced and the Court is not confined to the submissions of the states participating in the proceedings as in contentious cases. It is not surprising, therefore, that in the past some of the Court’s most marked contributions to international human rights were made by way of advisory opinions. A more recent example, albeit gaining little attention in human rights circles, can be found in the Court’s Advisory Opinion of 2012 on the Judgment No 2867 of ILOAT upon a complaint filed against IFAD, in which the Court, basing itself on international human rights law, heavily criticized the lack of equality of access and equality of arms to be granted to international civil servants in complaints procedures brought against the employing organizations (Judgment No 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Advisory Opinion) [2012]).
[35] Thus far there is a cautious prognosis. It is essentially quantitative; one is on safe ground to predict that in the future the Court will have more occasions to develop its human rights jurisprudence. The Court has been increasingly supportive of human rights claims and it has demonstrated that it can handle human rights in a way considered respectable also by the ‘droits de l’hommistes’. There remains the question what the ICJ might be able to do better than regional specialized human rights courts.
VI. A proper role for the court
[36] In the field of human rights, identifying a role for which the ICJ would be particularly well suited warrants great caution: international human rights law is, and will continue to be, an environment in which the Court ought to tread with utmost care. This observation is appropriate for at least two reasons. The first is to be seen in the great progress of human rights law achieved by the regional human rights courts, and to a certain degree also by the non-judicial institutions of the UN human rights – particularly treaty – system. These bodies have developed doctrines and rules custom-made for human rights, for instance, with regard to the interpretation of human rights treaties (→ Treaty Interpretation) and other questions of treaty law, which might go too far for more conservative circles of the legal mainstream. Such acquis should not be levelled by the participation in the discourse of a generalist court like the ICJ. In that respect, engagement with the ICJ is a bit of a double-edged sword: it brings recognition and respectability to human rights within the mainstream of public international law; but it may also do so at the cost of negatively curtailing the substance of international human rights law.
[37] The second reason why the ICJ ought to move with care as regards its role in the human rights field lies in the political-legal foundation of the Court in the international community of states which it is to serve. In a certain sense, the ICJ is the permanent international court which still resembles most closely a system of dispute settlement by voluntary arbitration: its contentious jurisdiction is still strictly consensual and compared with the working of more recently created judicial bodies, especially at the regional level, the functioning of the Hague Court shows a distinctly more pronounced respect for the sovereignty of its users. After all, the development of international human rights will not infrequently upset sovereignty-based rules of international law with which most states will have been, and still are, quite comfortable.
[38] What, then, is a proper role for the Court in matters of human rights? Arguably, the most valuable contribution the ICJ can make to the international protection of human rights – a role for which it is particularly well equipped and practically has no competition – consists in what could be called the juridical ‘mainstreaming’ of human rights, in the sense of integrating this branch of the law into both the fabric of general international law and its various other branches. By way of illustrating what the Court can do, and is already doing, to fulfil that task, it can render human rights arguments more readily acceptable to international law generalists by interpreting and applying substantive provisions of human rights treaties in a state-of-the-art way, compared, for instance, to the reading given to such provisions by certain pronouncements issued by UN human rights treaty bodies, not infrequently marked by a dearth of proper legal analysis compensated by an overdose of wishful thinking.
[39] Further, the Court is singularly capable of devising solutions for practical, more technical, legal problems which arise at the interface between human rights and more traditional international law, thus paving the way for the acceptance of human rights arguments and, more generally, supporting and developing the framework of human rights protection. The Court has already made considerable contributions in this regard, albeit with varying degrees of success or ‘constructiveness’, depending on the viewpoint of (either human rights-minded or ‘statist’) observers. It has clarified that not all individual rights have the character of human rights; where it had to do with recognized human rights, it treated them as justiciable (→ Justiciability of Human Rights) and has strengthened them by granting human rights the force of jus cogens and defining the respective treaties as embodying obligations erga omnes (partes). Conversely, it has in some instances put human rights in their place, as it were, by denying them automatic priority over traditional international law.
[40] Thus, if one wanted to find a short-term description of the current status of human rights before the International Court of Justice, one could say that it is an instance of international legal discourse in which old international law (represented for our purpose by the Court) encounters the new. What one can observe already is that the Court has become a major player in a process in which human rights and general international law mutually impact upon one another: human rights ‘modernize’ international law, while international law ‘mainstreams’, or ‘domesticates’ human rights.
Bibliography
Treaties:
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16
European Convention for the Peaceful Settlement of Disputes (opened for signature 29 April 1957, entered into force 30 April 1958) ETS No 023
Revised General Act for the Pacific Settlement of Disputes (adopted 28 April 1949, entered into force 20 September 1950) 71 UNTS 101
Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 33 UNTS 993
Treaty of Peace with Italy (signed 10 February 1947, entered into force 15 September 1947) 49 UNTS 3.
Literature:
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ibid., ‘The Interpretation and Development of International Human Rights Law by the International Court of Justice’ in Scheinin M (ed), Human Rights Norms in ‘Other’ International Courts (CUP 2019)
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Zyberi G, The Humanitarian Face of the International Court of Justice (2008).
Case law, International:
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403
Admissibility of Hearings of Petitioners by the Committee on South West Africa (Advisory Opinion) [1956] ICJ Rep 23
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Preliminary Objections) [2007] ICJ Rep 582
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Merits) [2010] ICJ Rep 639
Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo) (Compensation) [2012] ICJ Rep 324
Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations (Advisory Opinion) [1989] ICJ Rep 177 (Mazilu)
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Preliminary Objections) [2008] ICJ Rep 412
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) (Merits) [2015] ICJ Rep 3
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Pending) (Provisional Measures: Order of 23 January 2020) [2020] ICJ Rep 3
Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation) (Preliminary Objections) [2019] ICJ Rep 558
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation) (Preliminary Objections) [2011] ICJ Rep 70
Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation) (Provisional Measures: Order of 15 October 2008) [2008] ICJ Rep 353
Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Qatar v United Arab Emirates) (Preliminary Objections) [2021] General List No 172 [2021] ICJ 1
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Merits) [2005] ICJ Rep 168
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) (Jurisdiction and Admissibility) [2006] ICJ Rep 6
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Merits) [2002] ICJ Rep 3 (Yerodia)
Avena and Other Mexican Nationals (Mexico v United States of America) (Merits) [2004] ICJ Rep 12
Barcelona Traction, Light and Power Company, Limited (Merits) [1970] ICJ Rep 3
Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4
Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (Advisory Opinion) [1999] ICJ Rep 62 (Cumaraswamy)
East Timor (Portugal v Australia) (Merits) [1995] ICJ Rep 90
International Status of South-West Africa (Advisory Opinion) [1950] ICJ Rep 128
Interpretation of Peace Treaties (Advisory Opinion) [1950] ICJ Rep 65
Interpretation of Peace Treaties (Second Phase) (Advisory Opinion) [1950] ICJ Rep 221
Jadhav (India v Pakistan) (Merits) [2019] ICJ Rep 418
Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development (Advisory Opinion) [2012] ICJ Rep 10
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (Merits) [2012] ICJ Rep 99
LaGrand (Germany v United States of America) (Merits) [2001] ICJ Rep 466
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ Rep 95
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14
Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Merits) [2012] ICJ Rep 422
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) [1951] ICJ Rep 14
South West Africa, Second Phase (Merits) [1966] ICJ Rep 6
South-West Africa – Voting Procedure (Advisory Opinion) [1955] ICJ Rep 67
United States Diplomatic and Consular Staff in Tehran (Merits) [1980] ICJ Rep 3
Western Sahara (Advisory Opinion) [1975] ICJ Rep 12
Mavrommatis Palestine Concessions (Greece v UK) [1924] PCIJ Rep Series A No 2.
UN Documents:
ILC, ‘Articles on Responsibility of States for Internationally Wrongful Acts’ UNGA Res 56/83 (2001) UN Doc A/56/10.
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