The Development of Human Rights Law by the Judges of the International Court of Justice (Studies in International Law)

"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."--Bloomsbury Publishing. Half Title Page Half Title verso Title Page Title verso 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 Pt. I. Perspective : Legislative Role Of The Judge And Human Rights Law. Legislative Role Of The Judge : A Vital Force In The Life Of The Law ; Relationship Between Human Rights And International Law : Principle Of Human Dignity Versus Principle Of State Sovereignty -- Pt. Ii. The Development Of Human Rights Law By The International Court Of Justice : Contentious Cases. Corfu Channel Case (united Kingdom V Albania) (1947-1949) ; South West Africa Cases (ethiopia V South Africa ; Liberia V South Africa) : Violation Of Human Rights Law Led To Formation Of Human Rights Law (1960-1966) ; Barcelona Traction, Light And Power Company, Limited (new Application : 1962) Case (belgium V Spain) (1962-70) ; United States Diplomatic And Consular Staff In Tehran Case (usa V Iran) (1979-1981) ; Military And Paramilitary Activities In And Against Nicaragua Case (nicaragua V Usa) (1984-1991) ; East Timor Case (portugal V Australia) (1991-1994): Human Rights Versus State Sovereignty (1991-1994) ; Application Of The Convention On The Prevention And Punishment Of The Crime Of Genocide Case (bosnia And Herzegovia V Serbia Montenegro) (1993- ) : Prohibition Of Genocide As Jus Cogens ; Legality Of Use Of Force Cases (yugoslavia V Belgium; Yugoslavia V Canada; Yugoslavia V F Rance ; Yugoslavia V Germant ; Yugoslavia V Italy ; Yugoslavia V Netherlands ; Yugoslavia V Portugal ; Yugoslavia V Spain ; Yugoslavia V Uk ; Yugoslavia V Usa) (1999- ) ; Arrest Warrant Of 11 April 2000 (democratic Republic Of The Congo V Belgium) : An Analysis Of Human Dignity Of The People, For The People, By The People (2000-2002) ; Vienna Convention On Consular Relations Cases (1998-2004) : The Convention Does Create Individual Rights -- Pt. Iii. The Development Of Human Rights Law By The International Court Of Justice : Advisory Cases. International Status Of South West Africa Case (1949-1950) : The Principle Of Sacred Trust Of Civilization ; Reservations To The Convention On The Prevention And Punishment Of The Crime Of Genocide Case (1950-1951) ; Legal Consequences For States Of The Continued Presence Of South Africa In Namibia (south West Africa) Nothwithstanding Security Council Resolution 276 (1970) Case (1970-1971) ; Western Sahara Case (1974-75) : The Principle Of Self-determination ; Applicability Of Article Vi, Section 22, Of The Convention On The Privileges And Immunities Of The United Nations Case (1989) ; Legality Of The Use By A State Of Nuclear Weapons In Armed Conflict Case (request By World Health Organization) (1993-1996) ; Legality Of The Threat Or Use Of Nuclear Threat Case (request By Un 331 General Assembly) : May Use, May Not Use, But Do Not Use, Hence, Legislate : May Not Use (1994-1996) ; Diffe Rence Relating To Immunity From Legal Process Of A Special Rapporteur Of The Commission On Human Rights (1998-1999) ; Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory (2003-04) : Belligerent Occupation And Human Rights ; Summary And General Conclusion. Shiv R.s. Bedi. Includes Bibliographical References (p. [371]-383) And Index.