The Development and Interpretation of International Human Rights and Humanitarian Law Rules and Principles through the Case-Law of the International Court of Justice
| Author | Gentian Zyberi |
| DOI | 10.1177/016934410702500107 |
| Published date | 01 March 2007 |
| Date | 01 March 2007 |
| Subject Matter | Article |
Netherlands Q uarterly of Human R ights, Vol. 25/1, 117–139, 2007.
© Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands. 117
THE DEVELOPMENT AND INTERPRETATION
OF INTERNATIONAL HUMAN RIGHTS
AND HUMANITARIAN LAW RULES AND
PRINCIPLES THROUGH THE CASELAW OF
THE INTERNATIONAL COURT OF JUSTICE
G Z*
Abstract
e contribution of the International Court of Justice (ICJ) to the interpretation and
development of international human r ights and humanitarian law rules and principl es
is a topic of growing interest and importanc e. Claims of breaches of norms of both these
branches of law have been raised in a considerable number of cases brought before the
ICJ in the last two decades. By clar ifying the complementary application of inte rnational
human rights and humanitarian law and b y awarding natural and legal persons a right
to reparations vis-à-vis the State the ICJ has rendered a valuable contribution to a
better protection of individual r ights under the general framework of international law.
is contr ibution of the Court is illustrated by focusing mainly on the adv isory opinion
on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, and the Armed Activities on the Territory of the Congo ca se. at not only for
reasons of space constraints, but also because of the con siderable leaps forward made
through these cases.
1. INTRODUCTION
e International Court of Justice (ICJ) is one of the main organs of the United
Nations (UN) and its principa l judicial organ.1 e Court ’s primary duty is that of
settling i nter-State disputes, but it can also, on request , render an advisory opinion
* Gentian Zyber i is a Ph.D researcher at t he Netherlands In stitute of Human Rig hts (SIM). While the
topic discusse d here is rather broad for a ar ticle, a monograph is i n an advanced st age of preparation.
e author would like t o thank his super visors T. Gill and C . Flinterman for t heir guidance . Special
thanks go to I. Boere jn for her useful comme nts and suggestions. Any mis takes remain the sole
responsibilit y of the author.
Gentian Zyberi
118 Intersentia
to the principal UN orga ns, other organs of the UN, and the specialized agencies.2
e fact t hat according to the ICJ’s Statute only States can be part ies before the Court
bears witness to t he position of the individual under international law at the ti me of
the establishment of t he Court; a position which has evolved considerably since t hen.3
However, the Statute of the Court has not changed, a nd that is unli kely to happen
given the cumbersome procedures governing that process.4 However, in the last two
decades several ca ses have been brought before the Court where the applic ant State and
occasionally even the respondents have clai med large-scale violations of international
law of human rights and of international huma nitarian law. e seizing of the Court
with such sensitive and sign i cant case s illustrates the importa nce that the protection
of individuals through norms of international huma n rights and humanitarian law
has achieved in the internat ional arena as well as the spec ial position of the Court in
the adjudication of such cases.
As already noted by other authors, u nder the Court’s jurisprudence it is establi shed
that States have an obligation under international law to respect and also to ensure
respect for fundamenta l human rights.5 In a famou s dic tum i n the Barcel ona Traction
case the ICJ held that the duty to respe ct certain fu ndamental human rights amou nted
to obligations erga omnes. ese are obligations owed by a State to the international
community as a w hole; given that all State s have a legal interest in thei r protection.6 In
1 See Articles 7 a nd 92 of the UN Charte r in Blackstone’s Inter national Law Docume nts, Evans, M.D.
(ed.) , 6th ed., Oxford Universit y Press, New York, 2003, pp. 7 and 23.
2 See Article 96 of t he UN Charter a nd Article s 34(1) and 65 of the Statute of the Inter national
Court of Justic e, in Blackstone’s Internati onal Law Documents, Evans , M.D., (ed.), 6th ed., Oxford
University Press , 2003, New York, pp. 31 and 35. For a detailed disc ussion of advisory opi nions and
the advisor y jurisdiction of the Cour t see Rosenne, Sh. e Law and P ractice of the International
Court, 1920–2005, Martinus Nijho Publishers, Le iden/Boston, 200 6, Vol. I, Chapter 5, pp. 273–354
and Vol. II, Chapter 15, pp. 949–1020.
3 See, inter alia, Higgins, R., Problems and Proce ss: Internationa l Law and How We Use It, Clarendon,
Oxford 1994, pp. 39–56 , Orakhelashvil i, A., ‘ e Position of the Ind ividual in Internation al Law’,
California Western International Law Journal, Vol. 31, 2001, pp. 241–276, Brownlie, I., Pr inciples of
Public Internat ional Law, Oxford University Pr ess, New York, 5th ed., 1998, p. 605.
4 e Statute of the ICJ is annexe d to the UN Charte r and any amendments to it, a ccording to Artic le
108 of the Charter, need to b e adopted by a vote of two-th irds of the members of t he General
Assembly and rat i ed in accordance with the respective constitutional processes by two-thirds of
the members of the U N, including all t he permanent members of the S ecurity Counci l.
5 See, inter alia, Rodley, N.S ., ‘Human Rights and Human itarian Intervention : e Case Law of the
World Court’, Internati onal and Comparative Law Qua rterly, Vol. 38, April 1989, p. 333; Schwebel,
S.M., ‘Human R ights in the World Court’, in Intern ational Law in Transition: Essays in hon our of
Judge Nagendra Sing h, Pathak, R.S ., (ed.), Martinus Nijho , Dordrecht, 1992 , pp. 267–290.
6 ICJ, 5 February 1970 Case C oncerning the Barcelon a Traction, Light a nd Power Company, Limited,
(Barcelona Traction), Second Phase, ICJ Reports 1970, p. 32, pa ra. 33. For a more detailed d iscussion
of the concept and t he application of erga omnes obligations see inter alia de Hoogh, A.J.J,
Obligations er ga omnes and internatio nal crimes: a theoreti cal inquiry into the imple mentation and
enforcement of the international responsibility of States, Nijmegen, 1996; Ragazzi, M., e Con cept
of Internationa l Obligations Er ga Omnes, Cla rendon Press, Ox ford, 1997; Tams, C.J, Enforcing
obligations er ga omnes in inter national law, Cambr idge University Pr ess, Cambrid ge, UK/New
To continue reading
Request your trial