THE DEVELOPMENT OF HUMAN RIGHTS LAW BY THE JUDGES OF THE INTERNATIONAL COURT OF JUSTICE

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T HE D EVELOPMENT OF H UMAN R IGHTS L AW BY THE
J UDGES OF THE I NTERNATIONAL C OURT OF J USTICE
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.
Studies in International Law: Volume 10

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The Peace Palace in the Hague


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The Development of Human Rights Law
by the Judges of the International
Court of Justice
Shiv R S Bedi

OXFORD – PORTLAND OREGON
2007


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Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
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© Shiv RS Bedi 2007
Shiv Bedi has asserted his right under the Copyright, Designs and Patents Act 1988,
to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any mean, without the prior permission of Hart Publishing, or as
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Biddles Ltd, King’s Lynn, Norfolk


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To my revered teachers, Charan Singh and Gurinder Singh
and
to my inspiration, Prem


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CONTENTS
1. Introduction

1

Part I Perspective: Legislative Role of the Judge and Human Rights Law
2. Legislative Role of the Judge: A Vital Force in the Life of the Law:
I.
II.
III.
IV.
V.
VI.

12

The Core Truth: All Roads Lead to Rome
The Core Truth in Retrospect: An International Perspective
Legislative Role of the ECJ and the ECHR
Legislative Role of the International Court of Justice
The Development of Law and Judicial Ideologies
Appraisal

15
17
19
29
32
34

3. Relationship between Human Rights and International Law:
Principle of Human Dignity versus Principle of State Sovereignty:

37

I. Basis of International Law: The Principle of Sovereignty
39
II. Basis of Human Rights Law: The Principle of Human Dignity
49
III. Appraisal: Principle of Human Dignity in Retrospect and Prospect 72

Part II The Development of Human Rights Law by
the International Court of Justice: Contentious Cases
Introduction to the Contentious Procedure of the Court

87

4. Corfu Channel case (United Kingdom v Albania) (1947–1949)
I. The Principle of Elementary Considerations of Humanity
II. Judge Alvarez: Manifest Misuse of a Right Not Protected by Law

105

105
107

5. 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)

109

I. Prelude
II. Norm of Non-Discrimination and 1962 Judgment: Court Has
Jurisdiction to Adjudicate Upon the Merits

109
112


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Contents
III. Judges Jessup and Bustamante: 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 Company, Limited
(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) (1979–1981)

115
117
120

122
126
142
144

146
147
148
149
150

157
157
160
163

I. Human Dignity and Diplomatic Immunity
163
II. 1948 Universal Declaration of Human Rights is Binding in Character 165
8. Military and Paramilitary Activities in and against Nicaragua
case (Nicaragua v USA) (1984–1991)
I. The Use of Force not an Appropriate Method to Ensure Respect
for Human Rights
II. The Principle of Self Determination: adherence to a particular
doctrine Does Not Violate Customary International Law
9. East Timor case (Portugal v Australia) (1991–1994): Human Rights
versus State Sovereignty (1991–1994)
I. Some Preliminary Reflections

167

167
170

171
171


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Contents
II. Human Dignity through Self-Determination v the Power of
State Sovereignty
III. Court Upholds the State Sovereignty in the face of Human Dignity
IV. Monetary Gold Principle v Human Rights
V. ‘We the Peoples’, Self-Determination and State Sovereignty
VI. Sacred Trust of Civilization v State Sovereignty
VII. Dissent: Internal and Public:
a) Judge Weeramantry: the principle of self-determination is the
very basis of nationhood
b) Judge Weeramantry: practical operation of different aspects of
right erga omnes
c) Judge Weeramantry: ‘principle of self-dtermination can itself
be described as central to the Charter’
d) Judge Skubiszewski: four elements concerning Law, Justice

and Human Dignity
e) Judge Skubiszewski: three elementary assumptions about
Self-Determination
f) Public Dissent
VIII. Nevertheless: The Court did Add Authority to the Various Areas
IX. Conclusion

ix
174
176
181
185
187
190
190
191
192
194
195
199
202
204

10. Application of the Convention on the Prevention and Punishment of
207
the Crime of Genocide Case (Bosnia and Herzegovia v Serbia Montenegro)
(1993– ) Prohibition of Genocide as Jus Cogens
11. Legality of Use of Force cases (Yugoslavia v Belgium; Yugoslavia v
Canada; Yugoslavia v France; Yugoslavia v Germant; Yugoslavia v
Italy; Yugoslavia v Netherlands; Yugoslavia v Portugal; Yugoslavia

v Spain; Yugoslavia v UK; Yugoslavia v USA) (1999– )
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 and Ratio Decidendi: A Contradiction of Human Rights
IV. Prima Facie Jurisdiction and Human Rights
V. The Development of Human Rights Law: Static Jurisdiction v
Dynamic Law

213

214
216
218
221
225

12. Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v
229
Belgium): An Analysis of Human Dignity of the People, for the People by
the People (2000–2002)
I. Some Preliminary Reflections

229


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II. The Factual Background of the Yerodia case
232
III. Why Separate the issues of Universal Jurisdiction and Immunity 235
IV. Doctrine of Immunity and Concept of Human Dignity
237
a) Judge Al-Khasawneh: the Concept of Combating of Grave
Crimes Prevails Over the Rules of Immunity
241
V. The Principle of Universal Jurisdiction and the Concept of Human
Dignity
243
a) Judge Guillaume: The Clarity of the Principle of Universal
Jurisdiction
246
b) Judge Ranjeva: Territoriality as the Basis of Entitlement to
Jurisdiction Remains at the Core of Contemporary Positive
International Law
248
c) Judge Koroma: Concepts of Jurisdiction and Immunity are
not the Same
249
d) Judges Higgins, Kooijmans and Buergenthal: Universal
Jurisdiction in absentia for the most Heinous Crimes is

Permitted under Certain Safeguards
251
e) Judge Rezek: Judicial Restraint Going Hand in Hand with
Political Restraint
252
f) Judge ad hoc Bula-Bula: Universal Jurisdiction in Absentia
Runs Counter to the Dignity of People
254
g) Judge ad hoc Van Den Wyngaert: Universal Jurisdiction in
absentia is Permissible
255
VI. Belgian Reaction After the Judgment
255
VII. Conclusion
256

13. Vienna Convention on Consular Relations cases (1998–2004):
The Convention Does Create Individual Rights

259

I. Some Preliminary Observations
259
II. Three Cases with One Common Fact: Vienna Convention on
261
Consular Relations Creates Human Rights
III. Case Concerning the Vienna Convention on Consular Relations
262
(Paraguay v United States of America): Individual Rights Remained
Undecided

IV. LaGrand Case (Germany v United States of America): Vienna
263
Convention Does Create Individual Rights
V. The Case Concerning Avena and Other Mexican Nationals (Mexico 270
v United States of America): Individual Rights Further Clarified
V-A. United States Must Provide ‘Review and Reconsideration of
Convictions and Sentences’
270
V-B. Interdependence of the Rights of the State and Individual
Rights
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Contents
V-C. Right of an Arrested Person to Information and Time Factor
V-D. Judge Tomka: ‘State authorities must show due diligence
in the exercise of their powers’
V-E. Judge Tomka: Individual First Element Not the State
VI. General Conclusion

xi
271

272
273
273

Part III The Development of Human Rights Law by
the International Court of Justice: Advisory Cases
Introduction to the Advisory Procedure of the Court
14. International Status of South West Africa case (1949–1950)
The Principle of Sacred Trust of Civilization

277
279

15. Reservations to the Convention on the Prevention and Punishment of 287
the Crime of Genocide case (1950–1951)
Genocide is Supremely Unlawful and its Principles are Binding on All
Parties Irrespective of being Party to a Convention
16. 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)

291

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

291

292
294
295

17. Western Sahara case (1974–75) The Principle of Self-Determination

297

18. Applicability of Article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations case (1989)

301

I. Special Rapporteur of UN Human RightsCommission Entitled to 301
Privileges and Immunities of a UN Expert on Mission
II. Judge Evensen: Integrity of a Person’s Family and Family Life is 302
Basic Human Right
III. Judge Evensen: Rights of Family and Family Life are Integral Parts 303
of Privileges and Immunities
19. Legality of the Use by a State of Nuclear Weapons in Armed Conflict
case (request by World Health Organization) (1993–1996)

305


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Contents
I. Human Right to Health v Use of Force: 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 case (request by UN
General Assembly): —May Use; May not Use; But Do not Use. Hence,
Legislate: MAY NOT USE— (1994–1996)
I.
II.
III.
IV.
V.

VI.
VII.
VIII.
IX.
X.
XI.

Judge Oda: Judges do not Legislate
Right to Life and Human Rights Component of the Law of War

Judge Bedjaoui: Nuclear Weapons v Right to Life
Judge Weeramantry: Nuclear Weapons Totally Belie Human
Dignity
Judge Koroma: Both Human Rights and International
Humanitarian Law Have as their raison d’etre the Protection
of the Individual as well as the Worth and Dignity of the
Human Person
Genocide and Nuclear Weapons
Judge Higgins: intent approximates to legal doctrine of
foreseeability
Judge Weeramantry: Nuclear Weapons are Instruments of
Genocide and their use is Plainly Genocide
Judge Koroma: Quantum of the People Killed by Nuclear
Weapons Could be Tantamount to Genocide
Human Component of the Law of War
Conclusion

305
308
308
331

315
316
318
320
321

322
323

324
327
327
329

21. Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights (1998–1999)

331

22. Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (2003–04): Belligerent Occupation and
Human Rights

337

I.
II.
III.
IV.
V.

Some Preliminary Observations:
Facts of the Case in a Nutshell
Historical Analysis of the Occupied Territory
Human Rights Law Does Apply in the Occupied Territories
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

337
338
339
340
345

347


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Contents
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

xiii
349
350

23. Summary and General Conclusion

353

Bibliography of Books and Articles

371

Bibliography of Works by Judges of the Court

379

Bibliographical Annexes

385

1
2
3
4
5

385
389
390
392
451

Index

Judgments of the International Court of Justice
Advisory Opinions of the International Court of Justice

Orders on Provisional Measures of the International Court of Justice
Judges of the International Court of Justice
Judges ad hoc of the International Court of Justice

467


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1
INTRODUCTION
There are no limits to the heights that a human being can attain, nor to the depths that
he can sink. It is for you to choose between the heights of bliss and happiness or the depths
of pain and agony. (emphasis added).
(Maharaj Charan Singh1)

T

HIS JURO-MYSTIC POSTULATE with its two contrasting scenarios is
emphatic about mankind’s strong determination to set priorities. If we do
not go forward we go backwards, for life does not stand still. If we do not
rise we fall; it is always for us to choose and set our priorities.
Looking at the post 9/112 world in the perspective of the preceding postulate we
can see international human rights as the pinnacle of the collective legislative spirit
of ‘We, the people of the United Nations’ and the frequent flagrant violations of
human rights as the depths to which the conscience of man will sometimes sink.
The international scene of today is well described by Judge Weeramantry, a former Vice-President of the International Court of Justice: ‘We live in the midst of
terrorism, genocide, racism, torture, narcotics, militarism, arms races, hijacking,
environmental devastation, and human rights violations of every kind.’3 The terrorist attack on the World Trade Organization’s building on 11 September 2001
represents the worst aspect of the sunken and perverted spirit of man. Yet instead
of prudently admitting their failure to strengthen the protective mechanism of
collective security based on force, which is the monopoly of the international
community, States are still choosing primitive and disastrous mechanisms for selfdefence as well as overt or covert military alliances, the corollary of rights springing from the old concept of absolute sovereignty4, of the pre-Charter era. 9/11
needs to be seen as a wake-up call. The assassination of Archduke Franz Ferdinand
in 1914 which ignited the First World War, the blitzkrieg by Germany which
ignited WWII in Europe, and the Japanese attack on Pearl Harbour in 1942 were
similar moments in history when war was taken to the rest of the world. The post

1

MC Singh, Quest for Light, Radha Soami Satsang Beas, 4th edn, (Panjab, India, 1988) 54.
The terrorist attack on the World Trade Organisations’ building on 11 September 2001 has popularly become to be known as 9/11.
3
CG Weeramantry, The Lord’s Prayer: Bridge to a Better World (Liguori, MO, Triumph, 1998) 3.
4

Jessup opines: ‘Those who still preach the traditional license of absolute sovereignty as an excuse
for disregarding the interest of the world community, sound a discordant note . . .’, see PC Jessup,
‘A Half Century of Efforts to Substitute Law for War’ (1960) 99 Recueil des Cours 1, 20.
2


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Introduction

9/11 events are in danger of repeating the old scourge. All this is the reverse of
the heights at which the post-WWII signatories of the UN Charter and the
International Bill of Human Rights aimed on behalf of all mankind. Amidst the
turmoil there are signs that the whole of humanity is once again willing to engage
in warfare as it did during the two world wars. Yet if it is for man to choose between
the heights and depths then what is the choice between these two contrasting scenarios? History provides ample evidence. The path of the law based on respect for
human rights and human dignity is the choice is well described in the words of Prof
Jessup, a former Judge of the International Court of Justice:
We lawyers do not have the arrogance to assert that the path of the law is the only way to
peace. We do confidently assert that no human society has ever discovered an ordered
substitute for violence save through the use of law and legal institutions whether the law
in question be secular or religious. It is the same in international community. Those who

look realistically at what often seems to be an international anarchy and who suggest the
solutions of economics, of political or of science, come first or last to rely upon some
agreement, some treaty, even though they may ignore the fact that a contractual obligation is essentially one of the simplest and one of the most pervasive manifestations of the
acceptance of the very spirit of law. Whatever form of organisation they propose, it must
be in structure and in operation a legal phenomenon, because law can be defined as a
description of the way people organise and act.5 (emphasis added).

To those who think that the role played by international law in international relations has never proved so successful, the words of Judge Manfred Lachs, a former
President of the ICJ, may provide a satisfactory answer: ‘Though imperfect and
inadequate in many respects, international law is honoured more in the observance than the breach.’6 The inherent juridical sense of man, respecting his fellow
human beings at the personal level of a single individual—for law in its antiquity
was personal—or at the level of nation States, or internationally at the level of the
UN always shows a determination to follow the path of righteousness, which we
call humanity; virtue in the Republic of Plato and human rights in the United
Nations Charter. That the spirit of man is always, unless clouded and perverted,
capable of distinguishing between right and wrong—is capable of legislating the
path from within his own reason and spirit; and, is capable of implementing his
own legislation and if needs be passing a judgment on his own actions—is his dignity. Every individual is a living parliament (billions of cells in his brain engaged
in constant deliberation and decision-making), a living executive (constantly
implementing his own decisions) and a living court of justice (reviewing and judging his own actions consciously and conscientiously according to his dharma, the
chosen path of action) unto himself. It is also the dignity of man to respect
the spirit and the path of his fellow human beings and to live a life of peaceful
5

Ibid, p 4.
M Lachs, ‘Thoughts on the Recent Jurisprudence of the International Court of Justice’ (1990) 4(1)
Emory International Law Review 78. Judge Lachs also mentions: ‘If you look at the world at large, law
is vital and essential part of the daily affairs of nations. Without it, our daily life would be impossible.
Without it, all routine events we so frequently take for granted would be impossible.’ (Ibid, pp 77–78).
6

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3

co-existence. When in contact, or even in conflict, people similarly legislate for
themselves, implement their laws and adjudicate upon the matters in contention.
The organised life of human beings has long since moved from the level of numerous nation States to the international community level of the UN. The path ‘we the
peoples of the United Nations’ enacted for ourselves is provided in the UN Charter.
Historically, every democratic rule of law proves that the secret of success of a
legal system lies in respect for the rights of its subjects and the protection of those
rights, if necessary by force. It is not hard to see that the root cause of the relative
imperfection and inadequacy of international law, and the consequent flagrant
violations of human rights worldwide (including by means of terrorism) lies in the
failure of ‘we the peoples of the United Nations’—rulers and ruled alike—to establish the conditions for the institutionalisation of the use of force monopoly held
by international society. The primitive practices found in the outdated international rights of States, such as the right of self-defence and collective security
based on alliances, which disregards the possibility of establishing a workable
system of force monopoly within international society, is detrimental to the very
concept of collective security based on force monopoly in the international community in the age of international human rights. The very core of the legislative
spirit of the UN Charter reflects this and needs to be recalled here briefly.
Every constitution is imbued with a spirit and philosophy that animates the path

chosen by its people and enacted as legislation by its legislators. One does not
become a legislator simply by getting elected to that office by the people. The legislator must pursue the spirit and philosophy of the people’s constitution to a point
that the law is enforced by a strong executive and guarded by an impartial judiciary.
One does not become a judge simply by getting elected to that office. Handsome is
he who handsome does and similarly, justice is he who justice does. The spirit and
the school of law, reflected in the judicial ideology of the judge go a long way to create the proper conditions for decision-making in the field of human rights. The
judge must mould his judicial conscience in accordance with the spirit and philosophy of the path prescribed in the constitution and adopted by the people of his
society. Every element of his reasoning must conform to them. Detailed adjudication speaks louder and clearer than the frequently terse language of constitutions.
Judgements are even more potent. Adjudication by a Court must bear the hallmark
of the legislative spirit and the legislature must strengthen the executive to facilitate
compliance with judicial pronouncements. The juridical conscience of a community often lies in the preamble to its constitution and the United Nations Charter
is, for all practical purposes, such a constitution for the international community.
It is to the Preamble to the Charter that we must therefore look. The Charter opens
with the words ‘We, the peoples of the United Nations’, and not with We, the sovereign States of the United Nations. That choice of the universality of the collective
human conscience of ‘We’ showed the UN’s determination to follow the path of
human rights prescribed by the UN Charter. Even a brief analysis of the Charter
reveals what the ‘peoples’ were ‘determined’ to achieve for themselves and for coming generations: the four key ‘ends’. First: ‘to save succeeding generations from the


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Introduction

scourge of war, which twice in our lifetime has brought untold sorrow to mankind.
Second: ‘to reaffirm faith in the fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men and women and of nations large and
small.’ (emphasis added). Third: ‘to establish conditions under which justice and
respect for the obligations arising from treaties and other sources of international
law can be maintained.’ And the fourth: ‘to promote social progress and better
standards of life in larger freedom.’ All the four ends perceived in a circle reflect the
spirit of the doctrine of human rights and human dignity at the centre of that circle.
The first two ends speak of achieving peace based on human rights and human dignity. The third end speaks of establishing an international rule of law, a condition
for the achievement of peace based on human rights. The fourth signifies the promotion of social welfare and civil liberty, well enshrined now in the UN Charter
and its associated instruments popularly called the International Bill of Human
Rights.
And further, to achieve ‘these ends’, the preamble speaks of adopting four
means. First: ‘to practice tolerance and live together in peace with one another as
good neighbours.’ Second: ‘to unite our strength to maintain international peace
and security.’ (emphasis added). Third: ‘to ensure, by the acceptance of principles
and institutions of methods, that armed forces shall not be used, save in the common
interest.’ And the fourth: ‘to employ international machinery for the promotion of
the economic and social advancement of all peoples.’ The most striking of these
means to achieve peace based on human rights is the element of ‘to unite our
strength’ clearly standing for the promotion of the system of force monopoly of
international society. The concept of ‘Armed forces shall not be used, save in the
common interest’ read together with the concept of ‘to unite our strength’ created a
cardinal characterization of means aiming to limit the recourse to use of force in
the forms of self-defence and alliances and to promote the collective use of force
monopolized in the hands of the peoples of international society. The human
rights spirit in the four means of achievement is exactly commensurate to the same
spirit in the four ends. It is the humanity of man, in the form of human rights and
human dignity, which stands at the core of this octagon of eight fundamental

concepts, the first four representing the ends of the Charter and the other four
standing for the means to be adopted. The position of human rights and human
dignity in the UN Charter and the contemporary sources of international law are
so central that any application and interpretation of any principle of law in disregard of the principles of human rights would need careful scrutiny.
The success, or failure, of the path of human rights, is something for which
many can claim credit or be equally held responsible, respectively—States, individuals, the United Nations, etc—yet some are more praiseworthy and responsible than the others. Who actually is responsible for the present failed state of affairs
in which the international legal system is not as effective as national legal systems?
Is it the General Assembly of the UN? Is it the UN Security Council? Is it the
International Court of Justice? Or, is it nation State leaders, mass-media or peoples
themselves? Perhaps the best answer is to pose a counter-question: who does not


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5

have a hand in it? The place of the judiciary in any society is always conspicuous.
Therefore, the Charter provided for an international judiciary. To judge in full
accordance with the legislative spirit of human rights and human dignity a judge
must be sufficiently broadminded, human and humane in the core of his mental
judicial faculty. The Statute of the International Court of Justice is an integral part
of the Charter of the United Nations. In adjudicating upon any case, be it a judgment in a contentious case or an advisory opinion in an advisory case, the Court

being an integral part and principal judicial organ of the United Nations, is bound
to interpret and apply international law keeping constantly in mind the ends and
means, described also as purposes and principles, enshrined in the UN Charter.
Doing full justice to the common good of mankind, and the co-existence of ‘we the
peoples of the United Nations’, the drafters of the Court’s Statute carefully devised
the following formula of method and qualifications to be followed when electing
the judges of the principal judicial organ of the United Nations: ‘at every election,
the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the
representation of the main forms of civilization and the principal legal systems of
the world should be assured.’7
And further, in order to strongly imprint in the conscience of every single judge
the following provision was provided: ‘Every Member of the Court shall, before
taking up his duties, make a solemn declaration in open court that he will exercise
his powers impartially and conscientiously.’8
Looking at the above provisions of the Court’s Statute and the qualities of
judgeship recounted therein one perceives that there are two cardinal concepts in
the ICJ Statute, governing its adjudication process—1) the concept of the main
forms of civilization and the principal legal systems of the world (Article 9 of the
Statute), and 2) the concept of deciding impartially and conscientiously (Article 20 of
the Statute)—which have great relevance to the eight fundamental concepts of the
UN Charter.
Seen in the light of the above eight fundamental concepts in the UN Charter and
the two cardinal concepts in the ICJ Statute, every principle developed by the
International Court of Justice during the course of its adjudication is expected to
be a super refined and clarified voice of the human rights oriented international legislative spirit of international community. To disregard that would be tantamount
to betraying the trust of ‘we the peoples of the United Nations’. To pay due regard
to this is to epitomize the spirit of human rights and human dignity.
Spirit is something constant (fixed) in man whereas the expression and meaning of his conscience is dynamic, depending always how conscious the man is about
his own living essence of spirit, The Greeks used the word logos; in teutonic
language it was lag, which later came to be known as law. And, in that spirit and

conscience lies the defining stuff of the principle of human dignity. Hence; we may
7
8

Article 9 of the Statute of the International Court of Justice.
Article 20 of the Statute of the International Court of Justice.


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also define the principle of human dignity as respect for the spirit and conscience of the
man, for the man and by the man individually; and, respect for the spirit and
conscience: of the people, for the people and by the people collectively. These are ‘the
elementary considerations of humanity’, to use the language of the International
Court of Justice. And these, applied to practical human conduct, either in the form
of a right or a duty, run erga singulum as well as erga omnes, to use again the terms
of the Court’s jurisprudence. Depending upon the field of action and the actors
involved—for instance legislation and legislators or the adjudication and the
judges—it is the substance (human dignity) of the principle which matters most,
the form being subservient.

Profoundly striking is the truth: ‘Legislative and judicial processes are inseparable’.9 The traditional view that judges only find and apply the law, and do not make
it, is not only rapidly losing ground in national judicial circles but hardly has a
place in international adjudication, particularly the International Court of Justice,
whose founding fathers expected from its judges the ability to develop international law to the extent of delivering to posterity an ‘empire of justice’. That is not
to reflect that the international judges have taken over the role of legislature on the
international plane of ‘global governance’, and neither is it to maintain the view
that the judiciary in general has become more powerful than the legislature. It is
simply to recognize an existing fact—the result of constant historical, legal and
political development, generally and in all national jurisdictions, but certainly and
particularly in the international community—that legislative and judicial
processes are getting so interwoven and interdependent that their complementarity is something to be taken notice of and to be appreciated in a positive spirit.
It is a ‘creative act’ on the part of the judiciary and not a ‘conspiracy’ against the
legislature.10
‘Jurists are the Judges and guides of the Judges.’11 A prominent jurist turned judge
of the ICJ, Judge Hersch Lauterpacht (UK), writing on the International Court of
Justice as an agency for developing the law, posed a question: ‘What . . . is the explanation of the wide recognition of the achievement of the Court?’ 12 His own spontaneous answer to the question he posed for himself was: ‘The explanation is that,
debarred from directly acting as an important instrument of peace, the Court has
made a tangible contribution to the development and clarification of the rules and
principles of international law.’13 That the Court has played a significant role by
contributing to the orderly development of international law is a well-known fact.
It is also well known that several pronouncements of the Court have had a considerable impact on the development of the law of the sea, the law of the treaties,
9 JL Brierly, H Lauterpacht and H Waldock, (eds), The Judicial Settlement of International Disputes:
The Basis of Obligation in International Law (London, 1958) 98.
10 Ibid.
11 Justice VR Krishna Iyer, Human Rights (A Judge’s Miscellany, 1995) p 52.
12 Sir H Lauterpacht, The Development of International Law by the International Court of Justice
(London, Stevens & Sons, 1958) 5.
13 Ibid.

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7

international economic law, the law of decolonization, the law of the international
organizations, environmental law and so on.14 However, what is less known is the
fact that the International Court of Justice, though not a special human rights
court as such, has also made, and sometimes also failed to make, an important
contribution to the development of human rights law. Though there are some articles15 published on this particular subject, and some publications on the case law
of the International Court which cover the subject briefly, mainly mentioning the
principle of self-determination and the concept of obligations erga omnes, yet
there is not a single monograph16 to be found in the English literature which comprehensively covers the development of human rights law by the International
Court of Justice.
Regularly engaged in the research in the Court’s jurisprudence, and frequently
noticing the lack and need of an account of such a nature, I had often felt it
worthy of research. It is no exaggeration to state that whenever I carried out an analytical study of the reasoning of any decision of the Court, particularly involving
human rights issues, the reasoning preceding its decisions, as well as the independent opinions appended by individual judges to those decisions, repeatedly
impressed upon me that any theoretical principle of human rights law enshrined
in any human rights instrument is more like a tiny legal seed which goes through a
14
See particularly: 1) Judge Sir H Lauterpacht, The Development of International Law by the
International Court of Justice (London, Stevens & Sons, 1958); 2) Judge N Singh, The Role and Record

of the International Court of Justice (Dordrecht, Nijhoff, 1989); 3) Judge Mohamed Shahabuddeen’s
Precedent in the World Court (1996); 4) JN Singh’s International Justice: Jurisprudence of the World
Courts (1991); 5) JHW Verzijl’s The Jurisprudence of the World Court, vol II (1967); 6) E McWhinney,
The World Court and the Contemporary International Law-Making Process (Alphen aan den Rijn,
Netherlands, Sijthoff & Noordhoff, 1979); 7) Judge Jimenez de Arechiga’s ‘The Work and the
Jurisprudence of the International Court of Justice 1947–1986’ (1987) 58 British Year Book of
International Law 1–38; 8) Judge Manferd Lach’s two articles: a) ‘Some Reflections on the
Contributions of the International Court of Justice to the Development of International Law’ (1983)
10 Syracuse Journal of International Law and Commerce, Nr 1, p 239, and b) ‘Thoughts on the Recent
Jurisprudence of the International Court of Justice’ (1990) 4 Emory Journal of International Dispute
Resolution 193–236; and 9) E Hambro and AW Rovine’s, The Case Law of the International Court of
Justice, 8 vols, 1952–76.
15
Strictly speaking, comprehensively dealing with the subject are, to my knowledge, are the following five articles: 1) by Judge R Higgins, ‘The International Court of Justice and Human Rights’ in
K Wellens, (ed), International Law: Theory and Practice: Essays in Honour of Eric Suy (The Hague,
Martinus Nijhoff, 1998) 694; 2) by Judge SM Schwebel, ‘Human Rights in the World Court’ in
RS Pathak and RP Dhokalia, (eds), International Law in Transition, Essays in Memory of Judge Nagendra
Singh (New Delhi, Lancer Books, 1992) 267–90. (The latter also published in (1991) 24 Vanderbilt
Journal of Transnational Law 945–70); 3) by Judge SM Schwebel, ‘The Treatment of Human Rights and
Aliens in the International Court of Justice’ in V Lowe and M Fitzmaurice, (eds), Fifty Years of the
International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge, CUP, 1996) 327–51;
4) M Bedjaoui, ‘À propos de la place des droits de la personne humaine dans la jurisprudence de la
Cour internationale de Justice’ in P Mahoney, et al, (eds), Protecting Human Rights: The European
Perspective (Köln, Carl Heymanns Verlag KG) 87–93; 5) K Wellens, ‘La Cour internationale de justice
et la protection des droit de l’homme’ in Les incidences des jurisprudences internationale sur les droits
Néderlandais et Français notamment sur les Droits de l’Homme (Paris, Presses Universitaires de France)
41–81.
16
However, there appeared in 2002 for the first time a monograph in French, ie, R Goy, La Cour
Internationale de Justice et les Droits de l’homme (Brussels, Nemesis Bruylant, 2002).

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circular process of adjudication—application-interpretation and interpretation–
application; no–yes; yes–no; until the impartial and conscientious reasoning
faculty of judges convincingly hear the inner voice which says: a) there is for me
now clear, convincing, sufficient and conclusive evidence, and b) beyond any reasonable doubt this is my inner conviction—it appears in the form of a gigantic tree
whose every leaf, branch, flower or fruit sparkle with the human rights spirit which
was encased in the tiny seed. The blossom of a rose, its delicate perfume, the soft
moisture of open petals, are experiences and manifestations of its essence hidden in
the seed. The principle of equality for instance produced the legal reasoning of 503
pages in the joint cases concerning South West Africa.17 The simple principle of
State responsibility was expressed in 128 pages in the case concerning Corfu
Channel,18 developing the principle of elementary considerations of humanity, manifesting the very substance and application of human rights, finding its place in
1949 Geneva Conventions and in the international law for the protection of environmental needs. At the heart of the 357 page judgment in the Barcelona Traction19
case, dealing with diplomatic protection to shareholders, the Court developed the
most revolutionary concept, that ‘human rights run erga omnes.’ Just to mention
one more case in which the Court adjudicated upon the question of the legality and
illegality of nuclear weapons,20 the advisory opinion of the Court amounted to 368

pages. These pages, including individual opinions of several judges, contain a
boundless treasury on international humanitarian law and human rights law. As a
matter of fact the Court’s record on international human rights adjudication, like
most of its jurisprudence, shows a refined and developed form of the spirit of international human rights legislation, something ‘we the peoples of the United Nations’
must know. However, when, on occasion the Court has spoken with a voice which
is conservative, formal and proceduralist, the light of the law has been missing and
the concept of human dignity was thereby dimmed. Fortunately, individual opinions of the judges have meant that the Court has never been completely formal and
proceduralist; for instance, thanks to the dissenting opinions (290 pages)21 of
exactly half the Court’s members in the South West Africa cases, its human rights
interpretation and the extensive elaboration of the principle of equality prevailed
in the long run despite its casting vote and conservative decision in the dispositif.
185 judges on the bench of the Court (including 94 judges ad hoc)—delivering 89
judgments in 107 contentious cases, giving 25 advisory opinions in 24 advisory
cases, making 429 orders altogether, and appending hundreds of individual opinions to all these decisions22—producing forests of gigantic jurisprudential trees
17

Judgment of 18 July 1966 in the joint cases of South West Africa, ICJ Reports 1966, pp 4–505.
Judgment of 9 April 1949 on Merits of the case concerning Corfu Channel (United Kingdom v
Albania), ICJ Reports 1949, pp 4–131.
19 Judgment of 5 February 1970 in the case concerning Barcelona Traction, Light and Power
Company, Ltd, New Application: 1962 Belgium v Spain, ICJ Reports 1970, p 3.
20 Advisory Opinion of 8 July 1996 in the case concerning Legality of the Threat or Use of Nuclear
Weapons, ICJ Reports 1996, pp 226–593.
21 Judgment of 18 July 1966 in the joint cases of South West Africa, ICJ Reports 1966, pp 216–505.
22 Statistics are as they stand on 8 April 2005; for details see the bibliography at the end of this book.
18


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9

from the legislative seeds on the aforementioned branches of international law,
including human rights law, makes the Court worthy of profound and critical
study aimed at uncovering what lies in its jurisprudence which will aid the development of human rights law. Hence this book.
This book aims at: a) surveying the Court’s jurisprudence and analysing its case
law in order to highlight the contribution of the judges of the International Court
of Justice to the development of human rights law; and b) to point out at the same
time its failures, as pointed out by the judges in their independent opinions
appended to the Court’s rulings. For this purpose, the book is divided into three
parts.
Part 1 concentrates on two enquiries: 1) the legislative role of the judge: do judges
legislate?; what do we mean by the development of law by judges?; the relationship
between development of law and judicial ideologies; and 2) the relation between
human rights and international law in the context of the equation: the principle of
human dignity versus the traditional doctrine of State sovereignty.
Part II examines and analyses the principal contentious cases in which the
International Court has treated human rights issues and allied questions.
Part III examines and analyses the principal advisory opinions delivered by the
Court in which human rights issues and allied questions have been dealt with.
Finally, the concluding chapter offers a summary and general conclusion.

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Part I
Perspective: Legislative Role of the Judge and
Human Rights Law