International Court of Justice

The experience before the World Court reveals a similar pattern to the ILO, but with no clear bias towards a particular category of case. A number of judgments concern human rights violations brought by States with a direct interest: This includes Bosnia and Herzegovina v. Serbia and Montenegro (Genocide case),⁴⁸ Democratic Republic of Congo (DRC) v.

Uganda,⁴⁹ Croatia v. Serbia,⁵⁰ Diallo v. DRC,⁵¹ Georgia v. Russia⁵² and arguably the LaGrand case (Germany v. United States of America).⁵³ In all of these cases an inter-State application was arguably an highly appropriate form of litigation for the type of violation alleged by the applicant State: In LaGrand and Diallo, it concerned individuals with no access to complaints procedures, while in the other cases it concerned claims of violations against a large number of the population of the applicant State.

47 See C. Fenwick, ‘The International Labour Organisation’ in M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge:

Cambridge University Press, 2008), pp. 591-612

48 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), [2007] ICJ Rep p.43.

49 [2005] ICJ Reports p. 26 (Ugandan forces violated a number of treaties while present on the territory of the Democratic Republic including the ICCPR, the African Charter on Human and Peoples’ Rights, and the CRC).

50 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 412 51 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),

Merits, Judgment, I.C.J. Reports 2010, p. 639.

52 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia), ICJ Reports 2011. The Court issued interim measure but later found it lacked jurisdiction: see, Preliminary Objections, Judgment, I.C.J.

Reports 2011, p. 70.

53 I.C.J. Reports (2001), p. 9; ILM (2001) 169 (foreigners possess individual rights to consular assistance under the Vienna Convention on Consular Relations, which Germany also argued was a human right).

Surprisingly, a significant number of cases concern States seeking to defend the diffuse collective interests of all States Parties to a human rights treaty. While there is often a partly a historical or regional explanation behind the identity of the applicant State, narrow interest-based explanations cannot explain fully the instigation of contentious proceedings. These cases include Liberia and Ethiopia v. South Africa (the performance of South Africa under its mandate for South West Africa, including the social progress of its inhabitants),⁵⁴ Australia and New Zealand v. France (concerning nuclear weapons),⁵⁵ and East Timor (Portugal v.

Australia) (concerning the respondent’s negotiating of treaties with Indonesia that affected the right to self-determination of East Timor) and, very recently, Belgium v. Senegal (failure to prosecute a former Chadian leader for ordering torture).⁵⁶

Tellingly, in the judgment in Liberia and Ethiopia v. South Africa, the Court found, controversially, that the applicants had no direct legal interest in the subject matter and declined jurisdiction. However, this standard was largely reversed in later judgments, in particular Barcelona Traction, where the presence of erga omnes obligations were acknowledged in both customary and treaty law.⁵⁷ Nonetheless, the judgment in Liberia and Ethiopia v. South West Africa may have had a long-lasting chilling effect on the use of the Court for such indirect case. It is only in Belgium v. Senegal that we see a recent and successful case of this nature.

There are likewise a significant number of recent cases where a multilateral institution makes the referral to the Court (so far the General Assembly, Security Council and WHO).⁵⁸ In the Nuclear Weapons case, the Court considered the legality of nuclear weapons in light of the right to life and health, finding that ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’ and that ‘the right not arbitrarily to be

54 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6.

55 Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 253; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457.

56 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90.

57 ‘[A]n essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law … others are conferred by international instruments of a universal or quasi-universal character.’ Barcelona Traction, Light and Power Company, Limited (Second Phase), Judgment of 5 February 1970, I.C.J. Reports 1970, p. 3 (32) (emphasis added).

58 Other than the two discussed in the paragraph, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 16.

deprived of one’s life applies also in hostilities’.⁵⁹ In another Advisory Opinion, the Court found that the wall constructed by Israel in the Occupied Palestinian Territories violated the ICESCR (see discussion below).⁶⁰

Pointedly, some commentators have greeted the ICJ’s recent jurisprudence in human rights with high praise. Bjorge contends that the Court’s 2010 Diallo judgment ‘marks a sea change’ with the Court

‘forcefully’ staking ‘its claim as an arbiter of human rights to be reckoned with’.⁶¹ Former ICJ Judge Simma has proclaimed that the ‘human rights genie has escaped from the bottle’,⁶² pointing in particular towards the 2012 Belgium v. Senegal judgment.⁶³ In a similar vein, Mads Andenas writes:

In Diallo it becomes much clearer how the open method the ICJ has adopted puts it at the top of the international law system. The development of customary international law by the (Court) is now much more likely to include human rights law, international trade law and other fields of international law which until recently seemed to fragment into autonomous regimes.⁶⁴

Others are more reserved in their rhetoric but equally assured of the profound change.⁶⁵ Former President of the Court, Rosalyn Higgins, straightforwardly asserts that human rights are ‘routinely addressed in judgments of the Court’⁶⁶ and Wilde records the ICJ’s transformation into a ‘domestic generalist court’ with human rights-inclusive jurisdiction.⁶⁷ These positions form part of a broader new apology for the Court on its account of its greater engagement with diverse subjects of international law.⁶⁸ While this optimism is somewhat unwarranted,⁶⁹ it is worth noting the key and relevant jurisprudence.

59 Legality of the Threat or Use of Nuclear Weapons I.C.J. Reports 1996, p. 226, paras. 29 and 25. By a slim majority it found ‘that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict’ but that it could be lawful if a State’s very survival was at stake (para. 105). It unanimously found a procedural duty ‘to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control’. Ibid.

60 Legal Consequences of the Construction of a Wall in the Israeli Occupied Territories, (2004) ICJ Reports 136, p.193.

61 Bjorge (2011: 539, 540).

62 Simma (2012: 25).

63 Ibid 22.

64 Andenas (2012: 137).

65 See, e.g., the more muted but consistently positive conclusions by Zybari (2008) on the new jurisprudence.

66 Higgins (2007: 746).

67 Wilde (2013: 645).

68 See, e.g. the edited volume, Tams and Sloan (2013), and its concluding chapter.

69 See M. Langford, ‘The New Apologists: The International Court of Justice and Human Rights’, Retfærd (2015), Vol. 48, No. 1, pp. 49-78.

In the 2004 Wall Advisory Opinion, the Court was asked: ‘What are the legal consequences arising from the construction of the wall being built by Israel, the occupying power, in the Occupied Palestinian Territory’.⁷⁰ The Court not only affirmed that the barrier was a violation of international human rights law⁷¹ but referred and deferred to the jurisprudence of UN human rights treaty bodies and their findings concerning Israel.⁷² Accordingly, it held that Israel possessed extraterritorial obligations under the ICCPR, ICESCR and the CRC due to its effective control in the Palestinian territories; and that the chosen route for the wall and its associated régime ‘gravely’ infringed a number of rights of Palestinians’ and could not be ‘justified by military exigencies or by the requirements of national security or public order’.⁷³

The importance of the Court’s reasoning is underscored by Justice Higgins’s separate opinion. She recoils at the Court’s all-too-ready embrace of human rights treaties and their jurisprudence. While concurring with the invocation of the right to freedom of movement she finds the application of ‘programmatic’ economic and social rights

‘strange’;⁷⁴ and wonders whether it is appropriate for the Court to intrude in the application of all three Covenants given that they possess specialist monitoring mechanisms.⁷⁵

In the DRC v. Uganda judgment of 2005, the applicant State was able to secure a merits judgment against the conduct of one of its neighbour’s troops on its territory.⁷⁶ It represents the first case in the history of the ICJ in which violations of human rights were explicitly mentioned in the dispositif, the operative provision of the judgment. Uganda, by the conduct of its armed forces, was found to have ‘committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian population’, ‘destroyed villages and civilian buildings’, ‘trained child soldiers’ and ‘incited ethnic conflict’.⁷⁷

70 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136Advisory Opinion, I.C.J. Reports 2004, p. 136, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion I.C.J. Reports 2004, p. 136 International Court of Justice, 71 141.127-131, 134. 136.

72 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion Advisory Opinion Case’ Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion I.C.J. Reports 2004, p. 136 International Court of Justice, para. 107-113.

73 Ibid para. 137.

74 Separate Opinion of Justice Higgins, I.C.J. Reports 2004, p. 207 (para. 27).

75 She does have a fair point that the General Assembly risks exhibiting bias since only selected State parties to a treaty are affected by Advisory Opinions ICJ for special treatment. (para. 26, and also 27).

76 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168.

77 It bears noting that the Court also upheld a counter-claim by Uganda for the maltreatment of Ugandan diplomats and other individuals on the Embassy premises but Justice Simma in a separate opinion was critical of the Court for failing to frame

In 2010, the Court delivered its judgment in Diallo, which is the most comprehensive in addressing human rights.⁷⁸ The case involved a Guinean national who settled in what is now the DRC in 1964. In 1974, Mr. Diallo founded what became an extremely successful import-export company, Africaire-Zaire, but by the 1980s various business partners, particularly State institutions, refused to pay their debts, and in 1988 Mr. Diallo found himself briefly imprisoned on charges (later withdrawn) of corruption. In October 1995, an expulsion decree was issued against him and after two further arrests and periods of detention he was expelled on 31 January 1996.

Importantly, the Court adopts a contextual approach to the burden of proof and places it on public authorities if they are best placed to provide the evidence.⁷⁹ Moreover, the Court bases its findings of violation of protections against expulsion and the right to liberty on two human rights treaties ratified by the disputing States and draws on the relevant jurisprudence of the UN Human Rights Committee and the African Commission.⁸⁰ The Court states that it should ‘ascribe great weight to the interpretations’ adopted by specialist bodies as the point is to achieve ‘the necessary clarity and essential consistency of international law’.⁸¹

However, the Court’s approach is not all positive for human rights, generally, and social rights, in particular. For example, the claim concerning the lack of food is brushed aside. According to the Court, Mr.

Diallo was able to rely on relatives who had the ‘liberty’ to visit him. ⁸² Yet, the United Nations (UN) Human Rights Committee has been emphatic on this point: In Mukong v. Cameroon, the Committee stated that ‘regardless of a State Party’s level of development’ the UN Standard Minimum Rules for the Treatment of Prisoners apply, which the Committee notes includes

‘provision of food of nutritional value adequate for health and strength’.⁸³ Finally, in its 2012 Belgium v. Senegal judgment, the Court agreed with Belgium that Senegal had failed ‘to make immediately a preliminary inquiry into the facts relating to the crimes allegedly committed’ by the former Chadian dictator, Hissene Habre, and ‘submit the case to the

77 this as a human rights violation; as diplomatic protection was limited to nationals. The Court rejected the DRC’s claim against Congo on jurisdictional grounds with only one dissent – but a separate opinion by five judges criticised the Court’s reasoning for the future applications of human rights treaties – something that arguably came to haunt the court two years later in Georgia v. Russia (see below).

78 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p. 639.

79 Paras. 53-56.

80 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, paras. 63-85.

81 Ibid para. 66.

82 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, para. 88.

83 Albert Womah Mukong v. Cameroon (Communication No. 458/1991), Views of 21 July 1994, para. 9.3.

competent authorities for the purposes of prosecution’.⁸⁴ Critically, the Court permitted Belgium to rely on the erga omnes dimension of the Convention Against Torture to prosecute the claim without needing to demonstrate a special interest in Senegal’s compliance⁸⁵ – finally putting to rest the jurisdictional ghost of South West Africa and providing a valuable restatement of the broader interest that States can litigate in international adjudicatory procedures, and the potential utility of the Optional Protocol procedure to which we now turn.