Abstract
One of the two mandates of the ILA Human Rights Law Committee (2009–2016) was to examine the contribution by the ICJ to international human rights law. The Committee reported on this at the Washington Conference 2014. This report discusses the ICJ’s treatment of decisions by human rights bodies. In addition, it focuses on some of the contributions by the ICJ to human rights law in specific areas, even without a clear direct impact of the case law of the human rights bodies. The discussion, covering case law until 2013, includes the Court’s attitude toward the position of the individual in general, its case law on the extraterritorial application of human rights treaties, and its practice regarding provisional measures involving human beings.
Finalized by Eva Rieter
This is a slightly edited version, for purposes of this volume, of paras 19–88 of the interim report of the ILA Committee on International Human Rights Law, Washington Conference 2014, reprinted in ILA Report 2014, at 476–501. The report was finalized by ILA Rapporteur Eva Rieter, with input by the other Committee members, in particular Stefan Kadelbach, Liliana Jubilut, Christina Cerna, the late Nigel Rodley and the late Peter van Krieken, as well as by those participating in the ILA committee meeting in Bellagio, Italy, June 13–14, 2012. The findings of the report were endorsed by the ILA Johannesburg Conference in Resolution No. 2/2016, reprinted in ILA Report 2016, at 20–21.
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- 1.
Paras 1–18 and 25, which are not reproduced here, refer to the drafting history of the Washington Conference Report 2014.
- 2.
ILA Resolution 4/2008, endorsing this approach.
- 3.
For references to ICJ case law subsequent to 2013, see Kadelbach, Rensmann and Rieter, Introduction, in this Volume; see also Rieter, The International Court of Justice and Provisional Measures Involving the Fate of Persons, in this Volume. For case law involving human rights by European, Latin American and African courts of regional integration see Kadelbach, The European Court of Justice and Human Rights Law; Franca Filho, Lixinski and Olmos Giupponi, Courts of Regional Economic Communities in Latin America and Human Rights Law, and Ebobrah, Courts of Regional Economic Communities in Africa and Human Rights Law, all in this Volume.
- 4.
As noted, in this report the Committee focuses on the role of courts, domestic and international, not on subjects of international law, nor on the role played by civil society, although these may obviously arise in the discussion.
- 5.
See e.g. Commentary to the ILC Draft Articles on State Responsibility 2001 (hereinafter referred to as ARSIWA). As to the text and commentary of the Draft Articles, see YBILC 2001, Vol. II Part 2, 26–143.
- 6.
This approach does not apply a contrario. Obviously, the fact that the judgment itself does not mention existing case law by other adjudicators does not necessarily mean that no judges were aware of it or even brought it up.
- 7.
In the past, the world court has contributed to clarifying the rights of minorities (PCIJ) and to establishing the status of the prohibition of apartheid and of the right to self-determination (ICJ). See also e.g. Zybery (2013).
- 8.
Boisson de Chazournes and Mbengue (2007).
- 9.
Quantitative research was carried out by V.A. Alves (from Universidade Federal da Paraíba), A.M. Cavalcante de Lima and F. Ribeiro da Silva (from Universidade Católica de Santos) under the supervision of Professor L. Jubilut, November 2013, concluding that the ICJ started by making references mainly to the Universal Declaration of Human Rights and the UN Charter provisions related to human rights. This then evolved to mentioning different human rights instruments, mainly of an international, rather than regional character. Toward the end of the 1990s there has been an increase in ICJ references to human rights instruments and bodies. Moreover, with the appointment of Judge Cançado Trindade there has been a considerable increase in the (range of) references to decisions by human rights bodies in individual and dissenting opinions. Another survey of ICJ judgments was conducted by L. Huijbers (from Radboud University Nijmegen) under the supervision of Eva Rieter, Oct 2013. In fact, the increase in references to “others” is not limited to decisions by human rights bodies, see Cogan (2013), specifying references to ITLOS and arbitral tribunals in Territorial and Maritime Dispute (Nicaragua v Colombia), judgment of 19 November 2012.
- 10.
Professor Thomas Buergenthal served first on the IACtHR and then on the UN Human Rights Committee (HRCtee).
- 11.
Higgins (2007), p. 746.
- 12.
Simma (2012b), p. 14.
- 13.
Cf Sect. 3.3 on extraterritorial application of human rights treaties.
- 14.
ICJ, Legal consequences of the construction of a wall in the occupied Palestinian territory (hereinafter: Wall opinion), Advisory Opinion of 09 July 2004, paras 109–112, as confirmed (without another explicit invocation) in Armed Activities on the Territory of the Congo (DRC v Uganda), judgment of 19 Dec 2005, paras 180 and 216. In DRC v Uganda, the ICJ found violations of humanitarian law as well as of the ICCPR, the Children’s Convention and its Optional Protocol and the ACHPR. It did not refer to specific case law developed under these treaties.
- 15.
See Wall opinion, paras 109–110, referring to the relevant cases, as well as the state reporting procedure before the UN HRC. When it discussed the extraterritorial application of the ICESCR is equally referred to statements by the supervisory body to that treaty, para 112.
- 16.
- 17.
ICJ, Wall opinion, para 136. The ICJ quoted from HRCtee General Comment 27, para 14.
- 18.
ICJ, Armed activities on the territory of the Congo (DRC v Rwanda), judgment on jurisdiction of 03 Feb 2006, joint separate opinion of Judges Higgins, Kooijmans, Elaraby, Owada, Simma, paras 12–13, 15–16 and 22–24 and dissent of Judge Koroma, para 15. There has been much discourse on this and an evolving approach within the International Law Commission, culminating in the Guide to Practice on Reservations to Treaties prepared by ILC Rapporteur Pellet (Report of the ILC on the Work of its 63rd session, General Assembly, Official Records, 66th Session, Supplement n° 10, Addendum 1, UN Doc. A/66/10/Add.1).
- 19.
ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), judgment of 30 Nov 2010, para 165, subpara 2 of the operative part.
- 20.
Ibid, para 165, subpara (3) of the operative part.
- 21.
Ibid, para 66. In this respect, the ICJ gave the examples of HRCtee, Maroufidou v Sweden, No 58/1979 para 9.3; and General Comment No. 15: The Position of Aliens under the Covenant. It explained that “[s]ince it was created, the Human Rights Committee has built up a considerable body of interpretative case law, in particular, through its findings in response to the individual communications which may be submitted to it in respect of States parties to the first Optional Protocol, and in the form of its “General Comments,” para 66. This concerned Art 13 of the ICCPR. Regarding Art 9 of the ICCPR, the ICJ later referred to HRCtee General Comment No. 8 of 30 June 1982 concerning the right to liberty and security of the person, para 77.
- 22.
Diallo, para 66.
- 23.
Ibid.
- 24.
Id, para 77, giving the examples AfCHPR, Kenneth Good v Republic of Botswana, No 313/05, para 204 and World Organization against Torture and International Association of Democratic Lawyers, International Commission of Jurists, Inter-African Union for Human Rights v Rwanda, Nos 27/89, 46/91, 49/91, 99/93.
- 25.
- 26.
ICJ, Jurisdictional Immunities of the State (Germany v Italy; Greece intervening), judgment of 03 Feb 2012. Judge Gaja’s dissent focused on the scope of the territorial tort exception, in the context of the ius cogens nature of the norms involved; Judge Yusuf in his dissent stressed the right to a remedy and Judge Bennouna did so in his separate opinion; Judge Cançado Trindade, in his dissent, considered that there was no state immunity for “for international crimes, for grave violations of human rights and of international humanitarian law.”
- 27.
Much has been written about this case and much will be. For thoughtful examples see e.g. van Albeek (2012). Gowlland-Debbas contrasts the “more daring” Namibia and Wall opinions with the 1962 South West Africa cases and the 2012 Jurisdictional Immunities case; see Gowlland-Debbas (2013), p. 28. The subject matter may explain this difference in approach, given that the ICJ is particularly cautious in cases involving some form of immunities, more than by the fact that with the departure of many of the human rights judges the openness to human rights concerns is gone. In addition, the difference may partly be due to the fact that the Court’s approach to a request for an Advisory Opinion is different from its approach to a contentious case.
- 28.
ICJ, Jurisdictional Immunities of the State, para 78. When discussing customary law, the Court referred to ECtHR case law in paras 72, 73 and 76. See also its approach to the second issue, whether the applicability of customary international law on state immunity was affected if it concerned a rule of ius cogens: paras 90 and 96, referring to ECtHR, Al-Adsani v United Kingdom, App No 35763/97, judgment of 21 Nov 2001, and Kalogeropoulou and others v Greece and Germany, App No 59021/00, judgment of 12 Dec 2002. See in turn ECtHR, Jones et al v UK, App No 34356/06 & 40528/06, judgment of 14 Jan 2014, paras 88–93, 198, referring to the 2012 ICJ judgment.
- 29.
ICJ, Jurisdictional Immunities of the State, para 139, subpara 4.
- 30.
ICJ, Jurisdictional Immunities of the State, paras 83–90, which includes the references to the interpretation by the ECtHR.
- 31.
In fact, this judgment serves as a good example of domestic implementation of ICJ judgments, both through domestic court cases and legislation, see for examples Cogan (2013), p. 590.
- 32.
ICJ, Questions relating to the obligation to prosecute or extradite (Belgium v Senegal), judgment of 20 July 2012, para 101.
- 33.
Id, para 100.
- 34.
UNCAT, O.R. et al v Argentina, 23 Nov 1989, Com Nos 1/1988, 2/1988 and 3/1988, para 7.3.
- 35.
ICJ, Belgium v Senegal, para 101. On the merits, CAT had found violations of Arts 5 (2) and 7 of the Convention Against Torture. Senegal was obliged to prosecute Habré. UNCAT, Guengueng et al v Senegal, 17 May 2006, Com No 181/2001, para 9.8. In addition, since 19 Sept 2005, when Belgium made a formal extradition request, the state party “had the choice of proceeding with extradition if it decided not to submit the case to its own judicial authorities for the purpose of prosecuting” him, para 9.10. By refusing to comply with this extradition request the state party had “again failed to perform its obligations under Art 7 of the Convention,” para 9.11. Senegal was to prosecute Habré, “or, failing that, since Belgium has made an extradition request, to comply with that request” or, if relevant with another extradition request by another state, para 10.
- 36.
In his separate opinion, Cançado Trindade argues that the Committee has “ever since adopted a different approach,” as illustrated by UNCAT, Bouabdallah Ltaief v Tunisia, 14 Nov 2003, Com No 189/2001 and, of course, Guengueng et al v Senegal itself. See UNCAT, Guengueng et al v Senegal, 17 May 2006, Com No 181/2001, separate opinion of Cançado Trindade, paras 160–163.
- 37.
Belgium had answered to a specific question put by a member of the Court that Art 7 (1) was intended to strengthen the existing law and Senegal appeared to agree that the obligation to prosecute could also apply to those offences allegedly committed in Chad before the entry into force of the Convention for Senegal, para 98. Several acts of torture had occurred in Chad under the reign of Habré and Habré took refuge in Senegal after the entry into force of the Torture Convention in that country. There was no need for the Court to address this issue, as also pointed out by Cançado Trindade, separate opinion, paras 160, 163–164. The Court added that nothing in the Convention prevents Senegal from instituting proceedings concerning acts that were committed before the entry into force of the Convention for this state, para 102.
- 38.
In its description of the historical and factual background it did mention the decision on the merits by CAT in the Guengueng et al v Senegal case, and follow-up by the Committee’s Rapporteur, paras 27, 39.
- 39.
- 40.
Art 30 of the Torture Convention provides: “1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the ICJ by request in conformity with the Statute of the Court.” Art 22 of CERD further provides: “Any dispute between two or more parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the ICJ for decision, unless the disputants agree to another mode of settlement.”
- 41.
ICJ, Case concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), judgment on compensation of 19 June 2012.
- 42.
“The Court has taken into account the practice in other international courts, tribunals and commissions.” It referred to ITLOS, the ECtHR, the IACtHR, the Iran-United States Claims Tribunal, the Eritrea-Ethiopia Claims Commission, and the UN Compensation Commission. These have all “applied general principles governing compensation when fixing its amount, including in respect of injury resulting from unlawful detention and expulsion.” ICJ, Diallo, para 13.
- 43.
ICJ, Diallo, para 18, reference to IACtHR, Gutiérrez-Soler v Colombia, judgment of 12 Sept 2005 (Merits, Reparations and Costs), para 82.
- 44.
In its judgment on the merits, the Court found that Mr. Diallo had been arrested without being informed of the reasons for his arrest and without being given the possibility to seek a remedy, ICJ, Diallo, judgment of 30 Nov 2010, paras 74 and 84; that he was detained for an unjustifiably long period pending expulsion, para. 79; that he was made the object of accusations that were not substantiated (ibid., p. 669, para. 82); and that he was wrongfully expelled from the country where he had resided for 32 years and where he had engaged in significant business activities (ibid., pp. 666–667, paras. 73 and 74). Thus, it is reasonable to conclude that the DRC’s wrongful conduct caused Mr. Diallo significant psychological suffering and loss of reputation,” para 21.
- 45.
ICJ, Diallo, para 24.
- 46.
ICJ, Diallo, para 24, referring to ECtHR, Al-Jedda v UK, judgment of 07 July 2011, App No 27021/08, para 114 and IACtHR, Cantoral Benavides v Peru, decision on reparations and costs of 03 Dec 2001, para 53. Discussing an approach based on equitable considerations, at para 33, it pointed out that “[o]ther courts, including the [ECtHR and the IACtHR], have followed this approach where warranted (see, e.g., Lupsa v Romania, 10337/04, Judgment of 08 June 2006, ECHR Reports 2006-VII, paras. 70–72; Chaparro Álvarez and Lapo Íñiguez v Ecuador, 21 November 2007 (Preliminary Objections, Merits, Reparations and Costs), IACHR Series C, No 170, paras. 240–2).”
- 47.
ICJ, Diallo, para 40, with references to case law by the ECtHR and IACtHR and a decision by the Governing Council of the United Nations Compensation Commission; “Moreover, if the amount of the lost income cannot be calculated precisely, estimation may be appropriate.” Although an estimation of lost income is acceptable, there are limits: “while an award of compensation relating to loss of future earnings inevitably involves some uncertainty, such a claim cannot be purely speculative,” para 49, again with references to ECtHR and IACtHR case law. The total sum awarded to Guinea was US$ 95,000 to be paid by 31 Aug 2012. The Court expected timely payment and indicated it had no reason to assume that the DRC would not act accordingly. Nevertheless, it decided that, should payment be delayed, post-judgment interest on the principal sum due would accrue. It considered that awarding post-judgment interest was “consistent with the practice of other international courts and tribunals,” ICJ, Diallo 2012, para 56, referring to ITLOS, the IACtHR and the ECtHR.
- 48.
ICJ, 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 of 01 Feb 2012, I.C.J. Reports 2012, 10, para 39, referring to HRCtee, General Comment No. 13: Article 14 (Administration of Justice), paras 2–3 and HRCtee, General Comment No. 32: Right to equality before courts and tribunals and to a fair trial, paras 8, 9, 12 and 13.
- 49.
- 50.
- 51.
- 52.
See Simma (2012a).
- 53.
- 54.
Higgins (2007), p. 746.
- 55.
ICJ, Diallo, paras 54–55.
- 56.
ICJ, Diallo, para 87.
- 57.
ICJ, Belgium v Senegal, judgment of 20 July 2012, para 99.
- 58.
See Report of the ILC, 58th session, A/61/10 (2006).
- 59.
Zyberi (2008), chapter 3 on the ICJ’s contribution to the interpretation and development of international human rights law and principles, 65–258.
- 60.
Simma (2012a), p. 10.
- 61.
See ICJ, LaGrand (Germany v United States), judgment of 27 June 2001, para 128.
- 62.
ICJ, Avena and Other Mexican Nationals (Mexico v United States of America), judgment of 31 Mar 2004, para 88.
- 63.
Id, para 64.
- 64.
Id, para 134.
- 65.
Id, para 141.
- 66.
Id, para 151. Mexico, it should be noted, has included the foreign detainee’s right to be notified of the possibility of consular assistance, derived from the VCCR, in its catalog of rights granted constitutional status.
- 67.
ICJ, Diallo 2010, para 95.
- 68.
ICJ, Diallo 2010, para 95, referring to ICJ, Avena, para 76.
- 69.
ICJ, Diallo 2010, para 95.
- 70.
ICJ, LaGrand, order for provisional measures of 03 Mar 1999, para 28.
- 71.
ICJ, Arrest Warrant of 11 April 2000 (DRC v Belgium).
- 72.
ICJ, Arrest Warrant of 11 April 2000 (DRC v Belgium). See joint separate opinion by the human rights Judges Higgins, Kooijmans and Buergenthal and the dissents of Judge Al-Khasawneh and ad hoc Judge Van Den Wyngaert.
- 73.
Cf Milano (2004) (arguing that in the Avena decision, the ICJ took a step backward, compared to LaGrand, with regard to the characterization of the applicant’s action as diplomatic protection, because the Court referred to the “inter-dependence” of the rights of the State and the rights of the individual, and it did not find it necessary to deal with Mexico’s claims of violation under a distinct heading of diplomatic protection; but while the Court is hesitant in leading to a jurisprudential elaboration of diplomatic protection, the remedies ordered show a willingness to make diplomatic protection instrumental to the protection of human rights).
- 74.
In his separate opinion Simma argued that while Uganda “chose the avenue of diplomatic protection and failed,” the ICJ should have pointed out the applicability of international humanitarian and human rights law and Uganda’s standing in this respect, para 37. He invoked provisions on the prohibition of cruel, inhuman or degrading treatment or punishment, the right to liberty and security of persons and the freedom of movement in the ICCPR, the Torture Convention and the ACHPR.
- 75.
ICJ, Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Decision on Preliminary Objections of 24 May 2007, para 39. This less formalistic approach to diplomatic protection applies only to the rights of the individual, not to the rights of the company or of shareholders. See e.g. Parlett (2013).
- 76.
ICJ, Corfu Channel (UK v Albania), judgment of 15 Dec 1949 (compensation). In this case, where Albania did not take part in the compensation proceedings, the ICJ calculated the award to the UK based on the expenses made by it for the next of kin of seamen killed and for the medical treatment of those injured. It did not consider psychological suffering.
- 77.
ICJ, Diallo, judgment of 19 July 2012 (compensation), paras 21, 24.
- 78.
Id, para 33.
- 79.
Id, para 59.
- 80.
For subsequent developments see Yakushiji, The International Court of Justice and Diplomatic Protection, in this Volume.
- 81.
PCIJ, Case Concerning the Factory at Chorzów (Germany v Poland), case no 13 (claim for indemnity; merits), judgment of 13 Sept 1928, 28.
- 82.
ICJ, Corfu Channel (UK v Albania), judgment of 15 Dec 1949 (compensation).
- 83.
ICJ, Belgium v Senegal (2012), para 68, with reference to Barcelona Traction.
- 84.
Arctic Sunrise is an icebreaker which flies the flag of the Netherlands and is operated by Greenpeace International.
- 85.
Under Art 293 the arbitral tribunal shall apply UNCLOS and other rules of international law not incompatible with UNCLOS. The submission pointed out that this includes the ICCPR, to which both states are a party. ITLOS, Arctic Sunrise case (Netherlands v Russian Federation), order of 22 Nov 2013, para 29.
- 86.
ITLOS, Arctic Sunrise, para 30 under 3.
- 87.
ITLOS, Arctic Sunrise, submission of the Kingdom of the Netherlands, para 19.
- 88.
ITLOS, Arctic Sunrise, para 38.
- 89.
It should be noted that at least one member of ITLOS has a human rights background. Judge Elsa Kelly of Argentina was formerly a member of the IAComHR.
- 90.
ITLOS, Arctic Sunrise, para 105 under 1b.
- 91.
ITLOS, M/V ‘Saiga’ (2) (St Vincent and the Grenadines v Guinea), 01 July 1999. The Court noted that the provisions of the UN Convention on the Law of the Sea, including Art 292, do not distinguish between nationals and non-nationals of the flag State, para 105. According to ITLOS the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag State. The nationalities of these persons are not relevant, para 106. It referred to the “transient and multinational composition of ships’ crews.” These crews could include persons of several nationalities. “If each person sustaining damage were obliged to look for protection from the State of which such a person is a national, undue hardship would ensue,” para 107. Cf on the expansion of the scope of diplomatic protection the reports by ILC Rapporteur Dugard, e.g. A/CN.4/506 and A/CN.4/538, among others referring to the situation of stateless persons and refugees. Cf Amerasinghe (2008), pp. 119–122 and Gaja (2010).
- 92.
ITLOS, Arctic Sunrise, Separate Opinion of Judge Jesus, para 18–20.
- 93.
Id, Joint Separate Opinion of Judges Wolfrum and Kelly, para 1.
- 94.
ICJ, Corfu Channel (UK v Albania), judgment of 09 Apr 1949, para 22.
- 95.
For renewed references to these elementary considerations of humanity see ICJ, Nicaragua v US, para 218; Nuclear Weapons Advisory Opinion, para 79, adding the notion of “intransgressible principles of international customary law,” a passage which was quoted integrally in the Wall opinion, para 157.
- 96.
The ICJ has tried to deal with situations of armed conflict also where it only has jurisdiction based on the compromissory clause to a specific human rights treaty. In its order for provisional measures in Georgia v Russia, which was brought under the Convention on the Elimination of All Forms of Racial Discrimination (CERD), it noted that the rights in question, in particular those stipulated in Art 5, paragraphs (b) and (d) (i) of CERD, are of such a nature that prejudice to them could be irreparable, para 142. It indicated its awareness of the “exceptional and complex situation” and the “continuing uncertainties as to where lines of authority lie.” “[B]ased on the information before it in the case file, the ICJ is of the opinion that specific ethnic populations remain vulnerable” and that the situation was “unstable and could rapidly change.” It considered that there was “an imminent risk that the rights at issue in the case may suffer irreparable prejudice.” ICJ, Georgia v Russia, order for provisional measures of 15 Oct 2008, para 143. As it often does in such cases, the Court indicated provisional measures that were different from the ones requested and it addressed them to both parties. Both Parties were to refrain from any act of racial discrimination and from sponsoring, defending or supporting such acts; they were to facilitate humanitarian assistance; and they were to refrain from any action that might prejudice the respective rights of the Parties or might aggravate or extend the dispute. Subsequently the ICJ declared the case inadmissible for insufficient negotiation.
- 97.
See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 08 July 1996, para 25 (with a rather inflexible approach to the applicable law by declaring that in the context of the right to life humanitarian law is always lex specialis); ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 09 July 2004; and ICJ, Case Concerning Armed Activities on the Territory of the Congo (DRC v Uganda) 19 Dec 2005, para 16. See also Gowlland-Debbas (2013), p. 47.
- 98.
ICJ, Wall Opinion, para 111. In addition, the Court also discussed the extraterritorial obligations under ICESCR and Children’s Convention.
- 99.
ICJ, Wall Opinion, para 108.
- 100.
ICJ, Wall Opinion, para 109.
- 101.
ICJ, Wall Opinion, paras 109–110. See on extraterritorial application Milanovic (2011) and Gondek (2009). See also Buergenthal (2007), pp. 143–150 and Wilde (2007), Dennis and Surena (2008), Rodley (2009). See also the recently released (leaked?) memorandum of 19 Oct 2010 by Harold Koh, former Legal Adviser to the US Department of State entitled “Memorandum Opinion on the Geographic Scope of the International Covenant on Civil and Political Rights.”
- 102.
- 103.
ICJ, Wall Opinion, para 113.
- 104.
ICJ, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), 26 Feb 2007, ICJ Reports (2007), 4, para 183. “The obligation to prosecute imposed by Article VI is by contrast subject to an express territorial limit. The trial of persons charged with genocide is to be in a competent tribunal of the State in the territory of which the act was committed (cf paragraph 442 below), or by an international penal tribunal with jurisdiction (paragraphs 443 ff. below),” para 184.
- 105.
ICJ, Application of the International Convention on the Elimination of all forms of Racial Discrimination (Georgia v Russia), order for provisional measures of 15 Oct 2008, para 109.
- 106.
Supra, Sect. 3.2.
- 107.
See ECtHR, Mamatkulov and Askarov v Turkey, App Nos 46827/99 and 46951/99, judgment of 04 Feb 2005, reversing its 1991 Cruz Varas v Sweden judgment. In Mamatkulov, the ECtHR indeed referred to the case law of the other human rights bodies, as well as to the ICJ in LaGrand, judgment of 27 June 2001. For another important case in which it explicitly referred to case law by other supervisory bodies (in particular the IACtHR) see ECtHR, Varnava et al v Turkey, App Nos 064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, judgment of 18 Sept 2002, (on the procedural obligations under Art 2 ECHR following an enforced disappearance, and the function of these obligations independent of the material obligations arising under this provision). See also Sect. 2.2 of this report.
- 108.
ECtHR, Al-Skeini et al v UK, App No 55721/07, judgment of 07 July 2011.
- 109.
ECtHR, Banković et al v Belgium et al, App No 52207/99, Decision of 19 Dec 2001.
- 110.
ICJ, Wall Opinion, paras 109–112.
- 111.
ICJ, Armed Activities on the Territory of the Congo (Congo v Uganda), 19 Dec 2005, paras 180 and 216.
- 112.
See also ECtHR, Al-Jedda v UK, App No 27021/08, judgment of 07 July 2011, on another issue of international law, where the Grand Chamber apparently returned to the more classic criterion of effective control. This criterion is in fact established in international law, as opposed to the “ultimate authority and control” criterion previously introduced in Behrami (“The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multi-National Force became attributable to the United Nations or—more importantly, for the purposes of this case—ceased to be attributable to the troop-contributing nations.” Id, para 80).
- 113.
For an in-depth discussion of the contribution of the ICJ to the law on extraterritorial application see Wilde (2013).
- 114.
Since the publication of this report, the ICJ has become increasingly cautious, cf Rieter, The International Court of Justice and Provisional Measures Involving the Fate of Persons, in this Volume.
- 115.
PCIJ, Denunciation of the Treaty of 2 November 1865 Between China and Belgium, order of 08 Jan 1927, 7.
- 116.
Higgins (1997), p. 95.
- 117.
On the merits, this case is famous mainly for its discussion of state responsibility, including responsibility for inaction: ICJ, US Diplomatic and Consular Staff in Tehran (United States v Iran), judgment 24 May 1980, paras 61–67 (due diligence) and 69–79 (acts of state) and its determination that “diplomatic law itself provides the necessary means of defence against, in sanction form, illicit activities by members of diplomatic or consular missions,” paras 83 and 86. Nevertheless the judgment is often cited as well for its emphasis on the seriousness of the violations with regard to the persons concerned, referring in fact to arbitrary detention in conditions of hardship: “Wrongfully to deprive human beings of their freedom and to subject them to physical restraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights,” para 91.
- 118.
ICJ, Hostages Case, order of 15 Dec 1979, para 42.
- 119.
Thirlway (1994), p. 8.
- 120.
Id, 9.
- 121.
Higgins (1997), p. 100.
- 122.
ICJ, LaGrand, order for provisional measures of 03 Mar 1999, para 28.
- 123.
ICJ, LaGrand, judgment of 27 June 2001, para 115.
- 124.
Id.
- 125.
Id.
- 126.
It could even allow non-compliance to have an impact on the evidentiary requirements: e.g. by shifting the burden to the State that violated the provisional measures. In this respect, the ECtHR was wrong in Mamatkulov, where the petitioners bore the consequences of the State’s violation. Bratza, Bonello and Hedigan in fact took the better approach.
- 127.
- 128.
ICJ, Hostages Case, order for provisional measures of 15 Dec 1979.
- 129.
See also Oellers-Frahm (2012), p. 1037.
- 130.
See Higgins (1997), p. 102.
- 131.
ICJ, Frontier Dispute (Burkina Faso v Mali), order of 10 Jan 1986.
- 132.
ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), order of 15 Mar 1996.
- 133.
ICJ, Temple II: Request for interpretation of the judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v Thailand), order for provisional measures of 18 July 2011.
- 134.
ICJ, Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua), order for provisional measures of 08 Mar 2011 and order for new provisional measures of 22 Nov 2013.
- 135.
For the observation that there is an increasing concern with the rights and interests of the affected persons, although “always within the context of title,” see Shaw (2013). He notes, “It serves to mitigate some of the consequences of a finding of sovereignty – not to overturn, invalidate or modify it.” Id, 175–176.
- 136.
By way of comparison, in cases about disappearances and massacres, the IACtHR has ordered provisional measures when witnesses or local counsel were threatened, even though the cases themselves were not about these persons. Here the clear risk of irreparable harm to persons is not directly linked to the claims on the merits, but more to the integrity of the proceedings.
- 137.
In 2009, the IAComHR amended its Rules of Procedure to allow for precautionary measures “independently of any pending petition or case.” This was conceived of as a kind of international amparo to protect individuals in urgent danger of irreparable harm. This is different before the ICJ, where there must indeed be a dispute pending before it. The same applies to the ECtHR and the Geneva committees, cf Rieter (2012).
- 138.
ICJ, LaGrand, order for provisional measures of 03 Mar 1999, but see the individual opinion of Judge Schwebel attached to this order, as well as the individual opinion of Judge Buergenthal attached to the subsequent judgment of 27 June 2001.
- 139.
ICJ, Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda), order of 10 July 2002 (denying provisional measures); judgment on jurisdiction and admissibility of 10 Feb 2006.
- 140.
All members of the UN Human Rights Committee, for instance, had agreed with the use of provisional measures in a case of contested competence, even those members that subsequently dissented when the Committee declared the case admissible. The majority considered that the ratification of the Optional Protocol applied without the benefit of the illegal reservation. See HRCtee, Kennedy v Trinidad & Tobago, 26 Mar 2002, CCPR/C/74/D/845/1998. While they disagreed, the dissenters were nevertheless in agreement with the previous use of provisional measures, because there was a clear discussion within the Committee about the consequences of illegal reservations, indicating that there certainly was no lack of prima facie jurisdiction at the stage of provisional measures.
- 141.
Only Judge Donahue appears to disagree, by questioning whether provisional measures should be used in the context of Art 60 proceedings in the first place. While she did not yet take part in Avena II, she elaborated on the Court’s order in Avena II in the subsequent Temple case (Cambodia v Thailand), also involving Art 60 proceedings.
- 142.
Yet see the subsequent developments, Rieter, The International Court of Justice and Provisional Measures Involving the Fate of Persons, in this Volume.
- 143.
Cf Rieter (2010), pp. 5–101.
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Rieter, E. (2019). The International Court of Justice and Its Contribution to Human Rights Law. In: Kadelbach, S., Rensmann, T., Rieter, E. (eds) Judging International Human Rights. Springer, Cham. https://doi.org/10.1007/978-3-319-94848-5_2
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