(Hague Academy of International Law Monographs, V. 6) Antnio Augusto Canado Trindade - International Law For Humankind (Mague Academy of International Law) (2010, BRILL)

International Law for Humankind
THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS
Volume 6
The titles in this series are listed at the end of this volume.
THE HAGUE ACADEMY OF INTERNATIONAL LAW
International Law for

Humankind
Towards a New Jus Gentium
by
Antônio Augusto Cançado Trindade
MARTINUS NIJHOFF PUBLISHERS

LEIDEN • BOSTON
Printed on acid-free paper.
Library of Congress Cataloging-in-Publication Data
Trindade, Antônio Augusto Cançado, 1947-

International law for humankind : towards a new jus gentium / by Antonio Augusto Can-
cado Trindade.
p. cm.
Includes bibliographical references and index.
ISBN 978-90-04-18428-2 (hardback : alk. paper) 1. International law. 2. Natural law. I.
Title.
KZ3410.T78 2010
341--dc22
2010021678
isbn: 978 9004 18428 2
© 2010 The Hague Academy of International Law.

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Table of Contents
Glossary of Abbreviations xvii
Introduction: Preliminary Considerations 1
Part I Prolegomena 7
Chapter I The Evolution towards a New Jus Gentium: The

International Law for Humankind 9
I. The Historical Emergence of Jus Gentium 9
II. The Legacy of the Evolving Jus Gentium: Recta Ratio and the Pursuit
of the Common Good 11
III. The Fragmentation of Jus Gentium into Jus inter Gentes 14
IV. The Fallacy of Voluntarist Positivism 16
V. International Law-Making and the Reconstruction of Jus Gentium 20
VI. International Law, Pluralism and Universalism 22
VII. The Identification of the Basic Feature of the New Jus Gentium 24
VIII. The Universalist Conception of International Law 27
Chapter II Time and Law Revisited: International Law and the

Temporal Dimension 31
I. Introduction 31
II. Time and Law: Some Precisions and Lessons 31
III. The Incidence of the Temporal Dimension in International Law 34
IV. Time and International Law in Face of New Needs of Protection 36
V. The Presence of the Preventive Dimension in Domains of Protection 39
VI. The Expansion of Provisional Measures of Protection 41
VII. The Myopia of Political “Realism” 47
VIII. Concluding Observations 50
vi Table of Contents
Part II Foundations of International Law 53
Chapter III Foundations of International Law: The Role and

Importance of Its Basic Principles 55
I. Introduction 55
II. The Position and Role of the General Principles of Law 56
III. The Fundamental Principles as Substratum of the Legal Order Itself 59
IV. The Acknowledgement of General Principles of Law by the Statute
of the Hague Court (PCIJ and ICJ) 62
1. General Principles of Law and the Quest for Justice 62
2. Principles of International Law as Pillars of the International
Legal System 63
V. The 1970 U.N. Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States Revisited 65
1. General Considerations in Historical Perspective 65
2. The Formulation of the Principles of International Law 68
3. The 1970 Declaration of Principles as a Contribution to the
Identification of the Opinio Juris Communis 74
VI. Concluding Observations 77
1. The Sustained Validity of the Principles of International Law 77
2. The Projection in Time of the Evolving Principle of Self-
Determination of Peoples 81
3. Principles of International Law, the Quest for Justice and the
Universality of International Law 84
Chapter IV The Primacy of International Law over Force 87

I. Introduction 87
II. The Crystallization and Continuing Validity of the Principle of Non-
Use of Force 87
III. The Primacy of Law over Force as a Cornerstone of Contemporary
International Law 93
IV. The Emerging Right to Humanitarian Assistance 97
V. The Decivilizing Effects of Unwarranted Use of Force 101
VI. Final Observations: The Primacy of Law over Force as an Imperative
of Jus Cogens 106
Part III Formation of International Law 111
Chapter V Contemporary International Law-making: A Reassessment

of the Theory of Formal “Sources” of International Law 113
I. Introduction 113
II. General Considerations on the Formal “Sources” of International
Law 114
III. The Formal “Sources” Enumerated in Article 38 of the ICJ Statute 116
1. International Custom 116
Table of Contents vii
2. Treaties 119
3. General Principles of Law 121
4. Judicial and Arbitral Decisions 123
5. Doctrine 125
6. Equity 127
IV. The Formal “Sources” Not Enumerated in Article 38 of the ICJ
Statute 128
1. Unilateral Juridical Acts of States 128
2. Resolutions of International Organizations 129
V. The Process of Formation of Contemporary International Law: From
Consent to Consensus 132
VI. Opinio Juris beyond Custom: Its Wide Scope and Role in the
Formation of Contemporary International Law 134
Chapter VI The Material Source of International Law:

Manifestations of the Universal Juridical Conscience 139
I. Introduction: Insufficiencies of the Formal “Sources” and the
Relevance of the Material “Source” of International Law 139
II. Human Conscience, Recta Ratio, and the Universality of
III. The Material Source of International Law Beyond State Legal
Positivism 145
IV. Invocation and Assertion of Juridical Conscience in International
Treaties 147
V. Universal Juridical Conscience: The Historical Significance of the
Martens Clause 150
VI. Invocation of Juridical Conscience in Judicial Proceedings and
International Case-Law 152
VII. Invocation and Assertion of Juridical Conscience in International
Legal Doctrine 153
VIII. Final Observations: The Achievements of International Law and the
Universal Juridical Conscience 156
Part IV Subjects of International Law 163
Chapter VII States as Subjects of International Law and the Expansion

of International Legal Personality 165
I. Introduction: International Legal Personality Expanded 165
II. Statehood and Recognition 165
III. Rights and Duties of States 167
IV. States and the Expansion of International Law 170
V. The Erosion of the Domestic Jurisdiction of States 172
VI. Final Observations: States and the New Horizons of International
Legal Personality 177
viii Table of Contents
Chapter VIII International Organizations as Subjects of

I. Introduction: International Organizations and the Modification of
the Structure of the International Legal Order 181
II. International Organizations and the Ideal of the Realization of
Justice 182
III. International Organizations and the Expansion of International
Legal Personality and Responsibility 185
IV. The Expansion of International Law Itself by the Law of
International Organizations 190
1. International Organizations and the Ascertainment of
Opinio Juris 191
2. International Organizations and Treaty-Making Capacity 193
3. Composition of International Organizations: Evolving Issues 194
4. The Growth of Multilateralism and International Cooperation 196
V. The Projected Reforms of the International Organizations,
Particularly of the United Nations 200
VI. Concluding Observations: The Contribution of International
Organizations to the Progressive Development of International Law 206
1. International Organizations: Contents and Legal Effects of
Resolutions 206
2. Responses to New Needs and Aspirations of the International
Community 208
Chapter IX The Legal Personality of the Individual as Subject of

I. Introduction 213
II. The Individual as Subject of the Emerging Law of Nations 213
III. The Attempted Exclusion of the Individual from the International
Legal Order 217
IV. The Individual’s Presence and Participation in the International
Legal Order 220
V. The Rescue of the Individual as Subject of International Law 224
VI. The Legal Personality of the Individual as a Response to a Need of
the International Community 232
VII. The Attribution of Duties to the Individual Directly by
VIII. Personality and Capacity: The Individual’s Access to Justice at
International Level 236
IX. Final Observations: The Historical Significance of the International
Subjectivity of the Individual 239
Table of Contents ix
Chapter X The Legal Capacity of the Individual as Subject of

I. Introduction 243
II. The International Legal Capacity of the Individual: Legal
Foundations, Nature and Scope 243
1. Legal Foundations of the Access of the Human Being to
International Tribunals 243
2. Juridical Nature and Scope of the Right of International
Individual Petition 247
III. The Emancipation of the Individual from His Own State 251
IV. The Locus Standi of Individuals in the Procedures before
International Human Rights Tribunals 255
1. Developments in the European System of Protection 256
2. Developments in the Inter-American System of Protection 261
V. The Individual Right of Direct Access (Jus Standi) to International
Human Rights Tribunals 264
1. Antecedents of Domestic Law: The Subjective Right, and the
Direct Access (Jus Standi) to National Tribunals 266
2. Developments in International Law: The Direct Access (Jus
Standi) to International Human Rights Tribunals 267
VI. The Right of Access Lato Sensu of Individuals to International
Justice 268
VII. Concluding Observations 271
Chapter XI Humankind as a Subject of International Law 275

I. The Perception and Awareness of Common and Superior Interests
of Humankind as Such 275
II. The Fundamental Principle of Humanity 276
III. Humankind and Considerations of Humanity: A Conceptual Precision 280
IV. The Emergence of Humankind as a Subject of International Law 281
V. Legal Consequences of the Acknowledgement of Humankind as
Subject of International Law 286
1. The Relevance of the Human Rights Framework 286
2. The Question of the Capacity to Act and Legal Representation 286
Part V Construction of the International Law for Humankind 289
Chapter XII Conceptual Constructions: Jus Cogens and Obligations

Erga Omnes 291
I. Introduction: Fundamental Values of the International Community 291
II. International Jus Cogens (Peremptory Norms of General
International Law) 292
1. Emergence and Content of Jus Cogens 292
2. Evolving Scope of Jus Cogens 295
3. The Gradual Expansion of the Material Content of Jus Cogens 299
x Table of Contents
4.Jus Cogens as a Pillar of the New Jus Gentium, the International

Law for Humankind 310
III. Obligations Erga Omnes of Protection 312
1. Emergence and Scope of the Obligations 312
2. Horizontal and Vertical Dimensions of the Obligations 317
IV. Obligations Erga Omnes and the Emergence of Actio Popularis 320
V. Concluding Observations 322
Chapter XIII Conceptual Constructions: Common Heritage of Mankind

and Common Concern of Mankind 327
I. Introduction 327
II. The Content and Significance of the Concept of Common Heritage
of Mankind 327
1. In the Domain of the International Law of Outer Space 329
2. In the Domain of the Law of the Sea 331
3. In the Domain of the International Law of Bioethics 336
4. In the Domain of International Environmental Law 339
III. The Content and Significance of the Concept of Common Concern
of Mankind 344
1. The Emergence of the New Concept 344
2. The Contribution of the New Concept 346
3. The Co-existence between Common Heritage and Common
Concern of Mankind, and Their Legacy to International Law 348
IV. Concluding Observations 350
Chapter XIV Conceptual Constructions: The Right to Peace and the

Right to Development 353
I. The Formulation of the Right to Peace in International Law 353
1. Elements of the Right to Peace in International Law 353
2. Recent Developments in the Formulation of the Right to Peace 355
II. The Formulation of the Right to Development in International Law 357
1. Elements of the Right to Development in International Law 357
2. Crystallization of the Right to Development as a Human Right 360
3. The Conceptual Construction of Human Development 361
4. Lessons from the Crystallization of the Right to Development 364
Chapter XV Conceptual Constructions: Responsibility for International

Crimes and Universal Jurisdiction 367
I. Introduction 367
II. The International Responsibility of the State and of the Individual:
Recent Developments 367
III. State Responsibility, the Criminalization of Grave Violations of
Human Rights and the Realization of Justice 369
IV. Complementarity between the International Responsibility of States
Table of Contents xi
and the International Criminal Responsibility of Individuals 372

V. Some Considerations on the Crime of State Revisited
1. Configuration of the Crime of State 374
2. The Crime of State in Relation to the Fundamental or Superior
Interests of the International Community 377
VI. Juridical Consequences of the Crime of State 379
VII. The Principle of Universal Jurisdiction 383
VIII. Concluding Observations 389
Part VI Humanization of International Law 391
Chapter XVI Basic Considerations of Humanity in the Corpus Juris of

I. Introduction: The Relevance of Basic Considerations of Humanity 393
II. The Omnipresence of Basic Considerations of Humanity 395
1. Illustrations of International Case-Law 395
2. Illustrations of International Legal Doctrine 398
III. Concluding Observations 399
Chapter XVII Basic Considerations of Humanity in Relation to

Disarmament 401
I. Introduction 401
II. The Search for Peace: The Creation of Zones of Peace 401
1. The Attainment of Peace and Human Security:
A Permanent Goal 401
2. The Initiative of Zones of Peace 404
III. The Establishment of Nuclear-Weapon-Free Zones 405
IV. The Endeavours towards General and Complete Disarmament 410
V. The Illegality of Nuclear Weapons 413
VI. Final Observations 423
Chapter XVIII Basic Considerations of Humanity in Relation to the

Law of Treaties 429
I. Introduction 429
II. Considerations on the Interpretation of Treaties 429
1. General Remarks 429
2. Procedural Issues 433
3. Substantive Law 434
III. Considerations on the Reservations to Treaties 435
IV. Considerations on the Denunciation of Treaties 445
V. Considerations on the Termination and Suspension of the
Operation of Treaties 448
VI. Concluding Observations 449
xii Table of Contents
Chapter XIX Basic Considerations of Humanity in Relation to

State Responsibility 453
I. State Responsibility and the General Interests of the International
Community 453
II. The Birth of the International Responsibility of States 456
III. The Implementation of the International Responsibility of States 462
IV. Serious Breaches of Obligations under Peremptory Norms of
Chapter XX Basic Considerations of Humanity in Relation to

State Succession 469
I. Distinct Moments and Contexts of State Succession 469
II. State Succession and the General Interests of the International
Community 471
III. State Succession and Continuity of Conventional Obligations
Concerning Human Rights 472
Chapter XXI Basic Considerations of Humanity in Relation to Territory 479

I. Prerequisites of Statehood Revisited 479
II. Non-Self-Governing Territories 482
III. Non-Militarization and Peaceful Uses of Antarctica 484
IV. Territory and Zonal Initiatives for Peace 486
V. Transitional Administration of Territory on Behalf of the
International Community 486
1. The Case of Kosovo 487
2. The Case of East Timor 489
3. The Centrality of Protection of the Populations 490
Chapter XXII Basic Considerations of Humanity in Relation to Diplomatic

and Consular Law 493
I. Introduction: Diplomatic and Consular Law beyond the Inter-State
Outlook 493
II. Diplomatic and Consular Law and Universal International Law 495
III. The Right to Information on Consular Assistance in the Framework
of the Guarantees of the Due Process of Law 497
IV. The Humanization of Consular Law in Contemporary International
Practice 501
Table of Contents xiii
Chapter XXIII Basic Considerations of Humanity in Relation

to the Convergences of Regimes of Protection of the
Human Person 511
I. The Consolidated Convergences between the Regimes of Protection
of the Human Person 511
II. The Intensified Convergences between the Regimes of Protection of
the Human Person 514
III. The Contemporary Phenomenon of Uprootedness as a Problem
Pertaining to the Rights of the Human Person 518
IV. The Character of Jus Cogens of the Principle of Non-Refoulement 520
Part VII Settlement of Disputes 529
Chapter XXIV Peaceful Settlement of International Disputes: Current

State and Perspectives 531
I. Introduction: The Basic Problem of Compulsory Jurisdiction 531
II. Interaction or Complementarity of Means of Peaceful Settlement 533
III. Settlement of Disputes in Multilateral Treaties 541
IV. Current Developments: Fact-Finding and the Search for Justice and
the Prevalence of the Rule of Law 544
V. The Search for ad hoc Solutions 547
1. The Experience of Contadora 549
2. The Experience of Guarantor States 550
VI. Endeavours of Systematization 552
VII. Peaceful Settlement and the Renunciation of the Use of Force in
International Relations 555
VIII. Peaceful Settlement beyond State Voluntarism: Some New Trends 556
IX. Peaceful Settlement and the General Interests of the International
Community 559
X. Concluding Observations 562
Chapter XXV International Rule of Law: The Need and Quest for
International Compulsory Jurisdiction 567
I. International Rule of Law Beyond Peaceful Settlement of Disputes 567
II. International Rule of Law: The Saga of the Optional Clause of
Compulsory Jurisdiction 568
1. From the Professed Ideal to a Distorted Practice 568
2. International Compulsory Jurisdiction: Reflections Lex Lata 572
3. International Compulsory Jurisdiction: Reflections De Lege
Ferenda 579
III. The Recurring Need and Quest for Compulsory Jurisdiction 582
IV. International Rule of Law: The Growth of International Jurisdiction 586
xiv Table of Contents
Part VIII Perspectives 593
Chapter XXVI The Legacy of the Recent Cycle of World Conferences

of the United Nations 595
I. Preliminary Observations: The International Legal Order in a World
of Profound Contradictions 595
1. A Transformation of Epoch 596
2. The Spirit of Our Epoch 597
3. Universalism and Cultural Diversity 598
II. The Legacy of the Cycle of U.N. World Conferences: Conditions of
Life as a Matter of International Concern 599
1. U.N. Conference on Environment and Development (Rio de
Janeiro, 1992) 600
2. II World Conference on Human Rights (Vienna, 1993) 601
3. International Conference on Population and Development
(Cairo, 1994) 602
4. World Summit for Social Development (Copenhagen, 1995) 603
5. IV World Conference on Women (Beijing, 1995) 605
6. U.N. Conference on Human Settlements (Habitat-II, Istanbul,
1996) 606
7. U.N. Conference on the Establishment of an International
Criminal Court (Rome, 1998) 607
8. World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance (Durban, 2001) 609
9. U.N. Millenium Summit (2000) and World Summit Outcome
(2005) 610
III. The United Nations and the Rule of Law at National and
International Levels 614
Chapter XXVII Codification and Progressive Development of a

Universal International Law 623
I. Introduction 623
II. Codification and Progressive Development in Historical Perspective 623
III. Codification and Progressive Development: Lessons and Projections 626
IV. Concluding Observations: Codification and Progressive
Development Moved by the Universal Juridical Conscience 628
Chapter XXVIII Conclusions: International Law for Humankind –

Towards a New Jus Gentium 635
I. The Process of Gradual Humanization of Public International Law 635
II. The New Jus Gentium: International Law for Humankind 637
1. Foundations 637
2. Subjects 639
3. Conceptual Constructions 640
Table of Contents xv
4. Basic Considerations of Humanity 642

5. International Rule of Law 644
III. Epilogue: A Message of Confidence 645
Select Bibliography 647
Table of Cases 693
Index 707
Glossary of Abbreviations*
AIDI: Annuaire de l’Institut de Droit International
ASEAN: Association of South-East Asian Nations
CEPAL: U.N. Economic Commission for Latin America
COPUOS: Committee on the Peaceful Uses of Outer Space
CTBT: Comprehensive Nuclear-Test-Ban Treaty
EComHR: [former] European Commission of Human Rights
ECOSOC: U.N. Economic and Social Council
ECtHR: European Court of Human Rights
EEC: [former] European Economic Community
EJIL: European Journal of International Law
FAO: U.N. Food and Agriculture Organization
HRC: U.N. Human Rights Committee
IAComHR: Inter-American Commission on Human Rights
* This is not meant to be an exhaustive glossary of abbreviations; it deliberately con-

tains the abbreviations only of some of the expressions or sources more often re-
ferred to in the text; other abbreviations (such as those of national periodicals or
yearbooks of International Law) can be found in the footnotes themselves. – Like-
wise, for editorial space limitations, the case-law referred to in the text can be found,
rather than in an annex, in the footnotes themselves.
xviii Glossary of Abbreviations
IACtHR: Inter-American Court of Human Rights
ICRC: International Committee of the Red Cross
IAEA: International Atomic Energy Agency
ICC: International Criminal Court
ICJ: International Court of Justice
ICJ Reports: Reports of the International Court of Justice
ICTFY: ad hoc International Criminal Tribunal for the Former Yugoslavia
ICTR: ad hoc International Criminal Tribunal for Rwanda
ILO: International Labour Organization
ILC: U.N. International Law Commission
IMO: International Maritime Organization
ITLOS: International Tribunal for the Law of the Sea
ITU: International Telecommunication Union
KFOR: Kosovo Protection Force
MRE: Ministry of External Relations [various]
NATO: North Atlantic Treaty Organization
NPT: Non-Proliferation Treaty [Treaty on the Non-Proliferation of

Nuclear Weapons]
OAS: Organization of American States
OAU: [former] Organization of African Unity [nowadays African

Union]
OPANAL: Organism for the Prohibition of Nuclear Weapons in Latin

America
O.R.: Official Records [various]

Glossary of Abbreviations xix
PCIJ: Permanent Court of International Justice
PLO: Palestine Liberation Organization
RCADI: Recueil des Cours de l’Académie de Droit International de La

Haye
RICR: Revue internationale de la Croix-Rouge
SWAPO: South West Africa People’s Organization
UNCED: United Nations Conference on Environment and Development
U.N. Charter: Charter of the United Nations
UNCLOS: United Nations Conference on the Law of the Sea
UNCLT: United Nations Conference on the Law of Treaties
UNCTAD: United Nations Conference on Trade and Development
UNDP: United Nations Development Programme
UNEP: United Nations Environment Programme
UNESCO: United Nations Educational, Scientific and Cultural Organization
UNHCR: United Nations High Commissioner for Refugees
UNIDO: United Nations Industrial Development Organization
UNMIK: United Nations Interim Administration in Kosovo
UNMISET: United Nations Support Mission in East Timor
UNTAET: United Nations Transitional Administration in East Timor
UNU: United Nations University
YILC: Yearbook of the International Law Commission
WHO: World Health Organization
WTO: World Trade Organization

Introduction:
Preliminary Considerations
The present book derives from the General Course on Public International Law
that I delivered at the Hague Academy of International Law, in July-August 2005.1
To deliver such a General Course constitutes indeed the greatest honour that
can be given to a scholar of International Law, and represents the culmination of
an academic life devoted to research and teaching on the discipline. The impor-
tance of the General Course is widely recognized,2 and has been duly stressed
in the assessments of the Hague Academy’s contribution to International Law,
undertaken on the occasion of both its jubilee celebration (1973)3 and its 75th an-
niversary (1998).4
Since I was in 1999 entrusted by the Curatorium of the Hague Academy5
to prepare the General Course for 2005, I proceeded to review my own writings
and organize my personal recollections, parallel to the research work I promptly
started to undertake.6 Having had the privilege to accompany closely the evolu-
1 A.A. Cançado Trindade, “International Law for Humankind: Towards a New Jus
Gentium - General Course on Public International Law - Part I”, 316 Recueil des
Cours de l’Académie de Droit International de la Haye [RCADI] (2005) pp. 31-439;
A.A. Cançado Trindade, “International Law for Humankind: Towards a New Jus
Gentium -General Course on Public International Law - Part II”, 317 RCADI (2005)
pp. 19-312.
2 Cf., e.g., R. Kolb, Les Cours généraux de Droit international public de l’Académie de
La Haye, Bruxelles, Bruylant/Éd. Université de Bruxelles, 2003, pp. 3-1114.
3 Hague Academy of International Law, Livre jubilaire / Jubilee Book - 1923-1973, Ley-
de, Sijthoff, 1973, pp. 1-179.
4 Cf., as to Public International Law, op. cit. infra n. (7), pp. 67-100.
5 Half a decade later, in early 2004, I had the great honour of having been elected as
member of the Curatorium of the Academy, which I promptly started serving, after
three decades of close contact and sustained cooperation with the Academy.
6 I conducted the preparation of my General Course, in the period 1999-2005, between
my pèlerinages to, and also in loco at, the Joint Library of the Inter-American Court
of Human Rights and the Inter-American Institute of Human Rights in San José of
Costa Rica (which I had the pleasure to inaugurate on 17.08.2000 as then President
of the Court), the Human Rights Library of the Palais des Droits de l’Homme (Euro-
pean Court of Human Rights) in Strasbourg, the Peace Palace Library at The Hague,
2 Introduction
tion of the great themes of our times, and to work directly on some of them, for
more than thirty years, I felt gratified to have been able to transmit, in my 2005
General Course, my accumulated reflections on the matter, and my basic mes-
sage to the new generations of international lawyers.
The delivery of my 2005 General Course, which I titled “International Law
for Humankind: Towards a New Jus Gentium”, will remain in my memory as a
most gratifying exercise of transmission of my own basic message or legacy to
the new generations, marked by the remarkable and fruitful dialogue that took
place at the Hague Academy for three weeks, in July-August 2005, with over 350
participants from all over the world. Almost half a decade later, I proceeded to an
updating of my aforementioned General Course, which conforms now this new
volume of this highly selective Monograph Series of the Hague Academy.
Some preliminary remarks are here needed so as to confer precision to the
presentation of the contents and object of the present book, just as I did, five
years ago, in respect of my General Course. First of all, it is not my intention to
present a treatise of International Law, nor an exhaustive account of the current
state of all of its chapters in all details. Given the extraordinary expansion of the
discipline throughout the last decades, it would be an impossible task for any
individual scholar to attempt to provide an in-depth and detailed treatment of
all its chapters. Thus, an element of selection has proven ineluctable, and indeed
necessary.
Secondly, like it has been done in General Courses at the Hague Academy
in recent years, it is my intention to provide an over-all vision of the present state
and perspectives of International Law on the basis of a Leitmotiv, which perme-
ates the whole discipline as it stands today, as illustrated by selected areas in
which this idée force is particularly manifested. On the basis on my own experi-
ence in the handling of the theory and practice of International Law throughout
more than three decades, I have come to identify, as the Leitmotiv for this Gen-
eral Course, the basic outlook I have nourished of contemporary International
Law as a corpus juris increasingly oriented to the fulfi llment of the needs and
aspirations of human beings, of peoples and of humankind as a whole.
It goes without saying that, in the pursuance of the consideration of this
Leitmotiv, I see no reason whatsoever to limit myself to positive International
Law. In fact, it seems to me all the more necessary nowadays to go beyond it, as
I have endeavoured to do whenever called upon to pronounce on International
Law issues in the last three decades. There is, in my view, a pressing need to do
this nowadays in face of the deep crisis currently undergone by our discipline,
given the recent and unfortunate attempts of its deconstruction in theory and
as well as the Libraries of the Max-Planck Institute on International and Compara-

tive Law in Heidelberg, of the Washington College of Law, of the United Nations
University in Tokyo, and of Brazil’s Ministry of External Relations in Brasilia. I have
prepared my own General Course entirely alone, as I am used to, and comme il faut,
without any “research assistants”, since an enterprise of the kind is a far too personal
adventure.
Introduction 3
practice, which reflect a deeper crisis of values in which the world seems en-
gulfed in this first decade of the XXIst century.
This distinguished Monograph Series of the Hague Academy of Interna-
tional Law is an adequate forum to develop a necessarily critical and universalist
approach to the current state of affairs in the international legal order. The Hague
Academy itself has always been characterized by the pluralism of ideas and the
exercise of academic freedom, in pursuance, lex lata and de lege ferenda, of the
fulfi lment of the “common interests of mankind”, so that these latter may prevail
over the policies of individual States.7
It is, in fact, my basic contention, in the present work, that the purely inter-
State dimension of International Law has surely been overcome and belongs to
the past; that international legal personality has expanded, so as to encompass
nowadays, besides States and international organizations, also individuals – the
human person, – as true subjects (and not only “actors”) of International Law;
that the conditions are met for us to move towards the construction of a new
jus gentium, at this beginning of the XXIst century, to the extent that account is
taken of the social needs and aspirations of the international community (civitas
maxima gentium), of humankind as a whole, so as to provide responses to at-
tempt to fulfi ll them.
My basic message to the new generations is, thus, one of hope and confi-
dence in the future of International Law, the law of nations, amidst the profound
crisis in which we now live. It has been in moments of crisis that advances have
been achieved in the past. To that end, it is of the utmost importance to rescue
the fundamental principles of our discipline, which appear to have been some-
what neglected and largely forgotten nowadays. It is likewise relevant not to elude
the basic question of the foundations of the law of nations, which also seems to
have been rather circumvented in contemporary international legal thinking.
The growth of International Law in the lines of the universalist conception
which I have been sustaining for years would be well in keeping with the univer-
sal outlook proper of the historical origins of the discipline. What are the social
needs of the international community of our days? They have been properly iden-
tified and described in the final documents of the recent cycle of World Confer-
ences of the United Nations.8 International Law is to contribute to fulfi l those
needs. There is nowadays a legitimate concern of the international community
as a whole with the conditions of living of people everywhere, and contemporary
International Law cannot remain indifferent to that.
If one contrasts some topics overworked in the past (conditions of state-
hood, territory, recognition of States and governments, among others) with the
new concerns of contemporary International Law (safeguard of human rights,
self-determination of peoples, environmental protection, human development,
7 K. Skubiszewski, “The Contribution of the Academy to the Development of the Sci-

ence and Practice of Public International Law”, 271 RCADI (1998) pp. 74, 78-79 and
100.
8 Cf. chapter XXVI, infra.
4 Introduction
disarmament, among others), it may be argued that while the former pertained
mainly to State interests, the latter disclose the prevalence of concerns with the
legitimate needs and aspirations of humankind. This appears to me to be the
main feature of the new jus gentium at this early stage of the XXIst century. In-
ternational Law can no longer be regarded as an international legal order which
exhausts itself in the domain of strictly inter-State relations.
The growing consciousness of the need to bear in mind common values in
pursuance of common interests has brought about a fundamental change in the
outlook of International Law in the last decades. This development has taken
place in different ways. First, by the growth of entire areas of International Law
wholly devoted to the safeguard of human beings. Secondly, by the invocation of
humankind in multiple international treaties and instruments in distinct areas
of International Law. Thirdly, by the jurisprudential construction of contempo-
rary international tribunals taking due account of the concerns of human beings
and humankind. Fourthly, by the pratice of States and international organiza-
tions and other subjects of International Law bearing witness of the needs and
aspirations of human beings, of peoples, and of humankind as a whole.
On the basis of the international experience accumulated to date, the inter-
national community cannot prescind from universal values. There is an ineluc-
table feeling of injustice escaping from an international legal system which is
unable to provide answers to the pressing needs of protection to whole segments
of the world population and to millions of vulnerable and defenceless human
beings. Such framework of destitution is incompatible with the very conception
of an international community, which assumes the existence of common and
superior interests, and of duties incumbent upon all, – States, international orga-
nizations, peoples, and human beings.9
I purport to portray this new jus gentium of our days as I perceive it, as
the International Law for humankind, according to a plan of presentation of
the present book which evolves – in its 28 chapters – around eight main areas,
namely: the evolution towards a new jus gentium and the temporal dimension in
International Law (part I); foundations of International Law (part II); contempo-
rary international law-making, encompassing the formal as well as the material
sources of International Law (part III); subjects of International Law, encom-
passing States, international organizations, the human person (individually or in
groups), and humankind (part IV); conceptual constructions of the International
Law for humankind (part V); basic considerations of humanity in the corpus ju-
ris of International Law, reflecting the humanization of this latter (part VI); the
construction of the international rule of law, acknowledging the need and quest
for international compulsory jurisdiction (part VII); the legacy of the U.N. World
Conferences, the codification and progressive development linked to the univer-
salization of International Law in the evolution towards a new jus gentium, the
International Law for humankind (part VIII).
9 R.-J. Dupuy, “Communauté internationale et disparités de développement - Cours

général de Droit international public”, 165 RCADI (1979) pp. 190 and 227.
Introduction 5
As to the sequence of the presentation itself of the General Course which

follows, a word of warning is here called for. The text which features in the pres-
ent book is but an abridged version of the original text of my General Course of
2005.10 Besides the element of ineluctable selection for its elaboration, already
referred to, I further proceeded to condense the original text of my 15 lectures
and 3 seminars, of the summer 2005, and have now also updated my work, in
the present book, until mid-2009. I trust the new generations of international
lawyers will endeavour to secure the evolution of our discipline in the lines of its
continued universalization and humanization,11 faithful to the thinking of the
founding fathers of the discipline and the more lucid doctrine of the law of na-
tions, and attentive to the needs and aspirations of the international community,
and of humankind as a whole, in our times.
10 Which was originally 997 pages long, prior to publication in the Recueil des Cours.
11 As I have been pointing out and insisting on, in my own writings along the years,
as well as in my Individual Opinions in the Inter-American Court of Human Rights
from the mid-nineties onwards.
Part I
Prolegomena
Chapter I The Evolution towards a New
Jus Gentium: The International Law
for Humankind
I. The Historical Emergence of Jus Gentium

Jus gentium (of Roman law) had its origins in private law,1 having subsequently
entered also the realm of the conceptual universe of the law of nations.2 It origi-
nally consisted of common principles governing legal relations in general. Grad-
ually the concept of jus gentium was enlarged, so as to encompass what came to
be known as the general principles of law.3 In the XVIth century, Francisco de
Vitoria conceived the new jus gentium of his days as governing the relations of all
peoples (including the indians of the new world) and individuals, in conditions
of independence and juridical equality, pursuant to a universalist outlook (totus
orbis). In a world marked by diversification (of peoples and cultures) and plural-
ism (of ideas and cosmovisions), the new jus gentium secured the unity of the
societas gentium.4 It could not possibly be derived from the “will” of its subjects,
but rather based on a lex praeceptiva, apprehended by human reason. In Vitoria’s
view, jus gentium was applicable to all peoples and human beings (even without
the consent of its addressees); societas gentium was the expression of the funda-
mental unity of humankind, wherefrom jus gentium ensued, and provided the
juridical basis (deriving from a lex praeceptiva of natural law) for the totus orbis,
1 On the concept of jus gentium in classic Roman law, cf., e.g., Gabrio Lombardi,
Ricerche in Tema di “Ius Gentium”, Milano, Giuffrè, 1946, pp. 3-272; Gabrio Lom-
bardi, Sul Concetto di “Ius Gentium”, Roma, Istituto di Diritto Romano, 1947, pp.
3-390.
2 Having originally applied among citizens, and in their relations with foreigners,
jus gentium was subsequently - with Cicero - identified as the law common to all
peoples, ultimately as the law common to all mankind; H.F. Jolowicz, Historical In-
troduction to the Study of Roman Law, 2nd. ed., Cambridge, University Press, 1967
[reed.], pp. 102-105; and cf. also, e.g., W. Kunkel, Historia del Derecho Romano, 9th.
ed., Barcelona, Ed. Ariel, 1999, pp. 85-87.
3 H. Mosler, “The International Society as a Legal Community”, 140 Recueil des Cours
de l’Académie de Droit International de La Haye [RCADI] (1974) p. 137.
4 It was no longer a jus divinum, nor the jus civile (no longer the Pope, nor the Em-
peror, as the ultimate authority), but rather the jus gentium, defined by Francisco de
Vitoria as quod naturalis ratio inter omnes gentes constituit, vocatur jus gentium.
10 Chapter I
susceptible of being discovered by the human reason, the recta ratio inherent
to humanity.5 The way was thus paved for the apprehension of a true jus neces-
sarium, transcending the limitations of the jus voluntarium.
In fact, from Vitoria’s work – and in particular from his Relectio De Indis
Prior – emerged the conception of a jus gentium, wholly emancipated from its
private law origin, endowed with a humanist outlook, respectful of the freedoms
of nations and individuals, and universal in scope. The universal jus gentium of
Vitoria, remindful of the importance of human solidarity, regulated, on the basis
of principles of natural law and right reason (recta ratio), the relations between
all peoples, respectful of their rights, the territories wherein they lived, and their
contacts and freedom of movement (jus communicationis). Deriving its strength
from principles of universal value, the jus gentium in the conception of Vitoria
applied equally to all, the governed and the governors. On the basis of such con-
ception the emerging international legal order purported to ensure the primacy
of law over force, as reflected in Vitoria’s famous warning “Imperator non est
dominus totus orbis”.6
On his turn, Francisco Suárez, warning that no State sufficed to itself, start-
ed likewise from the fundamental unity of humankind (forming a societas ac
communicatio), and began to move towards the autonomy of the law of nations;7
such autonomy was acknowledged by Hugo Grotius, who also admitted the unity
of the humankind and emphasized above all the role of reason.8 In the work of A.
Gentili, jus gentium was already regarded as the “common law of humankind”.9
Much later on, with the contribution of the works of Hugo Grotius and Christian
Wolff, International Law was gradually to achieve its autonomy vis-à-vis the na-
tional legal orders; general principles of law conferred dynamism to the evolving
5 P. Guggenheim, “Contribution à l’histoire des sources du droit des gens”, 94 RCADI

(1958) pp. 21-23 and 25.
6 Francisco de Vitoria, Relecciones del Estado, de los Indios, y del Derecho de la Guer-
ra (with an Introduction by A. Gómez Robledo), 2nd. ed., Mexico, Ed. Porrúa, 1985,
pp. XXX, XLIII-XLV, LVI, LXXVII, 61 and 42, and cf. pp. LXII-LXIII.
7 Both F. Vitoria and F. Suárez set up the foundations for a law of universal application
(commune omnibus gentibus), of a law for humankind as a whole; A. García y García,
“The Spanish School of the Sixteenth and Seventeenth Centuries: A Precursor of the
Theory of Human Rights”, 10 Ratio Juris - University of Bologna (1997) pp. 27 and
29.
8 Cf. P. Guggenheim, “Contribution à l’histoire des sources...”, op. cit. supra n. (5), pp.
22, 28-31 and 33-34. On such universality, present in Grotius’s thinking, cf. E. Jimén-
ez de Aréchaga, “The Grotian Heritage and the Concept of a Just World Order”, in
International Law and the Grotian Heritage (1983 Hague Colloquium), The Hague,
T.M.C. Asser Instituut, 1985, pp. 5-24; R.Y. Jennings, “Universal International Law
in a Multicultural World”, in ibid., pp. 187-197.
9 J. Moreau-Reibel, op. cit. infra n. (11), p. 542.
The Evolution towards a New Jus Gentium: The International Law for Humankind 11
international legal order, and the XIXth century witnessed the emergence of the
element of opinio juris communis.10
As jus gentium transcended its original private law sense, and began – in the
late Middle-Ages – to be associated with the emerging law of nations, it came to
be conceived as the law common to all peoples and human beings, and fostered
the belief in the existence of a set of “common notions”; it became related to hu-
mankind (itself), pledged to secure its unity and the fulfi lment of its needs.11 Jus
gentium, thus understood, became a universalist (and pluralist) conception,12 just
as jus humanae societatis – coordinated with it – concerned all human relations,
including the circulation of ideas and products.13 Thus, in the classic works of F.
Vitoria, F. Suárez, A. Gentili and H. Grotius, the world composed of nations was
kept together by the unity of human society, in an essentially universalist per-
spective. The jus communicationis of Vitoria was conceived as a law for all human
beings. Thus, as early as in the XVIth and XVIIth centuries, to Vitoria and Suárez
the State was not an exclusive subject of the law of nations, which encompassed
also peoples and individuals; and Grotius took into account humanity firstly, and
only secondly the States.14 The seeds of what appears as a true International Law
for humankind can thus be found in this evolving jus gentium.
II. The Legacy of the Evolving Jus Gentium: Recta Ratio and the Pursuit of
the Common Good
Although the recta ratio came to be identified with the writings of the founding
fathers of International Law, in the XVIth and XVIIth centuries, the thinking of
these latter found inspiration in the scholastic philosophy of natural law;15 it was
M.T. Cicero who formulated (in his De Republica, circa 50-46 b.C.) a renowned
characterization of recta ratio, the roots of which go back to the ancient Greeks
(Plato and Aristotle), corresponding to their orthos logos,16 according to which
the lex praeceptiva is in accordance with recta ratio. The principles of these latter
10 Ibid., pp. 80-81.

11 J. Moreau-Reibel, “Le droit de société interhumaine et le ‘ jus gentium’: Essai sur les
origines et le développement des notions jusqu’à Grotius”, 77 RCADI (1950) pp. 500-
501, 504 and 506-510.
12 A. Miele, La Comunità Internazionale, vol. I, 3rd. ed., Torino, Giappichelli, 2000,
pp. 75, 77-78, 80-81 and 89.
13 J. Moreau-Reibel, op. cit. supra n. (11), pp. 510-511, 514-517, 522 and 576.
14 S. Laghmani, Histoire du droit des gens - du jus gentium impérial au jus publicum
europaeum, Paris, Pédone, 2003, pp. 90-94.
15 Cf. A. Truyol y Serra, Histoire du Droit international public, Paris, Economica, 1995,
pp. 15-16 and 50; and cf. G.E. Sherman, “Jus Gentium and International Law”, 12
American Journal of International Law (1918) pp. 56-63.
16 Cf. D.P. Dryer, “Aristotle’s Conception of Orthos Logos”, 66 The Monist (1983) pp.
106-119, esp. pp. 117 and 119; cf. also J.M. Rist, “An Early Dispute about Right Reason”,
66 The Monist (1983) pp. 39-48.
12 Chapter I
emanate from human conscience, affirming the ineluctable relationship between

Law and ethics. In Cicero’s synthesis, true Law ensues from recta ratio, is of uni-
versal application, being valid for “all nations in all times”.17
Still before the founding fathers of International Law, Thomas Aquinas
(1225-1274) did consider the concept of jus gentium in his Summa Theologica.
In his view, jus gentium did not need the authority of the legislator, as it was ap-
prehended by natural reason itself (being thus more perfect than positive law),
disclosing awareness of the temporal dimension and being endowed with a uni-
versal validity.18 To him, Law should not favour a few, or benefit certain interests
only, but should instead contribute to the realization of the common good, to the
ultimate benefit of all human beings, – otherwise it would be unjust.19 The pre-
cepts of jus gentium, in Aquinas’s view, were universally valid and fulfi lled natu-
ral necessities of human life; they reflected a kind of human self-understanding
fundamentally distinct from that of its successor, jus inter gentes.20
While natural law was discoverable by right reason (recta ratio), being a
“higher” or superior law of universal application, positive law, on the other hand,
was promulgated by distinct public authorities for distinct communities (all, pre-
sumably, in pursuance of the common good), rendering reason subservient to
“will”; synderesis, for Aquinas, denoted a form of knowledge, or disposition of
reason to adhere to principles generated in the pursuance of the common good.21
Jus gentium purported to regulate human relations on an ethical basis, form-
ing a kind of “common reason of all nations” in search of the realization of the
common good.22 Jus gentium was endowed with ethical foundations by the recta
ratio, emanating, ultimately, from the universal juridical consciente (its material
source par excellence); the founding fathers of International Law (F. Vitoria, F.
Suárez, H. Grotius, among others) found inspiration in the legacy of the ancient
17 M.T. Cicero, De Republica, book III, ch. XXII, p. 33.

18 J.-P. Rentto, “Jus Gentium: A Lesson from Aquinas”, 3 Finnish Yearbook of Interna-
tional Law (1992) pp. 103, 105, 110 and 112-113. To Aquinas, while natural law was
identifiable by recta ratio, being thus a “higher” Law of universal application, posi-
tive law was promulgated by public authorities being distinct for different communi-
ties (being subservient to “will”); synderesis, for him, associated reason to the search
for the common good; Th. Aquinas, Treatise on Law, Washington D.C., Gateway Ed.,
2001 [reprint], pp. 44, 57 and 88.
19 P. Groarke and J.L.A. West, “Reconciling Individual Rights and the Common Good:
Aquinas and Contemporary Law”, in Philosophical Theory and the Universal Dec-
laration of Human Rights (ed. W. Sweet), Ottawa, University of Ottawa Press, 2003,
pp. 158-161; likewise, individual rights ought to be approached in a manner conso-
nant with the common good (ibid., p. 165).
20 J.-P. Rentto, op. cit. supra n. (18), p. 121, and cf. pp. 108-109.
21 T. Murphy, “St. Thomas Aquinas and the Natural Law Tradition”, in Western Juris-
prudence (ed. T. Murphy), Dublin/Ireland, Th. Round Hall, 2004, pp. 96, 103-105 and
114-115.
22 J.P. Rentto, op. cit. supra n. (18), pp. 121-122.
Greeks, followed by those of Cicero and Aquinas, in identifying recta ratio in the
very foundations of jus gentium itself.23
As already indicated, in the conception of one of the founding fathers of In-
ternational Law, Francisco de Vitoria, jus gentium pertained to the law of nations
and peoples organized in political communities, as well as to a universal law for
humankind.24 The moving towards universality, bearing in mind humankind,
marked presence also in Francisco Suárez’s classic writings.25 At a time when
States had become stronger than in Vitoria’s epoch, Grotius, likewise, devised
a comunitas humani generis, overcoming the notion of an international society
only of States and envisaging a general law of humankind, the droit des gens;26
the humanization of contemporary International Law, pursuant to a universalist
outlook, is thus remindful of the thinking of the founding fathers of the law of
nations.
There is no point, in our times, for States to keep on by-passing the search
of the common good in the pursuance of their own individual advantages (at the
cost of others); there is no point for them to keep on replacing reason by their
“will” for more political power and accumulation of wealth – to the satisfaction
of the so-called political “realists” – amidst senseless competition. The legacy
of Th. Aquinas and the founding fathers of International Law (Vitoria, Suárez,
Grotius, to name a few) is highly relevant for our days: the formidable challenges
currently faced by the international community disclose the need for prevalence
of realization of justice and the common good, and indicates that Law emanates
from right reason (recta ratio) and not from the will.27
To rescue, at this beginning of the XXIst century, the legacy of the evolving
jus gentium, amounts to propound a reassertion of the universalist outlook of the
law of nations. This seems crucial to me nowadays, in a world torn by disparities
and conflicts, so that International Law may be able to respond to the needs and
aspirations of humankind. The contemporary world is certainly different from
that of the times of the “founding fathers” of International Law, but what remains
remarkable is that, notwithstanding, human aspiration as to the harmonious
unity of humankind remains the same. International Law cannot simply make
abstraction of that aspiration, being called upon nowadays to provide answers
to issues which no State in isolation can properly deal with, and which concern
humankind as a whole.
23 A.A. Cançado Trindade, A Recta Ratio nos Fundamentos do Jus Gentium como Di-
reito Internacional da Humanidade, Belo Horizonte/Brazil, Edit. Del Rey, 2005, pp.
28-43.
24 J.A. Carrillo Salcedo, El Derecho Internacional en Perspectiva Histórica, Madrid,
Tecnos, 1991 (reed.), p. 19.
25 M. Lachs, “The Development and General Trends of International Law...”, op. cit.
infra n. (93), pp. 239-251.
26 H. Gros Espiell, “El Nacimiento del Derecho de Gentes y la Idea de Comunidad In-
ternacional”, 2 Anuario Argentino de Derecho Internacional (1984-1986) pp. 28-34.
27 J.-P. Rentto, op. cit. supra n. (18), pp. 123, 126, 128 and 130-134.
14 Chapter I
Projections of the evolving jus gentium converge into an objective interna-

tional law, giving expression to universal values. It seems all too proper to rescue
the legacy of an impersonal law which is the same for all – despite inequalities
of power, – which places solidarity above sovereignty, and which submits differ-
ences to the judgment of right reason (recta ratio). The revival in our times of
those classical teachings, which moreover propound a wide conception of inter-
national legal personality (including human beings, and humankind as a whole),
may well assist us to address more adequately the problems faced by contempo-
rary International Law, moving towards a new jus gentium of the XXIst century,
an International Law for humankind.
III. The Fragmentation of Jus Gentium into Jus inter Gentes

In historical perspective, the fragmentation of jus gentium, with its earlier uni-
versalist outlook (supra), into jus inter gentes, was to pave the way for the sub-
sequent outlook of a law governing essentially the relations among independent
States, and, to a lesser degree, other subjects of International Law. Yet, when the
dichotomy jus gentium/jus inter gentes emerged, the international legal order had
not yet displayed a strictly inter-State dimension. The roots of the distinction
between jus gentium and jus inter gentes can be found as early as in the writings
of the founding fathers of the discipline in the XVIth and XVIIth centuries, but
by then the two notions referred to an emerging law of nations comprising also
peoples and individuals.
In any case, jus inter gentes did not originally appear as a synonym of inter-
State law; this latter was only to prevail much later on, and for some decades
only, in the XIXth century. Moreover, the term gens/gentes was much wider than
“States”, surely encompassing other subjects of law (peoples, individuals). In the
days of Grotius, the jus humanae societatis, conceived as a universal one, com-
prised States and peoples and individuals. States were to mark their presence
particularly as from the treaties of Westphalia, – i.e., the reorganization of Eu-
rope as from 1648, – but linked to the jus gentium was the conception of a society
of the human kind.
Shortly after the Peace of Westphalia, it was clear from S. Pufendorf’s work
(e.g., De Officio Hominis et Civis, 1673) that the justification of natural law derived
from the “common character” and the irreducible features of the natural condi-
tion of humankind, which was prior to the establishment of States.28 In book I of
his On the Duty of Man and Citizen, Pufendorf, expressly referring to the “dictate
of right reason” (recta ratio), sustained that “law can be explored by the light of
reason” and “the common and important precepts of natural law are so plain and
clear” that they can never be wiped out from the conscience of human beings.29
The then prevailing universalist vision was never to disappear (finding expres-
28 J. Tully (ed.), “Introduction”, in S. Pufendorf, On the Duty of Man and Citizen, Cam-
bridge, University Press, 2003 (reed.), pp. XXV and XXIX.
29 S. Pufendorf, On the Duty..., op. cit. supra n. (28), p. 37.
sion also in the XVIIIth century, e.g., in the proclamations, of that epoch, of the
rights of man).
The historical transformation of jus gentium into jus inter gentes – this latter
primarily concerned with ensuring the co-existence and co-ordination of its sub-
jects – was also prompted by the absence or lack of an international legislature
and an international judiciary, which only in recent decades began to take shape.
Yet, that fragmentation keeps on defying the historical treatment of Internation-
al Law. In the expression of regret of C. Parry, such treatment, as undertaken to
date,
“is very unsatisfactory. It leaves many things unexplained – such as exactly how
the jus gentium, which was in effect a universal municipal law, could have become
the jus inter gentes, a law having upon any hypothesis little directly to do with the
individual and in essence a law presupposing and existing to regulate differing mu-
nicipal systems”.30
Already in the mid-XVIIth century, R. Zouche preferred the expression jus inter
gentes to jus gentium, heralding the inter-State dimension of International Law;
there was thus a process of “personification” of the States, which, by analogy with
the individuals (and not the other way round), – disclosing attributes similar to
those of individuals, – became subjects of the jus gentium, – and Christian Wolff
was to point out the need for specific rules to apply to States, given their distinct
nature.31 This evolution led to the assumption – which was later to prevail, in the
XIXth century, – of an alleged exclusively inter-State basis or dimension of Inter-
national Law. Such was the assumption of classic International Law (particularly
as from the 1815 Congress of Vienna).32
Such strictly inter-State outlook of International Law, in turn, paved the way
to the excesses of State voluntarism (reducing International Law to a sort of “ex-
ternal” State law) and to successive abuses committed by States to the detriment
of persons under their respective jurisdictions, amidst flagrant impunity. Inter-
national Law could not remain indifferent to that; in recent decades the need
became manifest of rescuing the original universal outlook of the discipline, by
means of a reconstruction of jus gentium. The accelerated growth of contempo-
rary International Law has contributed to that end. Such recent and reassuring
developments were preceded by an acknowledgment of the fallacy of the short-
lived voluntarist conception of International Law, which should not pass here
unnoticed.
30 C. Parry, The Sources and Evidences of International Law, Manchester, University

Press, 1965, p. 38.
31 S. Laghmani, op. cit. supra n. (14), pp. 93-95.
32 For an account of this latter, cf. C.K. Webster, The Congress of Vienna 1814-1815, Lon-
don/Edinburgh, H. Milford/Oxford University Press, 1919, pp. 1-148; and cf. also F.P.
Walters, A History of the League of Nations, Oxford, University Press, 1969 (reprint),
pp. 9-11.
16 Chapter I
IV. The Fallacy of Voluntarist Positivism

Although by the beginning of the XIXth century positivist tendencies were al-
ready noticeable, it was the late XIXth century that witnessed the spread of the
voluntarist conception of International Law, whereby relations governed by this
latter were determined by the “sovereign” and “arbitrary will” of States.33 It was
then believed that, when the observance of International Law clashed with the
existence of the State, “la norme juridique passe à l’arrière-plan parce que l’État
est supérieur à tout principe juridique; (...) le droit international existe pour les
États, et non les États pour le droit international”.34 The inevitable conclusion was
that “the community of States” was thus “of a purely anarchical nature”.35
But even this hopeless outlook of international life did not pass without dif-
ficulty, as “the community of States” was soon to appear not as a voluntary, but
rather as a necessary one.36 Shortly after the original appearance of G. Jellinek’s
theory of auto-limitation of the State, it was objected that a self-limitation, at-
tempting to reconcile the irreconcilable, could not possibly be a true limitation,
as the State could hardly be “à la fois commandant et commandé”, and one could
hardly understand that “l’acte émané du souverain, la loi, puisse être parfois une
violation du droit”;37 the theory of self-limitation proved thus incapable of setting
limits to the absolutism of State sovereignty.38
At doctrinal level, the voluntarist conception tried to survive39 with yet a
new formulation. Recognizing the logical impossibility of founding a legal order
upon the individual wills or its subjects, H. Triepel elaborated the theory of the
volonté commune (Vereinbarung, unions de volontés) of States as the source or
basis of International Law,40 – a view which was likewise promptly discarded.41
33 Cf. G.W.F. Hegel, Philosophy of Right (transl. T. M. Knox), Oxford, Clarendon Press,
1949, pp. 212-214, pars. 330, 332 and 334.
34 G. Jellinek, L’État moderne et son droit (transl. G. Fardis), part I, Paris, V. Giard & E.
Brière, 1911, p. 562, and cf. pp. 559-563.
35 Ibid., p. 564.
36 The Collected Papers of J. Westlake on Public International Law (ed. L. Oppenheim),
Cambridge, University Press, 1914, p. 79.
37 L. Duguit, L’État, le Droit objectif et la loi positive, vol. I, Paris, A. Fontemoing ed.,
1901, pp. 122-131.
38 Ibid., p. 614, and cf. pp. 613-618; and cf. also n. (4), supra.
39 For a criticism of the voluntarist conception of international law as derived from
Hegelian thinking, cf., inter alia, A. Truyol y Serra, Noções Fundamentais de Direito
Internacional Público, Coimbra, A. Amado Ed., 1962, pp. 67-68, and cf. pp. 91-121;
and cf. H. Lauterpacht, Private Law Sources and Analogies of International Law,
London, Longmans, 1927, pp. 43-71.
40 Cf. H. Triepel, “Les rapports entre le droit interne et le droit international”, 1 RCADI
(1923) pp. 82-88.
41 For criticisms of the theory of Vereinbarung, cf. H. Kelsen, “Les rapports de système
entre le droit interne et le droit international public”, 14 RCADI (1926) pp. 283-286;
The “will” of States, individual or collective, proved unable to provide the founda-
tions of International Law, as these latter were often threatened by the same will,
– individual or collective, – of States.
The voluntarist conception was, however, to leave its mark at a given time
and even to infi ltrate into the jurisprudence of the Permanent Court of Interna-
tional Justice [PCIJ]; thus, in the S.S. “Lotus” case (1927), e.g., the Court stated that
“international law governs relations between independent States”, and its rules
“emanate from their own free will”, and “restrictions upon the independence of
States cannot therefore be presumed”.42 The PCIJ thus endorsed, in the words of
one of the Judges, “the contention that under international law everything which
is not prohibited is permitted”, – a contention which did not pass unchallenged,
as argued in a Dissenting Opinion.43
Thus, it was furthermore argued, in relation to the PCIJ’s dictum, that if
restrictions to the sovereignty or independence of States could not be presumed,
nor could “the absence of restrictions”, as one was “not entitled to deduce the law
applicable to a specific state of facts from the mere fact of sovereignty or indepen-
dence”.44 International Law could not simply be reduced to “a set of formulated
propositions” such as the one that it ultimately derived from the consenting will
of its subjects; “the attempt to build the State out of a social contract”, argued J.L.
Brierly,
“has been abandoned by political philosophy for at least a century, and the attempt
to base international law on the consenting wills of individual States alone is merely
a survival in the international field of this discredited doctrine. It contains no unify-
ing principle to bind the members of the society together”.45
A. Verdross, “Le fondement du Droit international”, 16 RCADI (1927) pp. 262-267

and 275-279; G. Scelle, Précis de droit des gens - Principes et systématique, part I,
Paris, Rec. Sirey, 1931, pp. 35-37 and 298; M. Sorensen, Les sources du Droit interna-
tional, Copenhague, E. Munksgaard, 1946, pp. 15-16; R. Ago, “Science juridique et
droit international”, 90 RCADI (1956) pp. 875-881; E. Suy, Les actes juridiques uni-
latéraux en Droit international public, Genève, Université de Genève (thesis n. 134),
1962, pp. 6-9.
42 Cf. PCIJ, S.S. Lotus case, Series A, n. 10, Judgment of 07 September 1927, p. 18, and cf.
pp. 4-33.
43 In his Dissenting Opinion on the case, Judge Loder added that that contention was
“at variance with the spirit of international law”; ibid., p. 34.
44 J.L. Brierly, The Basis of Obligation in International Law and Other Papers, Oxford,
Clarendon Press, 1958, p. 144.
45 Ibid., p. 16, and cf. p. 18. - In this connection, G. Jellinek’s theory of self-limitation,
e.g., treated the rules of International Law not as a matter of legal obligation but
rather as a result of mere calculation of the compatibility of the observance of obli-
gation with State interest; H. Lauterpacht, The Function of Law in the International
Community, Oxford, Clarendon Press, 1933, pp. 409-412, and cf. pp. 94-96.
18 Chapter I
The profound transformations undergone by International Law since that pro-

nouncement by the PCIJ are well-known. To the accumulated lessons of two
world wars followed the historical process of decolonization, the rise and growth
of international organisations, and the emergence of international civil society.
The complexities of contemporary International Law leave no room for inferring
that it would derive solely from the free will of States; the fallacy of voluntar-
ist positivism was to become clear, as it simply failed to demonstrate its own
assumptions, being moreover unable to understand or explain the evolution of
general International Law.
Moreover, it attempted to reduce international custom to a simple repeti-
tion of acts or precedents, against what the “objectivist” thinking manifested
itself, admitting the existence of a “collective juridical conscience” and purport-
ing to provide an objective explanation of the customary phenomenon.46 In this
connection, it was cogently remarked that consent could never constitute the
ultimate formal source of international law, for it would become necessary to find
an antecedent rule giving such effect to consent; furthermore, consent could not
account “for its own validity or law-making effect”, nor could it account for some
of the most fundamental principles of law essential to any legal system.47
Once the validity of International Law itself was acknowledged by the opinio
juris communis, it could not be contended that the consent of each individual
State would be required to every legal relationship within the framework of In-
ternational Law. Reliance on such individualistic consent would amount to chal-
lenging the very existence and validity of most rules of contemporary interna-
tional law. To attempt to base customary international law on the consent of each
individual State would “allow each State to accept only those rules which suit it
and reject others, eventually leading to the very dissolution of the international
legal order”.48 It could not be contended that each individual State would have
46 Ch. Rousseau, Principes généraux du Droit international public, vol. I, Paris, Pédone,
1944, pp. 831, 845 and 827. On the anti-voluntarist tendency of the “school of objec-
tive law” and the German “historical school”, cf. P. Haggenmacher, “La doctrine des
deux éléments du Droit coutumier dans la pratique de la Cour internationale”, 90
Revue générale de Droit international public (1986) pp. 15, 19 and 110.
47 G.G. Fitzmaurice, “Some Problems Regarding the Formal Sources of International
Law”, in Symbolae Verzijl présentées au Professeur J.H.W. Verzijl à l’occasion de son
LXXème. anniversaire, The Hague, M. Nijhoff, 1958, pp. 162-165, 167 and 175-176;
there are rules of law (e.g., rule of pacta sunt servanda, rule that a State cannot plead
deficiencies of its own constitutional or domestic law as an excuse for non-compli-
ance with its international obligations) which are themselves underived from, and
independent of, any voluntarist element, and which have a necessary and inherent
validity (ibid., pp. 153-176).
48 L.R. Penna, “Customary International Law and Protocol I: An Analysis of Some Pro-
visions”, in Studies and Essays on International Humanitarian Law and Red Cross
Principles in Honour of Jean Pictet (ed. C. Swinarski), Geneva, ICRC/Nijhoff, 1984, p.
206.
the free will and ultimate power to decide whether or not to be bound by rules of
International Law.
The tacit consent theory, in its turn, appeared based on a fiction (H. Kelsen);
the States’ obligation to conform to rules of international law lies rather in the
societal context itself.49 Present-day transformations of International Law have
been taking place to a large extent independently of, and sometimes even con-
trary to, the individual State’s “will”. The State’s inability to undermine the valid-
ity of International Law by means of municipal legislation,50 added to the gradual
reduction or erosion of the plea of domestic jurisdiction or reserved domain of
States,51 entailed further significant limitations upon, and reflected the overcom-
ing of, the voluntarist conception of International Law. In sum, the State as an
absolute institutional value lost much of its persuasive force when viewed in his-
torical perspective.52
A survey of contemporary trends of International Law – in such distinct ar-
eas as territory, jurisdiction, recognition, the law of treaties, State responsibility,
human rights protection, environmental protection, the law of the sea, interna-
tional conflicts, and international organizations – calls for a reconsideration of
certain assumptions about the international legal system. Current developments
in distinct fields of International Law reveal that the age of the assumed exclusive
inter-State basis of International Law is definitively long past.53 The theory of self-
limitation of the State, e.g., has not withstood the onslaught of time, in view of its
logical impossibility. If it was the “free will” of States which ultimately “created”
International Law, it was also by their “free will” that States violated it, and vol-
untarist theories revolved in vicious circles and acrobaties intellectuelles which
could hardly provide any sound or coherent interpretation of social facts.54
As I wrote, to this effect, a quarter of a century ago,
49 J.I. Charney, “The Persistent Objector Rule and the Development of Customary In-
ternational Law”, 56 British Year Book of International Law (1985) pp. 16-18.
50 K. Marek, Identity and Continuity of States in Public International Law, 2nd. ed.,
Geneva, Droz, 1968, p. 73.
51 A.A. Cançado Trindade, “The Domestic Jurisdiction of States in the Practice of the
United Nations and Regional Organizations”, 25 International and Comparative
Law Quarterly (1976) pp.715-765; A.A. Cançado Trindade, “Co-Existence and Co-
ordination of Mechanisms of International Protection of Human Rights (At Global
and Regional Levels)”, 202 RCADI (1987) pp. 34-42.
52 A.A. Cançado Trindade, “The Voluntarist Conception of International Law...”, op.
cit. infra n. (55), p. 224.
53 The view of the PCIJ that International Law governs inter-State relations on the
basis of legal rules emanating form the free will of the States themselves (PCIJ, S.S.
Lotus case, Series A, n. 10, 1927, p. 18), even if arguably sustainable in 1927 when it
was expressed, no longer corresponds entirely to the reality of present-day Interna-
tional Law.
54 For criticism of the voluntarist conception to this effect, cf. Ch. de Visscher, Théo-
ries et réalités en Droit international public, 4th rev. ed., Paris, Pédone, 1970, p. 67,
and cf. pp. 66-68; A.Ch. Kiss, “Le droit international peut-il encore être considéré
20 Chapter I
“The voluntarist conception of International Law viewed this latter only through
the formal process of its elaboration, retaining as juridically relevant only the mani-
festations of will of the State. Hence its original and basic weakness, for once it was
found that in the process of elaboration of the law there were elements independent
of the free will of States – and the indications are that these elements do exist today
in virtually all areas of international law – the whole dogmatic construction was
then strongly challenged”.55
The voluntarist conception of International Law assumed that the State was an
absolute institutional value, a totally independent and self-sufficient entity. This
conception was hardly consonant with an objective scientific analysis of social
facts, and could only have flourished in the “world-politically secure age” 56 of the
late XIXth century.57 Such age is, however, long past: important limitations on
the voluntarist dogma are today prominent not only in the evolving fields of con-
temporary International Law, but also in new transformations or developments
in some of its more traditional areas.58 In fact, voluntarist positivism is clearly
incapable of solving, or even addressing, the issue of the foundations and validity
of international law, which could only find a response in the juridical conscience
itself. As contended by H. Accioly, it is “impossible to eliminate from the law” the
idea of an objective justice; the idea of a justice “superior to the facts” disengages
itself from the very observation of the facts.59
V. International Law-Making and the Reconstruction of Jus Gentium

The expansion of subjects of International Law, displaying wide cultural differ-
ences, has in the last decades influenced the transformations of International
Law and affected the formal process of its elaboration. The considerable growth
of the corpus juris gentium has brought about its sophistication at both normative
and implementation levels. The accelerated process of decision-making by States
comme volontariste?”, 33-36 Temis - Revista de Ciencia y Técnica Jurídicas (Fac.

Derecho Univ. Saragoza) (1973-1974) p. 75, and cf. pp. 75-84.
55 A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A Re-
Assessment”, 59 Revue de Droit international de sciences diplomatiques et politiques
(1981) p. 225, and cf. pp. 201-240.
56 M. Bos’s expression in: M. Bos, “Dominant Interests in International Law”, 21 Re-
vista Española de Derecho Internacional (1968) p. 234.
57 In which the intimacy between International Law and power struggle was reflected
in such prevailing notions as that of equilibrium of forces or balance of power.
58 Such as territory, jurisdiction, treaties, State responsibility, settlement of interna-
tional disputes.
59 Cf. H. Accioly, Tratado de Direito Internacional Público, 2nd. ed., vol. I, Rio de Ja-
neiro, 1956, pp. 18, 24, 26 and 30.
and international organizations60 in the contemporary world is prompted to a

large extent by the intensification of international contacts and communications,
further reflecting the impact of science and technology upon the conduction of
international affairs. Nowadays, even the notion of the practice of International
Law has become much more complex, no longer limited to State practice, as in
the past.
In the World Conferences of our times, States as well as international or-
ganizations and entities of the civil society have been contributing to the ac-
celerated development and universalization of International Law,61 as illustrated
by the recent cycle of the World Conferences of the United Nations.62 The in-
tensification of multilateralism was to attach an increasingly greater weight to
consensus63 in the formation and crystallization of rules of general International
Law. International conventions and general international law have been duly tak-
en into account simultaneously by international case-law.64 All this has drawn
greater attention to the formation and the relevant role of opinio juris.65
As to the systematization of the practice of international law, it could not be
appropriately undertaken for the sake of detecting or identifying practice only:
it is also relevant to attempt to disclose what is beyond practice, and to identify
above all the opinio juris sive necessitatis,66 thereby paving the way for the reduc-
tion of the fragmentation of jus inter gentes and the reapproximation of the ideals
60 Already in the North Sea Continental Shelf cases (1969), the ICJ admitted that the
uniform practice of States might, even in a rather short lapse of time, lead to the
formation of new rules of customary international law (ICJ Reports (1979) p. 43) in
accordance with “the rhythm of contemporary life”; E. Jiménez de Aréchaga, “In-
ternational Law in the Past Third of a Century”, 159 RCADI (1978) p. 11, and cf. pp.
29-30.
61 This development was heralded by the diplomatic conferences of the sixties and
seventies; cf. M. Lachs, “Le rôle des organisations internationales dans la formation
du droit international”, in Mélanges offerts à H. Rolin - Problèmes de droit des gens,
Paris, Pédone, 1964, pp. 168-169; H. Bokor-Szego, The Role of the United Nations in
International Legislation, Amsterdam, North-Holland Publ. Co., 1978, pp. 35-87.
63 As counterbalanced to the consent of individual States.
64 Cf. recently, e.g., L. Caflisch and A.A. Cançado Trindade, “Les Conventions Améric-
aine et Européenne des Droits de l’Homme et le droit international général”, 108
Revue générale de Droit international public (2004) pp. 5-62.
65 It may be recalled that some codification conventions resulting from U.N. diplo-
matic conferences contain express references to customary or general international
law, paving the way for the reshaping of the international legal order. M.E. Villiger,
Customary International Law and Treaties, Dordrecht, Nijhoff, 1985, pp. 289-290.
66 International practice (beyond merely State practice) appears, in fact, conformed by
opinio juris, and customary law appears less vulnerable than conventional law to the
temptations of voluntarism.
22 Chapter I
of classic jus gentium.67 Contemporary international legal order appears ineluc-

tably impregnated with an acknowledgment of common and superior values, in
its pursuit of the realization of justice. A neglect of general International Law
would hinder the evolution of a universalist International Law, and would lead to
an almost lack of hope in the reconstruction of a true jus gentium,68 pursuant to a
universalist outlook, capable of providing responses to the needs and aspirations
of humankind.
VI. International Law, Pluralism and Universalism

In a moment of world crisis such as the one we live, of recrudescence of the use of
force, the future of International Law relies, to a large extent, on the dialogue and
interaction – rather than “clash” – among civilizations, as displayed in the uni-
versal concertation undertaken in the recent cycle of U.N. World Conferences,
throughout the nineties and by the turn of the century.69 U.N. General Assembly
resolutions have, in recent years, reiteratedly acknowledged the superior values
shared by civilizations and common to humankind as a whole.70 In fact, Interna-
tional Law in particular, and humankind in general, much owe to the creativity
of, and achievements by, distinct civilizations throughout history.
Pluralism marked its presence in the origins of the international commu-
nity, and one of the challenges of International Law nowadays is to meet the
67 A.A. Cançado Trindade, “Reflections on International Law-Making: Customary

International Law and Reconstruction of Jus Gentium”, in International Law and
Development / Le droit international et le développement (Proceedings of the 1986
Conference of the Canadian Council on International Law / Travaux du Congrès
de 1986 du Conseil canadien de Droit international), Ottawa, Canadian Council on
International Law, 1986, pp. 63-81; and cf. A.A. Cançado Trindade, “Introduction”,
in Repertório da Prática Brasileira do Direito Internacional Público, vol. IV (Period
1899-1918), Brasilia, MRE/FUNAG, 1986, p. 22; ibid, vol. III (Period 1919-1940), 1984,
p. 27; ibid., vol. II (Period 1941-1960), pp. 18-10; ibid., vol. I (Period 1961-1981), pp. 48-
49 and 35.
68 Cf., e.g., K. Marek, “Thoughts on Codification”, 31 Zeitschrift fur ausländisches
öffentliches Recht und Volkerrecht (1971) pp. 497-498 and 520.
69 For example, the proceedings of the 1994 U.N. International Conference on Popula-
tion and Development, held in Cairo, disclose that countries with “two of the world’s
great religions - Islam and Catholicism - made common cause to oppose tendencies
and texts which they disliked or distrusted”, in particular regarding reproductive
rights in their distinct aspects; S. Johnson, The Politics of Population - The Interna-
tional Conference on Population and Development, Cairo 1994, London, Earthscan,
1995, p. 29.
70 E.g., G.A. resolutions AG/RES/53/22, of 16.11.1998; AG/RES/55/23, of 13.11.2000; AG/
RES/58/128, of 19.12.2003. In addition, G.A. resolution 56/6, of 09.11.2001, expressly
stated that “all civilizations celebrate the unity and diversity of humankind” and
stressed that “a common humanity unites all civilizations” (preamble, 5th and 6th
consideranda).
needs and aspirations of an international community which, in R. Ago’s words,

is “all the more markedly pluralistic”.71 Cultural pluralism has, in fact, marked
presence in the historical roots of international legal thinking.72 The universality
of the rights inherent to the human person, – to evoke an eloquent illustration,
– has been asserted and erected on the basis of due regard for cultural plural-
ism.73 In the origins of the discipline of International Law (jus gentium), the writ-
ings of, e.g., F. Vitoria and B. de Las Casas were based on the doctrine of equality
– of essence rather than existence – among human beings, while – as recently
pointed out – there is no reason for that equality to limit itself to essence and not
to extend itself also to existence: the principle of humanity became a central one
in distinct trends of thinking of the school of natural law.74
As time went on, jus gentium, emanated from human conscience, came
to be regarded as regulating relations between human collectivities (and their
members) of distinct cultures, encompassing humankind itself.75 In our days,
UNESCO has fostered the dialogue among civilizations, endorsing the “harmo-
ny in difference” propounded in U.N. General Assembly resolutions.76 Moreover,
UNESCO has further paved the way for the expression of the concept of “world
71 R. Ago, “Pluralism and the Origins of the International Community”, 3 Italian Year-
book of International Law (1977) pp. 3-30, esp. p. 30.
72 C.G. Weeramantry, Universalising International Law, Leiden, Nijhoff, 2004, pp. 1-
31.
73 Cf., e.g., [Various Authors,] Los Derechos del Hombre – Estudios y Comentarios en
torno a la Nueva Declaración, Reunidos por la UNESCO, Mexico/Buenos Aires,
1949, pp. 15-246; A.A. Cançado Trindade, Tratado de Direito Internacional dos Di-
reitos Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, ch. XIX, pp. 301-
403.
74 Y. Ben Achour, Le rôle des civilisations dans le système international (Droit et rela-
tions internationales), Bruxelles, Bruylant/Éd. Univ. de Bruxelles, 2003, pp. 85 and
141-142, and cf. pp. 43-44.
75 S. Sucharitkul, “L’humanité en tant qu’élément contribuant au développement pro-
gressif du Droit international contemporain”, in L’avenir du droit international dans
un monde multiculturel (Workshop of The Hague Academy of International Law,
The Hague, November 1983), The Hague, Nijhoff, 1984, pp. 418-419; R.-J. Dupuy,
“Conclusions of the Workshop”, in ibid., pp. 469 and 481.
76 In the same line as the General Assembly’s proclamation of the year 2001 as the U.N.
Year of Dialogue among Civilizations, the U.N. and UNESCO cosponsored a Round
Table on the Eve of the United Nations Millenium Summit, held at the U.N. in New
York on 05.09.2000. The Round Table was particularly critical of the idea of the so-
called “clash” of civilizations, rejected the alleged “inevitability” of that “clash”, and
stressed the needed continuing dialogue and mutual learning and understanding
among civilizations so as to ensure world peace. [Various Authors,] Dialogue among
Civilizations - The Round Table on the Eve of the United Nations Millenium Summit
(N.Y., 2000), Paris, UNESCO, 2001, esp. pp. 89, 104, 112 and 122.
24 Chapter I
cultural patrimony of humankind”.77 All this has been taking place parallely to
the co-existence between the concepts of “common heritage” and “common con-
cern” of mankind;78 in UNESCO’s outlook, the harmony and unity of civilizations
in the diversity of their cultures is a common patrimony or heritage of mankind,
and civilizations tend to embody the universal, in their religions and languages.79
Emphasis is thus to be placed on the joint endeavours of all civilizations to sus-
tain a fruitful dialogue and mutual understanding, conducive to setting up the
ground for a new jus gentium, the International Law for humankind.
VII. The Identification of the Basic Feature of the New Jus Gentium
One could hardly deny that there persists in contemporary International Law the
predominance of States in pursuance of the goals they set for themselves; but nor
could one deny that contemporary International Law has developed particularly
when, amidst glimpses of lucidity, States and other subjects of International Law
have given priority to the pursuance of common, superior interests, to fulfil the
needs and aspirations of humankind. This evolution has been accelerated by the
formation and growth, along the second half of the XXth century, of domains
such as those of the International Law of Human Rights and International Envi-
ronmental Law.
These developments have disclosed an international legal order which now-
adays surely and clearly transcends the old and outmoded strictly inter-State
dimension. Non-governmental organizations and other entities of civil society,
together with States and international organizations, have shown themselves
more open to the demands of the international community as a whole, well above
those of individual States, in the common search of responses to the needs of
humankind, to the ultimate benefit of all. This appears as the basic feature of the
new jus gentium, flourishing in this start of the XXIst century.
Since its historical beginnings, classic jus gentium, in starting off as appli-
cable in the relations among individuals (supra), was to envisage, in its histori-
cal evolution, humankind as a whole, rather than only individual States; State
power could not ensure a universal legal order, nor could it remove the belief in
77 From whose outlook an attempt against “works of the spirit” becomes a crime
against the “world cultural patrimony”, and, as such, a crime against mankind; Y.
Ben Achour, op. cit. supra n. (74), pp. 47 and 49, and cf. pp. 43 and 45.
78 Cf. chapter XIII, infra.
79 Ibid., pp. 145 and 187, and cf. pp. 234-235. Civilizations are not immutable, and ap-
pear open to changes, some of which on the basis of the evolution of law itself; the
fact that they remain open reassessments of some of their dogmas stresses the rel-
evance of respectful dialogue among them, for the very evolution of international
legal personality itself. Here, again, the alleged “clash” of civilizations, emphasizing
antagonisms and hostilities, appears harmful and unfounded; cf. ibid., pp. 305-306
and 313-314, and cf. p. 145.
an objective law.80 It was this latter, standing well above the individual State’s
“will”, and being applied in the pursuance of the realization of justice, that could
care for the unity of humankind. Jus gentium today comes to rescue the ideal of
universality, present in the enlightened thinking of the founding fathers of the
law of nations.81
Its universalist approach to International Law is thus in keeping with that
thinking. After all, States were not originally conceived as the exclusive subjects
of International law, as this latter addressed also individuals, groups of individu-
als and peoples (supra). The inter-State dimension of International Law, nowa-
days wholly surpassed, corresponds to the prevailing view in only a brief period
in the history of International Law (essentially the XIXth century). But already
in the period of the gradual formation of the discipline (XVIth century onwards),
jus gentium took also into account, besides individuals and States (composed of
individuals), humankind. The current trend, as I perceive it, towards a new jus
gentium as an International Law for humankind, has deep historical roots in the
thinking of the founding fathers of the droit des gens. In our days, it comes as a
response to the current needs and aspirations of the international community,
and, ultimately, of humankind as a whole.
By means mainly of a succession of treaties conforming a true corpus juris
gentium, classic International Law experienced a considerable expansion on an
essentially inter-State basis. It was not until the mid-XXth century that the in-
ternational legal order displayed its preparedness to open and move gradually
towards universalism, and away from a strict inter-State dimension; but even
in the heyday of the traditional outlook, the universalist conception had never
disappeared from the more lucid doctrine, faithful to the vision of the founding
fathers of the discipline. From the mid-XXth century onwards, the concern for
humankind as a whole began to find expression in the doctrine and practice of
International Law. New terms,82 to this effect, began to be incorporated into the
vocabulary or lexicon of International Law, terms which
“intermingle with the idea of a civitas maxima (...), and beyond that, to some extent,
with the idea of jus gentium in its traditional sense, prior to the jus inter gentes
(...)”.83
80 A. du Preez Louw, The Concept “Jus Gentium”, Leiden, Rijksuniversiteit te Leiden,

1991, pp. 39, 56, 87, 89 and 134, 186-188 and 190-191.
81 A.A. Cançado Trindade, “La Humanización del Derecho Internacional y los Límites
de la Razón de Estado”, 40 Revista da Faculdade de Direito da Universidade Federal
de Minas Gerais - Belo Horizonte (2001) pp. 11-23.
82 Such as world or universal law, transnational law, law of the international commu-
nity, common law of mankind, common heritage of mankind, common concern of
mankind, among others.
83 Cf. A. Truyol y Serra, La Sociedad Internacional, 2nd. ed., Madrid, Alianza Edit.,
1998, p. 98, and cf. pp. 35, 76-80 and 83.
26 Chapter I
In the XXth century, as early as in 1925, there was expression, in a collective doc-
trinal survey, for the relevance of an objective International Law, encompassing
States, peoples and individuals, overcoming the insufficiencies of the positivist
conception (which risked to hinder the development of the law of nations), and
bearing in mind the superior interests of the international community.84 Atten-
tion was drawn to the “humanizing factors” of international life, rooted in the
“international juridical conscience”.85 This objective International Law – condu-
cive, by means of the application of basic principles, to the “common law of man-
kind”86 – pre-existed the “will” of States; after all, States have not always existed,
and objective International Law operated in pursuance of the common good of
the international community as a whole, and in response to the social needs and
demands of justice and humanity everywhere.87
It was further argued that, to try to base the law of nations on the will of
States would amount to the denial of, or renunciation to, International Law; in
fact,
“L’idée de justice est si profondément ancrée en nous que ceux-là même qui pré-
tendent la subordonner à la volonté de l’État y recourent sans cesse inconsciem-
ment”.88
The “will” of the individual State was inevitably attached to its subjective in-
terests, and could not determine the legal rules applicable to it; International
Law was formed and evolved not only for the regulation of the relations of States
among themselves, but for the international community itself, and it was its
common good that one had to bear in mind. Objective International Law, based
on “principles of justice”, did not derive from the will of the State, and opted in
favour of humanity.89
Four decades later, new endeavours towards the identification of the basic
feature of a new jus gentium were undertaken by U. Scheuner and D. Evrigenis.
Jus gentium, as propounded by the founding fathers of International Law, is com-
mon to all individuals and all peoples, calling for a universally valid international
legal system. Its foundations are independent of the “will” of individual members
of the international community, and it goes well beyond purely inter-State rela-
84 [Various Authors,] Jus Naturae et Gentium – Eine Umfrage zum Gedächtnis des Hugo
Grotius, Kiel, Universität Kiel/Instituts für internationales Recht, 1925, pp. 55, 57-58
and 79 (interventions by N.S. Politis, M.Rostworowski and A. Weiss, respectively).
85 Ibid., pp. 64-65 (intervention by M. de Taube).
86 An expression which, more than three decades later, formed the title of the book by
C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 57-61, 66-99
and 169-172.
87 [Various Authors,] Jus Naturae et Gentium..., op. cit. supra n. (84), pp. 13, 17-20 and
26 (intervention by L.-E. Le Fur).
88 Ibid., pp. 27 and 20.
89 Ibid., pp. 27-30.
tions (jus inter gentes). Stemming from human conscience and the sentiment of
justice enshrined therein, jus gentium is erected upon ethical foundations, incor-
porates basic human values, common to the whole of humankind, thus paving
the way for the future evolution of the international legal order.90
In the ambit of this new jus gentium, there has been occurring the insti-
tutionalization of the corpus juris (rendered truly universal) pertaining to the
protection of human rights, which has become a cornerstone of this universal
legal order.91 The considerable expansion of this corpus juris gentium at this be-
ginning of the XXIst century indicates that such new jus gentium is seeing the
light of the day. It goes certainly well beyond the strictly inter-State dimension of
the past. It rescues the human person, final addressee of its norms, as subject of
law, endowed with juridical capacity. This new jus gentium, as foreseen and pro-
pounded by the founding fathers of the discipline, can be clearly characterized in
our times as the International Law for humankind.
VIII. The Universalist Conception of International Law

In fact, already by the mid-XXth century it had became apparent to the more
lucid doctrine that International Law no longer disclosed an entirely and strictly
inter-State dimension, gradually leaning towards an universalist outlook.92 Col-
lective conscience was already beholding the existence of a true international
community (civitas maxima gentium), in a historical perspective.93 This process
is still ongoing, with a growing awareness of the coexistence of States with other
subjects of International Law (international organizations as well as peoples and
individuals) in the international community. This has, in turn, drawn increasing
attention to the needs of humankind, which International Law cannot be indif-
ferent to. The role of values has been stressed in securing the continuing evolu-
tion of the norms of International Law and the current historical process of its
humanization.94
90 U. Scheuner, “Jus Gentium and the Present Development of International Law”, in

Volkenrechtelijke Opstellen aangeboden aan Prof. Dr. G.H.J. van der Molen, Kam-
pen, J.H. Kok N.V., 1962, pp. 125, 128, 130 and 133-136.
91 D. Evrigenis, “Institutionnalisation des droits de l’homme et droit universel”, in
Internationales Colloquium über Menschenrechte (Berlin, Oktober 1966), Berlin,
Deutsche Gesellschaft für die Vereinten Nationen, 1966, pp. 28-33.
92 R.J. Dupuy, La Communauté internationale entre le mythe et l’histoire, Paris, Eco-
nomica/UNESCO, 1986, pp. 21, 160 and pp. 173-174.
93 Cf. M. Lachs, “The Development and General Trends of International Law in Our
Time – General Course in Public International Law”, 169 RCADI (1980) pp. 239-
251.
94 Cf., in this sense, H. Th ierry, “L’évolution du Droit international - Cours général de
Droit international public”, 222 RCADI (1990) pp. 17-18, 23 and 184-185; J.A. Carrillo
Salcedo, “Droit international et souveraineté des États – Cours général de Droit in-
ternational public”, 257 RCADI (1996) pp. 211-213 and 217-221; J.A. Pastor Ridruejo,
28 Chapter I
The new jus gentium has a much broader spatial and temporal dimensions.
As to the former, it no longer portrays International Law as conditioned by the
consent of territorial States, but rather as emanated from the recta ratio and not
from the will.95 The new jus gentium of our days is not reduced to what States are
prepared to concede. Such an approach led to the fragmentation of jus gentium
into jus inter gentes. The general theory of law founded upon the State and its
will was unable to avoid the disaggregation of the humankind and the successive
atrocities of the XXth century. No State is to consider itself as standing above
International Law. With the increasing participation, in international law-mak-
ing and application, of peoples and individuals as subjects of International Law,
along with States and international organizations, International Law nowadays
concerns everyone.96 In the domain of the new jus gentium, no longer insensitive
to growing poverty and social marginalization and exclusion, among other prob-
lems which affect humankind as a whole, the international rule of law, imbued
with a sense of justice, prevails over the anachronistic raison d’État.97
Neither the old Westphalian inter-State outlook, nor the present-day ca-
pitulation to the laisser-faire of markets, leave much room for the realization of
justice.98 So-called “free” markets are contractual, rather than communitarian,
in nature. They pursue quick capital flows in search of rapid profits, rather than
universal goals. They have a codified language of their own, accessible to a few,
and despise the pluralism of values. The pursuance of the common and superior
interests of humankind cannot simply be left to the vicissitudes of market nego-
tiations and transactions. Markets live the present, the moment, they lack the
intertemporal dimension.
The new jus gentium, in turn, has a much broader dimension, not only spa-
tial, but also temporal. It bears in mind humankind, as encompassing both pres-
ent and future generations, who do not fail to acknowledge the achievements
of their predecessors, in the consolidation of rights and duties conforming the
new jus gentium, and emanating from this latter. The temporal dimension has
been singled out by the domains of International Law which have experienced
a remarkable expansion in recent decades, notably human rights protection and
“Le Droit international à la veille du vingt et unième siècle: normes, faits et valeurs”,
274 RCADI (1998) pp. 294-296.
95 Already in 1961, it appeared to P. Reuter that “les intérêts communs dans les rela-
tions internationales apparaissent de bonne heure. La répartition territoriale des
compétences est incapable de résoudre certains problèmes”, he well remarked; P.
Reuter, “Principes de Droit international public”, 103 RCADI (1961) p. 445.
96 It can, moreover, be relied upon before the multiple contemporary international
tribunals (as well as before national courts applying it).
97 M. Chemillier-Gendreau, Humanité et souverainetés, 1995, pp. 285, 308-309 and 327;
and cf. M. Delmas-Marty, Vers un droit commun de l’humanité, 1996, pp. 39 and 63;
98 R.A. Falk, Human Rights Horizons - The Pursuit of Justice in a Globalizing World,
London/N.Y., Routledge, 2000, p. 21.
environmental protection.99 Such temporal dimension deserves special attention

today in respect of the whole of International Law.
99 In this respect, the notion of potential victim, for example, for the object of a vast
case-law of international human rights tribunals; cf. A.A. Cançado Trindade, “Co-
existence and Co-ordination of Mechanisms of International Protection...”, op. cit.
supra n. (51), ch. XI, pp. 243-299.
Chapter II Time and Law Revisited: International
Law and the Temporal Dimension
I. Introduction
The relationship between International Law and time is an ineluctable one, which
requires much more attention than the one dispensed to it thus far. The forma-
tion and development of International Law, as well as its interpretation and ap-
plication, could hardly be dissociated from the temporal dimension, wherefrom
precisions and lessons can be extracted, as reflections introductory to the chap-
ters that follow. The incidence of the temporal dimension on International Law is
acknowledged in face of new needs of protection of human beings, also in a pre-
ventive way, as illustrated in particular by the current expansion of provisional
measures of protection. Awareness of such temporal dimension bears witness
of the myopia of political “realism” and draws attention to the human quest for
justice throughout history.
II. Time and Law: Some Precisions and Lessons

The temporal dimension underlies the whole domain of Law in general, and of
Public International Law in particular. Classical International Law departed
from an essentially static outlook of the task of regulation. The very conception of
a “definitive” categorization of “sources” of International Law, e.g., corresponded
to the positivist longing, so much en vogue in the XIXth century, with its empha-
sis on an inescapable legal formalism. Only in a more recent epoch, closer to our
days, one was to recognize the possibility of new manifestations of International
Law and to reckon the evolution undergone by rules regarded as “immutable” in
the past; “classical” International Law accepted, however, one sole doctrinal cat-
egory turned to the presence of the temporal element it contained,1 namely, that
1 E. McWhinney, United Nations Law Making, N.Y./London/Paris, Holmes & Meier/

UNESCO, 1984, pp. 42, 37 and 24.
32 Chapter II
of the so-called “intertemporal law”, as illustrated by the contribution of the cel-

ebrated arbitral award of Max Huber in the case of the Island of Palmas (1928).2
The Institut de Droit International covered this specific topic, that of the so-
called “intertemporal law”, in the Sessions of Rome (1973) and Wiesbaden (1975).
There was general acceptance as to the basic proposition that the solution of the
intertemporal problem consisted in the determination of the applicable norm,
among those which succeeded each other in time on the same matter, having
every act and situation to be appreciated in the light of legal rules contemporary
to them.3 The work and debates of the Institut displayed an awareness of the
ambivalence, antinomy or tension between the forces in favour of the evolution
or transformation of the legal order and those in favour of the stability or legal
security, – and this was to be reflected in the cautious resolution adopted by the
Institut in Wiesbaden in 1975.4
The impact or influence of the passage of time in the formation and evolu-
tion of the rules of International Law is not a phenomenon external to law.5 One
was, thus, to go beyond the treatment somewhat circumscribed or restrictive of
the so-called “intertemporal law” stricto sensu, so as to consider the process of
the very formation and evolution of norms in the course of time, or, to use a well-
known expression, of the “progressive development of International Law”.6 The
conscious search for new juridical solutions is to presuppose the solid knowledge
of the solutions of the past, and of the historical evolution of International Law
as an open and dynamic system, capable of responding to the changing needs of
the international community.7
2 Cf. n. (27) infra, and cf. discussion in P. Tavernier, Recherches sur l’application dans
le temps des actes et des règles en droit international public, Paris, LGDJ, 1970, pp.
254-277 and 128-129.
3 Cf. 55 Annuaire de l’Institut de Droit International [AIDI] (1973) pp. 33, 27, 37, 48,
50 and 86; 56 AIDI (1975) p. 536 (par. 1 of the resolution of the Institut). - And cf. M.
Sorensen, “Le problème dit du droit intertemporel dans l’ordre international – Rap-
port provisoire”, 55 AIDI (1973) pp. 35-36.
4 Cf. 56 AIDI (1975) pp. 536-541 (cf., particularly, the second considerandum of the
preambular part of the resolution).
5 In the aforementioned work of the Institut, attention was in fact turned to the im-
pact of the passage of time (sometimes a rather short lapse of time) on the develop-
ment of International Law; cf. 55 AIDI (1973) pp. 108 and 114-115 (interventions by M.
Lachs, P. Reuter and S. Rosenne).
6 E. McWhinney, op. cit. supra n. (1), p. 41. – On the influence of the passage of time
in the continuation of the rules of International Law, cf. K. Doehring, “Die Wirkung
des Zeitablaufs auf den Bestand völkerrechtlicher Regeln”, Jahrbuch 1964 der Max-
Planck-Gesellschaft, Heidelberg, 1964, pp. 70-89.
7 A.A. Cançado Trindade, “Reflections on International Law-Making: Customary In-
ternational Law and the Reconstruction of Jus Gentium”, in International Law and
Development/Le droit international et le développement (Proceedings of the 1986
Conference of the Canadian Council on International Law/Travaux du Congrès de
Time and Law Revisited: International Law and the Temporal Dimension 33
Such knowledge is to guide or found positions or decisions to be taken in the

future, and to assist subjects of International Law in the search for a certain de-
gree of foreseeability in the conduction of their behaviour,8 always in the light of
the principle of good faith. Evolving International Law is thus permeated by the
major enigma which permeates the existence of all subjects of law: the passage of
time. In this respect, in one of the most lucid pleadings before an international
tribunal that I know of, that of Paul Reuter (of 03-04 March 1962) as one of legal
counsel to Cambodia in the case of the Temple of Preah Vihear (ICJ, 1962), he
stated, with a certain literary flair:
“Le temps exerce en effet une influence puissante sur l’établissement et la consoli-
dation des situations juridiques (...). D’abord la longueur du temps dépend des mat-
ières. (...) Un deuxième élément doit être pris en considération, nous serions tentés
de l’appeler ‘la densité’ du temps. Le temps des hommes n’est pas le temps des astres.
Ce qui fait le temps des hommes, c’est la densité des événements réels ou des événe-
ments éventuels qui auraient pu y trouver place. Et ce qui fait la densité du temps hu-
main aprécié sur le plan juridique, c’est la densité, la multitude des actes juridiques
qui y ont trouvé ou qui y auraient pu trouver place”.9
The time of human beings is certainly not the time of the stars, in more than one
sense.10 The time of the stars, – I would venture to add, – besides being an un-
fathomable mystery which has always accompanied human existence from the
beginning until its end, is indifferent to legal solutions devised by the human
mind; but the time of human beings, applied to their legal solutions as an element
which integrates them, in one specific aspect, however, appears to suggest a sole
point of contact, or common denominator, between chronological and cosmic
time: the time of the stars is inexorable; the time of human beings, albeit only
conventional, is, like that of the stars, implacable. In this way, time comes as a key
element not only to secure the evolution of law, but also to ascribe to this latter
foreseeability and juridical security.
The study of International Law, bearing in mind the ineluctable relation
between time and law, discloses the shortcomings of the positivist-voluntarist
conception of International Law, which proved incapable of explaining the his-
torical formation and evolution of customary rules of general International Law.
That conception nourished the pretension of trying – in vain – to establish the
independence of law in relation to time; it privileged the method of observation
in its undue minimization of the principles of International Law; and it naïvely
1986 du Conseil canadien de droit international), Ottawa, 1986, pp. 78-81, and cf.
pp. 63-81.
8 J.L. Brierly, The Law of Nations, 6th ed., Oxford, Clarendon Press, 1963, pp. 77-78.
9 ICJ, Temple of Preah Vihear case (Cambodia versus Thailand), ICJ Reports (1962),
Pleadings, Oral Arguments, Documents, vol. II, pp. 203 and 205.
10 Not only to establish the aquiescence of the State and its legal effects, as P. Reuter
intended in that case.
34 Chapter II
assumed that legal science could prescind from developments in other domains
of human knowledge. It is not surprising to find that it proved unable to with-
stand the onslaught of time.
III. The Incidence of the Temporal Dimension in International Law

In fact, the element of foreseeability is inherent to legal science itself,11 and espe-
cially to law-making activity. An emphatic illustration is provided by the recog-
nized incidence of the temporal factor in the domains of both international envi-
ronmental law and of international human rights law, wherein consideration has
been given to “potential” victims, and attention has been turned to the possibility
of harm which may appear in the future.12 In fact, the protection of potential
or prospective victims (comprising complainants with a valid potential personal
interest), as I pointed out in my Hague Academy lectures in 1987,13 has nowadays
become a reality (in response to a human necessity), rather than a purely theo-
retical-academic speculation. In fact, it has been in the ambit of the International
Law of Human Rights, that in recent years the temporal dimension seems to be
considered in greater depth.14
Manifestations of the temporal dimension in International Law, so neglect-
ed in the past, multiply in distinct contexts of this branch of law. If in the past
the principles and rules of the law on the international responsibility of States
evolved in an essentially inter-spatial dimension, revealing accentuated territo-
rial ingredients, they are nowadays reconsidered in a new temporal dimension.
11 The establishment of the extinction of legal situations, e.g., may require to distin-
guish those which are formed in a given moment (as a result of one sole fact) from
those which presuppose a certain lapse of time of the continued presence of succes-
sive elements.
12 Cf. the substantial plaidoiries before the International Court of Justice in the Nucle-
ar Tests case (Australia and New Zealand versus France), ICJ Reports (1974), Plead-
ings, Oral Arguments, Documents, vol. I, pp. 11-12, 46, 89, 100-101, 118-119, 122-131,
139-141, 181-182, 331, 337, 341-343, 409-411, 478-479, 481, 504, 520-521, 521; ibid., vol.
II, pp. 49, 52, 264-267, 299 and 430.
13 A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of Inter-
national Protection of Human Rights (At Global and Regional Levels)”, 202 Recueil
des Cours de l’Académic de Droit International de La Haye [RCADI] (1987), chapter
XI, pp. 243-299.
14 The U.N. Compilation of International Instruments of human rights, for example,
lists in fact not less than 13 international instruments turned to the prevention of
discrimination of distinct types (cf. U.N. doc. ST/HR/1/Rev.3, of 1988, pp. 52-142).
Prevention is of the essence of the three Conventions against Torture (the Inter-
American of 1985, Articles 1 and 6; the European of 1987, Article 1; that of the United
Nations of 1984, Articles 2(1) and 16), as well as of the Convention on the Prevention
and Punishment of the Crime of Genocide of 1948 (Article 8). And cf., to the same
effect, U.N. Manual on the Effective Prevention and Investigation of Extra-Legal,
Arbitrary and Summary Executions, N.Y., U.N., 1991, pp. 1-71.
This latter is, in fact, underlying almost all the basic elements of the law of trea-
ties; it permeates not only the process of elaboration of treaties but also the very
terms or conditions established for their implementation (e.g., if by stages, gradu-
ally and progressively).15 Also in the domain of peaceful settlement of interna-
tional disputes one has devised distinct methods of settlement of disputes which
may occur in the future.
In the field of regulation of spaces in International Law (e.g., law of the sea,
law of outer space) the temporal dimension stands out likewise. One of the space
law treaties refers not only to the concept of “common heritage of mankind” but
also to the “interests of present and future generations”.16 In fact, in order to ex-
plain the concept of common heritage of mankind (e.g., in the law of the sea)17,
one has resorted to the notions of “future interest” and “future beneficiaries”.18
The temporal dimension is of the very essence, e.g., of international environmen-
tal law (as heralded by the basic precautionary principle), and is also present in
the chapter of peaceful settlement of international disputes,19 and in the law of
international organizations.20
15 Cf. G.E. do Nascimento e Silva, “Le facteur temps et les traités”, 154 RCADI (1977)
p. 221, and cf. pp. 221-295; T. Georgopoulos, “Le droit intertemporel et les disposi-
tions conventionnelles évolutives - quelle thérapie contre la vieillesse des traités?”,
108 Revue générale de Droit international public (2004) p. 142, and cf. pp. 123-147; D.
Greig, “The Time of Conclusion and the Time of Application of Treaties as Points
of Reference in the Interpretative Process”, in Time, History and International Law
(eds. M. Craven, M. Fitzmaurice and M. Vogiatzi), Leiden, Nijhoff, 2007, pp. 164-165
and 217, and cf. pp. 163-217.
16 The 1979 Treaty Governing the Activities of States in the Moon and Other Celestial
Bodies, Articles 11 and 4. Cf. also Article 1 of the 1967 Treaty on Principles Govern-
ing the Activities of States in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies.
17 As inserted, e.g., in the 1982 U.N. Convention on the Law of the Sea, Article 136.
18 Cf. A.-Ch. Kiss, “La notion de patrimoine commun de l’humanité”, 175 RCADI (1982)
pp. 129-131, 224, 230-231 and 240-241, and cf. pp. 113, 123, 185 and 243; and cf. chapter
XIII, infra.
19 Cf., as to (compulsory) arbitration, e.g., J.H. Ralston, International Arbitration from
Athens to Locarno, Stanford, Stanford University Press, 1929, p. 45, and cf. pp. 50-
51; Ph. Chapal, L’arbitrabilité des différends internationaux, Paris, Pédone, 1967, pp.
34-35. And cf., as to judicial settlement, e.g., S. Rosenne, The Time Factor in the
Jurisdiction of the International Court of Justice, Leyden, Sijthoff, 1960, pp. 11-75;
and cf. A.A. Cançado Trindade, “The Time Factor in the Application of the Rule of
Exhaustion of Local Remedies in International Law”, 61 Rivista di Diritto Interna-
zionale (1978) pp. 232-257; E. McWhinney, “The Time Dimension in International
Law, Historical Relativism and Intertemporal Law”, in Essays in International Law
in Honour of Judge M. Lachs (ed. J. Makarczyk), The Hague, Nijhoff, 1984, pp. 184-
199.
20 Cf. e.g., G. Malinverni, Le règlement des différends dans les organisations interna-
tionales économiques, Leiden/Genève, Sijthoff/IUHEI, 1974, pp. 46-49, 77-78 and 85-
86, and cf. p. 80. - One may, furthermore, recall that the 1974 U.N. Charter of Eco-
36 Chapter II
The incidence of the temporal dimension has become more visible and re-
markable in contemporary International Law than in that of the past. It ensues
to a large extent from the universalization of International Law; the ICJ has taken
it into account, and has at times acknowledged and applied it in extenso, even
without any express mention of it (as in, e.g., the Aegean Sea Continental Shelf
case, Greece versus Turkey, 1978).21 In an international legal order in constant
evolution, the solutions crystallized in a given epoch are always submitted to new
value judgments; with the passage of time, the meaning itself of words evolves,
the legal vocabulary expands and enriches. The accelerated development of con-
temporary International Law bears eloquent witness of the purpose of reshaping
the international legal order in fulfilment of the changing needs and aspirations
of the international community as a whole.
IV. Time and International Law in Face of New Needs of Protection

The central issue of the relation between time and law is, in fact, inherent to the
very birth and exercise of individual rights. All the international case-law per-
taining to human rights has developed, in a converging way, throughout the last
decades, a dynamic or evolutive interpretation of the treaties of protection.22 This
would not have been possible if contemporary legal science had not liberated it-
self from the constraints of legal positivism. This latter, in its hermetical outlook,
revealed itself indifferent not only to other areas of human knowledge, but also
to the existential time, of human beings. To legal positivism, imprisonned in its
own formalism, time reduced itself to an external factor (the dead-lines, with
their juridical consequences) in the framework of which one had to apply the law,
positive law.
The positivist-voluntarist trend, with its obsession with the autonomy of the
“will” of the States, in seeking to crystallize the norms emanating therefrom in
a given historical moment, came to the extreme of conceiving (positive) law in-
dependently of time: hence its manifest incapacity to accompany the constant
changes of social structures (at domestic as well as international levels), for not
having foreseen the new factual assumptions, remaining thereby unable to re-
spond to them; hence its incapacity to explain the historical formation of cus-
nomic Rights and Duties of States, e.g., contains express references to the temporal
dimension (Articles 29-30).
21 T.O. Elias, “The Doctrine of Intertemporal Law”, 74 American Journal of Interna-
tional Law (1980) pp. 285 and 296, and cf. pp. 285-307; and cf. D. Greig, op. cit. supra
n. (15), p. 174.
22 Such evolutive interpretation does not conflict in any way with the generally ac-
cepted methods of interpretation of treaties; cf., on this point, e.g., A.A. Cançado
Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Ale-
gre/Brazil, S.A. Fabris Ed., 1999, pp. 185-194.
tomary rules of International Law.23 The very emergence and consolidation of the
corpus juris of the International Law of Human Rights are due to the reaction
of the universal juridical conscience to the recurrent abuses committed against
human beings, often warranted by positive law: with that, Law came to the en-
counter and rescue of the human person, the ultimate addressee of its norms of
protection.
In the framework of this new corpus juris, we cannot remain indifferent
to the contribution of other areas of human knowledge, nor to the existential
time, as juridical solutions cannot fail to take into account the time of human be-
ings.24 Endeavours undertaken to this effect seem to recommend, in face of this
fundamental element conditioning human existence, a posture entirely distinct
from the indifference and self-sufficiency of legal positivism. Contemporary le-
gal science came to admit, as it could not have been otherwise, that the contents
and effectiveness of juridical norms accompany the evolution of time, not being
independent of this latter. At the level of domestic law, one even spoke, already in
the middle of the XXth century, of a true revolt of Law against the codes25 (posi-
tive law):
“To the insurrection of the facts against the Code, to the lack of harmony beween
positive law and economic and social needs, the revolt of Law against the [Civil]
Code has succeeded (...). The concepts that one considers as hieratic formulas are a
23 A. Verdross, Derecho Internacional Público, 5th. ed. (transl. from the 4th. German
ed. of Völkerrecht), Madrid, Aguilar, 1969 (1st. reprint), p. 58; M. Chemillier-Gen-
dreau, “Le rôle du temps dans la formation du droit international”, in Droit inter-
national - III (ed. P. Weil), Paris, Pédone, 1987, pp. 25-28; E. Jiménez de Aréchaga,
El Derecho Internacional Contemporáneo, Madrid, Tecnos, 1980, pp. 15-16 and 37.
And, for the criticism that the evolution of legal science itself, contrary to what legal
positivism sustained, cannot be explained by means of an idea adopted in a “purely
aprioristic” manner, cf. R. Ago, Scienza Giuridica e Diritto Internazionale, Milano,
Giuff rè, 1950, pp. 29-30.
24 Time has been examined not only in International Law (cf., e.g., [Various Authors,]
Le Droit international et le temps (Colloque de Paris de 2000), Paris, SFDI/Pédone,
2001, pp. 9-279), but in different areas of knowledge (the sciences, philosophy, soci-
ology and social sciences) in general, besides law; cf. F. Greenaway (ed.), Time and
the Sciences, Paris, UNESCO, 1979, 1-173; S.W. Hawking, A Brief History of Time,
London, Bantam Press, 1988, pp. 1-182; H. Aguessy et alii, Time and the Philosophies,
Paris, UNESCO, 1977, pp. 13-256; P. Ricoeur et alii, Las Culturas y el Tiempo, Sala-
manca/Paris, Ed. Sígueme/UNESCO, 1979, pp. 11-281.
25 Domestic law (the French Civil Code) could no longer keep on being applied me-
chanically, ignoring the dynamics of social transformations, and in particular the
emergence and assertion of the rights of the human person; G. Morin, La Révolte du
Droit contre le Code - La révision nécessaire des concepts juridiques, Paris, Libr. Rec.
Sirey, 1945, pp. 109-115, and cf. p. 7, on the need of value judgments.
38 Chapter II
great obstacle to the freedom of the spirit and end up by becoming a sort of prisms
through which one does not see more than a deformed reality”.26
At the level of International Law – in which the distinct aspects of intertemporal

law came to be studied27 – likewise, the relationship between the contents and
the effectiveness of its norms and the social transformations which took place in
the new times became evident.28 A locus classicus in this respect lies in the well-
known obiter dictum of the International Court of Justice [ICJ], in its Advisory
Opinion on Namibia of 1971, in which it affirmed that the system of mandates
(territories under mandate)29 was “not static”, but “by definition evolutionary”.
And it added that its interpretation of the matter could not fail to take into ac-
count the transformations occurred along the following fifty years, and the con-
siderable evolution of the corpus juris gentium in time:
“an international instrument has to be interpreted and applied within the frame-
work of the entire legal system prevailing at the time of the interpretation”.30
In the same sense the case-law of the two international tribunals of human rights
in operation to date has oriented itself, as human rights treaties are, in fact, living
instruments, which accompany the evolution of times and of the social milieu in
which the protected rights are exercised.31 The European Court of Human Rights
26 Ibid., pp. 2 and 6 (my translation from the original French). In fact, the impact of the
dimension of the rights of the human person was felt in institutions of private law.
27 To evoke the classic formulation of arbiter Max Huber in the Palmas Island case
(United States versus The Netherlands, 1928), in: U.N., Reports of International Arbi-
tral Awards, vol. 2, p. 845: “A juridical fact must be appreciated in the light of the law
contemporary with it, and not of the law in force at the time such a dispute in regard
to it arises or falls to be settled”. For a study of the matter, cf.: Institut de Droit Inter-
national, “[Résolution I:] Le problème intertemporel en Droit international public”,
56 AIDI (Session de Wiesbaden, 1975) pp. 536-541; M. Sorensen, “Le problème inter-
temporel dans l’application de la Convention Européenne des Droits de l’Homme”,
in Mélanges offerts à P. Modinos, Paris, Pédone, 1968, pp. 304-319.
28 For example, the whole historical process of decolonization, brought about by the
emergence and consolidation of the right of self-determination of peoples, was de-
cisively fostered by the evolution itself to this effect of contemporary international
law.
29 And in particular the concepts incorporated in Article 22 of the Covenant of the
League of Nations.
30 ICJ, Advisory Opinion on Namibia, ICJ Reports (1971) pp. 31-32, par. 53.
31 Cf., e.g., the Judgments of the European Court in the cases of Marckx versus Belgium
case (1979), Airey versus Ireland (1979) and Dudgeon versus United Kingdom (1981).
Cf. comments in, e.g., F. Ost, “Les directives d’interprétation adoptées par la Cour
Européenne des Droits de l’Homme - L’esprit plutôt que la lettre?”, in F. Ost and M.
van de Kerchove, Entre la lettre et l’esprit - Les directives d’interprétation en Droit,
Bruxelles, Bruylant, 1989, pp. 295-300.
[ECtHR] has reiterated that the European Convention on Human Rights “is a liv-
ing instrument” to be “interpreted in the light of present-day conditions”.32 It has
clarified that its evolutive interpretation is not limited to the substantive norms
of the Convention, but is extended likewise to operative provisions.33
The same evolutive interpretation, of the American Convention on Human
Rights, has been pursued by the Inter-American Court of Human Rights [IAC-
tHR].34 Thus, in its pioneering Advisory Opinion on The Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of
Law (1999), it singled out the evolution in time of the concept itself of due process
of law.35 In my Concurring Opinion therein, I saw it fit to ponder that
– “It is in the context of the evolution of the Law in time, in function of new needs
of protection of the human being, that, in my understanding, ought to be appreci-
ated the insertion of the right to information on consular notification (under Article
36(1)(b) of the aforementioned 1963 Vienna Convention [on Consular Relations] into
the conceptual universe of human rights. Such provision, despite having preceeded
in time the general treaties of protection – as the two Covenants on Human Rights
of the United Nations (of 1966) and the American Convention on Human Rights (of
1969), – nowadays can no longer be dissociated from the international norms on
human rights concerning the guarantees of the due process of law. The evolution
of the international norms of protection has been, in its turn, fostered by new and
constant valuations which emerge and flourish from the basis of human society, and
which are naturally reflected in the process of the evolutive interpretation of human
rights treaties”.36
V. The Presence of the Preventive Dimension in Domains of Protection

Rules of International Law crystallized in the past (pursuant to an essentially
inter-spatial dimension) and propitiated a static outlook of the international legal
order, nourished by the pretension or illusion of its perennial nature. The world
felt safe in global terms. In our days, amidst an acute consciousness of vulner-
ability, one begins to rethink those rules bearing in mind the temporal dimen-
sion, the incidence – perhaps less tangible, but real – and influence of which on
juridical solutions begins to be felt with increasing intensity, as a feature of our
32 Cf. ECtHR, Tyrer versus United Kingdom case, Judgment of 25.04.1978, Series A, n.
26, pp. 15-16, par. 31.
33 Including the right of individual petition; cf. ECtHR, Case of Loizidou versus Turkey
(Preliminary Objections), Strasbourg, C.E., Judgment of 23.03.1995, p. 23, par. 71.
34 Cf. IACtHR, Advisory Opinion OC-10/89, Interpretation of the American Declara-
tion of the Rights and Duties of Man, of 14.07.1989, Series A, n. 10, p. 45, par. 37.
35 IACtHR, Advisory Opinion OC-16/99, The Right to Information on Consular Assist-
ance in the Framework of the Guarantees of the Due Process of Law, of 01.10.1999,
Series A, n. 16, pp. 257-258, par. 117.
36 Ibid., Concurring Opinion of Judge A.A. Cançado Trindade, paragraph 15.
40 Chapter II
times. There is, in this connection, a much greater awareness of the relevance of
the preventive dimension in the role of law.
International Law in a way endeavours to be anticipatory in the regulation
of the social facts, so as to avoid disorder and chaos, as well as irreparable harm.
In recent developments concerning, in particular, environmental protection and
human rights protection, the preventive dimension becomes manifest. It appears
essential in the whole field of environmental protection, as exemplified by the key
role played by the precautionary principle in the process of formation and growth
of its corpus juris.37 The predominantly preventive character of the normative cor-
pus on environmental protection has been stressed time and time again.38
Moreover, the preventive dimension of international human rights pro-
tection is nowadays generally acknowledged, at distinct stages or levels, both
normative,39 or conceptual,40 as well as operative.41 In fact, the incidence of the
temporal dimension can be detected not only in the interpretation and applica-
tion of norms pertaining to guaranteed rights but also in the conditions of their
exercise (as in, e.g., public emergencies). Significantly, it can further be detected,
in particular, in the prevention of irreparable harm. Herein lies one of the areas
in which International Law has considerably evolved in recent years, the one con-
cerning the application of interim or provisional measures of protection.
37 Be it in a general formulation, such as that of the 1992 Rio Declaration on Environ-

ment and Development (Principle 15), or else in a concrete invocation, such as that
of the 1992 Helsinki Convention on the Protection and Use of Transboundary Wa-
tercourses and International Lakes (Article 2(5)(a)), to recall but a couple of illustra-
tions. - For a general study of that principle, cf. A. Trouwborst, Evolution and Status
of the Precautionary Principle in International Law, The Hague, Kluwer, 2002, pp.
1-286; and cf. [Various Authors,] Reinterpreting the Precautionary Principle (eds. T.
O’Riordan, J. Cameron and A. Jordan), London, Cameron May, 2002 [reprint], pp.
9-272; A. Trouwborst, Precautionary Rights and Duties of States, Leiden, Nijhoff,
2006, pp. 3-298.
38 In the recent cycle of U.N. World Conferences, the principle at issue was invoked;
thus, the 1996 Istanbul Declaration on Human Settlements, adopted by the II U.N.
Conference on Human Settlements, proposes a series of actions to be taken “in a
manner consistent with the precautionary principle approach, which shall be widely
applied according to the capabilities of countries”; U.N., Habitat Agenda and Istan-
bul Declaration (II U.N. Conference on Human Settlements, Istanbul, 03-14 June
1996), N.Y., U.N., 1996, p. 8.
39 Cf. n. (14) supra, in addition to international instruments turned to the prevention
of discrimination of distinct kinds.
40 E.g., the elements for the very defi nition of “refugee” under the 1951 Convention and
the 1967 Protocol on the Status of Refugees, namely, the well-founded fear of perse-
cution, the threats or risks of persecutions.
41 E.g., the U.N. practice of “early warning” as to prevention of refugee massive flows;
cf., e.g., B.G. Ramcharan, “Early-Warning at the United Nations: The First Experi-
ment”, 1 International Journal of Refugee Law (1989) pp. 379-386; and cf., in general,
B.G. Ramcharan, The International Law and Practice of Early-Warning and Preven-
tive Diplomacy: The Emerging Global Watch, Dordrecht, Nijhoff, 1991, pp. 1-174.
VI. The Expansion of Provisional Measures of Protection

Such measures, which have lately been gaining increasing importance in the
case-law of international tribunals, represent nowadays, in my view, a true in-
ternational jurisdictional guarantee of a preventive character. Th is has been ren-
dered possible by the historical transposition of provisional measures, from the
domestic legal systems to the international legal order, as well as their transpo-
sition from this latter – in the framework of Public International Law – to the
International Law of Human Rights.42 At the level of the domestic legal order, the
precautionary legal action (acción cautelar) evolved in order to safeguard not di-
rectly the subjective right per se, but rather the effectiveness of the jurisdictional
activity itself.43 However, this whole doctrinal construction did not achieve to
free itself from a certain juridical formalism, leaving at times the impression of
taking the process as an end in itself, rather than as a means for the realization
of justice.
Precautionary measures reached the international level (in the international
arbitral and judicial practice),44 in spite of the different structure of this latter,
when compared with the domestic law level. Their transposition from the do-
mestic to the international legal order had the effect of expanding the domain of
international jurisdiction.45 This innovative transposition faced difficulties,46 but,
throughout the years, the erosion of the concept of “reserved domain” of the State
(or “exclusive national competence”) became evident, – an evolution to which the
international judicial practice itself contributed.47
Article 41 of the Statute of the ICJ – and of its predecessor, the Permanent
Court of International Justice [PCIJ] – in fact set forth the power of the Hague
42 In fact, the precautionary measures, of internal procedural law, inspired the provi-
sional measures which developed subsequently in the ambit of international proce-
dural law.
43 It was above all the Italian procedural law doctrine of the first half of the XXth
century (especially the well-known works by G. Chiovenda, Istituzioni di Diritto
Processuale Civile, Naples, 1936; P. Calamandrei, Introduzione allo Studio Sistema-
tico dei Provvedimenti Cautelare, Padova, 1936; and F. Carnelutti, Diritto e Processo,
Naples, 1958), which gave a decisive contribution to affirm the autonomy of the pre-
cautionary legal action (acción cautelar), as a tertium genus, parallel to the legal ac-
tions as to the merits and of execution.
44 P. Gugggenheim, “Les mesures conservatoires dans la procédure arbitrale et judi-
ciaire”, 40 RCADI (1932) pp. 649-761.
45 P. Guggenheim, Les mesures provisoires de procédure internationale et leur influ-
ence sur le développement du droit des gens, Paris, Libr. Rec. Sirey, 1931, pp. 174, 186,
188 and 14-15, and cf. pp. 6-7 and 61-62; and cf. P. Guggenheim, “Les mesures con-
servatoires...”, op. cit. supra n. (44), pp. 758-759.
46 As illustrated, e.g., by the Iranian reaction to provisional measures indicated by the
ICJ in the case of the Anglo-Iranian Oil Company (United Kingdom versus Iran), on
05.07.1951.
47 Cf. chapter VII, infra.
42 Chapter II
Court to “indicate” provisional measures. The verb utilized generated a wide doc-
trinal debate as to its binding character, which did not hinder the development
of a vast case-law (of the PCIJ and the ICJ) on the matter.48 Yet, for not having the
ICJ, for more than five decades, given precision to the legal effects of the indica-
tion of its own provisional measures, such indefinition generated uncertainties in
theory and practice on the matter, leading to non-compliance, by the respondent
States, with provisional measures it indicated in recent years.49
It was necessary to wait for more than half a century, until in the judgment
of 27.06.2001 the ICJ came at last to the conclusion that its provisional measures
were binding!50 However, in spite of the uncertainties which have surrounded
the matter, international case-law sought to clarify the juridical nature of pro-
visional measures, of an essentially preventive character, indicated or granted
without prejudice to the final decision as to the merits of the respective cases.
Such measures came to be indicated or ordered by contemporary international,
as well as national, tribunals,51 seeking to secure that the parties abstain them-
selves, pendente lite, from any action which might increase or aggravate the con-
troversy and have a prejudicial effect in the execution of the future judgement as
to the merits.
The aforementioned transposition of such measures from the domestic to
the international order – specifically, to inter-State litigation, – does not seem
48 Cf. J. Sztucki, Interim Measures in the Hague Court – An Attempt at a Scrutiny,

Deventer, Kluwer, 1983, pp. 35-60 and 270-280; J.B. Elkind, Interim Protection – A
Functional Approach, The Hague, Nijhoff, 1981, pp. 88-152.
49 E.g., the provisional measures indicated (on 08.04.1993) in the case of the Appli-
cation of the Convention against Genocide (Bosnia-Herzegovina versus Yugoslavia
[Serbia and Montenegro]) were not complied with by the respondent State and did
not improve the situation in the region; K. Oellers-Frahm, “Anmerkungen zur einst-
weiligen Anordnung des Internationalen Gerichtshofs im Fall Bosnien-Herzegowina
gegen Jugoslawien (Serbien und Montenegro) vom 8 April 1993”, 53 Zeitschrift für aus-
ländisches öffentliches Recht und Völkerrecht (1993) pp. 638-656. Moreover, the pro-
visional measures indicated by the ICJ in the cases Breard (Paraguay versus United
States, on 09.04.1998) and LaGrand (Germany versus United States, on 03.03.1999)
were not complied with by the respondent State either, affecting the reputation of
this latter as well as the authority of the ICJ; Ch. Tomuschat, “International Law:
Ensuring the Survival of Mankind on the Eve of a New Century”, 281 RCADI (1999)
pp. 415-416.
50 Cf. ICJ, LaGrand case, Press Release 2001/16-bis, of 27.06.2001, pp. 1, 4-6 and 9-10.
51 Their generalized use at both national and international levels has led a contempo-
rary doctrinal trend to consider such measures as giving expression to a true general
principle of Law, common to virtually all national legal systems, and endorsed by the
practice of national, arbitral, and international tribunals; cf. L. Collins, “Provisional
and Protective Measures in International Litigation”, 234 RCADI (1992) pp. 23-24,
191, 214-215, 217, 232 and 234. And cf. also R. Bernhardt (ed.), Interim Measures In-
dicated by International Courts, Berlin/Heidelberg, Springer-Verlag, 1994, pp. 1-152;
E. García de Enterria, La Batalla por las Medidas Cautelares, 2nd. [enlarged] ed.,
Madrid, Civitas, 1995, pp. 25-385.
to have generated, in this particular, a fundamental change in the object of such

measures (maintenance of the equilibrium between the parties, as far as pos-
sible). This change only came to occur with the more recent transposition of the
provisional measures from the international legal order – the traditional con-
tentieux between States – to the International Law of Human Rights. It is in the
ambit of this latter that the provisional measures at last free themselves from the
juridical formalism of the legal science of the past, disclosing that Law does not
operate in the vacuum.
In the International Law of Human Rights, provisional measures go much
further in the matter of protection, revealing an unprecedented scope, and deter-
mining – by reason of their compulsory character – the effectiveness of the right
of individual petition itself at international level:52 in fact, in the present domain,
such measures, besides their essentially preventive character, effectively protect
fundamental rights, in so far as they seek to avoid irreparable harm to the human
person as subject of the International Law of Human Rights. In the ambit of this
latter, which is essentially a law of protection of the human being, provisional
measures reach effectively their plenitude, being endowed with a character, more
than precautionary, truly tutelary.53
In the inter-State contentieux, the power of a tribunal like the ICJ to indicate
provisional measures of protection in a case pending of decision aims at pre-
serving the equilibrium between the respective rights of the contending parties,54
avoiding an irreparable damage to the rights in litigation in a judicial process,55
52 R.St.J. MacDonald, “Interim Measures in International Law, with Special Reference

to the European System for the Protection of Human Rights”, 52 Zeitschrift für aus-
ländisches öffentliches Recht und Völkerrecht (1993) pp. 703-740.
53 A.A. Cançado Trindade, “Les Mesures provisoires de protection dans la jurispru-
dence de la Cour Interaméricaine des Droits de l’Homme”, 4 Revista do Instituto
Brasileiro de Direitos Humanos (2003) pp. 13-25.
54 Disclosing the importance traditionally attributed to the role of reciprocity in Inter-
national Law in general, so as not to incur into “contempt of court”; cf. E. Hambro,
“The Binding Character of the Provisional Measures of Protection Indicated by the
International Court of Justice”, in Rechtsfragen der Internationalen Organisation -
Festschrift für Hans Wehberg (eds. W. Schätzel y H.-J. Schlochauer), Frankfurt a/M,
1956, pp. 152-171.
55 This has been pointed out by the ICJ, for example, in the case of Fisheries Jurisdic-
tion (United Kingdom versus Iceland, ICJ Reports [1972] p. 16, par. 21, and p. 34, par.
22), in the case of the Hostages (United States Diplomatic and Consular Staff ) in
Teheran (United States versus Iran, ICJ Reports [1979] p. 19, par. 36), and, more re-
cently, in the case of Nicaragua versus United States (ICJ Reports (1984) pp. 179 and
182, pars. 24 and 32), and in the case of the Application of the Convention against
Genocide (Bosnia and Herzegovina versus Yugoslavia [Serbia and Montenegro], ICJ
Reports [1993] p. 19, par. 34, and p. 342, par. 35). And cf., e.g., the cases of the Frontier
Dispute (Burkina Faso versus Republic of Mali, 1986); of the Aegean Sea Continental
Shelf (Greece versus Turkey, 1976); of the Nuclear Tests (New Zealand and Australia
44 Chapter II
and bearing in mind the urgency of the situation at issue.56 Distinctly, in the in-
ternational contentieux of human rights, the power of a tribunal such as the IAC-
tHR to order provisional measures of protection, as already pointed out, has as
its central object to safeguard the human rights, in cases of extreme gravity and
urgency and to avoid irreparable harm to persons. Those measures thus become
a true jurisdictional guarantee of a preventive character, effectively protecting
not only fundamental rights,57 but also other human rights.58
Over the last five years, provisional measures ordered by the IACtHR have
significantly extended protection to members of whole communities. Thus, in
the case of the Community of Peace of San José of Apartadó, e.g., the full Court
ratified the urgent measures ordered (in the resolution of 09.10.2000) by its Presi-
dent in favour of the members of a “Community of Peace” in Colombia; the Court
extended protection (by means of the resolution of 24.11.2000) to all the mem-
bers of the Community (not named but identifiable), and requested the State,
inter alia, to secure the necessary conditions for the persons of the aforemen-
tioned Community “who had been forced to displace themselves to other zones
of the country, to return to their homes”.59 The IACtHR has kept on enlarging
versus France, 1973); of the Trial of Pakistani Prisoners of War (Pakistan versus India,
1973); among others.
56 Examples are provided by provisional measures indicated by the ICJ also in cases
concerning armed conflicts, such as those of the Frontier Dispute (Burkina Faso
versus Mali, Order of 10.01.1986), the Application of the Convention against Gen-
ocide (Bosnia-Herzegovina versus Yugoslavia, Order of 08.04.1993), the Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon versus Nigeria, Or-
der of 15.03.1996), the Armed Activities on the Territory of the Congo (Congo versus
Uganda, Order of 01.07.2000), the Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Georgia versus Russia, Order
of 15.10.2008).
57 Essentially the right to life and the right to personal – physical, mental and moral
– integrity.
58 Whenever are met the pre-conditions of the extreme gravity and urgency, and of
the prevention of irreparable damages to persons, set forth in Article 63(2) of the
American Convention. -This was precisely what has occurred in the last years. The
resolutions adopted in the cases of the Haitians and Dominicans of Haitian Origin
in the Dominican Republic and of the Community of Peace of San José of Apartadó,
e.g., have brought about a new development on the matter of major significance. In
the fi rst of those two cases, the Court adopted provisional measures of protection
(by means of its resolution of 18.08.2000), whereby it extended for the fi rst time pro-
tection to new rights (such as the right of trans-frontier freedom of movement, in
addition to the fundamental rights to life and personal integrity) under the Ameri-
can Convention; this provisional measure may be seen as representing the embryo
of an international habeas corpus.
59 Resolutory point n. 6.
considerably the circles of protected persons, in cases pertaining to whole com-

munities.60
The successive provisional measures of protection ordered by the IACtHR
in the cases of the Haitians and Dominicans of Haitian Origin in the Dominican
Republic (2000-2001)61 and of the Community of Peace of San José of Apartadó
(2003-2005)62 are endowed with particular importance, as in both cases they
considerably enlarged the groups of protected persons.63 And only in the case
of the Indigenous People Kankuamo versus Colombia (2004), the beneficiaries
of the measures of protection are about 6000 people.64 Thus, by the end of 2005,
more than 11000 persons (including members of entire communities), residing
in countries of Latin American and the Caribbean, were under protection of the
provisional measures ordered by the IACtHR. These data suffice to disclose the
extraordinary potential of protection, from an essentially preventive approach,
of such measures, and the notable dimension and the transcendence which they
have acquired in the last decade in the case-law of the IACtHR.
The ECtHR, on its part had the occasion to order65 a provisional measure
of protection (on 30.11.1999), in the case Ocalan versus Turkey (stay of execution
60 Such as, e.g., those of the Communities of the Jiguamiandó and of the Curbaradó
versus Colombia (Resolutions of 06.03.2003 and 17.11.2004), of the Kankuamo In-
digenous People concerning Colombia (Resolution of 05.07.2004), of the Sarayaku
Indigenous People concerning Equador (Resolution of 06.07.2004), among others.
61 Court’s resolutions of 07.08.2000, 18.08.2000, 12.11.2000 and 26.05.2001; and Presi-
dent’s resolutions of 16.06.2000 and 14.09.2000.
62 Court’s resolutions of 24.11.2000, 18.06.2002, 17.11.2004 and 15.03.2005; and Presi-
dent’s resolutions of 09.10.2000 and 26.04.2002.
63 Only in the aforementioned case of the Community of San José of Apartadó ver-
sus Colombia, the beneficiaries of the measures of protection are more than 1200
persons. The total of about 1500 protected persons attained until mid-2001 (supra)
has raised, in the following two years, up to about 4500 protected persons (until
mid-2003). Only in the case of the Communities of Jiguamiandó and Curbaradó
(2003-2005), of special interest for the study of the obligations erga omnes of protec-
tion, the provisional measures ordered by the Court protect currently a total of 2125
persons; Court’s resolutions 06.03.2003, 17.11.2004 and 15.03.2005.
64 Inter-American Court’s resolution of 05.07.2004. And in the case of the Indigenous
People Sarayaku versus Ecuador, the beneficiaries of the measures total about 1200
persons; among several other cases.
65 On the basis of the provision of Article 36 its Rules of Procedure, rather than a
conventional norm. It is somewhat surprising that the draftsmen of Protocol n. 11 to
the European Convention on Human Rights (in force as from 01.11.1998) have lost a
unique opportunity to erect the provision of Article 36 of the Rules of Procedure A
of the Court (which corresponded to Article 38 of its Rules of Procedure B, prior to
Protocol n. 11 to the European Convention), into a provision of the European Con-
vention itself (amended by such Protocol). Th is could definitively have put an end to
the uncertainties on the matter, raised as from the decision of the European Court
in the case Cruz Varas and Others versus Sweden (of 20.03.1991); cf. A. Spielmann
and D. Spielmann, “La Cour unique et permanente et les mesures provisoires (La
46 Chapter II
of death penalty), and the measure has so far been complied with by the respon-
dent State. In any case, in the European system of protection of human rights, in
its turn, the provisional measures of protection have taken place, in their great
majority, in cases of probability or risk of extradition or expulsion (allowing the
petitioner to stay in the country where he is, until the European Court decides
the merits of the cases), in circumstances which could, if consummated the ex-
tradition or expulsion, subject the individual, in the receiving country, to torture
or to inhuman or degrading punishment or treatment.66
Provisional measures of protection have also acquired particular impor-
tance in the recent case-law of the International Tribunal for the Law of the Sea
[ITLS]. As it occurs with the IACtHR, the prerrogative of the ITLS to “prescribe”
provisional measures of protection also has a conventional basis, their binding
character being thus, likewise, undisputed. The ITLS has issued successive or-
ders of provisional measures.67 Its case-law on the matter has been regarded as
“innovatory”;68 the preventive dimension of the measures ordered is quite clear,
as stressed by the Tribunal’s order in the Southern Bluefin Tuna cases (1999),
wherein it stated that the provisional measures at issue were to be taken so as
“to preserve the rights of the parties and to avert further deterioration of the
nécessité d’une réforme)”, in Protection des droits de l’homme: la perspective eu-

ropéenne - Mélanges à la mémoire de Rolv Ryssdal (eds. P. Mahoney, F. Matscher, H.
Petzold and L. Wildhaber), Köln/Berlin, C. Heymanns Verlag, 2000, pp. 1347-1358.
And cf. also, in this respect, A. Drzemczewski, “A Major Overhaul of the European
Human Rights Convention Control Mechanism: Protocol n. 11”, 6 Collected Courses
of the Academy of European Law (1995) pp. 190 and 170; and cf. M. Scalabrino, Il
Controllo sull’Applicazione della CEDU alla Vigilia dell’Entrata in Vigore dell’XI
Protocollo, Urbino/Italia, Università degli di Urbino, 1998, pp. 68-70.
66 In the terms of Article 3 of the European Convention of Human Rights. Cf. C.A.
Norgaard and H. Krüger, “Interim and Conservatory Measures under the European
System of Protection of Human Rights”, Progress in the Spirit of Human Rights -
Festschrift für Felix Ermacora (eds. M. Nowak, D. Steurer and H. Tretter), Kehl am
Rhein, N.P. Engel, 1988, pp. 109-117; P. van Dijk and G.J.H. van Hoof et alii, Theory
and Practice of the European Convention on Human Rights, 3rd. ed., The Hague,
SIM/Kluwer, 1998, pp. 103-107 and 215; G. Cohen-Jonathan, La Convention eu-
ropéenne des droits de l’homme, Paris/Aix-en-Provence, Economica/Presses Univer-
sitaires d’Aix-Marseille, 1989, pp. 36-37 and 307.
67 E.g., in the M/V Saiga case (Saint Vincent and the Grenadines versus Guinea, 1998,
- under Article 290(1) of the 1982 U.N. Convention on the Law of the Sea), as well as
in the Southern Bluefin Tuna cases (New Zealand and Australia versus Japan, 1999),
in the MOX Plant case (Ireland versus United Kingdom, 2001, - in these latter, under
Article 290(5) of the Law of the Sea Convention; for an account, cf. C. Rao, “ITLOS:
The First Six Years”, 6 Max Planck Yearbook of United Nations Law (2002) pp. 236-
270.), and, more recently, in the case concerning Land Reclamation by Singapore in
and around the Straits of Johor (Malaysia versus Singapore, 2003).
68 B. Kwiatkowska, “The Saint Vincent and the Grenadines v. Guinea M/V Saiga Cas-
es”, 11 Leiden Journal of International Law (1998) p. 562.
southern bluefin tuna stock”.69 In sum, provisional measures of protection have

enabled international tribunals to secure gradually, besides the protection of a
preventive character (supra), a continuous monitoring of the compliance, on the
part of the States at issue, with the aforementioned measures ordered by them,
thus fostering the strengthening of this procedural remedy of crucial importance
to the protection of the fundamental rights of the human person.70
VII. The Myopia of Political “Realism”

Despite the current and remarkable developments aforementioned disclosing a
greater awareness of the incidence of the temporal dimension of International
Law, both legal positivism and political “realism”, which appear to remain en
vogue in several legal circles in our days, seem oblivious of that temporal dimen-
sion in their static outlook of International Law and relations. They concentrate
on what they perceive as the “reality” of the moment, ascribing an element of
permanency to what is historically a point in the evolution of International Law
and relations. They envisage the State as a perennial actor and relations of power
as ineluctable, oblivious of the historical facts which gave birth to the State. They
insist on focusing current needs and aspirations of humankind from the strictly
inter-State perspective of International Law. In so doing, they bow to what they
regard as the primacy of relations of dominance over law, and the primacy of the
established order over the imperatives of justice. Legal positivism and political
“realism” have, thus, not surprisingly, been invariably subservient to power.
The former Nobel prize in literature (1946), Hermann Hesse, once recalled a
scene, in the spring of 1919, when, in a small international meeting of intellectual
“idealists” in Berne, the proposition was formulated that “in the future no one
could compel any man to kill other men, ‘not even at the service of the country
[patria]’. Until here we have arrived”, – pondered Hesse; “the law formulated by
Moses in the Sinai [-”Thou shall not kill”] comes to be raised again, many thou-
sands of years later, by a small society of persons with good intentions, with limi-
tations and a cautiously timid drafting”.71 No positivist could anticipate, in the
mid-forties, the emergence and consolidation of the International Law of Human
Rights. No realist could foresee, in the mid-fi fties, the advent of the phenomenon
69 Paragraph 80. The urgency of the situation was properly acknowledged, and the time
factor has played a key role in the development of this specific case-law; cf. Ph. Gau-
tier, “Interim Measures of Protection before the International Tribunal for the Law
of the Sea”, in Current Marine Environmental Issues and the International Tribunal
for the Law of the Sea (eds. M.H. Nordquist and J.N. Moore), The Hague, Nijhoff,
2001, pp. 243-253.
70 A.A. Cançado Trindade, “The Evolution of Provisional Measures of Protection un-
der the Case-Law of the Inter-American Court of Human Rights (1987-2002)”, 24
Human Rights Law Journal - Strasbourg/Kehl (2003) pp. 162-168.
71 H. Hesse, Sobre la Guerra y la Paz (transl. of Krieg und Frieden), 5th ed., Barcelona,
Ed. Noguer, 1986, p. 119.
48 Chapter II
of decolonization. The emancipation of the human person vis-à-vis his own State
and the emancipation of peoples in International Law took place much to the
amazement of legal positivists and political “realists”. No realist could forecast
the fall of the Berlin wall, in the late eighties. Neither legal positivists, nor po-
litical “realists”, can understand – and have difficulties to accept – the profound
transformations of contemporary International Law in pursuance of the impera-
tives of justice.
Legal positivists and political “realists” pretended that the reality they
worked upon was permanent and inevitable, but what has actually happened is
that, perplexed by change, they have had to move from one historical moment
to another, an entirely different one. Trying to readjust themselves to the new
empirical “reality”, they again attempt to apply to it the static scheme they are
used to. Resistant to change, they overlook the deep changes which led to the
new “reality” they have started working upon, and again project their illusion
of “inevitability” into the future and sometimes – out of despair – also into the
past. Their basic blunder is their minimization of the principles, which lie in the
foundations of every legal system, national and international, and which inform
and conform the norms72 and the action pursuant to them, in the search of real-
ization of justice. Whenever such minimization prevailed the results have been
disastrous.
They have not resisted disclosing at times their pride for what they regard as
their sense of “pragmatism”. But apart from pragmatism as a philosophical pos-
ture (in realizing that the truth we can attain is not always infallible), when put
into practice, without guiding principles and proper orientation, pragmatism has
a “more sinister side”.73 It can easily lead, and has often led, to exaggerations, to
fabrication of “public opinion”, to persecution of people for their personal opin-
ions (other than the prevailing one), to acts of abhorrent violence in different
parts of the world. The damages of unprincipled pragmatism prolong indefinite-
ly in time, and its praxis is deprived of the temporal dimension: pragmatism is
practiced in the heat of the moment.
In a small and precious booklet published in 1940 (enshrining an outburst
against the horrours of the ongoing II world war, which threatened to turn into
ashes the values of civilization), a distinguished European thinker launched one
of the most vehement critiques of the posture of so-called political “realists”. To
Jacques Maritain, the international legal order could not emerge from the devas-
tation of the war without a deep moral renovation, which, in turn, required the
flourishing and presence in the “collective conscience” of a sense of “human com-
munity”; this latter seemed to have been forgotten by the “damnée malfaisance
des politiques soi-disant réalistes séparées des lois inflexibles de la justice”.74 He
72 Cf. chapter III, infra.

73 As warned by Bertrand Russell, Sceptical Essays, London, Routledge, 1993 [reprint],
p. 49.
74 J. Maritain, De la justice politique - Notes sur la présente guerre, Paris, Libr. Plon,
1940, pp. 36-37, 40-41 and 44-45.
added that all those who were proud of their own “realism”, failed to understand
such a “clear lesson”, namely, that human relations become less and less capable
of providing welfare to the extent that they become more and more divorced
from justice. By entirely ignoring ethics and justice, political “realism” presented
as its results the “permanent war”, the “forced transfers of populations”, the “con-
centration camps” and other atrocities, the “ruin and slavery of peoples”. And the
French humanist pondered lucidly:
“L’illusion fondamentale du machiavélisme et du pseudo-réalisme politique provient

du décalage chronologique entre la durée que les actes politiques demandent pour
porter leur fruit historique, et qui s’étend normalement sur plusieurs générations, et
la durée dont dispose notre observation, et qui ne dépasse pas la vie d’un homme (...).
On peut toutefois se demander si à un époque où toutes choses s’accélèrent prodi-
gieusement, la durée demandée par cette fructification ne devient pas plus courte,
en même temps que la culture de l’injustice devient elle-même plus intensive”.75
And he concluded that, in face of the “deep spiritual crisis” that the world was
undergoing, for the existence of harmonious and fruitful relations among peo-
ples to persist in a durable way, it was necessary that “les peuples reconnaîssent et
observent les principes de droit naturel international” governing and developing
those relations; only natural law could provide a solid foundation for that.76
Thirteen years later, the sharp criticism of “realism” was retaken by Hersch
Lauterpacht; in a paper delivered in 1953, he detected as features of “realist”
thinking, from the writings of Machiavelli and Hobbes to their modern suc-
cessors, the “facile and complacent thinking” and the political “opportunism or
worse” in stressing only conflicts of interests and advantages among States, and
the tendency to see only “the obvious and the conspicuous”, only what hits one’s
eyes, devoid of any historical perspective and insights. Furthermore, “realists”
are regrettably contemptuous of long-range fundamental principles guiding hu-
man action, and accept and take for granted “the immorality of the conduct of
States” as a “permanent factor inherent in their existence as collective units”.77 In
their shortsightedness, – he added, – they have plunged into “moral relativism”,
failing to condemn aggression and ignoring “binding rules of conduct”. They are
pessimistic about the capacity of human beings to learn from historical experi-
ence and their capacity to improve.78 He concluded that “realists”, being “super-
75 Ibid., pp. 106-107, and cf. pp. 88 and 90-91.

76 Ibid., pp. 112-114.
77 H. Lauterpacht, “On Realism, Especially in International Relations”, in Internation-
al Law Being the Collected Papers of Hersch Lauterpacht, vol. 2, part I, Cambridge,
University Press, 1975, pp. 53 and 57-62. The opportunism of political “realists” ex-
plain, e.g., why they have viewed “with disapproval” the idea of collective security;
ibid., p. 63.
78 By their attitude, “realists” fail even to realise that “national power and interest con-
ceived as the exclusive aim, ‘realistically pursued’, must lead, if they become a gen-
50 Chapter II
ficially attractive” in their invariable attitude, have copied one from the other
throughout time, denying the value of principles and of reason, and in their lack
of faith in the capacity of human beings “to act intelligently and to learn from
experience”.79 Further sweeping criticisms of “realism” were undertaken by Isa-
iah Berlin, invoking objective universal values,80 and R. Falk, for its being unduly
State-centred and oriented towards conflict.81
Not surprisingly, political “realists” remain numerous, despite those lucid
criticisms. After all, to be a realist, or a legal positivist, does not require much
learning. “Realists” are too easy to follow, and they regrettably keep on being
followed nowadays, in a world engulfed into violence ensuing from intolerance
and persistent and aggravating injustice within and among nations. In fact, at
this beginning of the XXIst century, the world is again plunged into another
deep spiritual crisis, which appears ultimately as a crisis of values. The world we
live in stands in great need nowadays of an international legal order capable of
regulating effectively the relations between all its subjects, and of fulfilling the
needs and aspirations of the international community as a whole, among which
the realization of justice.
VIII. Concluding Observations

In sum and conclusion, the temporal dimension is inherent to legal science and
underlies the whole domain of Law. International Law makes no exception to
that, being interpreted and applied in time. This does not necessarily imply some
sort of historical “relativism”; it is in the nature of Law to accompany the evolu-
tion of the regulatory function in society, giving expression to certain values.
One cannot rewrite International Law – as great powers at times seem to as-
sume – by one’s own “will”. International Law emerges ultimately from human
conscience, it has a protective function, and, in the exercise of such a function, it
discloses a preventive dimension.82
Contrary to what some “realists” argue today, what is preventive and an-
ticipatory is Law, and not the use of force. The needs and aspirations of human-
kind can be fulfi lled by Law, rather than discretionary use of force, in the pursuit
of the realization of justice. The temporal dimension has marked its presence
throughout the whole cycle of the recent World Conferences of the United Na-
eral pattern of behaviour, to war and anarchy with all their implications destructive
of most things that matter”; ibid., pp. 58, 62 and 64.
79 Cf. ibid., pp. 61, 63 and 65.
80 I. Berlin, The Crooked Timber of Humanity, Princeton, University Press, 1997 [re-
print], pp. 11, 200 and 204.
81 R. Falk, La Globalización Depredadora - Una Crítica, Madrid, Ed. Siglo Veintiuno,
2002, pp. 84-86, and cf. pp. 54 and 63.
82 As illustrated nowadays, e.g., by the impressive expansion of provisional measures
of protection.
tions;83 attention was constantly drawn, e.g., to common responsibilities towards

present and future generations.84 Awareness of this temporal dimension in Inter-
national Law guards us against the hermetism of legal positivism and the short-
sightedness of so-called “realists”. Nowadays, more than ever, attention needs
to be drawn to the fundamental principles of International Law, crystallized in
time, and to its foundations, given the current attempts at its deconstruction by
the irresponsible heralds of the use of force. The international legal order needs
to move forward as a truly new jus gentium of our times, an International Law
for humankind, and not backwards in time, to an outdated paradigm of relations
based on dominance and unwarranted use of force.
Rather than a return to the classic natural law, it is a matter of affirma-
tion or restoration of a standard of justice, heralded by the general principles of
law, whereby positive law is evaluated. The experiences of our times, with their
“repellent cruelties and injustice under cover of positive law”, have come to con-
firm that certain fundamental principles ought to be “objectively valid” for “every
human community at any time”. International Law is to move forward towards
“greater justice” and a “higher level of humanity”.85 And, throughout time, hu-
manitas has been associated with values of ancient cultures, and, ultimately, with
the very “spiritual and moral formation” of human beings.86 Contemporary Inter-
national Law is expected to reflect the fundamental values shared by the inter-
national community and to respond to the needs and aspirations of humankind
as a whole.

84 To recall but one eloquent example of the awareness of that dimension, the 2001
Durban Declaration and Programme of Action, adopted by the World Conference
against Racism, Racial Discrimination, Xenophobia and Related Intolerance, e.g.,
stressed the projection of injustices and human suffering in time (however pro-
longed that projection might be or have been) and the need for legal responses to
honour the memory and restore the dignity of the victims, to redress the wrongs,
and to prevent recurrence (pars. 98-101, 106 and 158). The Durban final document
made a point of leaving on the records, inter alia, the consciousness of the fact that
“the history of humanity is replete with major atrocities as a result of gross viola-
tions of human rights and (...) lessons can be learned through remembering history
to avert future tragedies” (par. 57).
85 F. Castberg, “Natural Law and Human Rights”, 1 Revue des droits de l’homme / Hu-
man Rights Journal (1968) p. 37, and cf. pp. 21-22.
86 G. Radbruch, Introducción a la Filosofía del Derecho, 3rd. ed., Mexico/Buenos Aires,
Fondo de Cultura Económica, 1965, pp. 153-154.
Part II
Foundations of International Law

Chapter III Foundations of International Law:
The Role and Importance of Its Basic
Principles
I. Introduction
One cannot study International Law making abstraction of its foundations, oth-
erwise it would be reduced to an instrumental of the establishment of interna-
tional order. International Law goes much further than that, in the quest of hu-
mankind for the realization of justice at both national and international levels.
Nor can one study the foundations of International Law making abstraction of its
basic principles, which form the substratum of the legal order itself. It is indeed
the principles of International Law which, permeating the corpus juris of the dis-
cipline, render it a truly normative system. Without those principles, the norms
and rules of International Law would not have evolved, by their implementation,
into a legal system.1 Those principles inspire the evolving jus gentium, in which
basic considerations of humanity have an important role to play.2
Those principles are a manifestation of the international juridical con-
science, they reflect the status conscientiae of the subjects of International Law.3
Although such principles (as those listed in Article 2 of the U.N. Charter) may
be open, given their generality, to distinct interpretations,4 they retain their im-
portance for the proper application of the norms and rules, and for guiding the
evolution of the entire legal system,5 so that this latter may readjust to the chang-
1 P.G. Vallindas, “General Principles of Law and the Hierarchy of the Sources of Inter-
national Law”, in Grundprobleme für internationalen Rechts – Festschrift für Jean
Spiropoulos, Bonn, Schimmelbusch & Co., 1957, pp. 426 and 430-431.
2 Cf. chapters XVI to XXIII, infra.
3 A. Verdross, “Les principes généraux de Droit dans le système des sources du Droit
international public”, in Recueil d’études de Droit international en hommage à Paul
Guggenheim, Genève, IUHEI, 1968, p. 525.
4 Cf., e.g., G. Tunkin, “‘General Principles of Law’ in International Law”, in Interna-
tionale Festschrift für A. Verdross (eds. R. Marcic et alii), München/Salzburg, W.
Fink Verlag, 1971, pp. 525-532.
5 M. Virally, “Le rôle des ‘principes’ dans le développement du Droit international”,
in Recueil d’études de Droit international en hommage à P. Guggenheim, Genève,
IUHEI, 1968, pp. 543, 546-547 and 553-554.
56 Chapter III
ing circumstances of international life, respond to the changing needs of the in-
ternational community, and contribute to fulfi l the aspirations of humankind.
II. The Position and Role of the General Principles of Law

Every legal system has fundamental principles, which inspire, inform and con-
form their norms. It is the principles (derived ethmologically from the Latin prin-
cipium) that, evoking the first causes, sources or origins of the norms and rules,
confer cohesion, coherence and legitimacy upon the legal norms and the legal
system as a whole. It is the general principles of law (prima principia) which con-
fer to the legal order (both national and international) its ineluctable axiological
dimension; it is they that reveal the values which inspire the whole legal order
and which, ultimately, provide its foundations themselves.6 This is how I conceive
the presence and the position of the principles in any legal order, and their role in
the conceptual universe of Law.
The general principles of law entered into the legal culture, with histori-
cal roots which go back, e.g., to Roman law, and came to be linked to the very
conception of the democratic State under the rule of law, mainly as from the
influence of the enlightenment thinking (pensée illuministe). Despite the appar-
ent indifference with which they were treated by legal positivism (always seeking
to demonstrate a “recognition” of such principles in positive legal order), and
despite the lesser attention dispensed to them by the reductionist legal doctrine
of our days, yet one will never be able to prescind from them. From the prima
principia the norms and rules emanate, which in them find their meaning. The
principles are thus present in the origins of Law itself, and disclose the legitimate
ends to seek: the common good (of all human beings, and not of an abstract col-
lectivity), the realization of justice (at both national and international levels), the
necessary primacy of law over force, the preservation of peace. Contrary to those
who attempt – in my view in vain – to minimize them, I understand that, if there
are no principles, nor is there truly a legal system.
The identification of the basic principles has accompanied pari passu the
emergence and consolidation of all the domains of Law, and all its branches (con-
stitutional, civil, civil procedural, criminal, criminal procedural, administrative,
and so forth). This is so with Public International Law (cf. infra), with the In-
ternational Law of Human Rights,7 with International Humanitarian Law,8 with
6 Cf., to this effect, Inter-American Court of Human Rights [IACtHR], Advisory

Opinion n. 18, on The Juridical Condition and the Rights of the Undocumented Mi-
grants, of 17.09.2003, Concurring Opinion of Judge A.A. Cançado Trindade, pars.
44-58.
7 Principles of the dignity of the human person, of the universality and indivisibility
of human rights, of the inalienability of human rights.
8 Principles of humanity, of proportionality, of distinction (between combatants and
the civil population), principle whereby the election of methods or means of combat
is not unlimited.
Foundations of International Law: The Role and Importance of Its Basic Principles 57
International Refugee Law,9 with International Criminal Law.10 However circum-

scribed or specialized a legal regime may be, its basic principles can there be
found, as, e.g., in International Environmental Law,11 in the Law of the Sea,12 in
the Law of Outer Space,13 among others.14 The International Labour Organization
[ILO] itself, e.g., has sought to identify the fundamental principles and rights in
work, by means of a Declaration adopted in June 1998.
Some of the basic principles are proper to certain areas of Law, others per-
meate all areas. The corpus of legal norms (national or international) operates
moved by the principles, some of them ruling the relations themselves between
human beings and the public power.15 The principles enlighten the path of legal-
ity as well as legitimacy. Hence the constant reaffirmation or restoration, pursu-
ant to the evolving natural law thinking, of a standard of justice, heralded by
the general principles of law, whereby positive law has come to be evaluated. In
sustaining that opinio juris is above the “will” of the State, F. Castberg has cor-
rectly pondered that
“the experiences of our own age, with its repellent cruelties and injustice under
cover of positive law, have in fact confi rmed the conviction that something – even
though it is only certain fundamental norms – must be objectively valid. This may
consist of principles which appear to be valid for every human community at any
time (...). The law can and should itself move forward in the direction of (...) a higher
level of humanity”.16
9 Principles of non-refoulement, and of humanity.

10 Principles of legality (nullum crimen sine lege, nulla poena sine lege), of individual
penal responsibility, of presumption of innocence, of non-retroactivity, of a fair tri-
al.
11 E.g., principles of precaution or due dilligence, of prevention, of common but dif-
ferentiated responsibility, of intergenerational equity, polluter-pay principle.
12 E.g., principles of common heritage of mankind (ocean floors), of peaceful uses of
the sea, of equality of rights (in the high seas), of peaceful settlement of disputes,
of freedom of navigation and of inocent passage, of equidistance and of special cir-
cumstances (delimitation of maritime spaces).
13 E.g., principles of non-appropriation, of peaceful uses and ends, of sharing of ben-
efits in space exploration.
14 E.g., in the legal regime applicable to foreigners, principles of the unity of the family,
and of prohibition of extradition whenever this latter presents risks of violations of
human rights.
15 As the principles of natural justice, of the rule of law, of the rights of the defence, of
the right to the natural judge, of the independence of justice, of the equality of all
before the law, of the separation of powers, among others.
16 F. Castberg, “Natural Law and Human Rights”, 1 Revue des droits de l’homme / Hu-
man Rights Journal (1968) p. 37, and cf. pp. 21-22.
58 Chapter III
This perennial resurgence of the natural law outlook17 has been much contribut-
ing to the affi rmation and consolidation of the primacy, in the order of values, of
the obligations pertaining to human rights, vis-à-vis the international commu-
nity as a whole.18 General principles of law have contributed to the formation of
normative systems of protection of the human person. A true legal system ought
to operate on the basis of its fundamental principles.19 Recourse to such princi-
ples, endowed with continuing validity, has taken place, at the substantive level,
as a response to the new necessities of protection of the human being. In the
case, e.g., of the armed conflicts in Central America, which broke out in the late
seventies and aggravated in the region in the early eighties, generating hundreds
of thousands of refugees and displaced persons, one of the major concerns of the
U.N. High Commissioner for Refugees (UNHCR) was to establish its grounds of
action for providing protection and assistance to those in need of it, on the basis
of the principles and criteria which should guide its action. On two occasions the
UNHCR dwelt upon the examination of such principles and criteria to guide the
application of the norms and rules of International Refugee Law in the aforemen-
tioned case of the armed conflicts in Central America.
In a document adopted in 1989 resulting from consultations of a group of
experts,20 reference was made to the principles contained in the 1984 Cartagena
Declaration on Refugees,21 complemented by the practice of the affected States
and of international organizations. Half a decade later, in a new document, ad-
opted in 1994, also resulting from consultations of another group of experts,22 an
assessment was undertaken of the application of those principles. In both docu-
ments the UNHCR stressed the fundamental importance of the principle of non-
refoulement, cornerstone of refugee protection, applicable irrespectively of any
formal determination of the condition of refugee by a State or an international
organization, and largely regarded as belonging to the domain of jus cogens.23 The
17 Cf., e.g., L. Le Fur, “La théorie du droit naturel depuis le XVIIe. siècle et la doctrine
moderne”, 18 Recueil des Cours de l’Académie de Droit International de La Haye
[RCADI] (1927) pp. 297-399; A. Truyol y Serra, “Théorie du Droit international public
– Cours général”, 183 RCADI (1981) pp. 142-143; A. Truyol y Serra, Fundamentos de
Derecho Internacional Público, 4th. rev. ed., Madrid, Tecnos, 1977, pp. 69 and 105.
18 J.A. Carrillo Salcedo, “Derechos Humanos y Derecho Internacional”, 22 Isegoría
– Revista de Filosofía Moral y Política – Madrid (2000) p. 75.
19 G. Abi-Saab, “Cours général de Droit international public”, 207 RCADI (1987) p.
378.
20 Formed by H. Gros Espiell, S. Picado and L. Valladares Lanza.
21 Restated in the 1994 San José Declaration on Refugees and Displaced Persons; cf.
Diez Años de la Declaración de Cartagena sobre Refugiados (Memoria del Coloquio
Internacional, San José of Costa Rica, 1994), San José of Costa Rica, UNHCR/IIHR,
1995, pp. 11-470.
22 Formed by A.A. Cançado Trindade, R. Galindo-Pohl and C. Sepúlveda.
23 UNHCR, I. Principios y Criterios para la Protección y Asistencia a los Refugiados,
Repatriados y Desplazados Centroamericanos en América Latina / II. Evaluación
perennial search for the guiding principles and the care and attention to the need
of compliance with them, and with the norms and rules ensuing therefom, are
revealing of the belief in their continuing validity.
In International Humanitarian Law, e.g., the 1949 Geneva Conventions and
their Protocols of 1977, essentially victim-oriented, are inspired above all by the
overriding principle of humanity, which calls for respect to the human person in
any circumstances and at all times. As well pointed out by J. Pictet, the general
principles in this domain permeate the whole corpus juris of International Hu-
manitarian Law, which discloses a “caractère impératif (jus cogens) et non dis-
positif”;24 those principles are, ultimately, identified with the very foundations
of International Humanitarian Law. In this connection, it has been persuasively
argued25 that, rather than attempting to identify provisions of the 1949 Geneva
Conventions, or of the 1977 Additional Protocols, that might be regarded as ex-
pressing general principles, one ought to consider the whole of those Conven-
tions and other humanitarian law treaties as being the expression – and the de-
velopment – of those general principles, applicable in any circumstances, so as to
secure a more effective protection of the victimized.26
III. The Fundamental Principles as Substratum of the Legal Order Itself

The general principles of law have thus inspired not only the interpretation and
the application of the legal norms, but also the law-making process itself of their
elaboration. They reflect the opinio juris, which, in its turn, lies on the basis of
the formation of Law.27 Such principles mark presence at both national and in-
ternational levels. There are fundamental principles of law which identify them-
selves with the very foundations of the legal system, revealing the values and
ultimate ends of the international legal order, guiding it, protecting it against
the incongruencies of the practice of States, and fulfilling the necessities of the
international community.28 Such principles, as expression of an objective “idea of
de la Puesta en Práctica de las Disposiciones de Dicho Documento, San José of Costa

Rica, UNHCR, 1994, pp. 2 and 7-9 (1st. doc.), and pp. 5-8 (2nd. doc.).
24 J. Pictet, Développement et principes du Droit international humanitaire, Genève/
Paris, Inst. H.-Dunant/Pédone, 1983, pp. 104-105, and cf. pp. 8, 53, 68-69 and 73-74.
25 On the basis of obiter dicta of the International Court of Justice [ICJ] in the Nicara-
gua versus United States case (1986).
26 R. Abi-Saab, “Les ‘principes généraux’ du Droit humanitaire selon la Cour Interna-
tionale de Justice”, 766 Revue internationale de la Croix-Rouge (1987) pp. 386 and
389.
27 On the wide scope of the opinio juris in the formation of contemporary Interna-
tional Law, cf. chapters V-VI, infra.
28 G. Cohen-Jonathan, “Le rôle des principes généraux dans l’interprétation et
l’application de la Convention Européenne des Droits de l’Homme”, in Mélanges
en hommage à L.E. Pettiti, Bruxelles, Bruylant, 1998, pp. 192-193; M. Koskenniemi,
“General Principles: Reflexions on Constructivist Thinking in International Law”, in
60 Chapter III
justice”, have a universal scope, requiring the observance of all States, and secur-
ing, – as lucidly pointed out by A. Favre in 1968, – the unity of Law, as from the
idea of justice, to the benefit of the whole humankind.29 It is evident that these
principles of law do not depend on the “will”, nor on the “agreement”, nor on the
consent, of the subjects of law; the fundamental rights of the human person are
the “necessary foundation of every legal order”.30
As vehemently proclaimed by the 1948 Universal Declaration of Human
Rights, in a rare moment of enlightenment,
“All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of broth-
erhood”.
The safeguard and prevalence of the principle of respect of the dignity of the hu-
man person are identified with the end itself of Law, of the legal order, both nation-
al and international. By virtue of this fundamental principle, every person ought
to be respected by the simple fact of belonging to the human kind, independently
of her condition, of her statute of citizenship or her migratory status,31 or any other
circumstance.32 The principle of the inalienability of the rights inherent to the hu-
Sources of International Law (ed. M. Koskenniemi), Aldershot, Ashgate/Dartmouth,

2000, pp. 360-365, 377, 381, 387, 390 and 395-398.
29 A. Favre, “Les principes généraux du droit, fonds commun du Droit des gens”, in Re-
cueil d’études de Droit international en hommage à P. Guggenheim, Genève, IUHEI,
1968, pp. 374-376, and cf. pp. 369 and 379.
30 Ibid., pp. 376-380, 383, 386 and 389-390.
31 And it could not be otherwise, as human rights are universal and inherent to all
human beings, while the rights of citizenship vary from country to country and
encompass only those which the positive law of the State considers citizens. – In
its memorable Advisory Opinion n. 18 on The Juridical Condition and the Rights of
the Undocumented Migrants (of 17.09.2003), the Inter-American Court of Human
Rights [IACtHR] has expressly referred to the principles of the dignity of the human
person and of the inalienability of the rights inherent to her (par. 157). Moreover, in
its jurisprudence constante, the IACtHR, in interpreting and applying the American
Convention, has also always resorted to the general principles of law; cf., e.g., IAC-
tHR, case of the Five Pensioners versus Peru (Judgment of 28.02.2003), par. 156; and
cf. also IACtHR, Advisory Opinion n. 17, on The Juridical Condition and Human
Rights of the Child (of 28.08.2002), pars. 66 and 87; IACtHR, Advisory Opinion n. 16,
on The Right to Information on Consular Assistance in the Framework of the Guar-
antees of the Due Process of Law (of 01.10.1999), pars. 58, 113 and 128. Among these
principles, those which are endowed with a truly fundamental character, referred to
herein, form in reality the substratum of the legal order itself, revealing the right to
the Law of which are titulaires all human beings; A.A. Cançado Trindade, Tratado
de Direito Internacional dos Direitos Humanos, vol. III, Porto Alegre/Brazil, S.A.
Fabris Ed., 2003, pp. 524-525.
32 B. Maurer, Le principe de respect de la dignité humaine et la Convention Européenne
des Droits de l’Homme, Paris, CERIC/Univ. d’Aix-Marseille, 1999, p. 18.
man being, in turn, is identified with a basic premise of the construction of the
whole corpus juris of the International Law of Human Rights.
If, by chance, any doubts are raised as to the extent of application of the fun-
damental principles which permeate the whole international legal order, it is the
function of the jurist to clarify such doubts and not to perpetuate them, so that
Law may accomplish its fundamental function of providing justice.33 It is certain
that the norms are the ones juridically binding, but when they move away from
the principles, their application leads to breaches of individual rights and to seri-
ous injustices (e.g., discrimination de jure), and one incurs into distortions, and
grave violations of the legal order at issue itself.
In reality, when one recognizes the fundamental principles which conform
the substratum of the legal order itself, we enter into the domain of jus cogens,
of peremptory law;34 such principles are indispensable (the jus necessarium), are
prior and superior to the will; they express the idea of an “objective justice” (prop-
er of natural law), and are consubstantial to the international legal order itself.35
Already in 1935, in his lectures delivered at the Hague Academy of International
Law, A. Verdross invoked the “general principle of jus cogens”.36 In dismissing the
voluntarist conception of International Law, he sustained that
“(...) il faut reconnaître que l’idée du droit ne peut entrer dans la vie humaine que
par l’intermédiaire d’une conscience humaine qui la formule (...). Le droit des gens
ne peut avoir d’autre base que tout droit, à savoir, l’idée du droit et les principes qui
en découlent”.37
Those principles are “recognized by the juridical conscience”, and it is in the light
of those principles that “tout le droit des gens doit être interprété et appliqué”.38
33 M. Chemillier-Gendreau, “Principe d’égalité et libertés fondamentales en Droit in-

ternational”, in Liber Amicorum Judge M. Bedjaoui (eds. E. Yakpo and T. Boume-
dra), The Hague, Kluwer, 1999, pp. 659-669.
34 Cf. chapter XII, infra.
35 R. Kolb, Théorie du jus cogens international, Paris, PUF, 2001, pp. 98, 104-105 and
110-112.
36 And referred, in this connection, to the Separate Opinion of Judge Schücking in the
Oscar Chinn case (1934) before the Permanent Court of International Justice [PCIJ];
cf. A. Verdross, “Les principes généraux du droit dans la jurisprudence internation-
ale”, 52 RCADI (1935) pp. 206 and 243.
37 A. Verdross, “Les principes généraux du droit...”, op. cit. supra n. (36), pp. 202-203,
and cf. p. 222.
38 Ibid., pp. 224 and 227; he added that one is to be led by such “idée fondamentale du
droit” (ibid., p. 235).
62 Chapter III
IV. The Acknowledgement of General Principles of Law by the Statute of

the Hague Court (PCIJ and ICJ)
1. General Principles of Law and the Quest for Justice

In the course of the drafting of the Statute of the Permanent Court of Inter-
national Justice [PCIJ], in June-July 1920, the Advisory Committee of Jurists
entrusted with that task, throughout the memorable debates pertaining to the
“sources” of International Law (Article 38 of the Statute), dwelt upon the role
of principles in any legal system (whether at domestic or at international level).
From the start, E. Root argued that the Committee should limit itself to “rules
contained in conventions and positive international law”, otherwise the States,
in his view, would not accept its draft.39 In opposition to this view, M. Loder
remarked that there were recognised rules which were “not yet of the nature of
positive law”, but were respected all over the world, and it was the duty of the
Court (PCIJ) to develop the law, to “ripen (...) principles universally recognised”,
so as to “crystallise them into positive rules”.40 The Committee’s President, Baron
Descamps, pondered that the law of nations was formed not only by recognized
rules, “but also by the demands of public conscience”; and as to E. Root’s state-
ment that “the principles of justice varied from country to country”, Baron Des-
camps replied significantly that
“that might be partly true as to certain rules of secondary importance. But it is no

longer true when it concerns the fundamental law of justice and injustice deeply
engraved on the heart of every human being and which is given its highest and most
authoritative expression in the legal conscience of civilized nations”.41
That, in Descamps’s view, was the law which could not be disregarded by judges,
and “it would be incumbent on them to consider whether the dictates of their
conscience” were in agreement with the prevailing conception of justice. To him,
judges should render their decisions in conformity with the dictates of “the legal
conscience of civilised nations”.42 To Lord Phillimore, in turn, the general prin-
ciples of law (referred to in the proposed draft) were those “which were accepted
by all nations in foro domestico”.43 Seeking a conciliation of the views expressed,
on the one hand, by Baron Descamps, and, on the other hand, by E. Root, Raul
39 PCIJ/Advisory Committee of Jurists, Procès-Verbaux of the Proceedings of the Com-

mittee (16 June/24 July 1920) with Annexes, The Hague, Van Langenhuysen Brothers,
1920, p. 294.
40 Ibid., p. 294. E. Root retorted that the world was not yet prepared to accept the com-
pulsory jurisdiction of a Court which would apply “universally recognized rules”
and “principles, differently understood in different countries”; ibid., pp. 308-309.
41 Ibid., pp. 310-311.
42 Ibid., pp. 311 and 318-319.
43 Ibid., p. 335.
Fernandes argued that if the judges were confined to apply only treaties and posi-
tive international law (as suggested by E. Root), in many cases the “possibility of
administering justice” in legal relations between States would be “taken away
from them”; more often than not judges would find it necessary to resort to guid-
ing general principles, because
“the principles are always based on justice, while strict law often departs from it”.44
In international affairs, – added R. Fernandes, – where “legislation is lacking”

and customary law is of a rather slow formation, “the practical necessity of rec-
ognizing the application of such principles is much greater”; in any case, – he
concluded, – the Court (PCIJ) could not become a “registry” for the “acts of the
strong against the weak”.45 At the end of the Committee’s work, the general prin-
ciples of law were acknowledged as integrating the formal “sources” of Interna-
tional Law listed in Article 38 of the Statute of the Hague Court (the PCIJ, and,
later, the ICJ).
In this understanding, they were taken to mean, basically, those principles of
law found in foro domestico, in the national legal systems.46 Parallel to them, the
international legal system itself has evolved in the light of certain fundamental
principles, distinct from the general meaning attributed to general principles of
law (supra), although some of these latter have been transposed to international
procedural law as well. While admitting channels of communication between
the two sets of principles, principles of international law can be appropriately
approached in a distinct way, not only strictly as one of the formal “sources” of
International Law, but, beyond that, as further pertaining to the substratum of
all international legal norms, and, accordingly, to the very foundations of the
international legal system.
2. Principles of International Law as Pillars of the International Legal

System
Notwithstanding, considerably more attention was devoted to the principles of
International Law half a century ago than in our days. Yet, those principles re-
tain their utmost importance, as they inform and conform the legal norms of
any legal system. Successive doctrinal works were dedicated particularly to the
study of the principles of International Law, already in the first half of the XXth
century,47 in the framework of the foundations of the discipline and the consid-
44 Ibid., pp. 345-346.

45 Ibid., p. 346.
46 E.g., bona fides, res judicata, equality before the law, presumption of innocence,
prohibition of abuse of rights, among others.
47 An exposé de motifs of a declaration of principles of International Law, published on
the eve of the outbreak of the II world war, called for a reconstruction of Interna-
tional Law bearing in mind not only positive law, but also the principles, which ori-
64 Chapter III
eration of the validity of its norms. In the fifties48 and the sixties49 some courses
delivered at the Hague Academy of International Law addressed the theme of the
principles of International Law, which was retaken in monographs in the sixties50
and the seventies.51 Subsequently, except for a few works,52 there appeared to oc-
cur, rather surprisingly, a decline in the interest in the study of the matter, paral-
ented legal norms and rules, and which, in the view of Alejandro Álvarez, prevailed
in the whole of International Law, and appeared as “manifestations of the juridical
conscience of the peoples”; A. Álvarez, Exposé de motifs et Déclaration des grands
principes du Droit international moderne, 2nd. ed., Paris, Éds. Internationales, 1938,
pp. 8-9 and 16-23, and cf. pp. 27 and 51. And cf., generally, e.g., L. Rodrigues Pereyra,
Princípios de Direito Internacional, vols. I and II, Rio de Janeiro, J. Ribeiro dos San-
tos Ed., 1902 and 1903; C. Bevilaqua, Direito Público Internacional (A Synthese dos
Princípios e a Contribuição do Brasil), Rio de Janeiro, Livr. Fr. Alves, 1911; T.J. Law-
rence, Les principes de droit international, 5th. ed. (transl. J. Dumas and A. de La
Pradelle), Oxford, University Press, 1920, pp. 99-120; P. Derevitzky, Les principes du
Droit international, Paris, Pédone, 1932; Ch. Rousseau, Principes généraux du Droit
international public, vol. I, Paris, Pédone, 1944; Bin Cheng, General Principles of
Law as Applied by International Courts and Tribunals, London, Stevens, 1953; G.
Scelle, Précis de droit des gens – principes et systématique, Paris, Rec. Sirey, 1934.
48 Cf. H. Rolin, “Les principes de Droit international public”, 77 RCADI (1950) pp. 309-
479; G. Schwarzenberger, “The Fundamental Principles of International Law”, 87
RCADI (1955) pp. 195-385; P. Guggenheim, “Les principes de Droit international
public”, 80 RCADI (1952) pp. 5-189; Ch. Rousseau, “Principes de Droit international
public”, 93 RCADI (1958) pp. 369-549; G. Fitzmaurice, “The General Principles of
International Law, Considered from the Standpoint of the Rule of Law”, 92 RCADI
(1957) pp. 1-223.
49 Cf. M. Sorensen, “Principes de Droit international public”, 101 RCADI (1960) pp.
1-251; P. Reuter, “Principes de Droit international public”, 103 RCADI (1961) pp. 429-
656; R.Y. Jennings, “General Course on Principles of International Law”, 121 RCADI
(1967) pp. 327-600.
50 Cf. M. Miele, Principi di Diritto Internazionale, 2nd. ed., Padova, Cedam, 1960; L.
Delbez, Les principes généraux du contentieux international, Paris, LGDJ, 1962; L.
Delbez, Les principes généraux du Droit international public, 3rd. ed., Paris, LGDJ,
1964; H. Kelsen, Principles of International Law, 2nd. ed., N.Y., Holt Rinehart &
Winston, 1966; W. Friedmann, “The Uses of ‘General Principles’ in the Development
of International Law”, 57 American Journal of International Law (1963) pp. 279-299;
M. Virally, “Le rôle des ‘principes’ dans le développement du Droit international”,
Recueil d’études de Droit international en hommage à Paul Guggenheim, Genève,
IUHEI, 1968, pp. 531-554; M. Bartos, “Transformations des principes généraux en
règles positives du Droit international”, Mélanges offerts à Juraj Andrassy, La Haye,
Nijhoff, 1968, pp. 1-12.
51 Cf., e.g., B. Vitanyi, “La signification de la ‘généralité’ des principes de droit”, 80
Revue générale de Droit international public (1976) pp. 536-545.
52 Cf., e.g., I. Brownlie, Principles of Public International Law, 6th. ed., Oxford, Claren-
don Press, 2003; A.A. Cançado Trindade, Princípios do Direito Internacional Con-
temporâneo, Brasília, Edit. University of Brasília, 1981.
lel to the dissemination of a seemingly – and regrettable – pragmatic approach to

the study of International Law.
Although concern with the need to consider the principles of International
Law appears to have declined in the last quarter of century, those principles have,
nevertheless, always marked their presence in the doctrine of International Law,
including the contemporary one.53 Principles of International Law permeate the
entire international legal system, playing an important role in international law-
making as well as in the application of international law.54 In some cases, such as,
e.g., in the Law of Outer Space, they have paved the way for the construction of
a new corpus juris, in a new domain of International Law which required regula-
tion, and the principles originally proclaimed have fully retained their value to
date.55
Principles of International Law are guiding principles of general content,
and in that they differ from the norms or rules of positive international law, and
transcend them. As basic pillars of the international legal system (as of any legal
system), those principles give expression to the idée de droit, and furthermore to
the idée de justice, reflecting the conscience of humankind.56 Irrespective of the
distinct approaches to them, those principles stand ineluctably at a superior level
than the norms or rules of positive international law. Such rules and norms are
binding, but it is the principles which guide them.57 Without these latter, rules or
techniques could serve whatever purposes. This would be wholly untenable.
V. The 1970 U.N. Declaration on Principles of International Law

concerning Friendly Relations and Cooperation among States Revisited
1. General Considerations in Historical Perspective

A quarter of a century after the adoption of the U.N. Charter, the principles
set forth therein were restated in the Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States in Accord-
ance with the United Nations Charter, adopted by the U.N. General Assembly
on 24 October 1970. State representatives undertook the task of restating those
principles, pursuant to consultations and proposals made by the U.N. General
53 Cf., e.g., inter alia, H. Thierry, “L’évolution du Droit international – Cours général
de Droit international public”, 222 RCADI (1990) pp. 123-185; G. Abi-Saab, “Cours
général de Droit international public”, op. cit. supra n. (19), pp. 328-416.
54 G. Herczegh, General Principles of Law and the International Legal Order, Buda-
pest, Akadémiai Kiadó, 1969, pp. 90, 122 and 126.
55 Cf. M. Lachs, “Le vingt-cinquième anniversaire du traité régissant les principes du
droit de l’espace extra-atmosphérique, 1967-1992”, 184 Revue française de droit aér-
ien et spatial (1992) n. 4, pp. 365-373, esp. pp. 370 and 372.
56 G.M. Danilenko, Law-Making in the International Community, Dordrecht, Nijhoff,
1993, pp. 7, 17 175 and 186-187, and cf. p. 215.
57 Bin Cheng, General Principles of Law..., op. cit. supra n. (47), p. 393.
66 Chapter III
Assembly (1960-1962). The travaux préparatoires were entrusted to the Special

Committee on Principles of International Law Concerning Friendly Relations
and Cooperation among States, established in 1963.58 The Special Committee
held six sessions in the period between 1964 and 1970, which led to the adoption
of the Declaration, that purported to reflect the prevailing opinio juris communis
on the principles of International Law embodied therein.59
The Declaration was formulated and adopted in an international scenario
marked by the historical phenomenon of decolonization, the articulation of the
non-aligned movement, the nuclear stalemate, and the endeavours to secure the
peaceful coexistence of all States.60 Its preparatory work, which started in Mex-
ico City in 1964, and ended in 1970, benefitted from other historically important
Declarations adopted by the U.N. General Assembly.61 The debates on the matter
disclosed the prevailing view whereby the 1970 Declaration was to constitute
an “authentic interpretation” of the U.N. Charter and a restatement of its prin-
ciples,62 which were to have a bearing on subsequent custom as well as treaty-
making,63 being thus regarded also as an exercise of “progressive development”
of International Law.64
The seven paragraphs of Article 2 of the U.N. Charter listed respectively
seven basic principles, namely: equality of all the member States of the United
58 The Committee was set up on 16.12.1963 as a subsidiary organ of the VI Commit-

tee of the General Assembly, and composed of representatives of States; initially, in
1964, 27 Delegations, and in the following year having arisen to 31, with geographi-
cal distribution, namely: Western Europe and North America, 8; Africa, 7; Asia, 6;
Latin America, 5; and Eastern Europe, 5.
59 Cf. M. Sahovic, “Codification des principes du Droit international des relations
amicales et de la coopération entre les États”, 137 RCADI (1972) pp. 262-263, 272 and
274; R. Rosenstock, “The Declaration of Principles of International Law Concern-
ing Friendly Relations: A Survey”, 65 American Journal of International Law [AJIL]
(1971) p. 735.
60 M. Sahovic, “Codification des principes...”, op. cit. supra n. (59) pp. 255-261; and cf.
J. Castañeda, “The Underdeveloped Nations and the Development of International
Law”, 15 International Organization (1961) pp. 38 and 44-48.
61 E.g., 1960 Declaration on the Granting of Independence to Colonial Coutries and
Peoples, 1962 Declaration on Permanent Sovereignty of States over Their Natural
Resources, and 1965 Declaration on the Inadmissibility of Intervention in the Inter-
nal Affairs of States and the Protection of Their Independence and Sovereignty; cf.
G. Arangio-Ruiz, “The Normative Role of the General Assembly of the United Na-
tions and the Declaration of Principles of Friendly Relations”, 137 RCADI (1972) pp.
431-432.
62 Although its formulation of the principles (1970 Declaration) was not identical to
that of the principles set forth in Article 2 of the U.N. Charter.
63 H. Blix, “The Helsinki Declaration on Principles Guiding Relations Between States
in Europe”, 31 Revue egyptienne de droit international (1975) p. 4, and cf. pp. pp. 1-
15.
64 U.N., document A/6547, pars. 24-25.
Nations; compliance in good faith with the obligations undertaken in accordance

with the Charter; peaceful settlement of international disputes; prohibition of
the use or threat of force against the territorial integrity or political indepen-
dence of any State; assistance to the United Nations in an operation which it
may resort to; guarantee that non-member States act in accordance with such
principles; non-intervention by the United Nations in matters which fall under
the domestic jurisdiction of any State (except for enforcement measures under
chapter VII of the Charter). On its turn, the 1970 Declaration set forth the fol-
lowing seven fundamental principles: prohibition of, or renunciation to, the use
or threat of force in international relations; peaceful settlement of international
disputes; non-intervention; duty of international cooperation; equality of rights
and self-determination of peoples; sovereign equality of States; good-faith in the
compliance with international obligations.
Already in its first session (Mexico City, 1964), the Special Committee was
clearly aware of the hard task before it,65 amidst the threat of destruction of hu-
mankind by the arms race, the need of peaceful coexistence among States with
different socio-economic systems, the decolonization process, and initiatives of
the epoch to foster development,66 – added to other changes that had occurred
at international level in the previous two decades. In the session of New York of
1966, it was recommended to bear constantly in mind the interrelationship be-
tween the principles to be formulated.67 In the Special Committee’s third session
(Geneva, 1967), the Draft Declaration was related to the chapter of the “sources”
of “universal international law”.68 The fact that the Special Committee and the VI
Committee of the General Assembly succeeded in concluding their work, under
the pressure of events, in such a turmoiled environment, should not pass un-
noticed: looking back in time, in historical perspective, it appears much to their
credit to have restated in 1970, on the basis of consensus,69 the needed principles
concerning friendly relations and cooperation among States in accordance with
the U.N. Charter.
65 Cf. L.T. Lee, “The Mexico City Conference of the U.N. Special Committee on Prin-
ciples of International Law Concerning Friendly Relations and Cooperation Among
States”, 14 International and Comparative Law Quarterly (1965) pp. 1296 et seq.
66 It need only be recalled that the decade had been particularly disturbed, by epi-
sodes such as the war of Vietnam, the Arab-Israeli conflict, the Cuban missile crisis,
added to those of the Dominican Republic and of Tchecoslovakia, among others.
67 U.N., document A/6547, par. 34; and cf. U.N., document A/6955, par. 32.
68 U.N., document A/6955, pars. 31 and 123. – In fact, in the Special Committee’s de-
bates of 1967 one of the delegates saw it fit to warn, in 1967, as if in anticipation
to what was actually to occur three years later, that only if the Draft Declaration
of Principles was ultimately adopted by the General Assembly with unanimous or
quasi-unanimous approval, could it be said that it expressed a “universal juridical
conviction” to be thus related to the “sources” of International Law set forth in Ar-
ticle 38(1)(c) of the ICJ Statute. U.N., document A/6955, par. 109.
69 Cf. U.N., document A/6955, par. 30.
68 Chapter III
Today, 35 years having lapsed since the adoption of that memorable Declara-
tion of Principles, the question may be raised whether, and to what extent, the
principles set forth therein are still recognized as such. In order to address this
question, and for a better appreciation of the principles enshrined into the 1970
Declaration, it would be adequate to recall, albeit succintly,70 the main points of
the long preparatory work of the U.N. Special Committee on the Principles of
International Law concerning Friendly Relations and Cooperation among States,
with special attention to the process of formulation of those principles.
2. The Formulation of the Principles of International Law

Throughout the whole work of the Special Committee, one of the most widely
debated of the seven principles enunciated was that of the prohibition of the use
or threat of force in international relations.71 The principle at issue, set forth in
Article 2(4) of the U.N. Charter, was regarded as “the foundation of the interna-
tional juridical order”,72 integrating “the very essence of International Law, in a
world of interdependent States (...) in which the arms race continued”.73 The Spe-
cial Committee debates kept in mind, besides Article 2(4) of the U.N. Charter,
further express references to the principle of non-use or threat of force found in
some inter-American instruments,74 in the 1964 Cairo Declaration of the Non-
Aligned Countries, and in the 1949 Draft Declaration on the Rights and Duties
of States prepared by the U.N. International Law Commission [ILC].75 Other ref-
erences were further made, e.g., to the condemnation, by both the U.N. General
Assembly and the Security Council, of the use or threat of force by certain States
on some occasions.76
70 For a fuller account, cf., e.g., A.A. Cançado Trindade, Princípios do Direito Interna-
cional Contemporâneo, Brasília, Edit. University of Brasília, 1981, pp. 51-94.
71 Within the Committee, there were those who considered that principle, together
with that of equality of rights and self-determination of peoples, and that of non-in-
tervention in the domestic affairs of States, as “the three most important principles
for the maintenance of international peace and security”; U.N., document A/6955,
par. 23.
72 Ibid., par. 37.
73 U.N., document A/7809, par. 14.
74 Including the provision of Article 17 of the OAS Charter, which categorically affirmed
the principle of the territorial inviolability of the State and condemned measures of
force. Cf., on the matter, e.g.: OAS, document OEA/Ser.I/VI.2 – CIJ-58, Inter-Amer-
ican Juridical Committee, “Opinion on the Legal Aspects of the Draft Declaration
on Non-Intervention Presented by the Mexican Delegation”, of 22.09.1960, pp. 1-12;
Comité Jurídico Interamericano, “Diferencias entre Intervención y Acción Colec-
tiva”, in Recomendaciones e Informes, Documentos Oficiales – vol. IX, Opinion of
23.09.1965, pp. 111-127.
76 Resolution 2160(XXI) of 1966 of the U.N. General Assembly was recalled, more than
once; cf. ibid., pars. 37, 41, 44 and 48.
Despite all these elements, the debates of the Special Committee did not
pass without difficulty, particularly when tackling the use of force in “colonial
situations”, raised by the [then] recently emancipated States.77 To some repre-
sentatives (particularly from Afro-Asian States) “self-defence against colonial
domination should be regarded as an exception to the general rule, since (...) co-
lonialism was an act of force and constituted indeed an aggression”.78 On this
specific point, at the end of four years of debates, the view prevailed among the
participating Delegations that, in the world of that time, the expression “interna-
tional relations” could no longer be limited to purely inter-State relations, since,
e.g., relations between a non-self-governing territory and an authority entrusted
with its administration had an “international character”, in the light of the “in-
ternational responsibilities” set forth in chapter XI of the U.N. Charter.79
The condemnation of the “war of aggression” was peremptory, and a proposal
by [then] Tchecoslovaquia to this effect80 found no difficulty to be approved, giv-
en the precedents in international practice.81 One participant, in dwelling upon
the historical evolution of the principle proclaimed in Article 2(4) of the U.N.
Charter, affirmed that “in contemporary international law the prohibition of the
use of force had become a norm of jus cogens”.82 Other points were considered:83
as to the meaning and scope to be attributed to the term “force”, for example, in
the long debates that took place84 most representatives of Afro-Asian States, and
of Eastern European States, and of some Latin American States, favoured such
77 Cf. U.N., documents A/7809, par. 15; A/6547, pars. 41 and 43; A/6165, par. 31; A/6955,
par. 49.
78 U.N., document A/6955, par. 49. – In this respect, cf. comments, on resolutions
1514(XV) and 2621(XXV) of the U.N. General Assembly, of A. Rigo Sureda, The Evo-
lution of the Right of Self-Determination, Leiden, Sijthoff, 1973, pp. 261-264; and cf.
also S. Calogeropoulos-Stratis, Le droit des peuples à disposer d’eux-mêmes, Brux-
elles, Bruylant, 1973, pp. 120-133; U.O. Umozurike, Self-Determination in Interna-
tional Law, Hamden/Conn., Archon Books, 1972, pp. 3-299.
79 R. Rosenstock, op. cit. supra n. (59), p. 720.
80 Cf. U.N., document A/AC.125/L.16, par. 2. On the Czech initiative, cf. also P.-H.
Houben, “Principles of International Law Concerning Friendly Relations and Co-
operation Among States”, 61 AJIL (1967) pp. 705-706.
81 International instruments going back to the 1928 Briand-Kellogg Pact. Several rep-
resentatives stressed the need to invoke, in the formulation of the principle, the
“responsibility of States which waged wars of aggression or committed other crimes
against peace”; U.N., document A/6955, par. 42.
82 Ibid., par. 38.
83 E.g., it was pointed out that the prohibition of threat or use of force should refer “not
only to (national) frontiers but also to other international lines of demarcation”;
U.N., documents A/6547, par. 41, and A/6165, par. 22; as exemplified by what was
occurring, in those days, e.g., in Vietnam, Corea, Germany, and the Middle East.
84 Cf. U.N., document A/6547, par. 37 (“armed force”); cf. further, U.N., documents
A/6165, par. 25; A/7809, par. 20; A/6547, par. 38 (“political or economic pressure”).
And cf. U.N., documents A/6955, par. 41; A/6547, par. 38.
70 Chapter III
a wide interpretion of the prohibition of “force”, while a more restrictive inter-

pretation was supported by the delegates of Western States, some other Latin
American States and other individual States. The 1970 Declaration did not man-
age to provide a clear answer to the problem, – in the view of some deliberately,
– in opting for a rather more abstract drafting of the principle at issue so as to
overcome the difficulty.85
In the debates on the formulation of the second principle, that of peace-
ful settlement of international disputes, the old maxim was reiterated that the
acceptance by States of a given procedure of peaceful settlement of existing or
future disputes, which they were parties to, should not be regarded as incom-
patible with the “sovereign equality of States”.86 Some Delegations argued that
“negotiation, mediation and conciliation were methods which could be used to
alter an existing juridical situation, while the methods of arbitration and judicial
settlement applied the law as it existed”.87 Different views were expressed on the
effectiveness of negotiations,88 and references were made to the functions of po-
litical organs of international organizations – both the United Nations (Security
Council and General Assembly) and regional organizations – in the settlement
of disputes.89
The third principle considered by the Special Committee, that of the duty
of non-intervention, was strongly supported, e.g., by the representatives main-
ly of Latin American and also of Eastern European States.90 In the debates of
the Special Committee, it was contended that the principle of non-intervention
amounted in fact to a principle of International Law of Latin American origin.91
85 The same uncertainties were to be found also in expert writing, disclosing either a
wider interpretation of the prohibition of force (G. Arangio-Ruiz, “The Normative
Role...”, op. cit. supra n. (61), pp. 529-530), or a rather stricter one (R. Rosenstock,
“The Declaration of Principles...”, op. cit. supra n. (59), pp. 724-725).
86 For the insistence on this last point, cf., e.g., U.N., documents A/6547, par. 47; and
A/6165, par. 34. And cf., generally, e.g., U.N., documents A/6230, pars. 157-272; and
A/5746, pars. 128-201.
88 U.N., document A/6547, par. 49; on the element of good faith in the peaceful settle-
ment of disputes, cf. ibid., par. 50.
89 U.N., documents A/6165, pars. 36-37; and A/6547, par. 51. And cf. chapter XXIV,
infra.
90 Cf. U.N., document A/6955, par. 89.
91 In this respect, it was recalled that the principle at issue, already contained in the
Drago doctrine, was considered in the Inter-American Conference of Havana of
1928, and for the first time formally affi rmed in the 1933 Montevideo Convention on
the Rights and Duties of States, and subsequently set forth by the Inter-American
Conference of Buenos Aires of 1936 in the Additional Protocol on Non-Intervention.
That principle, reiterated in the Conferences of Lima of 1938 and of Chapultepec
of 1945, received its wider and more rigorous formulation in the Pact of Bogotá of
1948 and in the provisions of Articles 15 and 16 of the OAS Charter; U.N., document
A/AC.119/SR.30, pp. 4-5, and cf. also p. 7. Thus, – in the view of the Mexican delegate
It was further pondered that, given the difficulties of defining intervention in all
its forms, it should be incumbent upon the “international competent organs” to
determine in each concrete case whether intervention had occurred or not.92 It
was further agreed that the U.N. General Assembly resolution 2131(XX) of 1965,
containing the Declaration on the Inadmissibility of Intervention in the Inter-
nal Affairs of States and the Protection of Their Independence and Sovereignty,93
should serve as basis for the work of the Committee, for expressing a “universal
juridical conviction” in the principle of non-intervention and for having been
adopted without any votes against it.94
The outcome of the work of the Special Committee on the duty of non-in-
tervention was significant. The principle, as formulated by the Committee, was
unequivocal is providing that “armed intervention and all other forms of inter-
ference or attempted threats against the personality of the State or against its
political, economic and cultural elements, are in violation of International Law”;
it further stipulated that “no State may use or encourage the use of economic,
political or any other type of measures to coerce another State in order to obtain
from it the subordination of the exercise of its sovereign rights and to extract
from it advantages of any kind”. The text added that “every State has an inalien-
able right to choose its political, economic, social and cultural systems, without
interference in any form by another State”.95 The formulation by the Special Com-
(J. Castañeda), – “the inter-American concept of non-intervention was universally

applicable”; U.N., document A/AC.119/SR.30, p. 11. – On the principle of non-inter-
vention in the inter-American system, cf., e.g., C. Sepúlveda, Las Fuentes del Dere-
cho Internacional Americano, Mexico, Ed. Porrúa, 1975, pp. 77-84 and 95-103; C.
Sepúlveda, “The Reform of the Charter of the Organization of American States”,
137 RCADI (1972) pp. 96-98 and 102-108; anc cf. also I. Fabela, Intervention, Paris,
Pédone, 1961, pp. 67-212. – Subsequently, in an Opinion published in January 1962
on the “Contribution of the American Continent to the Principles of International
Law Concerning the Responsibility of the State”, the OAS Inter-American Juridi-
cal Committee inter alia considered the principle of non-intervention as the most
fundamental one of the inter-American system, for being at the time “contractually
binding for 21 American Republics”; OAS, doc. OEA/Ser.I/VI.2 – CIJ-61, ch. IV, pp.
9-12.
92 U.N., document A/AC.119/SR.30, p. 21. And cf. also U.N., docs. A/AC.119/SR.26, pp.
5-6; and doc. A/AC.119/SR.28, pp. 7-9. – As to prior endeavours of the States to cod-
ify the principle of non-intervention, cf. U.N., document A/5671, p. 23.
93 Cf. U.N., documents A/6955, pars. 80-82, and A/6547, par. 54. And, on that resolu-
tion, cf., generally, e.g., N. Ouchakov, “La compétence interne des États et la non-
intervention dans le droit international contemporain”, 141 RCADI (1974) pp. 65-80.
94 Cf. U.N., document A/6955, pars. 83 and 53; and cf. U.N., documents A/6230, p. 134;
A/6547, par. 52; A/8018, suppl. 18, p. 14, and cf. pp. 36-37.
95 Text in: U.N. General Assembly, Resolutions Adopted on the Report of the Sixth
Committee – 25th Session, 1970, p. 213 (A.G. res. 2625(XXV) of 1970): cf. also U.N.,
document A/8028, suppl. 28, p. 123, and cf. pp. 121-124.
72 Chapter III
mittee of the duty of non-intervention was categorical in condemning interven-

tion in all its forms.
At the very start of the debates of the Special Committee on the fourth prin-
ciple, that of the duty of international cooperation, it was pondered that such
cooperation should always take place “on the basis of the absolute equality of
States”.96 References were then made to regional endeavours of cooperation in the
area of development and technical assistance.97 In the Geneva session of 1967 of
the Special Committee, there was support for the inclusion, in the formulation of
the principle, of a clause providing for the duty of cooperation of the States in the
promotion of respect for, and observance of, human rights and the elimination of
all forms of racial discrimination and religious intolerance.98 If, on the one hand,
there were areas which continued, more than ever, to require urgently the coop-
eration of States, such as, inter alia, those of disarmarment, exploration of outer
space, protection of the environment, exploration of ocean resources, erradica-
tion of hunger, peaceful uses of Antarctica, – on the other hand one should ac-
knowledge the intense activity of international cooperation developed in recent
years within the United Nations and regional organizations, which appeared as
an expression of the opinio juris sive necessitatis of States.99
The consideration of principles of international law by the Special Commit-
tee did not limit itself to a simple reassessment of the basic principles already
found in Article 2 of the U.N. Charter, but extended itself also to principles the
contents of which were, at that time, still in evolution, such as that of the equality
of rights and self-determination of peoples.100 References were made to relevant
resolutions of the U.N. General Assembly on decolonization.101 In the prolonged
96 U.N., document A/6165, par. 52; and cf. also U.N., document A/6955, par. 56.
97 Cf., U.N., documents A/6230, pars. 414-445; and A/6799, pars. 114-170.
98 U.N., document A/6955, par. 58, and cf. pars. 51, 53 and 55. – In recalling Article 23 of
the Covenant of the League of Nations and Articles 13, 55 and 56 of the U.N. Charter,
one representative remarked that the principle of cooperation among States encom-
passed also their duty to cooperate in the juridical field as well, and “particularly
in the progressive development of International Law and its codification”; E. Ustor,
“The Principle of Co-operation Among States and the Development of International
Law”, in Questions of International Law (Hungarian Branch of the International Law
Association), Budapest, Progresprint, 1971, pp. 245-246; and cf. also, on the principle
at issue, E. McWhinney, “Friendly Relations and Co-operation Among States: De-
bate at the Twentieth General Assembly, United Nations”, 60 AJIL (1966) p. 360.
99 E. Ustor, op. cit. supra n. (98), pp. 244-245.
100 U.N., documents A/6955, pars. 62-63 and 71; A/7831, pars. 22-24 and 27; A/6547, par.
69.
101 Such as, e.g., resolutions 1514(XV) of 1960 (the contents of which were particularly
significant for the conceptualization of self-determination in the context of decolo-
nization), 2105(XX) of 1965 (of support to movements of national liberation), as well
as resolutions 2160(XXI) of 1966, 1541(XV) of 1960, and 2131(XX) of 1965; U.N., doc-
uments A/7831, par. 22, A/6547, par. 71, A/6955, pars. 62 and 65. – It is to be noted,
however, that the definitive formulation of the principle in the Declaration of 1970
debates on the principle at issue,102 there was support for the view that States had
to abstain themselves from any action contrary to the exercise of self-determi-
nation, and that colonial peoples struggling for emancipation were entitled to
search for and receive all kinds of assistance in accordance with the principles
and purposes of the U.N. Charter.103 This was one of the rare and exceptional
situations in which the use of force, thus understood, was contemplated, on be-
half of colonial peoples and in the light of the U.N. Charter.104
An attempt was made to draw a distinction between the typical cases of self-
determination (in the immediately colonial context) and those of secession (in
an already independent country).105 In any case, the formulation of the principle
of self-determination ranked among the significant achievements of the Special
Committee, particularly for the contribution to the progressive development of
International Law (cf. infra), bearing in mind that until then some States had not
yet accepted self-determination as a right of peoples.
The consideration by the Special Committee of the principle of sovereign
equality of States may at first sight have appeared as conducive to a simple reas-
sertion of Article 2(1) of the U.N. Charter. Yet, its continuing importance was
stressed, and a new element emerged in relation to Article 2(1), namely, the rec-
ognition in the debates by the Committee members of the right of the State to
free choice and development of its political, social, economic and cultural sys-
tems.106 Throughout the work on the formulation of that principle, there was a
constant concern with de facto inequalities among States, which, – it was be-
lieved, – should not be “legalized”.107 One of the points most often debated was
surely the right of States to dispose freely of their wealth and their natural re-
sources, which was considered an essential aspect of the principle at issue in
did not quote expressly any of those resolutions of the U.N. General Assembly. G.A.
Resolution 2621(XXV) of 1970 contained the Plan of Action for the Full Implementa-
tion of the Declaration on the Granting of Independence to Colonial Countries and
Peoples.
102 Cf., e.g., U.N., documents A/6799, pars. 171-235; and A/6230, pars. 456-521.
103 U.N., documents A/6165, par. 61; and A/7831, par. 28.
104 U.N., document A/7831, pars. 29-30; and cf., on the matter, J. Zourek, L’interdiction
de l’emploi de la force en droit international, Leiden/Genève, Sijthoff/Institut H.-
Dunant, 1974, ch. XI, pp. 93-112; D. Touret, “La Déclaration universelle des droits
des peuples”, 55 Revue de droit international de sciences diplomatiques et politiques
(1977) pp. 296-297; and cf., generally, I. Brownlie, International Law and the Use of
Force by States, Oxford, Clarendon Press, 1963, pp. 1-436.
105 Cf. U.N., documents A/7831, par. 26; and A/6955, par. 68.
106 Cf., e.g., U.N., documents A/5746, pars. 293-352; A/6799, pars. 409-437; and A/6230,
pars. 356-413.
107 Cf., U.N., documents A/6547, par. 59; and A/6955, par. 99.
74 Chapter III
the economic domain; in this respect, references were made to successive U.N.
General Assembly resolutions on the matter.108
As to the debates on the seventh principle, that of good faith in compliance
with international obligations,109 it was argued by several representatives that the
only obligations encompassed by that principle were those “compatible with the
[U.N.] Charter and general international law”.110 Other aspects were also con-
sidered of the principle at issue, namely, some representatives regretted that the
Drafting Committee of the Special Committee had not expressly recognized, in
the formulation of that principle, the primacy of international legal obligations
over those derived from domestic law.111 But the formulation of the last principle
set forth in the 1970 Declaration was, however, careful enough to provide, inter
alia, that, when obligations derived from international agreements entered into
conflict with the obligations of the member States of the United Nations in ac-
cordance with its Charter, these latter would prevail.112
3. The 1970 Declaration of Principles as a Contribution to the Identification

of the Opinio Juris Communis
The 1970 Declaration on Principles of International Law concerning Friendly Re-
lations and Cooperation among States, as at last adopted,113 pointed out that the
principles enshrined therein were interrelated and constituted “basic principles
of International Law”. Despite the difficulties it met, it contributed to the iden-
tification of the opinio juris communis 114 on the fundamental issue of the princi-
ples of International Law. Taken as a whole, the 1970 Declaration appeared more
comprehensive than earlier attempts of systematization of the matter, and more
108 E.g., General Assembly resolutions 1803(XVII) of 1962, 2158(XXI) of 1966, and 2200
A(XXI) of 1966, on the matter at issue; cf. U.N., documents A/6955, par. 100; and
A/6547, par. 61; and cf. also A/6165, par. 45. The Declaration, however, did not ex-
pressly quote any of those resolutions of the U.N. General Assembly in the formula-
tion of the principle at issue.
109 Cf. U.N, documents A/6799, pars. 236-300; and A/6230, pars. 522-566.
110 U.N., document A/6165, par. 64; and cf. also U.N., documents A/6547, par. 74; A/6955,
par. 77.
111 Cf. ibid., par. 79.
112 Text in: U.N. General Assembly, Resolutions Adopted on the Report of the Sixth
Committee, 25th session, 1970, p. 124 (G.A. res. 2625(XXV) of 1970).
113 By unanimity by the XXV General Assembly shortly after the last session of the
Special Committee (Geneva, 1970), and composed of a preamble, seven principles
and a general part.
114 For the view that the 1970 Declaration on Principles, as an interpretation and elabo-
ration of the U.N. Charter principles, is binding on States Parties, and, as its princi-
ples are also general international law, it is likewise binding on States non-members
of the U.N. as well, cf. B. Sloan, “General Assembly Resolutions Revisited (Forty
Years Later)”, 58 British Year Book of International Law (1987) pp. 88 and 57.
adequate to the exigencies and needs of the epoch, and represented a sensible
advance when compared with the Draft Declaration on the Rights and Duties of
States prepared by the ILC in 1949.115
As already seen, at a stage of the preparatory work the hope was expressed
that the Declaration was to amount to an expression of a “universal juridical
conviction” on the matter (cf. supra). The impact of the Declaration was to be
promptly felt throughout the seventies. It was referred to by the ICJ in its Ad-
visory Opinion on the Western Sahara (1975), and invoked in the course of its
advisory proceedings.116 Shortly afterwards, personalities and representatives of
movements of national liberation signed in Argel the 1976 Universal Declaration
on the Rights of Peoples,117 the drafting of which was recognizedly influenced by
the contents of the 1970 Declaration of Principles.118
In the debates of the Diplomatic Conference on the Reaffirmation and
Development of International Humanitarian Law (Geneva, four sessions, 1974-
1977), conducive to the adoption of Additional Protocols I and II of 1977 to the
Geneva Conventions of 1949 on International Humanitarian Law,119 references
were made to the 1970 Declaration of Principles, in particular in relation to the
right of self-determination of peoples.120 The 1970 Declaration had then already
come to be widely invoked, also at doctrinal level, in the context of the right of
States to dispose freely of their natural resources.121 In particular, the principle
115 E. Ustor, “The Principle of Co-operation Among States...”, op. cit. supra n. (98), pp.
238-239.
116 The Declaration was referred to in the assertion of one of its principles, that of self-
determination of peoples, reiterating the basic need of taking into account the as-
pirations of the people at issue; ICJ, Advisory Opinion on the Western Sahara, ICJ
Reports (1975) p. 33, par. 58.
117 Proclaiming inter alia self-determination already as a right and no longer as but a
principle.
118 Cf. D. Touret, “La Déclaration universelle des droits des peuples”, op. cit. supra n.
(104), pp. 288-298, esp. pp. 293 and 296-297.
119 Cf. “Conférence Diplomatique sur la Reaffi rmation et le Développement du Droit
International Humanitaire applicable dans les confl its armés – Résumé des travaux
de la quatrième session”, 703 Revue internationale de la Croix Rouge (July 1977) pp.
381-418.
120 In connection with the debates of the epoch on the status of movements of national
liberation in International Law; cf. G. Abi-Saab, “Wars of National Liberation and
the Development of Humanitarian Law”, in Declarations on Principles, A Quest for
Universal Peace – Liber Amicorum Discipulorumque B.V.A. Röling, Leyden, Sijthoff,
1977, pp. 145-148, 150, 153-158, 164 and 167.
121 Cf., e.g., A.J. Lleonart y Amselem, Derecho de los Estados a Disponer Libremente de
Sus Recursos Naturales, Madrid, Consejo Superior de Investigaciones Científicas/
Instituto Francisco de Vitoria, 1976, pp. 225, 328-346 and 412-413; and cf. also, e.g.,
K.N. Gess, “Permanent Sovereignty over Natural Resources”, 13 International and
Comparative Law Quarterly (1964) pp. 398-449; E. Atimomo, “Natural Resources
and the United Nations”, 10 Journal of World Trade Law (1976) pp. 280-289.
76 Chapter III
of sovereign equality of States, set forth in the 1970 Declaration, became object
of a systematic reassessment in the light of developments of International Law at
that time.122 In subsequent years, the issue of equality among nations came to be
approached by reference to the formulation enshrined into the 1970 Declaration
of Principles.123
The 1974 U.N. Definition of Aggression was influenced by the 1970 Declara-
tion of Principles;124 the former contained two express references to this latter.125
Both Declarations were based on the law of the United Nations, comprising not
only the U.N. Charter but also the practice thereunder.126 The adoption itself of
the 1970 Declaration of Principles was a very positive development, not only for
the conclusion of the work in a difficult time (marked, inter alia, by the Viet-
nam war and the conflicts in the Middle East), – a factor which prompted its
draftsmen to conduct their work bearing in mind the relationship between the
formulation of basic principles of international law and the imperative of secur-
ing peaceful coexistence of States belonging to different ideological blocs at that
time.127 Likewise significant was the fact that the Declaration succeeded in inter-
mingling the principles set forth therein.
122 Cf., earlier on, B. Boutros-Ghali, “Le principe d’égalité des États et les organisations
internationales”, 100 RCADI (1960) pp. 11 and 14-15; J. Castañeda, “The Underdevel-
oped Nations and the Development of International Law”, 15 International Organi-
zation (1961) pp. 38-48; K. Wolfke, “The Privileged Position of the Great Powers in
the International Court of Justice”, 56 Die Friedens-Warte (1961-1966) pp. 156-167;
C.A. Colliard, “Égalité ou spécificité des États dans le droit international public ac-
tuel”, in Mélanges offerts à M. Le Doyen L. Trotabas, Paris, LGDJ, 1970, pp. 529-558.
123 Cf., e.g., F.A.-M. Riad, “Equality Among Nations”, 31 Revue egyptienne de droit inter-
national (1975) pp. 157-178; E. David, “Quelques réflexions sur l’égalité économique
des États”, 10 Revue belge de droit international (1974) pp. 399-424, esp. pp. 404-418
and 423.
124 B. Broms, “The Definition of Aggression”, 154 RCADI (1977) pp. 330, 339-340, 357-
361, 367, 386-387 and 392.
125 Preamble, eighth considerandum; and Article 7, reaffi rming the right of self-deter-
mination of peoples. Cf. text in U.N., document A/9890, of 06.12.1974, pp. 4 and 7,
respectively.
126 Cf. J. Zourek, “Enfin une définition de l’aggression”, 20 Annuaire français de droit
international (1974) pp. 9-30; V. Blanco Gaspar, La Agresión Internacional: Intentos
de Definición, Madrid, Consejo Superior de Investigaciones Científicas/Instituto
Francisco de Vitoria, 1973, pp. 25-31. – However, the issue of the defi nition of aggres-
sion did not appear to have been entirely resolved in a definitive and wholly satisfac-
tory way (as subsequent developments were to demonstrate).
127 Cf., on the theme, e.g., G.I. Tunkin, “Co-existence and International Law”, 95 RCA-
DI (1958) pp. 5-78; L. Focsanéanu, “Les ‘cinq principes’ de la coexistence et le droit
international”, 2 Annuaire français de droit international (1956) pp. 150-180.
VI. Concluding Observations

In the light of the considerations developed in the present chapter, it may be con-
cluded that the principles of international law shed light into the interpretation
and application of International Law as a whole, pertain to the very substratum of
this latter, and are identified with the very foundations of the international legal
system. They permeate every legal system. Their continuing validity is beyond
question. Principles of international law are essential to humankind’s quest for
justice, and of key importance to the endeavours of construction of a truly uni-
versal International Law.
1. The Sustained Validity of the Principles of International Law

As proclaimed in the U.N. Charter in 1945, and restated in the 1970 U.N. Friendly
Relations Declaration, the principles of International Law retain their full va-
lidity in our days. A violation of a norm or rule of international law does not
mean that such norm or rule ceased to exist; it means that International Law
has been violated, engaging the international responsibility of the wrongdoers.
This is bound to occur in any domain of law. A violation of a norm or rule of
International Law does not affect the validity of its corpus juris and its guiding
principles. There is a constant recourse to such principles, bearing witness of
their continuing validity.
Given the overriding importance of those principles, not surprisingly they
found expression in the U.N. Charter, adopted in 1945. A quarter of a century
afterwards, the 1970 Declaration of Principles was meant to be a law-declaring
resolution as to those basic principles, so as to serve as a guide for all States in
their behaviour. The U.N. Declaration of Principles, though not exhaustive in its
content, proved to be, in the following years, a source for other exercises of the
kind, such as the declaration of principles enshrined into the Helsinki Final Act
(1975) which formed the basis for the subsequent creation of the [then] CSCE
(Conference on Security and Cooperation in Europe) process.128 One of the fi-
nal clauses of the 1970 Declaration further asserted that each of the principles
contained therein was to be interpreted and applied in the context of the other
principles, interrelated as they all were.
Thus, while the traditional general principles of law (found in foro domes-
tico) disclosed a rather procedural character, the general principles of interna-
tional law – such as the ones proclaimed in the 1970 Declaration – revealed in-
stead a substantive content (so as to guide State conduct),129 proper of the very
foundations of International Law. Such general principles of International Law
128 I. Sinclair, “The Significance of the Friendly Relations Declaration”, in The United
Nations and the Principles of International Law – Essays in Memory of M. Akehurst
(eds. V. Lowe and C. Warbrick), London/N.Y., Routledge, 1994, pp. 5-10 and 26-29.
129 Cf. debates on “The Role of General Principles of Law and General Assembly Reso-
lutions”, in Change and Stability in International Law-Making (eds. A. Cassese and
78 Chapter III
(as set forth in the 1970 Declaration of Principles) are thus vested with universal
importance for the international community itself.130
The interrelationship between the principles at issue is evident, e.g., with re-
gard to the principle of the prohibition of the use or threat of force, and the prin-
ciple of peaceful settlement of international disputes. The same can be said of the
principle of the duty of international cooperation, with regard to the principle of
good faith in the compliance with international obligations. This latter is gener-
ally regarded as providing the foundation of the international legal order, in the
sense that it asserts the basic need of compliance with binding international ob-
ligations (pacta sunt servanda), arising from conventional as well as customary
international law.131 The principle of pacta sunt servanda, enshrined into the Vi-
enna Convention on the Law of Treaties of 1969 (Article 26 and preamble), gives
concrete expression to norms also of customary international law. The principle
pacta sunt servanda, – asserted by that of good faith (bona fides),132 – effectively
transcends the law of treaties,133 being characterized by doctrine as either a norm
of customary law134 or a general principle of international law.135
Its insertion into the aforementioned Vienna Convention was endowed with
a clearly axiomatic character: it came to appear in a convention of codification,
which asserted in an incontrovertible way its wide scope. But, already well before
its acknowledgement in the Vienna Convention of 1969 referred to,136 the princi-
J.H.H. Weiler), Berlin, W. de Gruyter, 1988, pp. 47-48 (interventions of J.H.H. Weiler
and E. Jiménez de Aréchaga).
130 Cf. ibid., pp. 54-55 (intervention of A. Cassese).
131 G. White, “The Principle of Good Faith”, in The United Nations and the Principles
of International Law – Essays in Memory of M. Akehurst (eds. V. Lowe and C. War-
brick), London/N.Y., Routledge, 1994, pp. 231 and 236.
132 M. Lachs, “Some Thoughts on the Role of Good Faith in International Law”, in Dec-
larations on Principles, a Quest for Universal Peace – Liber Amicorum Discipulo-
rumque B.V.A. Roling, Leyden, Sijthoff, 1977, pp. 47-55; M.K. Yasseen, “L’interprétation
des traités d’après la Convention de Vienne sur le Droit des Traités”, 151 RCADI
(1976) p. 20; Clive Parry, “Derecho de los Tratados”, in Manual de Derecho Internac-
ional Público (ed. M. Sorensen), 5th. reimpr., Mexico, Fondo de Cultura Económica,
1994, pp. 229 and 200-201.
133 The law of treaties, like the law on the international responsibility of the States, are
closely linked to the very foundations of International Law; P. Reuter, Introduction
au droit des traités, 2nd. ed., Paris, PUF, 1985, p. 32.
134 E.g., B. Conforti, Derecho Internacional, Buenos Aires, Zavalía Ed., 1995, p. 67; and
cf. H. Mosler, “The International Society as a Legal Community”, 140 RCADI (1974)
pp. 115-116; R.R. Baxter, “Treaties and Custom”, 129 RCADI (1970) pp. 31, 43, 57 and
102-103.
135 Ian Brownlie, Principles of Public International Law, 5th. ed., Oxford, University
Press, 1998, p. 620.
136 Cf. Lord McNair, The Law of Treaties, Oxford, Clarendon Press, 1961, pp. 493 and
505; and, for the historical and doctrinal evolution of the principle pacta sunt serv-
anda, cf., e.g., M. Sibert, “The Rule Pacta Sunt Servanda: From the Middle Ages to
ple pacta sunt servanda effectively appeared, as already indicated, as, more than
a general rule of interpretation of treaties, a precept of customary International
Law or a true general principle of International Law, endowed with widespread
jurisprudential recognition.137 The extent of the principle pacta sunt servanda,
as well as the ultimate question of the validity of the norms of International
Law, transcend the particular ambit of the law of treaties;138 the principle pacta
sunt servanda is, in any case, deeply rooted in the international legal system as
a whole.
Good faith is, in turn, inherent to any legal order, guiding the behaviour of
the subjects of law. Four years after the adoption of the 1970 U.N. Declaration of
Principles of International Law, the ICJ, in the Nuclear Tests case (1974), stressed
the fundamental character of the principle of good faith, in pondering that
“one of the basic principles governing the creation and performance of legal obliga-
tions, whatever their source, is the principle of good faith”.139
The principle of good faith has a key position in International Law and all legal
systems, providing them with an ethical basis, and surely standing above posi-
tive law; it is metajuridical, and constitutes “the starting point of a progressive
moralization of international law”.140
The principle of the duty of international cooperation has gained ground in
the last decades, if one bears in mind, e.g., the relevance of international coop-
eration in various areas, such as, e.g., peacekeeping and peacebuilding within the
ambit of the law of the United Nations.141 Intensified international cooperation
accounts for the impressive developments in recent decades in certain domains
of International Law, such as, e.g., the international protection of human rights
and of the human environment. The principle of the duty of international coop-
eration is indeed related to that of bona fides: one can in fact find express support
in international case-law for the principle of the duty of international coopera-
the Beginning of Modern Times”, 5 Indian Yearboook of International Affairs (1956)

pp. 219-226; J.B. Whitton, “La règle pacta sunt servanda”, 49 RCADI (1934) pp. 151-
268.
137 E. de la Guardia and M. Delpech, El Derecho de los Tratados y la Convención de
Viena, Buenos Aires, La Ley, 1970, p. 276.
138 Cf. J.L. Brierly, The Basis of Obligation in International Law, Oxford, Clarendon
Press, 1958, p. 65; J.L. Brierly, The Law of Nations, 6th. ed., Oxford, Clarendon Press,
1963, p. 54.
139 ICJ, Nuclear Tests case (Australia versus France), ICJ Reports (1974) p. 268, par. 46.
140 E. Zoller, La bonne foi en Droit international public, Paris, Pédone, 1977, pp. 354 and
339-340, and cf. pp. 12-13, 346 and 352.
141 Cf., e.g., A. James, “The Principle of Co-operation: United Nations Peacekeeping”,
in The United Nations and the Principles of International Law – Essays in Memory
of M. Akehurst (eds. V. Lowe and C. Warbrick), London/N.Y., Routledge, 1994, pp.
160-174.
80 Chapter III
tion in good faith.142 Principles of international law constitute altogether the pil-
lars of the international legal system itself.
As the clause of domestic jurisdiction (Article 2(7)) of the U.N. Charter had
in mind the relations between the Organization and member States and did not
expressly address intervention in inter-State relations, it was much to the credit
of the 1970 Declaration of Principles to have formulated the principle of non-
intervention by a State or group of States in the internal or external affairs of
another State.143 One and a half decades later, the ICJ, in the Nicaragua versus
United States case (1986), in expressly invoking inter alia the 1970 Declaration of
Principles, stated that the principle at issue
“forbids all States or groups of States to intervene directly or indirectly in the in-
ternal or external affairs of other States. (...) Intervention is wrongful when it uses
methods of coercion (...). The element of coercion, which defines, and indeed forms
the essence of, prohibited intervention, is particularly obvious in the case of an in-
tervention which uses force, either in the direct form of military action, or in in-
direct form of support for subversive or terrorist armed activities within another
State. (...) These forms of action are therefore wrongful in the light of both the prin-
ciple of non-use of force, and that of non-intervention”.144
To the Special Committee which drafted the 1970 Declaration of Principles the
formulation of the principle of non-intervention expressed a “universal legal con-
viction”; the principle had its basis in customary law, and was reasserted in suc-
cessive international treaties.145 And as for judicial practice, it may be recalled
that, already in 1949, in the Corfu Channel case, the ICJ warned that intervention
was but a “manifestation of a policy of force (...) reserved for the most powerful
States”, which “might easily lead to perverting the administration of internation-
al justice itself”.146 Half a century later, the United Nations Millenium Declara-
tion, adopted by the U.N. General Assembly (Resolution 55/2) on 18.09.2000, has
stated that the principles of the U.N. Charter “have proved timeless and uni-
versal” (par. 3). Half a decade later, in its recent 2005 World Summit Outcome
142 Cf. Ph. Cahier, “Changements et continuité du Droit international – Cours général
de Droit international public”, 195 RCADI (1985) pp. 85-86 and 89.
143 G. Abi-Saab, “Some Thoughts on the Principle of Non-Intervention”, in Interna-
tional Law: Theory and Practice – Essays in Honour of Eric Suy (ed. K. Wellens), The
Hague, Nijhoff, 1998, pp. 227-234.
144 ICJ, Nicaragua versus United States case, Judgment of 27 June 1986 (Merits), ICJ
Reports (1986) p. 108, par. 205.
145 T. Mitrovic, “Non-Intervention in the Internal Affairs of States”, in Principles of In-
ternational Law Concerning Friendly Relations and Cooperation (ed. M. Sahovic),
Belgrade/N.Y., Institute of International Politics and Economics/Oceana, 1972, pp.
221, 256-257 and 248.
146 ICJ, Corfu Channel case (United Kingdom versus Albania), Judgment of 09 April
1949 (Merits), ICJ Reports (1949) p. 35.
(of 15.09.2005), the U.N. General Assembly has again evoked the principles of
the U.N. Charter, expressly referring to the aforementioned 1970 Declaration of
Principles (par. 73).
2. The Projection in Time of the Evolving Principle of Self-Determination

of Peoples
Principles of International Law, as formulated in the U.N. Charter and restated in
the 1970 U.N. Declaration of Principles, besides retaining their full validity in our
days (supra), have had significant projections in time, accompanying pari passu,
and guiding, the evolution of International Law itself. This applies to all afore-
mentioned principles, but one striking illustration of those projections may here
be singled out, pertaining to the principle of equality of rights and self-determi-
nation of peoples, pointing towards the overcoming of the traditional inter-State
dimension of International Law.
The case of East Timor is illustrative of the relevance of the principle of
self-determination. Prior to independence, East Timor was a non-self-governing
territory, the international status of which was governed by the law of the United
Nations (chapter XI of the U.N. Charter). Shortly after Indonesia’s military oc-
cupation of East Timor on 07 December 1975 (followed by its annexation by a law
of 15 July 1976), the U.N. Security Council147 deplored the armed intervention of
Indonesia in East Timor; in its turn, the U.N. General Assembly,148 in addition
to likewise deploring the Indonesian military intervention, came to refer to Por-
tugal as the “administering power” of East Timor, in the ambit of the law of the
United Nations, – a condition which Portugal was to maintain for years, in the
light of successive General Assembly resolutions on the international legal status
of the then Territory of East Timor.149
In its resolutions, the U.N. General Assembly stressed the right of self-de-
termination of the people of East Timor, in the understanding that that right had
not been exercised. It was precisely in the condition of “administering power”
that Portugal lodged a complaint against Australia before the ICJ for alleged
breach of the right to self-determination of the Timorese people, for having Aus-
tralia celebrated a treaty (known as that of the Timor Gap) with Indonesia relat-
ing to the exploration of oil resources in the continental shelf of East Timor.150
This episode contributed to place the case of East Timor again in a position of
147 Resolutions 384(1975), of 22.12.1975, and 389(1976), of 22.04.1976.

148 Resolution 3485(XXX), of 12.12.1975, besides seven other resolutions.
149 There were eight such resolutions of the U.N. General Assembly, added to two oth-
ers of the Security Council.
150 On the increased foreign interest in oil resources in the region (continental shelf
of East Timor), cf. R.S. Clark, “The ‘Decolonisation’ of East Timor and the United
Nations Norms on Self-Determination and Aggression”, International Law and the
Question of East Timor, London, CIIR/IPJET, 1995, pp. 90-91.
82 Chapter III
relevance in the political agenda of the United Nations;151 with the complaint of
Portugal – as “administering power” – before the ICJ, the case of the East Timor
again gained momentum.152
Earlier on, the assertion of the right of self-determination by the 1960 U.N.
Declaration on the Granting of Independence to Colonial Countries and Peoples153
and subsequent resolutions of the U.N. General Assembly on the matter, came to
count on judicial recognition, mainly by means of the Advisory Opinions of the
ICJ on Namibia (of 21.06.1971) and on the Western Sahara (of 16.10.1975). In the
first Advisory Opinion, the Hague Court pondered, in relation to the mandates
system, that the developments in the last fi fty years – disclosing the expansion
of the corpus juris gentium in the present domain – left little margin for doubt
that “the ultimate objective of the sacred trust was the self-determination and
independence of the peoples concerned”.154 And, in the second Advisory Opinion,
the ICJ concluded in favour of the application of resolution 1514 (XV) of the U.N.
General Assembly “in the decolonization of Western Sahara and, in particular,
of the principle of self-determination through the free and genuine expression of
the will of the peoples of the Territory”.155
In the restatement of the principle of equality of rights and self-determina-
tion of peoples by the 1970 U.N. Declaration of Principles of International Law
(cf. supra), a clause was inserted explaining that a non-self-governing territory
– under the U.N. Charter – has a separate and distinct status from the territory
of the State which administers it, which persists until the people living in it exert
their right of self-determination in accordance with the principles and purpos-
es of the U.N. Charter.156 In sum, a non-self-governing territory in the sense of
chapter XI of the U.N. Charter has an international legal status which generates
151 For a general historical account of the case of East Timor, cf., e.g., J. Ramos Horta,
Funu – The Unfinished Saga of East Timor, Trenton/New Jersey, Red Sea Press, 1987,
pp. 1-207; S. Inbaraj, East Timor – Blood and Tears in ASEAN, Chiang Mai/Thai-
land, Silkworm Books, 1995, pp. 1-183; C.O. Quaye, Liberation Struggles in Interna-
tional Law, Philadelphia, Temple University Press, 1991, pp. 177-182; L. Hannikainen,
“The Case of East Timor from the Perspective of Jus Cogens”, in International Law
and the Question of East Timor, London, CIIR/IPJET, 1995, pp. 108-111.
152 Cf. A.A. Cançado Trindade, “Parecer: O Caso do Timor-Leste (1999): O Direito de
Autodeterminação do Povo Timorense”, 1 Revista de Derecho de la Universidad
Católica del Uruguay (2000) pp. 63-83.
153 The well-known 1960 Declaration on the Granting of Independence to Colonial
Countries and Peoples (U.N. General Assembly resolution 1514 (XV), of 14.12.1960)
came to strengthen the international status of non-self-governing territories and of
territories under the trusteeship system (paragraph 5) and to affirm in a categorical
way the right of self-determination of their peoples.
154 ICJ, Avisory Opinion on Namibia, ICJ Reports (1971) p. 31, par. 53 (emphasis added).
155 ICJ, Advisory Opinion on the Western Sahara, ICJ Reports (1975) p. 68, par. 162 (em-
phasis added).
156 A.A. Cançado Trindade, Princípios do Direito Internacional..., op. cit. supra n. (70),
pp. 61 and 72.
obligations of respect to the right of self-determination of the people living in it,

of the safeguard of the human rights of its inhabitants, and of non-exploration of
their natural resources.157 Such obligations are opposable erga omnes, both vis-
à-vis the State which administers the territory at issue and vis-à-vis all the other
States: they are obligations owed to the international community as a whole.
Recent developments in contemporary International Law disclose the di-
mensions both external and internal of the right of self-determination of peoples:
the former means the right of every people to be free from any form of foreign
domination, and the latter refers to the right of every people to choose their des-
tiny and to affirm their own will, if necessary against their own government. This
distinction, endorsed by contemporary doctrine,158 challenges the purely inter-
State paradigm of classic International Law: the emergence of the International
Law of Human Rights came to concentrate attention in the treatment dispensed
by the State to all human beings under its jurisdiction, in the conditions of living
of the population, in sum, in the function of the State as promoter of the com-
mon good.
The theory and practice of contemporary International Law effectively ac-
knowledge the vindication of the rights of peoples. An international instrument
such as the 1981 African Charter of Human and Peoples’ Rights, for example,
sets forth not only civil and political rights (Articles 3-14), and economic, social
and cultural rights (Articles 15-18), but also the rights of peoples (Articles 19-24),
with a mechanism of implementation common to all (Articles 46-59 and 62).
The rights of peoples have, moreover, counted on arbitral and judicial recogni-
tion, as acknowledged, e.g., by the Maritime Delimitation between Guinea and
Guinea-Bissau.159 Furthermore, in the international contentieux, cases of initia-
157 Cf., in this respect, e.g., Ian Brownlie, “The Rights of Peoples in Modern Interna-
tional Law”, The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon Press, 1988,
pp. 1-16; [Various authors,] Les résolutions dans la formation du droit international
du développement (Colloque de 1970), Genève, IUHEI, 1971, pp. 63-67 (permanent
sovereignty over natural resources); A.J. Lleonart y Amselem, op. cit. supra n. (121),
pp. 15-478.
158 Cf. A. Cassese, Self-Determination of Peoples – A Legal Reappraisal, Cambridge,
University Press, 1995, pp. 1-365; P. Thornberry, “The Democratic or Internal Aspect
of Self-Determination with Some Remarks on Federalism”, Modern Law of Self-De-
termination (ed. Ch. Tomuschat), Dordrecht, Nijhoff, 1993, pp. 101-138; Ch. Tomus-
chat, “Self-Determination in a Post-Colonial World”, in ibid., pp. 1-20; A. Rosas, “In-
ternal Self-Determination”, in ibid., pp. 225-251; J. Salmon, “Internal Aspects of the
Right to Self-Determination: Towards a Democratic Legitimacy Principle?”, in ibid.,
pp. 253-282.
159 In this case, in its award of 18.02.1983, the Arbitral Tribunal which decided the case
referred to the “legitimate claims” of the parties as developing States and to the
right of the peoples concerned to achieve the level of economic and social develop-
ment which preserves fully their dignity; cit. in Ian Brownlie, The Human Right to
Development, London, Commonwealth Secretariat (Occasional Paper Series), 1989,
pp. 1-2, and cf. p. 13 n. 1.
84 Chapter III
tives of States on behalf of peoples, so as to protect them, may be recalled: clear

indications to this effect are found, e.g., in two unilateral applications instituting
proceedings before the ICJ, namely, that of New Zealand (against France) in the
case of the Nuclear Tests (1973-1974), and that of Nauru (against Australia) in the
case of the Phosphate Lands (1989-1992).160
The well-known aforementioned obiter dicta of the ICJ affirming the ap-
plicability of self-determination to all non-self-governing territories (Advisory
Opinion on Namibia, 1971) and recognizing the right of self-determination
through the “free and genuine expression of the will of the peoples of the Terri-
tory” (Advisory Opinion on the Western Sahara, 1975), came to foster the defini-
tive consolidation of the justiciability of the right of self-determination of peo-
ples.161 In the fortunate expression of the Separate Opinion of Judge Dillard in the
Advisory Opinion on the Western Sahara, “it is for the people to determine the
destiny of the territory and not the territory the destiny of the people”.162 There
is, thus, a whole doctrinal and jurisprudential development, corroborated by the
practice of States and of international organizations, in support of the right of
self-determination of peoples.163
3. Principles of International Law, the Quest for Justice and the Universality
of International Law
On successive occasions the principles of International Law have proved to be
of fundamental importance to humankind’s quest for justice. This is clearly il-
lustrated by the role played, inter alia, by the principle of juridical equality of
States.164 This fundamental principle, – the historical roots of which go back to
the II Hague Peace Conference of 1907, – proclaimed in the U.N. Charter and
enunciated also in the 1970 Declaration of Principles, means ultimately that all
States, – factually strong and weak, great and small, – are equal before Inter-
national Law, are entitled to the same protection under the law and before the
160 A.A. Cançado Trindade, Direitos Humanos e Meio-Ambiente – Paralelo dos Siste-
mas de Proteção Internacional, Porto Alegre, S.A. Fabris Ed., 1993, pp. 186-187.
161 M.C. Maffei, “The Case of East Timor before the International Court of Justice
– Some Tentative Comments”, 4 European Journal of International Law (1993) pp.
223-238; C.M. Chinkin, “East Timor Moves into the World Court”, in ibid., pp. 206-
222. – On the position of the so-called Organization of Unrepresented Nations and
Peoples (UNPO), cf. M.C. van Walt van Praag, “The Position of UNPO in the Inter-
national Legal Order”, Peoples and Minorities in International Law (eds. C. Bröl-
mann, R. Lefeber and M. Zieck), Dordrecht, Nijhoff, 1993, pp. 313-325.
162 ICJ Reports (1975) p. 122.
163 Cf., on the matter, e.g., United Nations, Compilation of General Comments and Gen-
eral Recommendations Adopted by Human Rights Treaty Bodies, U.N. doc. HRI/
GEN/1/Rev.3, of 15.08.1997, p. 13 (pars. 1-2 and 6).
164 R. Fernandes, Le principe de l’égalité juridique des États dans l’activité internation-
ale de l’après-guerre, Genève, Impr. A. Kundig, 1921, pp. 18-19 and 21-22.
organs of international justice, and to equality in the exercise of international

rights and duties.165
Despite successive attempts to undermine it, the principle of juridical equal-
ity of States has remained, from the II Hague Peace Conference of 1907 to date,166
one of the basic pillars of International Law. It has withstood the onslaught of
time, and shown itself salutary for the peaceful conduction of international rela-
tions, being ineluctably associated – as it stands – with the foundations of In-
ternational Law. It has been very important for the international legal system
itself,167 and has proven to be a cornerstone of International Law in the United
Nations era. In fact, the U.N. Charter gave it a new dimension, and the principle
of juridical equality of States, in turn, paved the way for, and contributed to, new
developments such as that of the system of collective security, within the ambit
of the law of the United Nations.168 It has been rightly remarked that respect for
the principle of juridical equality of States facilitates the work of the United Na-
tions, whose voice represents “the authentic voice of mankind”, and gives expres-
sion to the “juridical conscience of nations”.169
In its turn, the emergence and consolidation of the principle of equality of
rights and self-determination of peoples came to herald the overcoming in our
times of the old inter-State dimension of International Law; self-determination,
in particular, takes into account subjects of International Law other than States,
and could simply not exist or operate in a merely or exclusively inter-State con-
text.170 Its remarkable projection in the last decades, as already pointed out, was
to enable the discernment of the external and internal dimensions of self-deter-
mination (cf. supra), and the definitive incorporation of the rights of peoples into
the conceptual universe of contemporary International Law.
165 A. Magarasevic, “The Sovereign Equality of States”, in Principles of International

Law Concerning Friendly Relations and Cooperation (ed. M. Sahovic), Belgrade/
N.Y., Institute of International Politics and Economics/Oceana, 1972, pp. 176-178,
197 and 212.
166 Cf. R.P. Anand, “Sovereign Equality of States in International Law”, 197 RCADI
(1986) pp. 54-58, 63-66, 77-79, 91-100, 117-126, 157-159 and 189-195.
167 A. Miele, La Comunità Internazionale, Torino, G. Giappichelli Ed., 2000, pp. 8 and
24.
168 On the basis of the understanding that the preservation of international peace and
security is a matter of international concern, is a common concern of all States and
of the international community; C. Warbrick, “The Principle of Sovereign Equality”,
in The United Nations and the Principles of International Law – Essays in Memory of
M. Akehurst (eds. V. Lowe and C. Warbrick), London/N.Y., Routledge, 1994, pp. 210
and 213-214.
169 R.P. Anand, op. cit. supra n. (166), pp. 125-126.
170 G. Abi-Saab, “La reformulation des principes de la Charte et la transformation des
structures juridiques de la communauté internationale”, in Le droit international
au service de la paix, de la justice et du développement – Mélanges M. Virally, Paris,
Pédone, 1991, pp. 4 and 6-7.
86 Chapter III
Last but not least, it is not surprising to find that voluntarist-positivists, who
have always attempted to minimize the role of general principles of law, have al-
ways met the opposition of those who sustain the relevance of those principles, as
ensuing from the idea of an objective justice,171 and guiding the interpretation and
application of legal norms and rules. The international legal system is supported
not only by the observance by States (and other subjects of International Law) of
international norms and rules, but also – and above all – by their commitment
to preserve and promote that system as a whole;172 and it is the principles of this
latter that can best ensure the cohesion and integrity of the international legal
system as a whole.173 Those principles are intertwined with the very foundations
of International Law, pointing the way to the universality of this latter.
Writing in 1935, A. Verdross propounded the “universal idea of law”, ema-
nating from human conscience, conforming the existence of a “fonds juridique
commun”, source of the general principles of law.174 Over three decades later, A.
Favre sustained, in 1968, that general principles of law are “the expression of the
idea of justice” having a universal scope and expressing the “juridical conscience
of humankind”; rather than deriving from the “will” of States, they have an “ob-
jective character” and constitute a “fonds juridique commun pour l’ensemble des
États”, thus securing the unity of law and enhancing the idea of justice to the
benefit of humankind as a whole.175 One cannot prescind from the general prin-
ciples of law, which emanate, in my understanding, ultimately from the universal
juridical conscience, as the material “source” of all Law. The international legal
order owes its effectiveness, its universality and its very existence to those prin-
ciples. General principles of law encompass the principles of International Law,
and express the opinio juris communis of the international community, in the
construction of a new jus gentium, the International Law for humankind.
171 Ch. Rousseau, Principes généraux du Droit international public, vol. I, Paris, Pé-
done, 1944, pp. 926-927.
172 J.I. Charney, “Universal International Law”, 87 AJIL (1993) p. 532.
173 C. Wilfred Jenks believed that an inquiry into the general principles of law (found in
distinct legal systems, and further encompassing the principles of International Law
itself) could much contribute to provide the “basic foundations of a universal system
of international law”; C.W. Jenks, The Common Law of Mankind, London, Stevens,
1958, pp. 106 and 120-121, and cf. p. 172.
174 A. Verdross, “Les principes généraux du droit...”, op. cit. supra n. (36), p. 202. – On
his part, H. Lauterpacht sustained that the universality of a “substantial body of
International Law” is to a large extent based on the general principles of law, which
“by definition” have a universal character and application, “independently of any
express or implied manifestation of the will” of the members of the international
community; furthermore, the universality of some provisions of conventional in-
ternational law stems from “compelling considerations of humanity”; International
Law Being the Collected Papers of Hersch Lauterpacht (ed. E. Lauterpacht), vol. I
(General Works), Cambridge, University Press, 1970, pp. 114-117.
175 A. Favre, “Les principes généraux du droit, fonds commun du Droit des gens”, op. cit.
supra n. (29), pp. 369, 374-375, 379, 383 and 390.
Chapter IV The Primacy of International Law
over Force
I. Introduction
The sustained and continuing validity of the general principles of International
Law provides the foundations for the application of its norms. In this turmoiled
beginning of the XXIst century, there is growing need to reaffirm, in particular,
the primacy of International Law over force. Such reassertion is, in my view, an
ineluctable duty of every jurist, who cannot contribute with his silence to the ap-
parent attempts at deconstruction of International Law in our days. It is a duty to
be performed even more vigorously at a difficult moment of world crisis such as
the present one, – reflecting a deep crisis of values, – in which the international
system itself is threatened with rupture by the unwarranted use of force, outside
the framework of the U.N. Charter.
II. The Crystallization and Continuing Validity of the Principle of

Non-Use of Force
May I begin by recalling a recent episode. In the evening of 25 February 2003,
in face of the announcement of a forthcoming armed attack against Iraq by a
self-designated “coalition of States”, I convened a public ceremony at the head-
quarters of the Inter-American Court of Human Rights [IACtHR] in San José of
Costa Rica, to reaffi rm a long-standing and deeply-rooted belief in the primacy
of International Law over force. The Court’s room of public hearings was over-
crowded.1 In my address that evening, I saw it fit to point out that
“In this same room, yesterday, we witnessed a historical public hearing before the
Inter-American Court. Amidst news of the imminence of a new war (...), the Delega-
tions of twelve Latin American countries appeared before this Court, as interven-
ing States (Mexico, Honduras, Nicaragua, El Salvador, Costa Rica) or as observers
(Uruguay, Paraguay, Dominican Republic, Brazil, Panama, Argentina and Peru), in
1 With the presence of Ambassadors and other representatives of States, interna-

tional organizations and non-governmental organizations. The proceedings of that
memorable ceremony have been published by the IACtHR (cf. n. (2), infra).
88 Chapter IV
advisory proceedings [on The Juridical Condition and Rights of Undocumented Mi-
grants], thereby renewing their faith in Law. While in other latitudes there was and
there is talk of the use of force, we here renew our faithfulness in Law (in the head-
quarters of our Court in a country which has opted for not having an army)”.2
In other parts of the world, international lawyers likewise expressed their hope
that International Law would prevail, and the armed attack would not take place,3
with all its negative consequences for the international legal order. Most regret-
tably it did, in breach of Article 2(4) of the U.N. Charter, commonly regarded,
in historical perspective, as one of the most important provisions of the U.N.
Charter.4 The long history behind the fundamental principle of the prohibition
of threat or use of force, may here be briefly recalled, in a moment of outburst
of generalized violence all over the world, of unilateralisms and indiscriminate
use of force, presenting a considerable challenge to all those who deposit their
confidence in the law of nations.
In fact, over a century ago, the two Hague Peace Conferences, of 1899 and
1907, respectively, contributed to awaken the conscience of all nations to put an
end to such indiscriminate use of force. In fact, the I Hague Peace Conference
of 1899 ended with an eloquent declaration, which retains its topicality, to the
effect that
2 A.A. Cançado Trindade, “Los Aportes Latinoamericanos al Primado del Derecho

sobre la Fuerza”, in Doctrina Latinoamericana del Derecho Internacional, vol. II
(eds. A.A. Cançado Trindade and F. Vidal Ramírez), San José of Costa Rica, IACtHR,
2003, p. 39.
3 Cf., e.g., “Appel de juristes de Droit international concernant le recours à la force
contre l’Irak”, 36 Revue belge de Droit international [RBDI] (2003) pp. 266-274; “The
Australian Section of the ICJ Questions the Proposed Attack on Iraq”, in ibid., pp.
286-287; “Statement by Japanese International Law Scholars on the Iraqi Issue”, in
ibid., pp. 293-294; “ICJ [International Commission of Jurists] Deplores Moves to-
ward a War of Aggression on Iraq”, in ibid., pp. 297-298; declaratory resolution of the
Instituto Hispano-Luso-Americano de Derecho Internacional [IHLADI], reviewed
infra, and reproduced in: 16 Anuario del IHLADI – Madrid (2003) pp. 657-658. And,
after the armed attack on Iraq, cf., on the need to respect and ensure respect for In-
ternational Humanitarian Law, the Declaration of Bruges, adopted by roll-call vote
by the Institut de Droit International, reproduced in 70 Annuaire de l’Institut de
Droit International (Session de Bruges/2003)-II pp. 284-289.
4 Furthermore, it is nowadays generally recognized that States ought to settle any
dispute peacefully (by the methods provided under Article 33 of the U.N. Charter)
until the Security Council makes a determination under Article 39 of the Charter;
T.O. Elias, “Scope and Meaning of Article 2(4) of the United Nations Charter”, in
Contemporary Problems of International Law: Essays in Honour of G. Schwarzen-
berger on his 80th Birthday (eds. Bin Cheng and E.D. Brown), London, Stevens, 1988,
pp. 70-74 and 77.
The Primacy of International Law over Force 89
“The limitation of military expenses, which presently weigh heavy on the world, is
much to be desired for the sake of both material and moral development of human-
kind”.5
The II Hague Peace Conference (1907), on its turn, by adopting inter alia the Con-
vention on the Limitation of Force for the Recovery of Ordinary Public Debts,
contributed decisively to enhance recourse to arbitration as a means to put an
end to coercitive means and the use of force. The widely acknowledged contribu-
tions of Latin American States to the work and outcome of the II Hague Peace
Conference of 1907 and to developments thereafter, focused mainly on four is-
sues, namely: recourse to arbitration and non-use of force, the basic principle of
the juridical equality of States, the strengthening of international jurisdiction,
and the direct access of individuals to international justice.6 The II Hague Peace
Conference propounded a universalist outlook of international law, and acknowl-
edged the much-needed compliance with the “duties of humanity”.7
In the course of the League of Nations era, the 1928 General Treaty for the
Renunciation of War as an Instrument of National Policy became of almost uni-
5 Cit. in: G. Best, “The Restraint of War in Historical and Philosophical Perspective”,
in Humanitarian Law of Armed Conflict: Challenges Ahead – Essays in Honour of F.
Kalshoven (eds. A.J.M. Delissen and G.J. Tanja), Dordrecht, Nijhoff, 1991, p. 19.
6 These contributions were recently reviewed, on the occasion of the centennial
celebration of the II Hague Peace Conference (Hague Colloquy of 2007); cf. A.A.
Cançado Trindade, “The Presence and Participation of Latin America at the II
Hague Peace Conference of 1907”, in Actualité de la Conférence de La Haye de 1907,
II Conférence de la Paix (Colloque de 2007) (ed. Y. Daudet), Leiden/The Hague, The
Hague Academy of International Law/Nijhoff, 2008, pp. 51-84, and cf. pp. 110-112,
115-117, 122 and 205-206 (debates). On the Latin America’s fi rm support for the prin-
ciples of non-use of force and juridical equality of States, cf., e.g., S. Pérez Triana
and W.T. Stead (intr.), Doctrina Drago – Colección de Documentos, London, Impr.
Wertheimer, Lea & Co., 1908, pp. X, XII-XIII, XVI, XVIII, XXIII, LXXIV, XLIV, 117,
120, 125 and 127; R. Barbosa, Obras Completas de Rui Barbosa, vol. XXXIV-II (A
Segunda Conferência da Paz, 1907), Rio de Janeiro, MEC, 1966, pp. 49-50, 163-164,
252-258, 327 and 343; II Conférence de la Paix, Actes et discours de M. Ruy Barbosa,
La Haye, W.P. van Stockum et Fils, 1907, pp. 209 and 212, and cf. pp. 117-118, 214-218
and 319-321; A. Truyol y Serra, Histoire du Droit international, Paris, Economica,
1995, p. 129. As to the recognition of the pressing need of evolution of international
jurisdiction, and of the direct access of individuals thereto, as “a demand of the uni-
versal juridical conscience”, cf. Philadelpho Azevedo, A Justiça Internacional, Rio de
Janeiro, MRE, 1949, pp. 24 and 26, and cf. pp. 9-10.
7 Even when they do not form part of positive law, bearing in mind, in the words of the
former Delegate of Cuba, Antonio Bustamante y Sirvén, the “unity of humankind”;
A.S. de Bustamante y Sirvén, La Segunda Conferencia de la Paz Reunida en el Haya
en 1907, vol. II, Madrid, Libr. Gen. de V. Suárez, 1908, pp. 137, 139-141 and 157-159, and
cf. pp. 133 and 147.
90 Chapter IV
versal application, playing a considerable role throughout that era,8 and causing
an impact on both theory and practice of International Law. This was signifi-
cant, as, before the Pact, “according to the prevailing positivist opinion, Public
International Law was indifferent towards the State’s extra-legal decision to go to
war”.9 The Pact Briand-Kellogg (which entered into force on 24.07.1929) and the
subsequent international practice put an end to that indifference. Soon the Pact
became the first worldwide prohibition of war.10
The cumulative effect of the Pact Briand-Kellogg of 1928, the Pact Saavedra
Lamas of 1933, the Stimson doctrine (of non-recognition of situations generated
by force, of 1932), on the practice of International Law, was to the effect of crystal-
lizing a customary norm of condemnation of illegality of the use of armed force
as instrument of national policy. The prohibition of war in International Law had
become opinio juris communis. Three decades after the historical II Hague Peace
Conference, the principle of the non-use of force found eloquent expression, in the
American continent, in the Declaration of Principles adopted by the Inter-Amer-
ican Conference of Lima of 1938.11 Shortly afterwards, that principle transcended
that regional ambit to reach the universal one, set forth as it was in Article 2(4) of
the U.N. Charter,12 in culmination of a long and dense evolution of consolidation
8 Ratified or adhered to by 63 States, which avoided making reservations to it (before

the II world war only 4 States were not bound by its provisions), and remaining still
in force; cf. I. Brownlie, op. cit. infra n. (56), pp. 23 and 25.
9 B. Roscher, “The ‘Renunciation of War as an Instrument of National Policy’”, 4
Journal of the History of International Law / Revue d’histoire du droit international
(2002) p. 294.
10 Despite not having provided for a mechanism for peaceful settlement of disputes.
In the inter-war period, no other Treaty had more States Parties than it; B. Roscher,
op. cit. supra n. (93), pp. 295-297 and 303, and cf. p. 299. In the years that followed
its adoption, several States issued pronouncements of principle endorsing its terms,
and some States even foresaw sanctions for acts which violated the Pact, in the am-
bit of their domestic law (constitutions and penal codes).
11 Followed by the Declaration adopted in Mexico by the Inter-American Confer-
ence on Problems of War and Peace of 1945. Cf. J.-M. Yepes, “La contribution de
l’Amérique Latine au développement du Droit international public et privé”, 32 Re-
cueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1930) pp.
744-747; and J.C. Puig, Les principes du Droit international public américain, Paris,
Pédone, 1954, pp. 23-25.
12 The prohibition of war was, thus, in fact, formulated in Europe, where, notwith-
standing, it regrettably kept on being practiced, with millions of murdered persons.
The Latin-American countries, on their turn, kept on condemning intervention and
the use of force (short of war), which often victimized them, to the point of con-
tributing successfully to set forth the principles of non-intervention and non-use
of force both in the 1945 U.N. Charter (Article 2(4)) and in the 1948 OAS Charter
(Article 18). G. Arangio-Ruiz, The United Nations Declaration on Friendly Relations
and the System of the Sources of International Law, Alphen aan den Rijn, Sijthoff/
Noordhoff, 1979, pp. 118-120.
of the prohibition of the threat or use of force.13 In this respect, in its Judgment in
the Corfu Channel case (1949) the International Court of Justice [ICJ] endorsed
the principle of non-use of force in clear and emphatic terms:
“The Court can only regard the alleged right of intervention as the manifestation of
a policy of force, such as has, in the past, given rise to most serious abuses and such
as cannot, whatever be the present defects in international organization, fi nd a place
in international law. Intervention is perhaps still less admissible in the particular
form it would take here; for, from the nature of things, it would be reserved for the
most powerful States, and might easily lead to perverting the administration of in-
ternational justice itself”.14
Subsequently, three significant Declarations, adopted by the U.N. General As-

sembly in a period of less than two decades, – the 1970 Declaration on Principles
of International Law concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations,15 the 1974 Defini-
tion of Aggression,16 and the 1987 Declaration on Enhancing the Effectiveness of
the Principle of the Non-Use of Force,17 – clearly expressed the view prevailing in
the international community that the prohibition of the use of force or of forcible
intervention was generally understood in absolute terms.18 The 1987 Declaration
restated the principle as set forth in the U.N. Charter and numerous other docu-
ments, and asserted its universal character.19
13 With historical roots in the I and II Hague Peace Conferences (1899 and 1907, re-
spectively – cf. supra).
14 ICJ, Corfu Channel case (United Kingdom versus Albania, Merits), ICJ Reports (1949)
p. 35.
15 Cf. chapter III, supra.
16 Which, reflecting a minimum consensus on a matter surrounded by much discus-
sion, limited itself to the use of armed force in inter-State relations, conferring upon
the U.N. Security Council the power of determination of the act of aggression. The
Definition incorporated the principle of non-recognition of situations generated by
aggression, and had the merit of securing the least, namely, the Security Council
could no longer ignore an act of aggression alleged by certain States, without op-
position; J. Zourek, “Enfin une définition de l’aggression”, 20 AFDI (1974) pp. 9-30.
17 Conformed by a preamble of 21 paragraphs and an operative part with 33 para-
graphs.
18 C. Gray, International Law and the Use of Force, Oxford, University Press, 2000, pp.
5, 27-28 and 51.
19 Paragraph 10. It further referred to, and insisted on, disarmament, and acknowledged
the relations between the principle at issue and other principles of International
Law, such as those of peaceful settlement of disputes and of the duty of international
cooperation; cf. T. Treves, “La Déclaration des Nations Unies sur le renforcement
de l’efficacité du principe du non-recours à la force”, 33 Annuaire français de Droit
international [AFDI] (1987) pp. 383, 388-390 and 396-398.
92 Chapter IV
The U.N. International Law Commission itself, on its part, endorsed (in
1966) the understanding that the prohibition by the U.N. Charter of the use of
force has the character of jus cogens, and expressed (in 1978) the view that a vio-
lation of the prohibition of aggression can result in an international crime.20 As
recalled by E. Jiménez de Aréchaga, except for the hypothesis of self-defence in
the terms of the U.N. Charter and of an enforcement measure ordered or duly
authorized likewise by an international organization such as the United Nations,
the use of force constitutes a delict.21 On the occasion of the fiftieth anniversary
of the Hague Academy of International Law, in his survey of the contribution of
the courses at the Academy to the development of International Law, R.-J. Dupuy
remarked that
“l’Académie a, sans nul doute, éprouvé dès le début beaucoup de répugnance à ad-
mettre qu’il puisse y avoir un droit de l’État à recourir à la force”.22
In the same understanding of the absolute prohibition of recourse to force have

also manifested themselves, – besides successive resolutions of the U.N. General
Assembly, – the Final Act of the Conference of Security and Cooperation in Eu-
rope (Helsinki, 1975), and the Charter of Paris for a New Europe (of 21.11.1990).
Thus, restatements of that fundamental principle of international law multiplied
themselves along the years, in doctrine, case-law, and international practice, giv-
ing unequivocal testimony of its crystallization, continuing validity, and impera-
tive character. The ICJ itself, in the Nicaragua versus United States case (1986),
reasserted the principle of the prohibition of the use of force as “being not only a
principle of customary international law but also a fundamental or cardinal prin-
ciple of such law”.23 The principle at issue, furthermore, served along the years as
basis for the conclusion of numerous treaties and instruments in the domains of
disarmament and of maintenance of international peace and security. The con-
temporary apologists of the use of force seem to make abstraction of one century
of evolution of International Law.
20 M. Díez de Velazco, Las Organizaciones Internacionales, 12nd. ed., Madrid, Tecnos,

2002, pp. 177-178.
21 E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo, Madrid, Tecnos,
1980, pp. 116-117; and cf. E. Jiménez de Aréchaga, “International Law in the Past
Third of a Century”, 159 RCADI (1978) pp. 87 and 111-113.
22 R.-J. Dupuy, “La contribution de l’Académie au développement du Droit interna-
tional”, 138 RCADI (1973) p. 58.
23 ICJ, Nicaragua versus United States case, Judgment of 27 June 1986 (Merits), ICJ
Reports (1986) p. 100, par. 190; in this connection, the ICJ expressly referred to the
1970 Declaration on Principles, and to the 1975 Helsinki Final Act; cf. ibid., p. 100,
pars. 188-189, and cf. p. 84.
III. The Primacy of Law over Force as a Cornerstone of Contemporary

International Law
Interventions in inter-State relations disclose the disparities of power among
States, unilaterally decided by the same power which executes them, acting un-
justifiably as “judge and party in each case”, perpetrating “acts of force against
those who cannot defend themselves”.24 Interventions become the privilege, and
monopoly, of the great powers;25 the weaker count on the Law to defend them-
selves, and rely on the precise formulation and compulsory application of “a uni-
versal normative order”.26 The contemporary heralds of militarism do not seem
to take into account the enormous sacrifices of past generations.27 In a histori-
cal moment like the present one, of somber recrudescence of indiscriminate use
of force,28 in which it regrettably appears again trivial to speak of war, there is
pressing need to face the new threats to international peace and security within
the framework of the U.N. Charter, and to insist on the realization of justice at
international level29 as the best guarantee for peace. Only with the strengthening
of the United Nations and other international organizations of universal charac-
ter, with strict observance of the general principles of international law, can one
contain and control the frenzy of violence, unilateralism and self-help,30 based
usually on force rather than Law.
The more lucid legal doctrine and the more learned commentaries of the
U.N. Charter point out that the letter and spirit of its Article 51 (on self-defence)
24 I. Fabela, Intervention, Paris, Pédone, 1961, p. 232; I. Fabela, Intervención, 1st. ed.,
Mexico, UNAM, 1959, pp. 141 and 26.
25 The principle of the juridical equality of States, just as that of the equality before the
Law, are antithetical to any schemes of unilateralism or self-help, which aggravate
factual inequalities inevitably privileging the great powers.
26 J. Castañeda, Obras Completas, vol. I: Naciones Unidas, México D.F., Colegio de
México/Secretaría de Relaciones Exteriores, 1995, p. 522.
27 Only in the armed conflicts and despotisms of the XXth century, 86 million human
beings were killed.
28 This was evidenced more than a decade ago, when, as from 1998, one attempted to
“justify” such use of force by means the invocation of an alleged “implicit authoriza-
tion” of the U.N. Security Council; in the following year, one attempted to “explain”
the use of force by means of an alleged “authorization ex post facto”, by the same
Security Council (bombardments of Iraq, 1998, and of Kosovo, 1999, respectively).
With that, one attempted to render “relative” one of the basic principles of the U.N.
Charter, that of the prohibition of threat or use of force, set forth in Article 2(4) of
the U.N. Charter.
29 Cf. A.A. Cançado Trindade, “Los Aportes Latinoamericanos al Derecho y a la Jus-
ticia Internacionales”, in Doctrina Latinoamericana del Derecho Internacional, vol.
I (eds. A.A. Cançado Trindade and A. Martínez Moreno), San José of Costa Rica,
IACtHR, 2003, pp. 33-64.
30 R.P. Anand, “Sovereign Equality of States in International Law”, 197 RCADI (1986)
pp. 54, 58, 107 and 164.
94 Chapter IV
are opposed to the pretension of the so-called “preventive self-defence”, and de-
finitively dismiss it.31 Its own legislative history clearly indicates that Article 51
is subordinated to the fundamental principle of the general prohibition of the
threat or use of force (Article 2(4) of the Charter), besides being subjected to the
control of the Security Council.32 The unconvincing and frustrated attempts to
widen the scope of Article 51 (on self-defence) of the U.N. Charter, so as to en-
compass an alleged and unsustainable “preventive self-defence”, have never suc-
ceeded to provide an answer to the objection to the effect that to admit it would
be to open the door to reprisals, to the generalized use of force, to aggression,
amidst the most complete conceptual imprecision33 and discretionality (of the
powerful). Had the so-called “doctrine” of “preventive self-defence” been applied,
for example, in the Cuban missile crisis (1961-1962), the world would possibly no
longer exist, fatally victimized by the use of nuclear weapons by the two super-
powers of the epoch.34 In our days, with the alarming proliferation of weapons
of mass destruction, the principle of the prohibition of the threat or use of force
(Article 2(4)) of the U.N. Charter imposes itself even more forcefully,35 disclosing
a truly imperative character.36
31 Cf., e.g., B. Simma (ed.), The Charter of the United Nations – A Commentary, Oxford,
Oxford University Press, 1994, pp. 675-676; A. Cassese, “Article 51”, in La Charte
des Nations Unies – Commentaire article par article (eds. J.-P. Cot and A. Pellet),
Paris/Bruxelles, Economica/Bruylant, 1985, pp. 770, 772-773, 777-778 and 788-789;
I. Brownlie, International Law and the Use of Force by States, Oxford, Clarendon
Press, 1981 [reprint], pp. 275-278; J. Zourek, L’interdiction de l’emploi de la force en
Droit international, Leiden/Genève, Sijthoff/Inst. H. Dunant, 1974, p. 106, and cf. pp.
96-107; H. Kelsen, Collective Security under International Law (1954), Union/New
Jersey, Lawbook Exchange Ltd., 2001 [reprint], pp. 60-61; Chr. Gray, International
Law and the Use of Force, op. cit. supra n. (18), pp. 112-115 and 192-193.
32 Cf. H. Kelsen, The Law of the United Nations, London, Stevens, 1951, p. 792.
33 J. Delivanis, La légitime défense en Droit international public moderne, Paris, LGDJ,
1971, pp. 50-53, and cf. pp. 42, 56 and 73; L.D. San Martino, Legítima Defensa Inter-
nacional, Buenos Aires, Ed. Ciudad Argentina, 1998, pp. 30-31 and 40-42, and cf. pp.
48-49.
34 In his thoughtful account of that crisis, A. Chayes disclosed that “preventive self-
defence” was at a stage contemplated by some “realists” naturally supporting the
unrestricted use of force, but was fortunately promptly discarded (A. Chayes, The
Cuban Missile Crisis, Oxford, University Press, 1974, pp. 62-66), and sound reason
at last prevailed, to the benefit of the then present, and succeeding, generations,
ultimately to the benefit of humankind.
35 G.I. Tunkin, El Derecho y la Fuerza en el Sistema Internacional, Mexico, UNAM,
1989, pp. 121, 151 and 155; and cf., to the same effect, the warning – in face of the
constant growth of human capacity of destruction – of Quincy Wright, A Study of
War, 2nd. ed., Chicago/London, University of Chicago Press, 1983 [Midway reprint],
pp. 404 and 372-373.
36 A.A. Cançado Trindade, “El Primado del Derecho sobre la Fuerza como Imperativo
del Jus Cogens”, in Doctrina Latinoamericana del Derecho Internacional, op. cit. su-
pra n. (2), pp. 51-66.
In fact, Article 2(4) prohibits both the use and the threat of armed force.
Nowadays, the institutional response to threats or breaches of peace or acts of
aggression is found in chapter VII of the U.N. Charter, not in “preventive self-de-
fence” (a privilege of the great powers), which is disruptive, aggravating disorder
and anarchy in the international community.37 Under the U.N. Charter there is
no “anticipatory self-defence”, which only challenges the general principles of in-
ternational law that have preserved international peace and security along more
than six decades.38 What is “anticipatory” is Law itself, rather than the use of
force. “Preventive attacks” have no support in international practice either.39
It has been aptly pointed out that, if permissible self-defence (under the U.N.
Charter) is governed by the principles of necessity and proportionality, how will
the so-called “preventive” self-defence comply with the principle of proportional-
ity if the armed attack has not occurred? Th is would mean that a State victimized
by an armed aggression would have its self-defence limited by the requisite of
proportionality, while a State which invokes “preventive” self-defence would have
no such limitation, other than its own subjective assessment of the situation,
which would lead to a juridical absurdity.40
“Preventive” self-defence is, not surprisingly, rejected by the overwhelming
majority of States:41 it would be open only to the great powers, undermining the
principle of the juridical equality of States, sinking the world in anarchical self-
help, aggravating the effects of factual disparities of power in the international
scenario. What is needed, quite on the contrary, is “a universal normative or-
der”.42 Article 51 of the U.N. Charter, as consistently interpreted and applied to
37 J.A. Pastor Ridruejo, “Ha Sido Legal el Uso de La Fuerza en Afganistán?”, in Los Re-
tos Humanitarios del Siglo XXI (ed. C. Ramón Chornet), Valencia, PUV/University
of Valencia, 2004, pp. 103 and 105-106.
38 L. Condorelli, “Vers une reconnaissance d’un droit d’ingérence à l’encontre des
‘États voyous’?”, in L’intervention en Irak et le Droit international (eds. K. Bannelier,
O. Corten, Th. Christakis and P. Klein), Paris, Pédone/CEDIN, 2004, pp. 51-52 and
56.
39 As illustrated by the negative reactions and criticisms to the so-called “preventive”
attacks by Israel on Iraq (in 1981), by South Africa on Lesotho (in the epoch of apart-
heid, by the United States on Sudan (in 1998), and by Israel in the “six-day-war” (in
1967. Cf. Th. Christakis, “Vers une reconnaissance de la notion de guerre préven-
tive?”, in L’intervention en Irak et le Droit international (eds. K. Bannelier, O. Corten,
Th. Christakis and P. Klein), Paris, Pédone/CEDIN, 2004, pp. 23-25 and 27.
40 Th. Christakis, op. cit. supra n. (39), pp. 20-21; not surprisingly, there are no U.N.
resolutions endorsing “preventive” self-defence, and all regional treaties on security
(from 1935 to date) condition self-defence to a prior armed attack (ibid., pp. 22-23).
41 Cf. F. Nguyen-Rouault, “L’intervention armée en Irak et son occupation au regard
du Droit international”, 108 Revue générale de Droit international public (2003) pp.
835-864; O. Corten, “Opération ‘Iraqi Freedom’...”, op. cit. infra n. (47), pp. 205-243.
42 J. Castañeda, Obras Completas, vol. I: Naciones Unidas, México D.F., Colegio de
México/Secretaría de Relaciones Exteriores, 1995, p. 522. And cf. G. Guerrero, La
Codification du Droit International, Paris, Pédone, 1930, pp. 182 and 175, and cf.
96 Chapter IV
date, has not been “amended” by the practice of power-holders or self-helpers; it

is the U.N. Security Council that regulates the use of force in the international
system, in accordance with the relevant provisions of the U.N. Charter.
The recent attempted return, by the contemporary apologists of the use of
force, to “preventive wars”, is unwarranted and retrograde, a dangerous threat
to the achievements of International Law in a century of evolution (from the
two Hague Peace Conferences, of 1899 and 1907, until the present). The system
of collective security of the Charter, essential to world peace, was erected upon
the principles of the prohibition of the threat or use of force in inter-State rela-
tions and of the peaceful settlement of international disputes.43 Nothing in In-
ternational Law authorizes a State, or a group of States, to launch sponte sua an
international armed attack (such as the invasion and occupation of Iraq, in 2003),
– outside the framework of the U.N. Charter,44 – under the pretext of disman-
tling arsenals of weapons of mass destruction, – while a few of them possess
some of the major arsenals of weapons of mass destruction in the world.
To that end, there are multilateral mechanisms of control and prohibition,
created by international conventions, which are to be applied and strength-
ened, towards world disarmament. There are, moreover, the enforcement mea-
sures foreseen under chapter VII of the U.N. Charter, to face threats to interna-
tional peace and security, to be applied by a strengthened United Nations. The
much-needed and much-protracted reforms of the U.N. Charter to the effect of
strengthening the United Nations’s system of collective security, appear nowa-
days necessary and urgent, so as to enable the U.N. to secure respect for the
principles and purposes set forth in Articles 2 and 1 of its Charter.45
It is in difficult moments of world crisis such as the recent one, that one
ought to, with all the more reason, reassert and preserve the foundations and
principles of International Law. “Implicit authorization” and “authorization ex
post facto” by the Security Council of the use of force are manifest distortions
pp. 9-10, 13, 24, 27 and 150; A. Álvarez, Exposé de motifs et Déclaration des grands
principes du Droit international moderne, Paris, Éds. Internationales, 1938, pp. 8-9,
16-21 and 51; A. Álvarez, Le Droit international de l’avenir, Washington, Institut
Américain de Droit International, 1916, pp. 7-8, 26, 71, 114, 134-136 and 146-149; R.
Fernandes, A Sociedade das Nações, Rio de Janeiro, Imprensa Nacional, 1925, pp. 5-
6, 9 and 26.
43 These principles warn that any exception to the regular operation of such system
ought to be restrictively interpreted.
44 And deliberately confusing and manipulating the contents and legal effects of U.N.
resolutions, such as, e.g, the recent attempt to “link” Security Council resolution
1441 (particularly its vague and generic paragraph 13), of November 2002, to Secu-
rity Council resolutions 678 (of 1990) and 687 (of 1991), adopted much earlier in a
distinct context, to try in vain to justify “preventive” armed attacks.
45 O. Corten, Le retour des guerres préventives: le Droit international menacé, Brux-
elles, Éd. Labor, 2003, pp. 42-44, 56 and 80.
of chapter VII of the U.N. Charter.46 In the operation of the system of collective
security, there is a presumption in favour of peaceful settlement, and eventual
exceptions to that are to be restrictively interpreted, as that system was built
upon the principles of non-use of force and peaceful settlement of disputes.47
IV. The Emerging Right to Humanitarian Assistance

The idea of justice underlies International Law from the thinking of its founding
fathers to our days, in the adoption and application of enduring norms that can
secure international peace.48 Invoking a “collective conscience”,49 A. Ulloa drew
attention, in the mid-XXth century, to the progressive universalization of Inter-
national Law, remarking that it was not surprising that the “rules of humanitar-
ian character” were the first ones to be universally applied.50 The world-wide sur-
vey Customary International Humanitarian Law (2005), recently undertaken by
the International Committee of the Red Cross, identifies the universal common
core of International Humanitarian Law.51
46 Cf., e.g., Ph. Weckel, “L’emploi de la force contre la Yougoslavie ou la Charte fis-
surée”, 104 Revue générale de Droit international public [RGDIP] (2000) pp. 19-36;
M. Sahovic, “Le Droit international et la crise en ex-Yougoslavie”, 3 Cursos Euro-
mediterráneos Bancaja de Derecho Internacional – Castellón/Spain (1999) pp. 417-
418; J.M. Ortega Terol, La Intervención de la OTAN en Yugoslavia, Oviedo, Septem
Ed., 2001, pp. 19-21 and 39-40; D. Momtaz, “‘L’intervention d’humanité’ de l’OTAN
au Kosovo et la règle du non-recours à la force”, 82 RICR (2000) n. 837, pp. 89-101;
P. Kovács, “Intervention armée des forces de l’OTAN au Kosovo – Fondement de
l’obligation de respecter le Droit international humanitaire”, 82 RICR (2000) n. 837,
pp. 122 and 127-128, and cf. pp. 119-120 and 124.
47 This appears, moreover, as the only way to secure a “minimum of international co-
hesion” in face of the challenges currently facing the international legal order; L.-
A. Sicilianos, “L’autorisation par le Conseil de Sécurité de recourir à la force: une
tentative d’évaluation”, 106 RGDIP (2002) pp. 7, 39-40, 42-43 and 47-48. And cf. O.
Corten, “Opération Iraqi Freedom: peut-on admettre l’argument de l’‘autorisation
implicite’ du Conseil de Sécurité?”, 36 RBDI (2003) pp. 218-219, 224-227 and 237-
243.
48 A. Ulloa, Derecho Internacional Público, vol. I, 2nd. ed., Lima, Impr. Torres Aguirre,
1939, pp. 3 and 14. Considerations of power, on their turn, are not static or perma-
nent factors at the international level, but are rather constantly changing, “lasting or
disappearing in the evolution of history”; A. Ulloa, Derecho Internacional Público,
vol. II, 4th. ed., Madrid, Ed. Iberoamericanas, 1957, p. 218, and cf. p. 460.
49 Ibid., vol. II, p. 301.
50 A. Ulloa, Derecho International Público, vol. I, cit. supra n. (48), pp. 21-22 and 74.
51 Cf. ICRC, Customary International Humanitarian Law (eds. J.-M. Henckaerts and
L. Doswald-Beck), Cambridge, University Press, 2005, vol. I, pp. IX-LIII and 3-621;
vol. II, pp. 3-1982; and vol. III, pp. 1983-4411.
98 Chapter IV
Throughout the nineties, the tragedy of the genocide in Rwanda (1994),52

the difficulties of defining “security areas” in the case of Bosnia-Herzegovina
(1993-1995),53 and the much-criticized NATO’s “campaign of bombardments” in
the case of Kosovo (1999),54 among others, have drawn attention to the need to
enhance humanitarian assistance on a concerted multilateral basis,55 within the
framework of the U.N. Charter (of a strengthened United Nations), in search of
the realization of justice, putting an end to iniquities. Distinctly from “interven-
tionist” operations,56 – always surrounded by controversy, – the right to humani-
tarian assistance finds clear and unequivocal support in International Law, and
the United Nations Organization has contributed to that. Successive resolutions
of the U.N. General Assembly 57 have effectively expressed a “universal recogni-
tion of the right of the victims to humanitarian assistance”; the international
legal order has, thereby, “experienced in this matter the evolution from the right
52 For critical accounts, cf., e.g., A. Destexhe, Rwanda and Genocide in the Twentieth
Century, London/East Haven Conn., Pluto Press, 1995, pp. 1-88; B. Bruneteau, Le
siècle des génocides – Violences, massacres et processus génocidaires de l’Arménie
au Rwanda, Paris, A. Colin, 2004, pp. 202-214; K.A. Acheampong, “Our Common
Morality under Siege: The Rwanda Genocide and the Concept of the Universality of
Human Rights”, 4 Review of the African Commission on Human and Peoples’ Rights
(1994) pp. 31-40.
53 Created in the region by decision of the U.N. Security Council during the conflict.
54 Cf. criticisms in, e.g., A. Roberts, “El Papel de las Cuestiones Humanitarias en la
Política Internacional en los Años Noventa”, in [Various Authors,] Los Desafíos de la
Acción Humanitaria – Un Balance, Barcelona, Icaria Ed., 1999, pp. 49, 62-63 and 70;
D. Momtaz, “‘L’intervention d’humanité’ de l’OTAN au Kosovo et la règle du non-
recours à la force”, 82 Revue internationale de la Croix-Rouge [RICR] (2000) n. 837,
pp. 89-101; P. Kovács, “Intervention armée des forces de l’OTAN au Kosovo – Fon-
dement de l’obligation de respecter le Droit international humanitaire”, 82 RICR
(2000) n. 837, pp. 122 and 127-128, and cf. pp. 119-120 and 124.
55 It has become manifest that “interventions” of a “humanitarian” character (by a
handful of States) were incapable of “solving” cases of massive ethnic violence and
of grave and systematic violations of human rights; A.J. Kuperman, The Limits of
Humanitarian Intervention – Genocide in Rwanda, Washington D.C., Brookings
Institution, 2001, pp. VII-IX and 109-119.
56 The Ministerial Declaration of 24 September 1999 of the Meeting of Foreign Min-
isters of the Group of 77, – as pertinently recalled by Ian Brownlie, – distinguished
between “humanitarian assistance” and other U.N. activities, and “rejected the
so-called right of humanitarian intervention” as without foundation in the U.N.
Charter or in International Law (par. 69); this represented the view of 132 States,
including 23 from Asia, 51 from Africa, 22 from Latin America and 13 from the Arab
world. I. Brownlie, “‘International Law and the Use of Force by States’ Revisited”, 21
Australian Year Book of International Law (2001) p. 21.
57 Resolution 43/131, of 08.12.1988; and resolutions 45/100, 45/101, and 45/102, of
14.12.1990; and resolution 46/182, of 19.12.1991.
of humanitarian assistance to the right to humanitarian assistance”.58 Instead of

unsustainable “humanitarian” intervention, the right to humanitarian assistance
is thus affirmed, with emphasis on the needs of the victims.59
Humanitarian assistance, as it ensues from some U.N. General Assembly
resolutions, is in fact ineluctably linked to the fulfi lment of the basic needs of
the victims.60 It is the victims who occupy a central position in humanitarian
assistance, which is enhanced with the faithful observance and application of
the norms of International Humanitarian Law. While the so-called “humanitar-
ian intervention” shifts attention to the factual or material capacity to intervene,
humanitarian assistance evokes, on a distinct plane, the imperatives of human
solidarity. The former singles out the factual potential of action of the interven-
ing agent, the latter the fulfilment of the basic needs of the victims, as titulaires
of the right to humanitarian assistance.61
The emphasis is, thus, in my understanding, to be placed on the assistance
to be given to those in need of it, rather than on the factual capability of the
intervening actors. The adequate criterion lies in the focus on the beneficiaries
of assistance, those in need of, and entitled to it, rather than on those render-
ing it. The former are the ones who can best identify their own basic needs of
assistance; they are the titulaires of the right to humanitarian assistance.62 The
ultimate foundation for the exercise of such a right is the dignity inherent to the
human person, to all human beings.
If attention is drawn to those who require assistance, – as it ought to, – and
these latter deem that they indeed need it, the aim of humanitarian assistance
will more appropriately be fulfi lled. Recent developments in this domain have in
fact disclosed that humanitarian assistance has been evolving in the light of the
needs of protection, in the conceptual framework of the corpus juris of the Inter-
58 M.C. Márquez Carrasco, Problemas Actuales sobre la Prohibición del Recurso a la

Fuerza en Derecho Internacional, Madrid, Tecnos, 1998, pp. 204-205. As to the free
access to victims being a “customary rule”, cf. A. do Amaral Júnior, O Direito de As-
sistência Humanitária, Rio de Janeiro, Ed. Renovar, 2003, pp. 249-250.
59 C. Zanghi, “Fondements éthiques et moraux du droit à l’assistance humanitaire”,
in [Various Authors,] Colloque international sur le droit à l’assistance humanitaire
– Actes (Paris, 25-27.01.1995), Paris, UNESCO, 1996, pp. 7 and 10, and cf. pp. 3-10;
and cf. J.-M. Arbour, Droit international public, 4th. ed., Cowansville/Québec, Éd.
Y. Blais, 2002, p. 648; A. Dieng, “L’action du système des Nations Unies et le droit à
l’assistance humanitaire”, in [Various Authors,] Colloque international sur le droit
à l’assistance humanitaire..., cit. supra (this footnote), pp. 50 and 52-53, and cf. pp.
47-53.
60 E.g., U.N. General Assembly resolutions 43/131 (of 08.12.1988), 45/100 (of 14.12.1990)
and 46/182 (of 19.12.1991).
61 A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,
vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 429-433.
62 A.A. Cançado Trindade, “Reply [- Assistance Humanitaire]”, in 70 Annuaire de
l’Institut de Droit International – Session de Bruges (2002-2003), part 1, pp. 536-
540.
100 Chapter IV
national Law of Human Rights and of International Humanitarian Law, which

provide elements for the construction of a right to humanitarian assistance, and
the corresponding duty to provide it.63 The focus would, in sum, be on the human
person, on the titulaires of the right to humanitarian assistance.64 The realization
of this right to humanitarian assistance lies in the confluence between Interna-
tional Humanitarian Law, International Human Rights Law and the law of the
United Nations.65 It finds inspiration, above all, in the principle of humanity, per-
meating customary international law itself, and enabling the victims themselves
to request and receive humanitarian assistance.66
There occurs, nowadays, an unfortunate diversification of sources (some-
times not even identified) of violations of human rights, of which bear witness
several situations of extreme hardship, distress and deprivation, which affect
vulnerable sectors of the population in distinct latitudes, and call for humanitar-
ian assistance.67 Instead of approaching the matter from the standpoint of the use
of force, there is pressing need to develop the potential of International Law itself
– that is, of the legal elements – in the formation, progressive development and
crystallization of the right to humanitarian assistance.
63 Cf., in this respect, the Guiding Principles on the Right to Humanitarian Assistance
(1993) of the International Institute of Humanitarian Law in San Remo (Principles
1-3 and 6).
64 The UNESCO Colloquy of Paris (of 1995) on the matter effectively concluded by
approaching the question as from the angle of the subjective right of the victims to
humanitarian assistance, of the determination of the active and passive subjects
of this right, and of the pressing need to secure the direct access to the victims to
be assisted or protected, – foreseen, in fact, by U.N. General Assembly resolutions
43/131 (of 08.12.1988) and 45/100 (of 14.12.1990); cf. “Conclusions du Colloque”, in
Colloque international sur le droit à l’assistance humanitaire..., op. cit. supra n. (59),
pp. 197-198, and cf. pp. 195-198.
65 E.g., some provisions of the IV Geneva Convention on International Humanitarian
Law of 1949 (Articles 23, 55 and 59-61) and of the Protocols I (Articles 69-70 and 54)
and II (Articles 14 and 18) of 1977, and certain basic principles of the U.N. Charter
besides resolutions of the General Assembly and the Security Council on humani-
tarian assistance; H. Fischer and J. Oraá, Derecho Internacional y Ayuda Humani-
taria, Bilbao, University of Deusto, 2000, p. 81, and cf. pp. 17-101; [Various Authors,]
Colloque international sur le droit à l’assistance humanitaire..., op. cit. supra n. (59),
pp. 133-135 and 137-138 (intervention by V. Muntarbhorn).
66 This right has also found expression in certain resolutions of the General Assembly
(cf. supra) and the Security Council (e.g., those pertaining to the conflicts of Soma-
lia and Bosnia-Herzegovina); the same does not occur with the so-called “humani-
tarian intervention” (on the part of one or more States individually, or a group of
them), which finds no support in the U.N. Charter (or other treaties), nor in resolu-
tions of the General Assembly or the Security Council. H. Fischer and J. Oraá, op.
cit. supra n. (65), pp. 82-83 and 86-87.
67 Such situations bring to the fore the duty erga omnes to provide the requested hu-
manitarian assistance.
In my understanding, emphasis should be laid on the primacy of law over

force, in the provision of humanitarian assistance to those who stand in need
of it. The key test here would be, in my view, the clear recognition that the basic
needs of assistance to human beings anywhere, in their quest for survival as well
as in their just aspirations to live with dignity, ought to be fulfilled. Human be-
ings are the titulaires of the right to humanitarian assistance.68 Such right bears
witness of the viability and desirability of rendering that assistance on the basis
of Law, rather than force, as a response to current needs of the international
community, affecting vulnerable and growing segments of the population in
various countries.
V. The Decivilizing Effects of Unwarranted Use of Force

On quite a distinct level, the dangerous sophism of “preventive” armed attacks is
destructive not only of the whole structure of the organized international com-
munity, but also of the values which inspire it. If, in the domestic legal order,
society precedes Law, at international level – it has rightly been pondered, – oc-
curs precisely the opposite: it is International Law which precedes international
society, and this latter cannot even be conceived or exist without the former.69 It
is the Law which is preventive or anticipatory, and not force, in the form of armed
attacks, aggressions, unilateral interventions, and terrorist acts, which violate it
openly.
It may be recalled that already the ancient Greeks were aware of the devas-
tating effects of the indiscriminate use of force and of war over both winners and
losers, revealing the great evil of the substitution of the ends by the means: since
the times of the Illiad of Homer until today, all “belligerents” are transformed
in means, in things, in the senseless struggle for power, incapable even to “sub-
ject their actions to their thoughts”. As Simone Weil so perspicatiously once ob-
served, the terms “oppressors and oppressed” almost lose meaning, in face of the
impotence of everyone in front of the machine of war, converted into a machine
of destruction of the spirit and of fabrication of the “inconscience”.70 As in the
68 To the extent that their international legal personality and capacity is properly ac-
knowledged, this right may gradually become justiciable; on its turn, the current
phenomenon of the expansion of legal personality and capacity in international law
(encompassing those of the human person) responds to a pressing need of the inter-
national community of our days; cf. chapters IX and X, infra. – Reference may here
be made, in this connection, to the considerable and unprecedented expansion of
beneficiaries of provisional measures of protection (especially those ordered by the
IACtHR in the course of the last decade – cf. chapter II, supra), which have contrib-
uted to the development of a right to humanitarian assistance.
69 B. Boutros-Ghali, “Le Droit international à la recherche de ses valeurs: paix, dével-
oppement, démocratisation”, 286 RCADI (2000) pp. 20, 18 and 30, and cf. p. 37.
70 S. Weil, Reflexiones sobre las Causas de la Libertad y de la Opresión Social, Barcelo-
na, Ed. Paidós/Universidad Autónoma de Barcelona, 1995, pp. 81-82, 84 and 130-131.
102 Chapter IV
Illiad of Homer, there are no winners and losers, all are taken by force, possessed
by war, degraded by brutalities and massacres.71 Homer’s perennial message is as
valid and poignant in his times in ancient Greece as in our days:
“War – I know it well, and the butchery of men.

Well I know, shift to the left, shift to the right
my tough tanned shield. That’s what the real drill,
defensive fighting means to me. I know it all, (...)
I know how to stand and fight to the finish,
twist and lunge in the War-god’s deadly dance.
(...) For a young man all looks fine
and noble if he goes down in war,
hacked to pieces under a slashing bronze blade –
he lies there dead... but whatever death lays bare,
all wounds are marks of glory. When an old man’s killed
and the dogs go at the grey head and the gray beard
(...) – that is the cruelest sight
in all our wretched lives!”.72
Along the centuries, the “butchery of men” has kept occurring endlessly,73 and
lessons do not yet seem to have been sufficiently learned, – in particular the
pressing need and duty to secure the primacy of Law over brute force. Thus, in
ancient Rome M.T. Cicero pondered, in his De Legibus,74 that there was “noth-
ing more destructive for States, nothing more contrary to right and law, nothing
less civil and humane, than the use of violence in public affairs”.75 And in his De
Republica,76 Cicero added that nothing was “more damaging to a State” and “so
contrary to justice and law” than recourse “to force through a measure of vio-
lence”, where a country had “a settled and established constitution”.77
In this same line of concern, by the end of the XVIIIth century, in his essay
on Perpetual Peace (1795), Immanuel Kant eloquently warned:
71 S. Weil, “L’Iliade ou le Poème de la Guerre (1940-1941)” in Oeuvres, Paris, Quarto

Gallimard, 1999, pp. 527-552.
72 Homer, The Iliad, N.Y./London, Penguin Books, 1991 [reed.], pp. 222 and 543-544,
verses 275-281 and 83-89.
73 For an eloquent and historical account, cf., inter alia, e.g., Bartolomé de Las Casas,
Brevísima Relación de la Destrucción de las Indias (1552), Barcelona, Ediciones 29,
2004 [reed.], pp. 7-94; Bartolomé de Las Casas, Tratados, vol. I, Mexico, Fondo de
Cultura Económica, 1997 [reprint], pp. 14-199, and cf. pp. 219, 319 and 419.
74 On the Laws, book II, circa 51-43 b.C..
75 M.T. Cicero, On the Commonwealth and On the Laws (ed. J.E.G. Zetzel), Cambridge,
University Press, 2003 [reed.], book III, ibid., p. 172.
76 Circa late 50s-46 b.C..
77 M.T. Cicero, The Republic – The Laws, Oxford, University Press, 1998, p. 166 (book
III, par. 42).
“(...) il faut ajouter qu’être stipendié pour tuer ou être tué semble impliquer
l’utilisation des hommes comme de simples machines et instruments aux mains
d’autrui (de l’État), ce qui ne se laisse pas bien accorder avec le droit de l’humanité
dans notre propre personne”.78
Subsequently, early in the XXth century, a tribute to the pacifist (and former No-
bel prize recipient in literature in 1915) Romain Rolland, published in 1920, still
amidst the general devastation generated by the I world war, denounced the lies
that accompany and stimulate wars and seek to annihilate the conscience of their
millions of victims, and added that
“Dans son appel ‘Aux peuples assassinés’, Rolland n’exprime que de la pitié pour les
millions d’hommes qui, par apathie, servent à des fins qui leur sont étrangères, et
dont la pieuse immolation n’a pas d’autre sens que la beauté d’un sacrifice heroïque.
(...) Rolland ressent d’une façon aussi tragique (...) la perte de millions d’hommes,
c’est-à dire, le naufrage de la libre âme individuelle dans la cataracte de l’âme col-
lective. (...) La guerre des masses, la brutalité uniformisée, la mobilisation au com-
mandement, un idéal et une action privés de personnalité lui apparaissent comme le
crime le plus terrible contre la liberté”.79
Whether perpetrated by States (or in their name) or non-State entities, the bru-
talities and massacres in different parts of the world, of past decades and of
the somber times we now live in, have profound decivilizing effects. The 1997
UNESCO Declaration on the Responsibilities of the Present Generations To-
wards Future Generations stated that
“The present generations should spare future generations the scourge of war. To that
end, they should avoid exposing future generations to the harmful consequences of
armed conflicts as well as all other forms of aggression and use of weapons, contrary
to humanitarian principles”.80
Nothing in the U.N. Charter transfers to one or more of its member States the
power to decide unilaterally that the peaceful means of settlement of interna-
tional disputes have been “exhausted”, and nothing in the U.N. Charter author-
izes one or more of its member States to decide motu propio, and pursuant to
their own criteria (or lack of them) and strategies, as to the use of armed force.
Those who proceed in this way, besides violating the U.N. Charter and the basic
principles of International Law, have their international responsibility engaged.
In sum, no State is allowed to place itself above the Law.
78 Cit. in: La paix (Textes choisis, ed. M. Lequan), Paris, Flammarion, 1998, pp. 173-
174.
79 S. Zweig, Romain Rolland, Zurich/Paris, Belfond, 2000 [reed.], pp. 337, 346 and 366,
and cf. p. 305.
80 Article 9(2).
104 Chapter IV
“Preventive” armed attacks, unilaterally launched, have profound deciviliz-

ing effects. What, then, in our days, do the terms “civilized nations”81 mean, de-
void of the colonialist connotation of the past? “Civilized nations” are no other
than those which respect International Law 82 and abide by its general principles.
Ultimately, “civilized nations” are those which recognize and respect, in any cir-
cumstance, the primacy of Law over force as an imperative of jus cogens. In the
recent episode of the invasion and occupation of Iraq (2003), and the following
hostilities in the occupied country, the most numerous victims – like those of
terrorism in different parts of the world, – have invariably been innocent and
unprotected civilians (including children).83
The heralds of this new Peloponnesian war of the XXIst century, like those
of their predecessors over the centuries, have had their decisions vested with
empty words and false rhetorics, seeking thereby a hiding place in the recondite
labyrinths of their own irresponsibility (and impunity). What does one witness
after all? Devastation, revenge, violations of International Humanitarian Law 84
and of International Human Rights Law,85 the practice of torture and other abus-
es against prisoners, – opening wounds and leaving scars that will take genera-
81 Coined in Article 38(1)(c) of the ICJ Statute.

82 This associates the expression to an international legal order of a universal dimen-
sion, which seeks justice and peace and discards unwarranted recourse to force; J.A.
Carrillo Salcedo, Soberanía de los Estados y Derechos Humanos en Derecho Inter-
nacional Contemporáneo, 2nd. ed., Madrid, Tecnos, 2001, p. 180. From this outlook,
“civilized nations” are those which fully respect, and ensure respect for, the exer-
cise of human rights to all persons under their respective jurisdictions, as the best
measure of the degree of civilization”; A.A. Cançado Trindade, Tratado de Direito
Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed.,
1999, p. 344. In this respect, already in the XIXth century, a universal writer, F.M.
Dostoievski, warned that the degree of civilization reached by any society can be
assessed by entering into its prisons and detention centres; F.M. Dostoievski, Souve-
nirs de la maison des morts (1862), Paris, Gallimard, 1997 [reed.], pp. 35-416.
83 A situation portrayed by some “strategists” (and part of the media) as “collateral
damages”, an euphemism with which they seek to avoid listening to the voice of
conscience, and which reflects in an unequivocal way the deep crisis of values in the
world in which we live.
84 Cf. J. Cardona Lloréns, “Libération ou occupation? Les droits et devoirs de l’État
vainqueur”, in L’intervention en Irak et le Droit international (eds. K. Bannelier, O.
Corten, Th. Christakis and P. Klein), Paris, Pédone/CEDIN, 2004, pp. 221-250; G.
Abi-Saab, “Les Protocoles Additionnels, 25 ans après”, in Les nouvelles frontières
du Droit international humanitaire (ed. J.-F. Flauss), Bruxelles, Bruylant, 2003, pp.
33-36; Y. Sandoz, “L’applicabilité du Droit international humanitaire aux actions ter-
roristes”, in ibid., pp. 71-72.
85 In its Judgment of 08.07.2004, in the case of the Brothers Gómez Paquiyauri versus
Peru, e.g., the IACtHR pondered that “the prohibition of torture is absolute (...), even
in the most difficult circumstances, such as war, threat of war, ‘fight against terror-
ism’ (...)”; there is nowadays an “absolute prohibition of all forms of torture (...) which
belongs (...) to the domain of international jus cogens” (pars. 111-112).
tions to heal.86 In this line of concern it was pertinently warned by Jean Pictet,
four decades ago, in an almost premonitory tone, that
“it would be a disastrously retrograde step for humanity to try to fight terrorism
with its own weapons”.87
Force only generates force, and one cannot pretend to create a new “interna-
tional order” on the basis of unilateralism and unwarranted use of force, over
the corpses of thousands of innocent victims (victimized by all kinds of terror-
ism, perpetrated by non-State entities as well as sponsored by States themselves),
destined, amidst indifference, to oblivion. The projection in time of the cardinal
principle of the prohibition of the threat or use of force cannot be overlooked.
In fact, nothing in International Law authorizes a State or group of States to
proclaim themselves defenders of “civilization”, – and those which pretend to
take such a course of action, making recourse to the indiscriminate use of force,
outside the framework of the U.N. Charter, do so in the opposite sense to the
purpose professed.
More than half a century ago (in 1950), the learned historian Arnold Toyn-
bee warned that the improvement of military technique was symptomatic of the
“decline of a civilization”, and the growing expenditures with militarism would
fatally lead to the “ruin of civilizations”.88 Another remarkable writer of the XXth
century, Stefan Zweig, in referring to the “old savagery of war”, likewise warned
against the décalage between technical progress and moral ascent, in the face of
“a catastrophe which with one sole blow made us move backwards a thousand
years in our humanitarian endeavours”.89
On his turn, the Greek jurist Nicolas Politis, in a late monograph, published
posthumously in 1944, in face of the great deprivations and misery brought by
war in his time, added to the illusion of ephemeral advantages ensuing from the
use of force, and the awareness of the “inutility of war” and violence, argued
that only the organization of the international community on the basis of inter-
86 It has been timely remarked, in relation to some of the armed confl icts we witness
nowadays, that “the repressive methods used by Israel against the Palestinians, the
destabilization of Iraq after the American intervention, including the emergence
of a new terrorist resistance, the more than uncertain stabilization of Afghanistan,
the inability of Russia to bring peace to Chechnya by the use of force, none of these
events is a success story”; M. Bothe, “The International Community and Terrorism”,
in Les nouvelles menaces contre la paix et la sécurité internationales / New Threats
to International Peace and Security, Paris, Pédone, 2004, pp. 59-60.
87 J. Pictet, The Principles of International Humanitarian Law, 1st. ed., Geneva, ICRC,
1966, p. 36.
88 A. Toynbee, Guerra e Civilização, Lisbon, Edit. Presença, 1963 (reed.), pp. 20, 29 and
178-179. – And cf. J. de Romilly, La Grèce antique contre la violence, Paris, Éd. Fal-
lois, 2000, pp. 18-19 and 129-130.
89 S. Zweig, O Mundo que Eu Vi [Le Monde d’hier], Rio de Janeiro, Ed. Record, 1999
(reed.), p. 19, and cf. pp. 474 and 483, and cf. p. 160.
106 Chapter IV
national cooperation and the constant search by all for the primacy of justice,
could generate durable results, beneficial to humankind; yet, this depended, on
his view, on the awakening of conscience as to the need to seek this goal.90
Such lucid insights and warnings of thinkers of vision of the previous de-
cades cannot be forgotten in our dangerous days. Hermann Hesse (Nobel prize
recipient in literature in 1946), faithful to his pacifist ideas, writing in 1932, in
the inter-war period, strongly criticized the militarization of the epoch and the
transformation of young people into “State criminals”; once the II world war was
over, he pondered in 1945 that
“c’est à nouveau pour nous la première nuit du nouvel an où il n’y a pas la guerre,
où le monde n’est pas plein d’enfer et de mort, où nous n’entendons plus les grandes
machines de destruction passer au-dessus de nous dans l’obscurité à la recherche
de pitoyables cibles. (...) Nous avons amèrement compris que la véritable histoire
universelle n’est pas celle des livres d’école et des ouvrages luxueusement illustrés,
(...) mais qu’elle est une vague, un océan d’infinies souff rances”.91
Over a decade later, as the world became engulfed into new threats, proper of the
cold war period, H. Hesse added, somewhat disillusioned, that
“Si nous qui ne croyons pas à la violence et qui essayons dans la mesure du possible
d’y échapper, devons malgré tout reconnaître qu’il n’y a pas de progrès, que le monde
est toujours gouverné par les arrivistes, les assoiffés de pouvoir et les violents, on
peut appeler ça, si on aime les jolis mots, ‘tragique’”.92
The horrors of past conflicts in the XXth century, – the two world wars and
successive atrocities victimizing millions of human beings, – added to those of
the beginning of this new century, should be kept in mind, in particular by the
contemporary apologists of recourse to force. It is not the function of interna-
tional lawyers to seek “solutions” for threats to international peace and security
through the use of force: this is a distortion of the legal profession, as such solu-
tions are to be found within the domain of Law.
VI. Final Observations: The Primacy of Law over Force as an Imperative of

Jus Cogens
In the last decades, one has witnessed a true conversion of the traditional and
surpassed jus ad bellum into the jus contra bellum of our days; this is one of the
90 N. Politis, La morale internationale, N.Y., Brentano’s, 1944, pp. 164-165 and 158.
91 H. Hesse, Guerre et paix – considérations politiques, Paris, L’Arche Éd., 2003, pp.
139-140, and cf. p. 115.
92 Ibid., p. 179.
most significant transformations of the contemporary international legal order.93

Law has an objective validity, which resists the violation of its norms. It is inad-
missible to try to equate Law with force, which would moreover reflect a mental
vice consisting in not distinguishing the world of Sein from that of Sollen.94 Law
stands above force. One cannot pretend to erect a new “international order” on
the basis of the use of force,95 while the fundamental principle applicable in that
order along almost a century of evolution of International Law has been precisely
to the opposite effect, namely, that of non-use of force.96 Law prevails over force.
The violation of a basic principle of international law does not generate a “new
practice”,97 but rather engages the international responsibility of the wrongdo-
ers.
Every faithful international lawyer has the ineluctable duty to stand against
the apology of the use of force, which is manifested in our days through distinct
“doctrinal” elaborations. One attempts, e.g., to widen the scope of Article 51 of the
U.N. Charter so as to encompass an unsustainable “preventive self-defence”.98 One
advocates recourse to “countermeasures” (a term reminiscent of the old practices
93 M.C. Márquez Carrasco, op. cit. supra n. (58), Madrid, Tecnos, 1998, p. 263. For a
long time already, it has been contended that, even eventual recourse to force by
States, on given occasions, has never affected the primacy of the jus cogens provision
of Article 2(4) of the U.N. Charter; cf., e.g., T.O. Elias, op. cit. supra n. (4), p. 84; A.A.
Cançado Trindade, “El Primado del Derecho sobre la Fuerza como Imperativo del
Jus Cogens”, in Doctrina Latinoamericana del Derecho Internacional, op. cit. supra
n. (2), pp. 51-66. And for a general study, cf. R. Kolb, Ius contra Bellum – Le droit
international relatif au maintien de la paix, 2nd. ed., Bâle/Bruxelles, Helbing Lich-
tenhahn/Bruylant, 2009, pp. 1-342.
94 A. Truyol y Serra, Fundamentos del Derecho Internacional Público, 4th. ed., Madrid,
Tecnos, 1977, pp. 47 and 56-57.
95 [Various Authors,] La pratique et le Droit international (Geneva Colloquy of 2003),
Paris, Pédone/SFDI, 2004, pp. 116 and 120. – It may well be, as pointed out in this
Colloquy, that “persistent objectors” of yesterday have become “persistent violators”
of today; ibid., pp. 120, 233 and 300-301.
96 Likewise, repeated violations of International Human Rights Law and International
Humanitarian Law have not altered these latter; on the contrary, they have prompt-
ly reacted to such violations and have strengthened, rather than weakened; cf. ibid.,
pp. 300-301 (intervention by L. Condorelli).
97 One cannot expect an illicit act or practice to generate legal effects (ex injuria jus
non oritur).
98 The XXII Congress of the Hispano-Luso-American Institute of International Law
(IHLADI), held in San Salvador, El Salvador, adopted a declaration, approved by
ample majority on 13 September 2002, which rejected categorically the “doctrine” of
the so-called “preventive self-defence”, bearing in mind the U.N. Charter, custom-
ary international law and the general principles of law, as well as relevant norms and
the principles of International Humanitarian Law. Cf. text of the declaration in: IH-
LADI, 16 Anuario del Instituto Hispano-Luso-Americano de Derecho Internacional
– Madrid (2003) pp. 657-658.
108 Chapter IV
of reprisals and retaliation),99 outside the framework of the truly central chapter
of International Law of the international responsibility of States.100 One invokes
uncritically “humanitarian intervention or ingérence”, instead of vindicating the
right of the affected populations to humanitarian assistance. One speaks of “per-
sistent objector”, instead of focusing attention on the needed construction of an
opinio juris communis. One has even attempted to issue a death certificate on
Article 2(4) of the U.N. Charter, without foreseeing its harmful consequences for
humankind as a whole. One could, in fact, compile a whole glossary of harmful
neologisms, empty of any juridical meaning and bearing a potential of disastrous
consequences for the international legal order. This reflects the dangerous world
in which we live, engulfed into a profound crisis of values.
The common denominator of all these new “doctrines” is their minimiza-
tion or undervaluing of the foundations of International Law, besides the empha-
sis on the primitivism of the indiscriminate use of force. It is known that, for the
necessary struggle against terrorism, within the Law, there are nowadays twelve
international conventions and protocols at universal level,101 added to seven other
conventions at regional level,102 which are to be applied and duly complied with.
At the present moment of world crisis, – a true crisis of values, – of a worri-
some attempted rupture of the international system of collective security, there
99 Cf. criticisms of M. Virally, “Panorama du droit international contemporain – Cours

général de droit international public”, 183 RCADI (1983) p. 218.
100 Cf. criticisms of Ph. Allott, “State Responsibility and the Unmaking of International
Law”, 29 Harvard International Law Journal (1988) pp. 23-24.
101 Namely, the 1963 Convention on Offences and Certain Other Acts Committed on
Board Aircraft; the 1970 Convention for the Suppression of Unlawful Seizure of Air-
craft; the 1971 Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation (and its 1988 Protocol); the 1973 U.N. Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons;
the 1979 U.N. International Convention against the Taking of Hostages; the 1980
Vienna Convention on the Physical Protection of Nuclear Material; the 1988 Rome
Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation (and the 1988 Protocol for the Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on the Continental Shelf); the 1991 Montreal Con-
vention on the Marking of Plastic Explosives for the Purpose of Detection; the 1997
U.N. International Convention for the Suppression of Terrorist Bombings; and the
1999 U.N. International Convention for the Suppression of the Financing of Terror-
ism.
102 Namely, the 1971 OAS Convention to Prevent and Punish Acts of Terrorism Taking
the Form of Crimes Against Persons and Related Extortion that Are of International
Significance; the 1977 European Convention on the Suppression of Terrorism; the
1987 SAARC Regional Convention on Suppression of Terrorism; the 1998 Arab Con-
vention on the Suppression of Terrorism; the 1999 Convention of the Organization
of the Islamic Conference on Combating International Terrorism; the 1999 OAU
Convention on the Prevention and Combating of Terrorism; and the 2002 OAS In-
ter-American Convention against Terrorism.
is pressing need to reassert the primacy of International Law over brute force,103
as an imperative of jus cogens. “Preventive” armed attacks and indefinite “coun-
termeasures” do not find any support whatsoever in International Law; on the
contrary, they openly violate it. They rely on spurious “doctrines”, which show
the way back to the law of the jungle,104 besides multiplying their defenceless,
silent and innocent victims in different parts of the world.
The most lucid international legal doctrine has characterized the principle
of the prohibition of the threat or use of force as belonging indeed to the domain
of jus cogens,105 and has added that violations of this principle do not weaken its
imperative character.106 The condemnation of the use of force has been qualified
as the “most remarkable” feature of the U.N. Charter,107 – representing, effec-
tively, a notable advance in relation to the Covenant of the League of Nations.
The function of the international lawyer is not simply that of taking note of what
States – or some particular States, the most powerful ones – do; his function is
to identify and say what the Law is, the Law which derives its authority from cer-
tain principles of right reason (est dictatum rectae rationis).108 Law, definitively,
does not silence, not even when recourse is made to weapons either by States or
non-State entities. Well above force stands the Law, just as above the will stands
the conscience.
103 The ICJ, stressing the role of opinio juris in the Nicaragua versus United States case
(1986), effectively affirmed the fundamental character of the principle of the pro-
hibition of the threat and use of force, recognized both in the U.N. Charter and in
customary international law; cf. ICJ Reports (1986) p. 97 par. 181.
104 Cf. cit., in this sense, in A. Cassese, “Article 51”, in La Charte des Nations Unies
– Commentaire article par article (eds. J.-P. Cot and A. Pellet), Paris/Bruxelles, Eco-
nomica/Bruylant, 1985, p. 777.
105 R.St.J. Macdonald, “Reflections on the Charter of the United Nations”, in Des Men-
schen Recht zwischen Freiheit und Verantwortung – Festschrift für Karl Josef Partsch,
Berlin, Duncker & Humblot, 1989, p. 45; R. Macdonald, “The Charter of the United
Nations in Constitutional Perspective”, 20 Australian Year Book of International
Law (1999) p. 215; and cf. C. Lang, L’affaire Nicaragua/États-Unis devant la Cour
Internationale de Justice, Paris, LGDJ, 1990, pp. 135 and 253 (in relation to Interna-
tional Humanitarian Law).
106 Cf. M. Díez de Velazco, Las Organizaciones..., op. cit. supra n. (20), p. 177; and cf. E.
Schwelb, “Some Aspects of International Ius Cogens as Formulated by the Interna-
tional Law Commission”, 61 American Journal of International Law (1967) pp. 946-
975.
107 D. Uribe Vargas, La Paz es una Trégua – Solución Pacífica de Conflictos Internacion-
ales, 3rd. ed., Bogotá, Universidad Nacional de Colombia, 1999, p. 109.
108 A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação,
Rio de Janeiro, Edit. Renovar, 2002, p. 1109; and cf. chapter I, supra.
Part III
Formation of International Law

Chapter V Contemporary International Law-
making: A Reassessment of the
Theory of Formal “Sources” of
International Law
I. Introduction
The ways and means whereby International Law nowadays manifests itself surely
do not exhaust themselves in the consideration of its formal “sources”. The grow-
ing complexity of the process of formation of contemporary International Law
is a challenge to its scholarship, nowadays perhaps to a greater extent than in
the past. This is a basic issue which cannot be dissociated, e.g., from that of the
expansion of international legal personality in International Law.1 Classic doc-
trine already tended to single out the distinction between formal “sources” of
International Law, that is, the means whereby this latter manifests itself and its
norms are created (custom, treaties, general principles of law, case-law, doctrine,
eqüity, among others), and its so-called material “source”, that is, the substratum
– metajuridical – wherefrom the former are originated.2 In fact, the material
“source” referred to is, in its turn, ineluctably linked, ultimately, to the question
of the validity itself of the norms of International Law.
This question, however, transcends the ambit of positive law.3 As interna-
tional lawyers, in their great majority, did not appear prepared to enter into this
line of inquiry, it became commonplace, somewhat easier, along the years, – as
attested by numerous books and courses dedicated to the matter, – reiteratedly
to circumscribe the study of the matter to the provision of Article 38 of the Stat-
ute of the International Court of Justice [ICJ], virtually the same as the corre-
sponding Article of the Statute of the previous Permanent Court of International
Justice [PCIJ].4 The list set forth in that well-known provision, however, refers
1 Cf. chapters VII-XI, infra.

2 G. Scelle, “Essai sur les sources formelles du droit international”, in Recueil d’études
sur les sources du droit en l’honneur de F. Gény, vol. III, Paris, Rec. Sirey, 1934, pp.
400-430; M. Sorensen, Les sources du Droit international, Copenhague, E. Munks-
gaard, 1946, pp. 13-14.
3 M. Sorensen, op. cit. supra n. (2), p. 15.
4 Apart from small variations of phraseology (in the introductory phrase) and in the
numbering of paragraphs and subparagraphs: cf. Bin Cheng, op. cit. infra n. (52), pp.
2 and 21.
114 Chapter V
only to the formal “sources”. The study of the formation of International Law, in
this way, does not – could not – exhaust itself in the consideration only of the
aforementioned list of formal “sources”.
II. General Considerations on the Formal “Sources” of International Law

Article 38 of the Statute of the PCIJ and the ICJ provides that, in the settlement
of disputes submitted to it, the Court will apply international conventions, inter-
national custom and general principles of law, to which are added, as “subsidiary
means”, judicial decisions and doctrine; the Court is, at last, entitled to decide a
question ex aequo et bono, “if the parties agree thereto”. The legislative history
of that provision goes back to 1920, when an Advisory Committee of Jurists was
appointed by the Council of the League of Nations5 to prepare the project for the
establishment of a PCIJ.
The Committee convened at The Hague from 16 June to 24 July 1920. Draft
Article 38 of the PCIJ Statute resulted from a project originally presented by
Baron Descamps,6 which was object of debates among the members of the Com-
mittee referred to, in which a decisive influence was exerted, besides the author
of the aforementioned project, also by E. Root and Lord Phillimore.7 Article 38 of
the Statute of the old PCIJ (reincorporated two and a half decades later also into
the Statute of the successor ICJ) soon became object of attention for enumerat-
ing the “sources” of International Law, but did not escape criticisms in the years
following its adoption.8 G. Scelle, for example, observed in 1934 that the very con-
ception of the aforementioned Article 38 appeared insufficient to fulfi l the social
needs that should be taken into account by the International Law of the epoch.9 It
is to be kept in mind that Article 38, however, was never intended to constitute a
5 The Advisory Committee was composed of Adatci, Altamira, Clovis Bevilaqua

(subsequently replaced by Raul Fernandes), Baron Descamps, Hagerup, Albert de La
Pradelle, Loder, Lord Phillimore, Ricci-Busatti, Elihu Root (assisted by J. B. Scott),
being D. Anzilotti its Secretary-General; cit. in Bin Cheng, op. cit. infra n. (52), p. 6
n. 19.
6 Including treaties, custom, general principles of law, case-law.
7 Cf. proceedings in: Cour Permanente de Justice Internationale/Comité Consultatif
de Juristes, Procès-verbaux des séances du Comité (16 juin/24 juillet 1920) avec An-
nexes, La Haye, Éd. Van Langenhuysen Frères, 1920, pp. 247, 270, 293-297, 306-321,
331-339, 344-346, 351, 584, 620 and 729-730. And, for a study of these procès-verbaux,
cf. Maarten Bos, “The Recognized Manifestations of International Law – A New
Theory of ‘Sources’”, 20 German Yearbook of International Law (1977) pp. 18 and 33-
39.
8 In 1934, G. Scelle, e.g., criticized the formulation of Article 38 of the PCIJ Statute
for have been much influenced by considerations of political order, representing a
compromis between the demands of legal technique and the possibilities of inter-
governmental relations; G. Scelle, op. cit. supra n. (2), p. 411.
9 Ibid., p. 420.
Contemporary International Law-making: A Reassessment of the Theory of Formal “Sources” of International Law 115
mandatory and exhaustive formulation of the “sources” of International Law, but

only a guide to the judicial operation of the Hague Court.10
The provision at issue became also object of controversy in expert writing
as to the question whether it established or not a hierarchy of sources of Pub-
lic International Law.11 For the supporters of the natural law foundations of In-
ternational Law, it became less difficult to apprehend the relationship between
the general principles of law, treaties and custom: to them, treaties and custom
would be “positivizations” of the general principles of law adapted to the varying
historical situations.12 But this was just one of the existing conceptions. What
soon seemed beyond doubt was that the so-called “sources” of International Law
appeared in constant and dynamic interaction.
Another point which became constantly clearer pertained to the promi-
nent position of treaties and custom – normally endowed with equal authority
– among the sources of International Law.13 There was support for the view that
international custom can be found in treaties, just as treaties can, with the pass-
ing of time, move on to customary international law, and even exert effects, qua
evidence of customary international law, on States not Parties thereto.14 With the
exception of this last point, which has been challenged,15 it came to be admitted
10 M. Sorensen, Les sources..., op. cit. supra n. (2), pp. 28-33.

11 Rigorously, doubts were to be raised mainly in respect of treaties, custom and gener-
al principles of law, since Article 38 itself was to characterize case-law and doctrine
as “subsidiary means” and to attribute a limited function to equity.
12 A. Truyol y Serra, Noções Fundamentais de Direito Internacional Público, Coimbra,
A. Amado Ed., 1962, pp. 141-143.
13 Former Soviet authors came even to refuse to recognize any sources of international
law other than treaties and custom; cf. M. Akehurst, “The Hierarchy of the Sources
of International Law”, 47 British Year Book of International Law [BYBIL] (1974-1975)
pp. 273-285. Among them, there were those to whom treaties would prevail over
custormary law for being based on the express agreement of States; cf. R. R. Baxter,
op. cit. infra n. (14), pp. 101-102.
14 R.R. Baxter, “Treaties and Custom”, 129 Recueil des Cours de l’Académie de Droit
International de La Haye [RCADI] (1970) pp. 31-104; A.D. McNair, “Treaties Produc-
ing Effects ‘Erga Omnes’”, in Scritti di Diritto Internazionale in Onore di T. Perassi,
vol. II. Milano, Giuff rè, 1957, pp. 23-36.
15 Ph. Cahier, “Le problème des effets des traités à l’égard des États tiers”, 143 RCADI
(1974) pp. 589-736. – And for a criticism of the preponderant role of treaties and cus-
tom, cf. C. Sepúlveda, Las Fuentes del Derecho Internacional Americano, Mexico,
Ed. Porrúa, 1975, pp. 43-69, and pp. 94-95, on the importance of resolutions of inter-
national Conferences. Cf. also comments by M. Panebianco, “La Teoria delle Fonti
del Diritto Internazionale nei Fondatori della Dottrina Latino-Americana (Sec. 18-
19)”, in Studi in Onore di G. Sperduti, Milano, Giuff rè, 1984, pp. 163-186; J.C. Puig, Les
principes du Droit international public américain, Paris, Pédone, 1954, pp. 1-81.
116 Chapter V
nowadays that a treaty may overcome a pre-existing custom (leading to the for-
mation of a new custom), just as a subsequent custom may overcome a treaty.16
Moreover, the enumeration of “sources” of International Law listed in Article
38 of the ICJ Statute was never meant to be, nor could it be, exhaustive. This was
soon indicated by decisions of the ICJ itself, on the basis of a combination of dis-
tinct “sources”, in addition to other evidences, of International Law.17 It may thus
be inferred that the formal “sources” of International Law are not static categories,
but are rather in in constant and dynamic interaction, reflecting, in a non-exhaus-
tive manner, the ways and means of manifestation of International Law in time.
III. The Formal “Sources” Enumerated in Article 38 of the ICJ Statute
1. International Custom
Article 38 itself of the ICJ Statute duly qualifies international custom in referring
to it as “evidence of a general practice accepted as law”. Hence the two classic
constitutive elements of custom (considered by the PCIJ as early as in 1927, in
the Lotus case, France versus Turkey):18 the objective element, represented by the
international practice itself, and the subjective element, the opinio juris sive ne-
cessitatis, i.e., the belief that such practice is in accordance with law and accepted
as such; this configuration of international custom remains predominantly ac-
cepted to date. Yet, it was once object of criticism on the part of H. Kelsen,19
endorsed by P. Guggenheim, in the sense that the objective element would be
sufficient to create custom as “source” of law, since the subjective element of the
opinio juris would, in their view, be of difficult determination.20
16 Treaties may also serve as evidence of customary law: for example, consular bilat-
eral treaties much influenced the development of customary international law on
consular relations, later codified in the 1963 Vienna Convention on Consular Rela-
tions; R.R. Baxter, op. cit. supra n. (14), pp. 87-89 and 101, and cf. p. 98.
17 Cf. examples cit. in, e.g., R.R. Baxter, op. cit. supra n. (14), pp. 36-37; Ch. Schreuer,
“Recommendations and the Traditional Sources of International Law”, 20 German
Yearbook of International Law [GYIL] (1977) pp. 113-114.
18 Cf. docs. reproduced in: K. Marek, Répertoire des décisions et des documents de la
procédure écrite et orale de la Cour Permanente de Justice Internationale et de la
Cour Internationale de Justice, vol. 2: Les sources du droit international, Geneva,
I.U.H.E.I., 1967, pp. 801-831; in his Dissenting Opinion in the case (wherein the PCIJ
stressed the “will” of States in the formation of international rules), Judge Nyholm
argued that, in the formation of custom, it was by the continuing repetition of cer-
tain acts that an international juridical conscience began to manifest itself. – Sub-
sequently the PCIC began to move away from its voluntarist-positivist thinking, and
its successor, the ICJ, dissociated itself from it.
19 And his followers of the school of the “pure theory of law”.
20 P. Guggenheim, “Les deux éléments de la coutume en Droit international”, in La
technique et les principes du droit public – études en l’honneur de G. Scelle, vol. I,
Paris, LGDJ, 1950, pp. 275-284.
In counterposition to this outlook, many other authors considered necessary

or useful the preservation of the element of opinio juris as a means to prove the
existence of certain customary norms, insisting on its necessity and relevance
in the formation of custom, when, e.g., States disputed the content of customary
law.21 Just as significant was the fact that H. Kelsen and P. Guggenheim them-
selves gradually recognized the necessity to abandon their arguments, yielding
to the recognition of the continued viability, and necessity, of the opinio juris; to
prescind from this latter would only benefit the powerful, besides incurring into
the error of equating law with mere State conduct.22 Opinio juris came to attract
growing attention on the part of international legal doctrine,23 and nowadays its
wide scope is duly recognized (infra).
The proof of custom, object of attention on the part of the ICJ in the Asylum
case (Colombia versus Peru, 1950),24 was to abide by the principle of division or
distribution of the burden of proof (onus probandi incumbit actori) between the
contending parties in international litigation.25 A problem emerged at the epoch
of decolonization was that of determining the application or not of customary
International Law to the new States, then recently emancipated politically. The
question appeared initially surrounded by uncertainties. If one was to apply the
positivist theory of consent as the ultimate foundation of International Law, seri-
ous difficulties would arise, as only the norms with which the new States would
entirely agree with would be automatically binding upon them; it is known, how-
ever, that, in practice, new States preferred, instead of trying promptly to reject
certain norms which could appear adverse to them, to admit their existence and
21 A.A. D’Amato, The Concept of Custom in International Law, Ithaca, Cornell Uni-
versity Press, 1971, pp. 242 n. 28, and 74, and cf. pp. 271-272 (for the “claim-oriented
approach”); and cf. also J.L. Kunz, “The Nature of Customary International Law”,
47 American Journal of International Law [AJIL] (1953) p. 665; D.W. Greig, Interna-
tional Law, 2nd. ed., London, Butterworths, 1976, p. 19.
22 Sienho Yee, “The News that Opinio Juris ‘Is Not a Necessary Element of Customary
[International] Law’ Is Greatly Exaggerated”, 43 GYIL (2000) pp. 231, 234 and 236-
238.
23 Cf. M. Sorensen, op. cit. supra n. (2), p. 85. – On R. Ago’s view of a “spontaneous”
customary international law, cf. comments by J.J. Lador-Lederer, “Some Observa-
tions on the ‘Vienna School’ in International Law”, 17 Nederlands Tijdschrift voor
internationaal Recht (1970) pp. 137-138. This view was opposed to by J.L. Kunz, “The
Nature of Customary International Law”, op. cit. supra n. (21), pp. 664-665.
24 Cf. remarks in P. Guggenheim, Traité de Droit international public, vol. I, Geneva,
Libr. Univ. Georg & Cie., 1953, pp. 46-48 and 506; cf. also H.W. Briggs, “The Colom-
bian-Peruvian Asylum Case and Proof of Customary International Law”, 45 AJIL
(1951) pp. 728-731, esp. p. 729.
25 Cf. A.A. Cançado Trindade, “The Burden of Proof with Regard to Exhaustion of Lo-
cal Remedies in International Law”, 9 Revue des droits de l’homme / Human Rights
Journal – Paris (1976) pp. 81-121; and cf. the memorandum of the U.N. Secretary-
General, Ways and Means of Making the Evidence of Customary International Law
More Readily Available, N.Y., U.N. publ. n. 1949-V-6, 1949, pp. 3-114.
118 Chapter V
to endeavour to change them and to ensure effectively their evolution by means

of their conscious and concerted action to this effect in international forums like
the U.N. General Assembly.
And this, in fact, brought about significant changes in contemporary Inter-
national Law.26 In the past, International Law was characterized as “the general-
ization of the practice of States”;27 nowadays, international practice has a much
wider scope, comprising not only that of States, but also that of international
organizations and of other subjects of International Law.28 In fact, as much of
the practice of States remains – with notable exceptions – largely unpublished
and not examined (sometimes simply unrecorded), for the determination of the
proof of custom resort has often been made to a mass of other available materi-
als,29 at times transcending the practice of States themselves. In any case, no
State – however powerful it might be – can claim that its individual practice is
intrinsically more important than that of other States (just because of the public-
ity and dissemination given to it); as members of the international community,
they all contribute, altogether, to the formation and development of international
practice, jointly with other subjects of International Law.
Another issue relating to international custom is that of the more or less
“immediate” creation of customary norms in new areas of International Law, in
which there was no prior regulation. A remarkable example was provided by the
U.N. General Assembly resolutions in the early sixties, on the exploration and use
of the space,30 resulting in great part from a “tacit agreement” between the two
main space actors of the epoch, and which were to reflect, in the view of some au-
thors, an “inchoate custom” on the matter.31 Resolutions 1721(XVI), of 20.12.1961,
and 1962(XVIII), of 13.12.1963, were to be acclaimed as the “initial chapter” of the
26 M. Virally, “The Sources of International Law”, Manual of Public International Law

(ed. Max Sorensen), London, MacMillan, 1968, p. 139.
27 Cf. cit. in C. Parry, The Sources and Evidences of International Law, Manchester,
University Press/Oceana, 1965, pp. 58 and 62, and cf. pp. 56-82; C. Parry, “The Prac-
tice of States”, 44 Transactions of the Grotius Society (1958-1959) pp. 167 and 159, and
cf. pp. 145-186.
Rio de Janeiro, Ed. Renovar, 2002, pp. 1048-1049.
29 Including bilateral and multilateral treaties, resolutions of the U.N. General Assem-
bly, resolutions of scientific associations such as the Institut de Droit International
and the International Law Association; cf. M. Akehurst, “Custom as a Source of
International Law”, 47 BYBIL (1974-1975) pp. 13-14, 18-19, 23 and 51.
30 E.g., resolutions 1721(XIV), 1802(XVII), 1962(XVIII) and 1963(XIX), and particularly
resolution 1962(XVIII), of the U.N. General Assembly.
31 G. Arangio-Ruiz, “The Normative Role of the General Assembly of the United Na-
tions and the Declaration of Principles of Friendly Relations”, 137 RCADI (1972) p.
525.
treatment of contemporary space law.32 It was at that time suggested that this
solution represented an “instant customary law” for the aforementioned activity
of regulation,33 an expression which also attracted a certain controversy 34 at that
time. The ICJ itself, on its turn, has made it clear, as to the acknowledgement of
custom, that it would look into both elements, -actual practice and opinio juris. It
did so in the North Sea Continental Shelf cases (1969),35 and, again, in the Conti-
nental Shelf (Lybia versus Malta) case (1985).36 Over a decade later, the point was
retaken by the ICJ, in an Advisory Opinion delivered on 08.07.1996.37
2. Treaties
As to treaties, the first point directly related to the study of the formal “sources”
of International Law pertains to the proper relationship between treaties and the
notion of State sovereignty. In the Wimbledon case (judgment of 17.08.1923), the
PCIJ clarified that the conclusion of treaties, and the faithful compliance with
them, constituted precisely attributes of the sovereignty of the State. This latter
cannot be invoked so as to conflict with conventional obligations.38 This amounts
to a principle that governs international obligations, a principle of international
responsibility and even of customary law: a State cannot evade its international
obligations under the pretext of their alleged incompatibility with its own do-
mestic legal order (or any acts – legislative, executive or judicial – emanated from
the public power).39 Sovereignty does not have a bearing on the interpretation
32 It is known, today, however, that the “agreement” between the two superpowers of
the epoch – the United States and the Soviet Union – which rendered the adoption
of such resolutions possible did not pass without controversy. As to the form of such
“agreement”, while the Soviet Union preferred a treaty, the United States insisted on
a resolution of the General Assembly, a formula which the Soviet Union was finally
persuaded to accept.
33 Bin Cheng, “United Nations Resolutions on Outer Space: ‘Instant’ International
Customary Law?”, 5 Indian Journal of International Law (1965) pp. 23-48; and cf.
comments by I. Herczeg, “Space Treaties and Law-Making Process in International
Law”, in Questions of International Law (ed. Hungarian Branch of the International
Law Association), Budapest, Progressprint, 1971, pp. 51-63, esp. p. 53.
34 Cf. criticisms by Maarten Bos, op. cit. supra n. (7), pp. 27 and 68.
35 Cf. ICJ Reports (1969) p. 44, par. 77.
36 ICJ Reports (1985) pp. 29-30, par. 27.
37 ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons, ICJ Reports (1996)
p. 253, par. 64.
38 International case-law points in the sense that constitutional or domestic law provi-
sions cannot be invoked to evade international obligations and cannot prevail over
provisions of treaties in force.
39 Lord McNair, “Treaties and Sovereignty”, in Symbolae Verzijl (présentées au Pro-
fesseur J.H.W. Verzijl à l’occasion de son LXXième anniversaire), The Hague, M.
Nijhoff, 1958, pp. 222-237; R. Ago, “Th ird Report on State Responsibility”, Yearbook
of the International Law Commission [YILC] (1971)-II, Part I, pp. 226-233.
120 Chapter V
of treaties;40 every conventional obligation limits the sovereign powers of States

Parties. In an Advisory Opinion issued on 26.04.1988, the ICJ, holding that the
United States was bound to respect the obligation to have recourse to arbitration
under section 21 of the 1947 U.N. Headquarters Agreement, saw it fit to recall
“the fundamental principle of international law that International Law prevails
over domestic law”.41
The impressive and ever-continuing growth only of the United Nations
Treaty Series, e.g., would suffice to attest the great relevance of the utilization of
treaties in international practice and of the rules of conduct derived therefrom.
Yet, distinct approaches have been propounded as to the consideration of trea-
ties as “source” of International Law. There were those who contended that they
were rather “sources” of obligations (G. Fitzmaurice, C. Parry), while others dis-
agreed with that posture (A. Verdross); in an intermediary position, Maarten Bos
proposed that treaties are “sources” of International Law to the extent that they
increase or codify the corpus of already existing rules, and are “sources” of obli-
gations when, rather distinctly, they exert the role equivalent to that of a contract
in modern domestic law.42 The 1969 and 1986 Vienna Conventions on the Law
of Treaties do not provide for the law which governs international obligations of
States, but rather and more precisely for the law on the international instruments
enshrining such obligations, i.e., the treaties.43
There is no impediment for treaty provisions to enter into the corpus of gen-
eral international law, i.e., to generate rules of customary international law. Such
possibility was cautiously admitted by the ICJ itself, in the same year of the con-
clusion of the first Vienna Convention on the Law of Treaties.44 In the account
40 Lord McNair, op. cit. supra n. (40), pp. 222-237, esp. pp. 236-237. On the rules of
treaty interpretation set forth in Articles 31-33 of the 1969 Vienna Convention on
the Law of Treaties, cf. M. K. Yasseen, “L’interprétation des traités d’après la Con-
vention de Vienne sur le droit des traités”, 151 RCADI (1976) pp. 9-112.
41 ICJ, Advisory Opinion on the Applicability of the Obligation to Arbitrate under Sec-
tion 21 of the U.N. Headquarters Agreement of 1947, ICJ Reports (1988) p. 34, par. 57.
42 Maarten Bos, op. cit. supra n. (6), pp. 20-24.
43 On the generic term “treaty” under the 1969 Vienna Convention, cf., e.g., P.M. Eise-
mann, “Le gentlemen’s agreement comme source du droit international”, 106 Jour-
nal du droit international – Clunet (1979) pp. 326-349, and cf. p. 326 on the insuf-
ficiencies of the “dogmatism” of Article 38 of the ICJ Statute. – Moreover, concerned
with practical problems, the two aforementioned Vienna Conventions discard ab-
stract classifications of treaties, so common in the past (such as, e.g., the distinction
between traité-contrat and traité-loi); S. Rosenne, “Bilateralism and Community In-
terest in the Codified Law of Treaties”, in Transnational Law in a Changing Society
– Essays in Honour of Ph. C. Jessup (ed. W. Friedmann, L. Henkin, and O. Lissitzyn),
N.Y./London, Columbia University Press, 1972, pp. 202-227.
44 Cf. the North Sea Continental Shelf cases (Denmark and The Netherlands versus
Federal Republic of Germany, Judgment of 20.02.1969), ICJ Reports (1969) p. 41.
of one participant in the Vienna Conference of 1968-1969, on the occasion the

representative of Sweden observed that great part of the contents of the 1969
Convention expressed simply rules already existing in customary international
law, while the Swiss representative, on his turn, added that, in order to fill the
gaps which persisted, it was occasionally “still necessary, in the practice of inter-
national relations, to fall back on custom”.45
Moreover, even certain unratified conventions of general scope may have a
bearing on the formation of international custom. Modern endeavours of codifi-
cation, which go “much further beyond the mere expression of customary Inter-
national Law” than earlier conventions did, have increasingly characterized the
“progressive development” of International Law, in endeavouring to fulfi l “ex-
isting needs of the international community”.46 It has been conceded that even
one or another of the so-called “codification conventions”47 are declaratory of
customary law, and, having achieved a significant number of ratifications, even
before entering into force they could keep on contributing to the evolving general
international law itself.48 In this respect, it has been suggested that
“in the case of a codification convention lato sensu, in other words, a convention
which codifies and ‘progressively develops’ International Law (...), the codification
process considered independently of ratification may give rise to new customary
rules and thereby alter the rights and obligations of States regardless of the consent
which the convention requires from them to be valid as such”.49
3. General Principles of Law

I have already expressed my view that general principles of law conform the very
foundations of International Law, and indeed of every and any legal system.50
At this stage, in approaching the formal “sources” of International Law, suffice
it here to point out that the inclusion of general principles of law among the
“sources” set forth in Article 38 of the ICJ Statute can be more clearly explained
as from the outlook of the natural law foundations of International Law. Such
inclusion, moreover, came to endorse the findings of earlier arbitral practice,
45 Cf. account in I.M. Sinclair, The Vienna Convention on the Law of Treaties, Man-
chester, University Press/Oceana, 1973, pp. 9 and 11.
46 C.Th. Eustathiades, Unratified Codification Conventions (Gilberto Amado Memo-
rial Lecture), Geneva, U.N. Publ., 1973, pp. 2 and 10.
47 Such as, e.g., the 1969 and 1986 Vienna Conventions on the Law of Treaties, the 1982
U.N. Convention on the Law of the Sea, the 1961 Vienna Convention on Diplomatic
Relations and the 1963 Vienna Convention on Consular Relations.
48 The 1975 Vienna Convention on Representation of States in Their Relations with
International Organizations of Universal Character, e.g., can be taken as declaratory
of customary rules on the matter already crystallized even before their adoption.
49 C.Th. Eustathiades, op. cit. supra (46), p. 13, and cf. pp. 3-4, 7-8 and 12.
122 Chapter V
which contributed to the configuration of a third “source” of International Law,

historically more recent than custom and treaties.51 There persisted, however,
doubts and uncertainties as to the meaning of general principles of law, e.g., for
some, the expression pertained to the principles of International Law properly,
while for others it referred to the principles of comparative domestic law of the
various States.52
The doubts and uncertainties already referred to were made present dur-
ing the drafting itself, by the Advisory Committee of Jurists appointed to that
end,53 of Article 38 of the Statute of the Hague Court in June-July 1920. Baron
Descamps, who believed in “objective justice” (present in theories of natural law),
proposed originally to the Committee the expression “juridical conscience of the
civilized nations”, against whose “subjectivism” Mr. E. Root manifested himself.
Lord Phillimore elaborated, together with E. Root, an amendment to the pro-
posal of Descamps. The solution of compromis, between the principles of “objec-
tive justice” of Descamps, and the principles of “common law” (Phillimore) or
recognized by “civilized nations” in foro domestico (Root), came into operation
with the expression “general principles of law”.54
The expression incorporated, however, the tension of the polarity between
jusnaturalism (the universal principles of objective justice) and legal positivism
(the search for the principles of law recognized and crystallized in the domestic
legal orders). It is, however, clear that the expression establishes a clear link be-
tween domestic law and International Law.55 As from the fifties reiterated refer-
ences came to be made to general principles of law such as those of good faith, of
res judicata, of the prohibition of the abuse of rights, among others. It has been
argued that Article 38 of the Statute of the Hague Court, as adopted (i.e., contain-
ing references inter alia to custom and general principles of law), came to reject
the thesis that only the rules created by means of a “formal process” were “valid”,
51 P. Guggenheim, “Contribution à histoire des sources du droit des gens”, 94 RCADI

(1958) pp. 72-76 and 80-81.
52 Cf., on the point, e.g., M. Virally, op. cit. supra n. (26), pp. 144-146. – Moreover, while
the borderline between treaties and custom appeared clear, not always it appeared
easy to distinguish customary rules from general principles of law. Bin Cheng, Gen-
eral Principles of Law as Applied by International Courts and Tribunals, London,
Stevens, 1953, p. 23; cf. also the critical remarks by Ch. Chaumont, “Cours général de
Droit international public”, 129 RCADI (1970) pp. 456-464.
53 Cf. its composition in n. (5), supra.
54 Bin Cheng, op. cit. supra n. (52), pp. 6-21; Maarten Bos, op. cit. supra n. (7), pp. 33-
39.
55 There have been calls for a thorough survey of comparative law for the identifica-
tion of the general principles of law; cf. M. Akehurst, “Equity and General Principles
of Law”, 25 International and Comparative Law Quartely (1976) pp. 817-819; A.A.
Cançado Trindade, “La méthode comparative en Droit international: une perspec-
tive européene”, 55 Revue de droit international de sciences diplomatiques et poli-
tiques (1977) pp. 273-287; L.C. Green, “Comparative Law as a ‘Source’ of Interna-
tional Law”, 42 Tulane Law Review (1967) pp. 52-66.
and to sustain that, like in the domestic legal systems, International Law also
embodies certain principles not formally formulated.56
4. Judicial and Arbitral Decisions

Another formal “source” of International Law, listed in Article 38 of the ICJ
Statute, lies in the great mass of judicial and arbitral decisions.57 which vary in
weight and influence. The tribunals (including the arbitral ones) wherefrom they
emanate comprise both the international and national ones, these latter when
pronouncing on questions of international law.58 There is here an area of signifi-
cant interaction in the operation of international and national tribunals; just as
judicial decisions of international tribunals can clarify certain questions of Inter-
national Law and also of domestic law, judicial decisions of national tribunals can
likewise do so when dwelling upon questions of International Law.59
56 Bin Cheng, op. cit. supra n. (52), p. 23, and cf. pp. 25-26. – On the usefulness to
international tribunals to resort to general principles of law, cf. M.O. Hudson, Inter-
national Tribunals – Past and Future, Washington, Carnegie Endowment for Inter-
national Peace/Brookings Institution, 1944, p. 108.
57 On judicial precedent as source of International Law, cf. H. Lauterpacht, The Devel-
opment of International Law by the International Court, London, Stevens, 1958, pp.
20-22; J.G. Merrills, The Development of International Law by the European Court
of Human Rights, 2nd. ed., Manchester, University Press, 1993, pp. 12-16 and 231-233;
J.R.W.D. Jones, The Practice of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda, 2nd. ed., Ardsley/N.Y., Transnational Publs., 2000, pp. 3-
643; L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Develop-
ment of International Law, Leiden, Nijhoff, 2005, pp. 1-284; Bin Cheng, “The Con-
tribution of International Courts and Tribunals to the Protection of Human Rights
under International Customary Law”, in International Protection of Human Rights
– Proceedings of the VIIth Nobel Symposium (eds. A. Eide and A. Schou; Oslo, 1967),
Stockholm, Almqvist & Wiksell, 1968, pp. 167-175; among others.
58 Cf., e.g., R.A. Falk, The Role of Domestic Courts in the International Legal Order,
Syracuse University Press, 1964, pp. 21-52 and 170; F. Morgenstern, “Judicial Practice
and the Supremacy of International Law”, 27 BYBIL (1950) p. 90. – The practice of
domestic tribunals in matters of international law has in fact been taken into ac-
count in the case-law of international tribunals themselves. Cf., e.g., J.A. Barberis,
“Les arrêts des tribunaux nationaux et la formation du droit international coutum-
ier”, 46 Revue de droit international de sciences diplomatiques et politiques (1968)
pp. 247-253.
59 C.H. Schreuer, “The Authority of International Judicial Practice in Domestic
Courts”, 24 International and Comparative Law Quarterly (1975) pp. 180-183; A.A.
Cançado Trindade, “Exhaustion of Local Remedies in International Law and the
Role of National Courts”, 17 Archiv des Völkerrechts (1977-1978) pp. 333-360. – The
old controversies between monism and dualism yield to a new approach to these
aspects of the matter; cf. A. Drzemczewski, “Les faux débats entre monisme et du-
alisme – Droit international et droit français: l’exemple du contentieux des droits
de l’homme”, 51 Boletim da Sociedade Brasileira de Direito International (1998) n.
124 Chapter V
Although Article 38 of the ICJ Statute refers to judicial decisions as a “subsidiary

means” for the determination of rules of law, the international judicial function
has considerably enlarged since that provision was drafted, in 1920. At that time,
the PCIJ had just been established. Nowadays, besides its successor, the ICJ, the
international community counts on a multiplicity of international tribunals, – a
phenomenon which discloses the advances achieved in the last decades by the
old ideal of the realization of international justice.60 Such tribunals today oper-
ate in distinct areas of International Law, such as the international protection
of human rights, the international law of the sea, international criminal law, the
law of integration at regional level. Accordingly, judicial decisions as “source” of
International Law are bound to increase in importance.
Contemporary international tribunals pronounce, more and more often, on
questions of interest of, or concern to, the international community as a whole.
Judicial decisions of the international human rights tribunals – the European
and Inter-American Courts of Human Rights, – for example, have indeed con-
tributed to the creation of an international ordre public based upon the respect
for human rights in all circumstances. They have both helped to achieve the apti-
tude of International Law to regulate efficiently relations which have a specificity
of their own – at intra-State, rather than inter-State, level, opposing States to
individuals under their respective jurisdictions; they have thus contributed to
enrich and humanize contemporary International Law.61
Judicial decisions of the ad hoc international criminal tribunals – those
for the Former Yugoslavia and for Rwanda, – for example, have, on their turn,
contributed to combat impunity and to foster the rule of law at national and
international levels. These reassuring developments are bound to confer a new
dimension to international case-law, distinct from that which was envisaged in
1920. This new dimension encompassing contemporary international-law-mak-
ing reflects, in turn, the recent advances towards international ordre public and
rule of law, proper to the newly-emerging jus gentium at this beginning of the
XXIst century.
113-118, pp. 95-109; G. Sperduti, “Dualism and Monism: A Confrontation to be Over-

come”, 3 Italian Yearbook of International Law (1977) pp. 31-49.
60 Cf. chapter XXV, infra.
61 A.A. Cançado Trindade, “La perspective trans-atlantique: La contribution de
l’oeuvre des cours internationales des droits de l’homme au développement du droit
public international”, in La Convention européenne des droits de l’homme à 50 ans
– Bulletin d’information sur les droits de l’homme, n. 50 (special issue), Strasbourg,
Council of Europe, 2000, pp. 8-9 (published also in other idioms of the Council
of Europe); and cf. A.A. Cançado Trindade, “The Case-Law of the Inter-American
Court of Human Rights: An Overview”, in Studi di Diritto Internazionale in Onore
di G. Arangio-Ruiz, vol. III, Napoli, Ed. Scientifica, 2004, pp. 1873-1898; H. Tigroudja
and I.K. Panoussis, La Cour Interaméricaine des Droits de l’Homme – Analyse de la
jurisprudence consultative et contentieuse, Bruxelles, Bruylant/Nemesis, 2003, pp.
21-308.
5. Doctrine
Article 38(1)(d) of the Statute of the Hague Court indicates expressly, moreover,
that doctrine also constitutes a “subsidiary means”, among the “sources” listed
therein. The reference to doctrine is accompanied by a qualification, namely, “the
teachings of the most highly qualified publicists of the various nations”. The in-
fluence of some distinguished authors has appeared more remarkable in the ep-
och of formation of International Law than subsequently, as exemplified by the
writings of the classics.62 Although there is a tendency to attribute to doctrine
nowadays a rather modest position among the “sources” of International Law,
one ought not, however, to neglect it. Resort is always made to doctrinal teach-
ings, e.g., at least to substantiate claims at the international level.
There have also been instances, however rare, of individual authors who
have succeeded to influence the evolution itself of International Law in specific
domains, such as diplomatic protection of nationals abroad,63 and the law of the
sea,64 among others. Furthermore, the considerable influence may be recalled,
e.g., of Latin-American doctrine (especially that of a defensive character) for the
general recognition of certain principles of International Law, such as those of
the juridical equality of States, of non-use of force and non-intervention in inter-
State relations (the Drago and Calvo doctrines), and of peaceful settlement of
international disputes.65
Some have regarded, as a limitative characteristic of doctrine (in the sense
of the teachings of publicists), its alleged tendency to reflect the perceptions of
International Law prevailing in a given legal system, region, or country. Be that as
it may, the insertion of doctrine among the formal “sources” of International Law
set forth in Article 38 of the ICJ Statute is not to be minimized. It should be kept
in mind that, in historical perspective, some of the great doctrines of Interna-
tional Law, crystallized with the passing of time, have contributed to the “devel-
opment of the juridical conscience” and have fostered the sentiment of interna-
62 Cf. chapter I, supra.

63 E.M. Borchard, The Diplomatic Protection of Citizens Abroad, N.Y., Banks Law Publ.
Co., 1916, pp. 1ss.; and cf. C. Parry, The Sources and Evidences of International Law,
Manchester, University Press/Oceana, 1965, p. 107.
64 Although States had claimed restricted rights in areas adjacent to their territorial
sea well before Gilbert Gidel started writing on such claims (cf. G. Gidel, Le droit
international public de la mer, 3 vols., Châteauroux, Mellottée, 1932-1934), “it was
Gidel who produced the concept of contiguous zone as a basis for the discussion
about the validity of such claims” (M. Akehurst, A Modern Introduction to Interna-
tional Law, 2nd. ed., London, G. Allen & Unwin, 1971, pp. 55-56).
65 Cf., recently, A.A. Cançado Trindade and A. Martínez Moreno, Doctrina Latina-
mericana del Derecho Internacional, vol. I, San José of Costa Rica, Inter-American
Court of Human Rights, 2003, pp. 5-64.
126 Chapter V
tional solidarity.66 The influence of the teachings in the domain of International

Law, as well pointed out by M. Lachs, projects itself well beyond the pedagogical
sphere, reaching the practice itself of International Law.67
And as well pointed out also by A. de La Pradelle, while international judges
and arbiters have remained aware of the self-limitations inherent to their func-
tions, and representatives of States have only and invariably beheld their own
interests, not seldom in a rather uncompromising way, – doctrine, on its turn,
has retained its creative function.68 It is important, – he added, – that the inspi-
ration of the human spirit devotes itself freely in the search for “juridical truth”,
keeping forcefully in mind that the establishment of rules, regarded as obligatory
for States “independently of their formal consent”, could not be undertaken by
the States themselves.69
It is, moreover, to be born in mind that doctrine is not limited to the teach-
ings of individual authors, but comprises, likewise related to the “sources” of In-
ternational Law, the relevant doctrinal work emanated from collegiate organs
within international organizations (e.g., the work of the U.N. International Law
Commission,70 of the OAS Inter-American Juridical Committee,71 and the Asian-
African Legal Consultative Committee,72 devoted to the realization of the aims
of codification and progressive development of International Law), or else from
international scientific-academic institutes or associations,73 whose Yearbooks
and Reports contain a wealth of materials reflecting the evolving doctrine of In-
ternational Law74 and dealing with themes of concern to the international com-
munity as a whole.
66 N. Mateesco, Doctrines-écoles et développement du droit des gens, Paris, Pédone,

1951, pp. 25 and 45.
67 M. Lachs, The Teacher in International Law, 2nd. rev. ed., Kluwer, Nijhoff, 1987, pp.
159-229.
68 A. de La Pradelle, Maîtres et doctrines du droit des gens, 2nd. ed., Paris, Éds. Inter-
nationales, 1950, p. 7.
69 Ibid., pp. 7-8.
70 Cf. United Nations, The Work of the International Law Commission, 5th. ed., N.Y.,
U.N., 1996, pp. 1-501.
71 Reproduced in its series Recommendations and Reports.
72 Cf., e.g., inter alia, AALCC, Asian-African Legal Consultative Committee – Report
and Selected Documents (XXXII Session, 1993), New Delhi, AALCC Secretariat,
1993, pp. 1-312.
73 Such as, in particular, the Institut de Droit International, and also the International
Law Association, the Instituto Hispano-Luso-Americano de Derecho Internacional
(IHLADI), among others.
74 Cf. Institut de Droit International, Livre du Centenaire 1873-1973: Évolution et per-
spectives du droit international, Bâle, Karger, 1973, pp. 124-473; G. Fitzmaurice,
“The Contribution of the Institute of International Law to the Development of In-
ternational Law”, 138 RCADI (1973) pp. 211-259; International Law Association, The
Present State of International Law – 1873-1973, Kluwer, Deventer, 1973, pp. 3-392; P.
6. Equity
In the course of the drafting, in 1920, of Article 38 of the PCIJ Statute, the Ad-
visory Committee of Jurists (appointed to that end) conceived the function of
equity as being very restricted, to be applied only if agreed upon by the parties.75
In fact, the notion of equity, which by Article 38(2) of the Statute (of the PCIJ and
the ICJ) occupies only a secondary position among the “sources” of International
Law, was surrounded by uncertainties;76 Article 38(2) limits itself to preserve “the
power of the Court to decide a case ex aequo et bono, if the parties agree thereto”.
According to the well-known classification of the functions of equity, this latter
may be applied infra legem (adapting the law to the facts of concrete cases), pra-
eter legem (filling gaps in law), or contra legem (as a means to refuse to apply un-
just laws). It is generally reckoned that equity contra legem could not be applied
in the absence of an express authorization in this sens;e; equity praeter legem is
currently of reduced application, given the unlikelihood of gaps in International
Law nowadays. There thus remains equity infra legem, the most usual form of its
application, as, for example, in frontier disputes.77
Charles de Visscher once remarked that equity is “characterized essentially
as an individualized expression of justice”.78 Because it has tended to be identified
with a certain subjectivism, international tribunals have often joined references
to equity to a simultaneous invocation of custom, or of treaties, or of general
principles of law, or of earlier judicial or arbitral decisions.79 It has been argued
that it remains incumbent upon equity to keep on proceeding to the “judicial ad-
aptation of the rules to the circumstances of the concrete cases”.80 Considerations
of equity have been invoked in international judicial practice, e.g., in the domains
of the law of the sea,81 and of the international protection of human rights (in
de Visscher, “La contribution de l’Institut de Droit International à la protection des

droits de l’homme”, in Le Droit international au service de la paix, de la justice et du
développement – Mélanges M. Virally, Paris, Pédone, 1991, pp. 215-224; Ch. Domin-
icé, “La contribution de l’Institut de Droit International au développement du Droit
de l’organisation internationale”, in Mélanges en l’honneur de N. Valticos – Droit et
justice (ed. R.-J. Dupuy), Paris, Pédone, 1999, pp. 101-115.
75 Cf. M. Sorensen, op. cit. supra n. (2), pp. 28-33.
76 On these latter, cf., e.g., Ch. Rousseau, Droit international public, vol. I, Paris, Sirey,
1970, pp. 400-405.
77 M. Akehurst, “Equity and General Principles of Law”, 25 International and Com-
parative Law Quarterly (1976) pp. 801-813.
78 Ch. de Visscher, De l’équité dans le règlement arbitral ou judiciaire des litiges de
Droit international public, Paris, Pédone, 1972, pp. 6-7, and cf. pp. 12-13.
79 M. Akehurst, op. cit. supra n. (77), pp. 811-812; Ch. de Visscher, op. cit. supra n. (78),
p. 4.
80 Ch. de Visscher, op. cit. supra n. (78), p. 9.
81 There are those who detected, in the Judgment of 1969 of the ICJ on the North Sea
Continental Shelf case (Denmark and The Netherlands versus Federal Republic of
128 Chapter V
this latter, e.g., in the acknowledgement of powers “inherent” to international

supervisory organs82 and in the determination of reparations to victims), thus
discarding State voluntarism.83
IV. The Formal “Sources” Not Enumerated in Article 38 of the ICJ Statute
1. Unilateral Juridical Acts of States

Given the decentralization of the international legal order, in which co-exist, in
a regime of co-ordination, politically organized entities such as the States (be-
sides international organizations, peoples and individuals), it is not surprising
that unilateral acts emanating from them have had legal effects attached thereto.
International practice has admitted, in fact, that international obligations may be
assumed under certain circumstances as a result of some unilateral acts.84 Uni-
lateral acts have, as a matter of fact, been conceived as manifestations of a subject
of International Law to which this latter attaches certain consequences.85 There
are unilateral acts foreseen by customary law, e.g., protest, notification, promise,
renunciation, recognition, among others.
Even such acts do not pass without qualifications. Recognition, e.g., is often a
unilateral act, based largely on the principle of effectiveness in a given situation,
with the consequences ensuing therefrom.86 On the other hand, non-recogni-
tion is also utilized in practice to try to impede that a situation de facto (e.g., one
generated by force), comes to produce legal effects.87 Proposed enumerations of
Germany, ICJ Reports (1969) pp. 32-33, 49-50 and 53-54, pars. 47, 91-92 and 100), an
example of a decision based on “considerations of equity”; K. Hjertonsson, The New
Law of the Sea – Influence of the Latin American States on Recent Developments of
the Law of the Sea, Leiden/Stockholm, Sijthoff/Norstedts, 1973, p. 166, and cf. pp.
163-168.
82 B.G. Ramcharan, “Equity in the International Law of Human Rights”, 5 Dalhousie
Law Journal (1979) pp. 52, 59 and 65-66.
83 N.K. Hevener and S.A. Mosher, “General Principles of Law and the U.N. Covenant
on Civil and Political Rights”, 27 International and Comparative Law Quarterly
(1978) pp. 596-597, 601, 603-604 and 612-613.
84 Cf., e.g., G. Venturini, “La portée et les effets juridiques des attitudes et des actes
unilatéraux des États”, 112 RCADI (1964) pp. 387-388, 391 and 400-401; and cf. A.
Miaja de la Muela, “Los Actos Unilaterales en las Relaciones Internacionales”, 20
Revista Española de Derecho Internacional (1967) pp. 456-459.
85 E. Suy, Les actes juridiques unilatéraux en Droit international public, Paris, LGDJ,
1962, p. 44.
86 P. Reuter, Institutions internationales, 6th. ed., Paris, P.U.F., 1969, pp. 120-128; and
cf. chapter VII, infra.
87 Cf. examples in, e.g., Alf Ross, A Textbook of International Law – General Part, Lon-
don, Longmans, 1947, pp. 118-122; and cf. E. Suy, op. cit. supra n. (85), pp. 189-214.
unilateral acts in International Law have not purported to be exhaustive,88 or

conclusive as to their legal effects.
Yet, it is to be recalled that, in the domain of the law of the sea, for example,
the notions of contiguous zone, territorial sea (followed by patrimonial sea and
subsequently exclusive economic zone) were initially formed (before the 1982
U.N. Convention on the Law of the Sea) by means of unilateral acts of regulation
on the part of each State individually rather than by means of multilateral trea-
ties.89 It was suggested that the constant repetition of these multiple unilateral
acts, for more than three decades before the adoption of the 1982 Montego Bay
Convention, contributed decisively to the formation of some customary norms in
this domain.90 With the adoption, however, of the 1982 U.N. Convention on the
Law of the Sea, some of them were consolidated therein, while other emerging
concepts which appeared to reflect a more generalized consensus were adopted
therein.91
2. Resolutions of International Organizations

Some attempts were made in the past to approach unilateral acts of States and
acts of international organizations jointly.92 This approach, however, gave margin
to some uncertainties, and it soon it appeared more appropriate to consider the
acts of international organizations separately from the unilateral acts of States.
In fact, with the advent and growth of international organizations,93 as from the
mid-XXth century, the gradual expansion of their regulatory powers, varying
88 J. Dehaussy, “Les actes juridiques unilatéraux en Droit international public: à propos

d’une théorie restrictive”, 92 Journal du droit international – Clunet (1965) pp. 55-56,
and cf. p. 63.
89 This was what also happened, at a given time, with the extension of the territorial
sea to a limit of 200 miles on the part of some Latin-American States, by means of
“internal” unilateral acts (proclamations, laws, decrees, etc.). Th is was, furthermore,
what happened with the continental shelf as from the well-known proclamation by
Truman of 1945.
90 A.A. Aramburu Menchaca, “La Costumbre y la Delimitación de los Espacios Maríti-
mos en el Continente Americano”, 38 Revista de Derecho y Ciencias Políticas – Lima/
Peru (1974) pp. 5-39; cf. also K. Hjertonsson, op. cit. supra n. (81), pp. 7-179.
91 Such as that of the exclusive economic zone, as from the territorial sea of 12 miles.
92 Cf. J. Dehaussy, op. cit. supra n. (88), pp. 45, 53-54 e 59-61; A. Miaja de la Muela, op.
cit. supra n. (84), pp. 431-434.
93 According to a defi nition proposed in 1956 to the U.N. International Law Com-
mission, by international organization it was understood an entity established by a
treaty, with a constitution and common organs, and a personality distinct from that
of its member States, being a subject of International Law with capacity to conclude
treaties; cf. Yearbook of the International Law Commission (1956) – II, p. 108; the
definition was proposed by G.G. Fitzmaurice, rapporteur on the law of treaties.
130 Chapter V
from case to case, took place.94 The activities and decisions of international or-
ganizations, in the most diverse sectors, are usually externalized by means of
resolutions, of varying relevance and scope: some serve as instrument of exhor-
tation, others enunciate general principles, and others require a given type of
action aiming at specific results.95
Resolutions of international organizations have a specificity of their own,
being distinct from other categories of “sources” enumerated in Article 38 of the
ICJ Statute.96 Significantly, the silence, about them, of that provision, has not im-
peded the ICJ to take them promptly and properly into account.97 In various pas-
sages of its Advisory Opinion of 16.10.1975 on the Western Sahara, e.g., the ICJ
considered and discussed in detail some resolutions of the U.N. General Assem-
bly.98 Earlier on, the U.N. General Assembly itself, in its resolution 3232(XXIX) of
22.11.1970, about the revision of the function of the ICJ, also espoused the thesis
that the development of International Law can be reflected, inter alia, in declara-
tions and resolutions of the U.N. General Assembly, which can to this effect be
thus taken into account by the ICJ.99
This is in fact what has happened in practice. In a subsequent Advisory
Opinion, of 08.07.1996, the ICJ has asserted that
“General Assembly resolutions, even if they are not binding, may sometimes have
normative value. They can, in certain circumstances, provide evidence important
for establishing the existence of a rule or the emergence of an opinio juris. To es-
tablish whether this is true of a given General Assembly resolution, it is necessary
to look at its content and the conditions of its adoption; it is also necessary to see
whether an opinio juris exists as to its normative character. Or a series of resolutions
94 On their contribution to the formation of international custom, cf. L. Kopelmanas,

“Custom as a Means of the Creation of International Law”, 18 BYBIL (1937) p. 151.
In recent decades there remained no doubt that the practice of International Law
was no longer restricted to the practice of States, and comprised also that of inter-
national organizations, in need of systematization; cf., e.g., S. Rosenne, Practice and
Methods of International Law, London/N.Y., Oceana Publs., 1984, pp. 1-117.
95 Cf. chapter VIII, infra.
96 K. Skubiszewski, “A New Source of the Law of Nations: Resolutions of International
Organisations”, in Recueil d’études de Droit international en hommage à P. Gug-
genheim, Geneva, I.U.H.E.I., 1968, pp. 508 and 510-511, and cf. pp. 518-520. On the
juridically relevant activity of the U.N. Secretariat, cf., e.g., O. Schachter, “The De-
velopment of International Law through the Legal Opinions of the United Nations
Secretariat”, 25 BYBIL (1948) pp. 91-132.
97 Cf., e.g., ICJ, Advisory Opinions on Judgments of the Administrative Tribunal of the
ILO upon Complaints Made against UNESCO (1956), and on Certain Expenses of the
United Nations (1962).
98 In the context of decolonization and self-determination; cf. ICJ Reports (1975) pp. 20,
23, 26-37, 40, 57 and 67-68.
99 Cit. in Ch. Schreuer, “Recommendations...”, op. cit. supra n. (17), p. 112 and n. 42.
may show the gradual evolution of the opinio juris required for the establishment
of a new rule”.100
And, more recently, in its Advisory Opinion of 09.07.2004 on the Legal Conse-
quences of the Construction of a Wall in the Occupied Palestinian Territory, the
ICJ observed that principles and rules of International Law (e.g., pertaining to
the prohibition of threat or use of force, and to the self-determination of peo-
ples) can be found in the U.N. Charter and certain other treaties, in customary
international law and in the relevant resolutions adopted by the U.N. General
Assembly and the Security Council.101 In fact, just as unilateral juridical acts of
States (as subjects of International Law) rank among the formal “sources” of the
contemporary law of nations, so do the juridical acts (resolutions) of interna-
tional organizations (likewise subjects of International Law).
The element of opinio juris may be more predominant in resolutions of the
declaratory kind; in any case, resolutions of international organizations, and in
particular those of the U.N. General Assembly, have been accepted as “sources”
of International Law not only by the ICJ by also by other international (arbitral)
tribunals.102 They often give expression to values and aspirations of the interna-
tional community as a whole. As pointed out by B. Sloan in his review of forty
years of U.N. General Assembly resolutions,
“principles in Assembly resolutions may be expressions of the ethical or moral con-

science of mankind, of a general world conscience, of basic concepts of equity and
justice, or of the underlying spirit and aims of the U.N.”103
Thus, summing up, the category of resolutions of international organizations

does rank among the formal “sources” of contemporary International Law. Un-
der certain circumstances, some resolutions do meet this test of being a means
whereby International Law manifests itself. And even if certain resolutions are
purely recommendatory, – and, thus, not binding, – they are, nevertheless, ju-
ridically relevant, have much influenced international practice, and States them-
selves, naturally reluctant to infringe them, consider themselves at least in the
duty to consider them in good faith.104 Those resolutions form today a vast corpus
100 ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons, ICJ Reports (1996)
pp. 254-255, par. 70.
101 Cf. ICJ Reports (2004) p. 171-172, pars. 86-88.
102 B. Sloan, op. cit. infra n. (103), p. 116, and cf. pp. 74-75.
103 B. Sloan, “General Assembly Resolutions Revisited (Forty Years Later)”, 58 BYBIL
(1987) p. 80, and cf. pp. 137 and 141.
104 Cf. Ch. Schreuer, op. cit. supra n. (17), pp. 103-118; and cf. K. Skubiszewski, “Recom-
mendations of the United Nations and Municipal Courts”, 46 BYBIL (1972-1973) pp.
353-364.
132 Chapter V
juris,105 turned to regulation of matters of concern of the international commu-

nity as a whole.
V. The Process of Formation of Contemporary International Law: From

Consent to Consensus
In the last decades, a great part of legal doctrine has accommodated itself to
reviewing the list of the formal “sources” of International Law”; yet, as already
pointed out, the study of the formation of International Law is far from exhaust-
ing itself in those formal “sources”. For roughly half a century (from the early
twenties to the early seventies), the matter at issue was largely considered in the
light of the question of consent in International Law, which was soon to become
surrounded by controversies, not amenable to simple answers. By and large, the
debates began to oscillate between the old thesis (upheld by the PCIJ in its Ad-
visory Opinion of 1923 on the Status of Eastern Carelia) whereby the consent of
States was the basis of international legal obligations (including in peaceful set-
tlement of international disputes), – a view which was later on dismissed by the
ICJ in its Advisory Opinions of 1950 on the Interpretation of Peace Treaties, and
of 1971 on Namibia, – and the new approach shifting the focus, on the process of
formation of International Law, from individual consent to consensus.106
According to this new outlook (propounded at the beginning of the seven-
ties), in the evolution of International Law individual consent could never con-
stitute the ultimate “source” of a legal obligation, and the new and clear tendency
in favour of consensus in the formation of norms of International Law 107 was
“an expression of the juridical conscience of the international community”108
This tendency was fostered by the formation of consensus in the Conferences
of codification and progressive development of International Law. In this way,
the old positivist posture of search for the consent of each State individually was
challenged and overcome. Subsequently, in the case of Nicaragua versus United
States (Merits, 1986), the ICJ took another step, and a significant one, in this di-
105 Cf. H.G. Schermers and N.M. Blokker, International Institutional Law, 3rd. rev. ed.,
The Hague, Nijhoff, 2001, pp. 1-1198; C.W. Jenks, The Proper Law of International
Organisations, London, Stevens/Oceana, 1962, pp. 1-267; A.A. Cançado Trindade,
Direito das Organizações Internacionais, 3rd. ed., op. cit. infra n. (117), pp. 75-76, and
cf. pp. 9-853.
106 Cf. E. Suy, “The Meaning of Consensus in Multilateral Diplomacy”, in Declarations
of Principles, A Quest for Universal Peace – Liber Amicorum Discipulorumque B.V.A.
Röling, Leyden, Sijthoff, 1977, p. 272.
1980, pp. 16, 33, 37 and 39.
108 T.O. Elias, “Modern Sources of International Law”, in Transnational Law in a
Changing Society: Essays in Honour of Ph.C. Jessup (eds. W. Friedmann, L. Henkin
and O. Lissitzyn), N.Y./London, Columbia University Press, 1972, pp. 49 and 51, and
cf. p. 67.
rection, discarding the thesis of the individual consent and attributing consider-
able importance to opinio juris,109 to the formation of which not only States but
also international organizations contribute. The same emphasis on opinio juris
was laid by the ICJ in the case of the Delimitation of the Maritime Boundary in
the Gulf of Maine Area (1984).110
In the Nicaragua versus United States case (1986), the ICJ, while reempha-
sizing the need for both the objective and subjective elements (State practice
and opinio juris,111 respectively), in fact demanded very little evidence of State
practice, and took as clear-cut proof of opinio juris the 1970 U.N. Declaration of
Principles of International Law Concerning Friendly Relations Among States, the
contents of which it regarded as indeed reflecting rules of customary law.112 On
their part, positivist doctrines, apparently obsessed only with juridical stability
and certainty,113 seemed, on the other hand, to have kept on overlooking values
and ideas, and opinio juris itself, and minimizing principles which emanate from
the “juridical conscience of mankind”, often expressly invoked in international
practice.114 The considerable expansion of International Law came to require a
new outlook of its “sources”, which are ineluctably linked to the fundamental
questions that it deals with; as pertinently remarked by G.F.H. van Hoof and R.
Monaco, traditional “sources” of International Law no longer succeeded to com-
prise the whole and increasingly complex process of its own formation.115
109 C. Lang, L’affaire Nicaragua/États-Unis devant la Cour Internationale de Justice,

Paris, LGDJ, 1990, pp. 138, 140 and 149.
110 Cf. ICJ Reports (1984) p. 299.
111 The insertion of custom into Article 38(1)(b) of the Statute of the Hague Court, it
may be recalled, had been much influenced, when the provision was drafted, by the
so-called “historical school” of law, which held that its subjective element, opinio
juris, was seen as reflecting “juridical conscience”.
112 International Law Association/Committee on Formation of Customary (General)
International Law, “Final Report of the Committee – Statement of Principles Appli-
cable to the Formation of General Customary International Law”, in I.L.A., Report
of the LXIX Conference (London, 2000), London, I.L.A., 2000, pp. 32, 41, 60 and 62.
And cf. chapter III, supra.
113 Hence the approach to the “sources” of International Law as from a strictly inter-
State outlook, with a reductionist view focusing largely on the conventional and cus-
tomary means, and minimizing the role of general principles of law and of doctrine.
Underlying this conception, the element of State consent marks constant presence,
culminating in an apology of the so-called “doctrine of the persistent objector”, a last
refuge of State voluntarism. Cf. P. Weil, “Le Droit international en quête de son iden-
tité – Cours général de Droit international public”, 237 RCADI (1992) pp. 131-201.
114 G.J.H. van Hoof, Rethinking the Sources of International Law, Deventer, Kluwer,
1983, pp. 35, 101, 153 and 162, and cf. pp. 157, 167 and 175.
115 Ibid., pp. 190, 195, 211, 241, 281, 283-284 and 287, and cf. p. 290; R. Monaco, “Réflex-
ions sur la théorie des sources du Droit international”, in Theory of International
Law at the Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed.
J. Makarczyk), The Hague, Kluwer, 1996, pp. 517-518.
134 Chapter V
Thus, the classic theory of the formal “sources”, e.g., did not take fully in
due account the considerable normative production emanated from interna-
tional organizations,116 – which decisively contributed to the overcoming of the
inter-State paradigm of the international legal order.117 This contribution of inter-
national organizations is reflected in their work of codification and progressive
development of International Law, which, in its turn, has fostered the rule of law
in international relations.118 Such contribution, in having a direct incidence in the
process of formation of International Law, represents, moreover, an important
stage in the process of gradual institutionalization of the international commu-
nity, bearing in mind the basic principles of International Law.119
These principles120 have an inherent validity and necessity, emanate from
natural law, and demonstrate – as categorically pointed out by G.G. Fitzmaurice
– that consent can never constitute the ultimate source of International Law, and
respond for its own validity: such voluntarist-positivist position was inconsis-
tent, since consent, externalized by treaties or by State practice, was ex hypothesi
incapable of explaining or justifying its own validity or its legal effects, nor the
existence and validity of the principles of law essential to every and any legal
system. Thus, the classic theory of formal “sources”, reflected in Article 38 of
the ICJ Statute, firstly, could not have the pretension of being “exhaustive” and
definitive as to those “sources”, and, furthermore, failed to distinguish between
formal “sources” and the material “source” of International Law; it limited itself
to enunciate – in a not exhaustive way – elements to be taken into account in the
application of International Law, and it did so in a rather limited way.121
VI. Opinio Juris beyond Custom: Its Wide Scope and Role in the Formation
of Contemporary International Law
In recent years an increasing attention has been turned to the element of opinio
juris in the very formation of contemporary international law. To the formation
of an “idea of Law” contribute, in our days, not only States, but also interna-
116 R. Monaco, “Réflexions sur la théorie des sources...”, op. cit. supra n. (115), pp. 519-
520 and 529; and cf. R. Monaco, “Fonti e Pseudo Fonti del Diritto Internazionale”, 61
Rivista di Diritto Internazionale (1978) p. 740.
117 A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo
Horizonte/Brazil, Edit. Del Rey, 2003, pp. 721-747.
118 C.-A. Fleischhauer, “The United Nations at Fifty”, 38 German Yearbook of Interna-
tional Law (1995) p. 23.
119 A.G. López Martin, “La Codificación del Derecho Internacional en el Umbral del
Siglo XXI: Luces y Sombras en la Labor de la CDI”, 15 Anuario del Instituto Hispano-
Luso-Americano de Derecho Internacional (2001) pp. 388-390.
120 Cf. chapter IV, supra.
121 G.G. Fitzmaurice, “Some Problems Regarding the Formal Sources of International
Law”, in Symbolae Verzijl présentées au Professeur J.H.W. Verzijl à l’occasion de son
LXXème. anniversaire, The Hague, M. Nijhoff, 1958, pp. 166-167 and 173-176.
tional organizations and other subjects of international law (peoples, individuals

and groups of individuals). If, some decades ago, it was frequent to approach the
process of formation of the norms of general International Law with attention
turned only to the “sources” manifested in inter-State relations,122 in our days it
is no longer possible not to recognize likewise those ensuing from the practice of
entities of the organized civil society and of groups of individuals at international
level.123 It is nowadays acknowledged that these latter have come to participate in
the process both of formation and of application of international norms.124
The so-called “normativists”, as already pointed out, never managed to pro-
vide a convincing explanation of the validity of international legal norms,125 which
is a metajuridical question, belonging to the psychological ambit in which values
manifest themselves. Yet, as Max Sorensen lucidly pointed out in the mid-forties,
although values appear prima facie to transcend the domain of legal science, they
are apprehended by acts performed at international level, out of the “intrinsic
necessity” to recognize social ends and identify the means to accomplish them.
Thus, – he added, – International Law cannot be indifferent to values and moral
questions, which always mark their presence, and International Law ought to
attribute “considerable importance” to general principles of law.126 In this line of
thinking, A. Verdross, on his turn, assumed as foundation of the whole legal sys-
tem an “idée du droit”, which has expression precisely in the general principles of
law, which precede positive International Law.127
A continuous “rebirth” of natural law has been constantly identified,128
though this latter has never disappeared. This has taken place in face of the her-
metic posture of legal positivism, upholding the status quo, with its typical sub-
122 Cf. R. Pinto, “Tendances de l’élaboration des formes écrites du Droit internation-
al”, in L’élaboration du Droit international public (Colloque de Toulouse, Société
Française pour le Droit International), Paris, Pédone, 1975, pp. 13-30.
123 Cf., generally, e.g., F. Hondius, “La reconnaissance et la protection des ONGs en
Droit international”, 1 Associations Transnationales (2000) pp. 2-4; J. Ebbesson,
“The Notion of Public Participation in International Environmental Law”, 8 Year-
book of International Environmental Law (1997) pp. 51-97.
124 Cf. chapter IX, infra.
125 Max Sorensen, Les sources..., op. cit. supra n. (2), pp. 20-21.
126 Ibid., p. 254.
127 I.e., treaties and custom; ibid., p. 244; and cf. A. Verdross, Derecho Internacional
Público, 5th. ed. [reimpr.], Madrid, Aguilar, 1969, pp. 15-19. – International Law ef-
fectively transcends mere juridical formalism, incapable of explaining the origin
of its norms; and it does so precisely in order to fulfi l the new needs of the interna-
tional community, and without that it would lose its own raison d’être. N.E. Ghozali,
“Les fondements du Droit international public – approche critique du formalisme
classique”, in Les droits des peuples à disposer d’eux-mêmes – Méthodes d’analyse du
Droit international – Mélanges offerts à Ch. Chaumont, Paris, Pédone, 1984, pp. 305
and 314.
128 A. Truyol y Serra, “Théorie du Droit international public – Cours général”, 183 RCA-
DI (1981) pp. 142-143.
136 Chapter V
servience to power. It is no longer a return to classic natural law, but rather the
affirmation or restoration of a higher standard of justice, whereby positive law is
assessed. That “rebirth” has much contributed to the assertion and the consoli-
dation of the primacy, in the order of values, of the obligations pertaining to the
rights of the human person, owed to the international community as a whole.129
Irrespective of the profession or otherwise of a renewed jusnaturalism, it
is clear that the enumeration of the “sources” of International Law undertaken
by Article 38 of the ICJ Statute has shown itself – as already pointed out – inad-
equate and unconvincing. Several jusinternationalists have in fact taken a stand
manifestly against the voluntarist-positivist conception which they regard as un-
derlying the exercise of such enumeration. A notorious example was provided
by the school of “spontaneous law” (R. Ago, G. Sperduti, R. Quadri, among oth-
ers), which, in rejecting the enumeration of the formal “sources”, insisted on the
“spontaneous” formation at least of customary international norms, regarded as
essentially oriented to the common good.
Underlying this outlook is the moral force of human conscience, – the uni-
versal juridical conscience, – of which, e.g., the Martens clause is a manifesta-
tion, even as a “general source of International Law”.130 Roberto Ago clearly sum-
marized the outlook of the school of “spontaneous law”:
“(...) une partie essentielle et finalement irremplaçable du droit, est celle qui n’a pas
son origine dans des actes volontaires de création et souvent d’imposition, mais qui
s’inscrit spontanément et idéalement dans la conscience des membres d’une société
humaine déterminée, sous l’impulsion d’exigences concrètes et réelles”.131
He insisted on “the ‘spontaneous’ and hence not voluntary character of custom-

ary international law”, which moreover presented advantages to the complex and
evolutive international community.132
In another line of thinking, but also in reaction against the voluntarist con-
ception of International Law 133 (reflected, e.g., in the PCIJ decision in the Lotus
case, supra), the so-called “historical school” of legal thinking emphasized the

130 F. Münch, “À propos du droit spontané”, in Studi in Onore di Giuseppe Sperduti,
Milano, Giuff rè, 1984, pp. 149-162; F. Münch, “Le rôle du droit spontané”, in Pen-
samiento Jurídico y Sociedad Internacional – Libro-Homenaje al Prof. D. Antonio
Truyol y Serra, vol. II, Madrid, Universidad Complutense, 1986, pp. 831-836.
131 R. Ago, “Nouvelles réflexions sur la codification du droit international”, 92 Revue
générale de droit international public (1988) p. 540, and cf. p. 541 on “la nature non
volontaire de l’origine du droit coutumier”.
132 Ibid., pp. 573-574, and cf. 564-565.
133 Cf. A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A
Re-Assessment”, 59 Revue de droit international de sciences diplomatiques et poli-
tiques – Geneva (1981) pp. 201-240.
opinio juris, requiring practice to be an authentic expression of the “juridical

conscience” of nations.134 This conception – though originally circumscribed to
the “juridical conscience” – came subsequently to be developed in the modern
theory of International Law, concerned above all with the reluctance of certain
States to accept and apply norms addressed to a general interest.135
In fact, the conception of the opinio juris emerged, in the XIXth century, as a
construction above all of the German historical school (Puchta, Savigny), in reac-
tion precisely to the voluntarist conception; in this way, it succeeded in gradually
discarding the “will” of the States, and in moving towards the “common juridical
conscience”, of which were an expression the customary norms.136 This came to
foster the formation of these latter in an universalized international commu-
nity.137 With the passing of time, it became evident that the formation of Interna-
tional Law constituted a much wider process than the formulation of its formal
“sources”, above all in seeking the legitimacy of norms to rule international life.
This meant a clear distancing from, and abandonment of, classic voluntarism,
and a moving towards the formation of a true “law of conscience”; in this way,
opinio juris came to assume a considerably broader dimension than that of the
subjective element constitutive of custom, and to play a key role in the emergence
and identification of the norms of general International Law.138
There is a general awareness nowadays of the importance of the work of
multiple multilateral forums for the expression of opinio juris communis and the
development of general International Law, diminishing the unilateral influence
of the most powerful States, promoting international law-making in fulfi lment
of the public interest and the realization of the common good of the entire inter-
national community, and heading towards the universalization of International
Law.139 Opinio juris is affirmed as a key factor in the formation itself of Interna-
134 K. Wolfke, “Some Persistent Controversies Regarding Customary International

Law”, 24 Netherlands Yearbook of International Law (1993) pp. 5-6.
135 Ibid., pp. 13-14 and 16.
136 R. Huesa Vinaixa, El Nuevo Alcance de la ‘Opinio Juris’ en el Derecho Internacional
Contemporáneo, Valencia, Tirant lo Blanch, 1991, pp. 30-31 and 76-77; L. Millán
Moro, La ‘Opinio Juris’ en el Derecho Internacional Contemporáneo, Madrid, Ed.
Centro Est. R. Areces, 1990, pp. 33-34 and 138.
137 At the time of the elaboration of the Statute of the old PCIJ (Article 38, cf. supra),
Baron Descamps referred precisely to this common juridical conscience, but, at the
end of the debates, there prevailed the reductionist outlook of characterizing opinio
juris only as one of the elements (the subjective one) of custom; R. Huesa Vinaixa, El
Nuevo Alcance de la ‘Opinio Juris’..., op. cit. supra n. (136), pp. 36-38.
138 Ibid., pp. 173, 192, 194, 199 and 204-205; and cf. R.E. Piza Escalante, “La ‘Opinio Juris’
como Fuente Autónoma del Derecho Internacional (‘Opinio Juris’ y ‘Jus Cogens’)”, 39
Relaciones Internacionales – Heredia/Costa Rica (1992) pp. 61-74.
139 Cf. J.I. Charney, “Universal International Law”, 87 American Journal of Internation-
al Law (1993) pp. 548 and 551, and cf. p. 543; J.I. Charney, “International Lawmak-
ing – Article 38 of the ICJ Statute Reconsidered”, in New Trends in International
Lawmaking – International ‘Legislation’ in the Public Interest (Proceedings of the
138 Chapter V
tional Law (and no longer as only one of the constitutive elements of one of its
formal “sources”). The fundamental elements of the international legal order are
independent from the “will” of the States, and opinio juris gives expression to the
“juridical conscience”, not only of nations and peoples (as sustained in the past
by the historical school), but of the international community as a whole.140 In this
way, it fulfi ls the necessity of an objective validity of the fundamental principles
and norms of the international community.141
With the abandonment of voluntarist positivism, the primacy of conscience
over “will” seems to have been duly reestablished. It has, at last, been recognized
that conscience refers to superior values which stand above the “will”, and that
Law emanates from the common conscience of what is juridically necessary
(opinio juris communis necessitatis). Distinctly from the formal “sources” of In-
ternational Law, which are nothing more than the means or vehicles of forma-
tion of its norms, conscience (expressed in the opinio juris communis) appears
distinctly, in my understanding, as its material “source” par excellence, affirm-
ing the binding character of such norms. It is therefrom, i.e., from the universal
juridical conscience, that the peremptory norms of International Law (jus co-
gens)142 ultimately emanate.
Kiel Symposium, March 1996), Berlin, Duncker & Humblot, 1997, pp. 180-183 and
189-190.
140 P. Haggenmacher, “La doctrine des deux éléments du droit coutumier dans la pra-
tique de la Cour Internationale”, 90 Revue générale de Droit international public
(1986) pp. 101, 109 and 124.
141 And of any community in any epoch; F. Castberg, “Natural Law and Human Rights”,
1 Revue des droits de l’homme/Human Rights Law Journal (1968) pp. 34-35 and 37.
142 Cf. chapter XII, infra.
Chapter VI The Material Source of International
Law: Manifestations of the Universal
Juridical Conscience
I. Introduction: Insufficiencies of the Formal “Sources” and the Relevance

of the Material “Source” of International Law
The attitude, adopted in the last decades, by part of the international legal doc-
trine, of limiting itself, as from an essentially positivist outlook, to consider only
the formal “sources” of International Law, has deprived the consideration of the
matter from an in-depth examination of the legal foundations, and, ultimately, of
the validity itself, of the norms of International Law. It has excluded from the ex-
amination of the formation of International Law the substratum of legal norms:
the beliefs, values, ethics, ideas, and human aspirations. Not surprisingly, such
attitude has rendered the study of the matter rather arid, uninspiring, circum-
scribed to the modes or procedures whereby international norms are formally
created.1 Such posture has reduced the outlook of International Law to that of a
merely formal legal order. This reductionist outlook, conducive to unsatisfactory
results, has, however, persisted along the last decades, and has had, in my view,
harmful consequences, among which the perpetuation of the hermetic outlook
of the positivist conception, and the emptying of an international legal order
insensible to values, and its incapacity to fulfi l social needs.
By the late sixties, for example, J.H.W. Verzijl, after duly distinguishing be-
tween the formal and material “sources” of Public International Law, pondered
that it was not possible to examine the “sources” of Public International Law
without recognizing the importance of natural law for the law of nations (droit
des gens), irrespective of whether the content of natural law has an “objective” ex-
istence or emanates from human conscience.2 However, somewhat surprisingly,
he suddenly interrupted this line of reasoning to affirm that only the “formal”
1 For example, Michel Virally openly stated that what was designated as material
“source” would not be of “interest” to the study of International Law; M. Virally,
“Panorama du Droit international contemporain – Cours général de Droit interna-
tional public”, 183 Recueil des Cours de l’Académie de Droit International de La Haye
[RCADI] (1983) p. 167.
2 J.H.W. Verzijl, International Law in Historical Perspective, vol. I, Leyden, Sijthoff,
1968, pp. 1-3.
140 Chapter VI
sources, as procedures of “creation” adopted to that end by a given legal system,

ought to be regarded as “sources” of Public International Law.3
Years earlier, the same posture of mental reservation had already manifested
itself in legal doctrine. Contrary to what was affirmed, e.g., by Hans Kelsen, that
it was not possible to reconciliate the legal order with the moral order,4 it is my
view that human experience throughout the XXth century, – marked by so many
advances in the scientific-technological domain accompanied by unprecedented
atrocities, – demonstrates that it is not possible to conceive the legal order mak-
ing abstraction of the moral order.
The assertion by Kelsen was made in his evaluation of a classic study by J.L.
Brierly, who, like him, sought to examine the basis of validity of the norms of
International Law. Brierly came to affi rm, in his study, that the connection be-
tween Law and moral was much more fundamental than its distinction, and that
the ultimate basis of an international obligation rested on its ethical content;5
however, further on, Brierly himself confessed not to know how to conciliate the
individual belief to act in conformity with Law with the “imperative” character
of this latter.6
In my understanding, there is not, in fact, how to dissociate the formation
of International Law from the aspects pertaining to its own foundations. The
tipically positivist feature of approaching the formation of International Law as
from the outlook of the formal “sources” of International Law (listed in Article
38 of the ICJ Statute) with emphasis on evidence of State consent, – as followed
for years in the case-law of the PCIJ and the ICJ, – appears increasingly open to
challenge. It is the posture resulting from the analytical positivism of the XIXth
century, grounded on legal formalism (including its list of “sources”), and making
abstraction of the multifaceted, vast and complex process of formation of con-
temporary International Law,7 aiming at facing the new challenges with which
3 In refusing to take into account the principles which transcend the norms of positive
law, – irrespective of their being captured by doctrine, or by reason, or by human
conscience, or formed “spontaneously” (as propounded by the “historical school”
– ibid., pp. 7-8), – he yielded to the hermetic outlook of legal positivism.
4 H. Kelsen, “The Basis of Obligation in International Law”, in Estudios de Derecho
Internacional – Homenaje al Profesor C. Barcía Trelles, Santiago de Compostela,
University of Santiago de Compostela, 1958, p. 110.
5 J.L. Brierly, The Basis of Obligation in International Law, Oxford, Clarendon Press,
1958, p. 65.
6 Cf. ibid., pp. 66-67, and cf. also pp. 68-80. And, in his Law of Nations, he limited
himself, in a rather unsatisfactory way, to say, tout court, that the answer to this
question was to be found outside the legal order, it being incumbent upon the phi-
losophy of Law to provide it. He thus withheld himself in the middle of the road...
Cf. J.L. Brierly, The Law of Nations, 6th. ed., Oxford, Clarendon Press, 1963, p. 54.
7 E.g., the “law-making activity” of some U.N. organs (for the realization of U.N. pur-
poses), – mainly certain resolutions of the General Assembly, – with a bearing on
the evolving opinio juris of the international community; D.P. Verma, “Rethinking
The Material Source of International Law: Manifestations of the Universal Juridical Conscience 141
the international community is confronted, besides fulfi lling its new needs and
aspirations.
In fact, the reduccionist posture of considering only the formal “sources” of
International Law has never demonstrated the logical or juridical impossibility
of also taking into account the substratum of juridical norms. It simply and dog-
matically refuses to do so, without explaining why. On my part, I see no impedi-
ment for considering, in the study of the formation of International Law, likewise
its material “source”, even if this latter transcends, as it effectively does, the posi-
tive legal order. And I go further: bearing in mind the hard human experience
accumulated in the last decades, and the new challenges faced by humankind,
I do not see how not to take into account the material “source” of International
Law. After all, International Law is absolutely not at all reduced to an instrument
at the service of power; its final addressees are ultimately the human beings, it
being incumbent upon itself to fulfi l their needs, among which the realization of
justice.8 Its material “source” lies in human conscience itself.
II. Human Conscience, Recta Ratio, and the Universality of

International Law
The history of international human thinking discloses that conscience has al-
ways opposed injustice and rebelled against oppression.9 In modern history, even
before the industrial revolution, there were those who refused to adhere to the
growing belief that scientific and material progress would replace philosophy and
humanities, and “all the demands of the human spirit”.10 The need of the preva-
lence of the recta ratio has been pointed out in face of the considerable sufferings
inflicted upon human beings11 as well as of the divorce between sciences and
about New International Law-Making Process”, 29 Indian Journal of International

Law (1989) pp. 38, 43-44, 46-47 and 51.
8 A.A. Cançado Trindade, “Reflexiones sobre el Desarraigo como Problema de Dere-
chos Humanos Frente a la Conciencia Jurídica Universal”, in La Nueva Dimensión
de las Necesidades de Protección del Ser Humano en el Inicio del Siglo XXI (eds.
A.A. Cançado Trindade and J. Ruiz de Santiago), 3rd. ed., San José of Costa Rica,
UNHCR, 2004, pp. 72-73.
9 Cf., e.g., P. Hazard, La crise de la conscience européenne (1680-1715), vol. I, Paris, Gal-
limard, 1968, p. 114.
10 P. Hazard, La crise de la conscience européenne (1680-1715), vol. II, Paris, Gallimard,
1968, p. 123. As the author pointed out, in the period 1680-1715, even then there was
some awareness of the need to unmask the “myth” of the overriding, if not unlim-
ited, scientific and material progress (divorced from moral progress); ibid., vol. II, p.
123.
11 Cf. I. Berlin, The Crooked Timber of Humanity, Princeton, University Press, 1997, pp.
19 and 175.
142 Chapter VI
humanities.12 The rights of humanity (droits de l’humanité) were at times invoked

already in the XVIIth century and beginning of the XVIIIth century.13
In fact, the notion of conscience is deeply-rooted in human thinking. It
marked its presence in classic Greek-Latin thinking, which first attempted to
elaborate on it. It might be argued that, born in classic Greek-Latin thinking, the
notion of conscience would be of difficult apprehension, as new meanings may
be ascribed to it throughout the centuries. This does not mean that it does not
exist; quite on the contrary, it is always present. The same may be said of the very
conception of the law of nations, or indeed of any object of human knowledge.
While it is true that ideas and conceptions evolve with time, and so does Law
itself (including jus gentium),14 this does not deprive, in my understanding, the
notion of conscience of an irreducible minimum. Conscience seems to be like
time, in the sense that one knows what it means, but if someone asks what it is,
one has difficulties do define it.15
This irreducible minimum, hardly susceptible of one sole definition, is al-
ways present in the distinct meanings attributed to conscience in the history of
human thinking. One may call it “syneidesis/synderesis” (as in ancient Greece16),
12 I. Berlin, The Proper Study of Mankind, N.Y., FSG, 2000, pp. 217, 235-236 and 326-
358.
13 P. Hazard, op. cit. supra n. (10), vol. II, pp. 55 and 71.
15 Paraphrasing St. Augustine (book XI of his Confessions): – “ (...) Qu’est-ce donc que
le temps? Si personne ne me le demande, je le sais. Si quelqu’un pose la question et
que je veuille l’expliquer, je ne sais plus. Toutefois, j’affi rme avec force ceci: si rien
ne passait, il n’y aurait pas de passé; si rien n’advenait, il n’y aurait pas de futur; si
rien n’était, il n’y aurait pas de présent”. St. Augustin, Oeuvres I – Les Confessions
précédées de Dialogues philosophiques, Paris, Gallimard, 1998, p. 1041.
16 An approximation, e.g., to the practical syllogism of Aristotle. – In his Nicomachean
Ethics (circa 335-322 b.C.), Aristotle insists on human behaviour in accordance with
the recta ratio, this being a general principle, valid for all; Aristóteles, Ética Ni-
comaquea – Política, Mexico, Ed. Porrúa, 2000, pp. 9, 16, 19, 23, 43, 95 and 144 (book
I, sections VII and XIII; book II, sections II and VI; book III, section XII; book VII,
sections VIII and IX; and book X, section IX). – Even before him, the recta opinio
marks presence in Plato’s Dialogues (explicitly in The Banquet); cf. Platón, Diálogos,
vol. III (Phedon, The Banquet, Phedro), Madrid, Ed. Gredos, 1997, p. 245.
or the moral good (Cicero17 and Seneca18), or the knowledge and pursuance of the
common good (Thomas Aquinas19), or the precept of right reason and enlight-
enment (Francisco de Vitoria 20), or the categorical imperative (I. Kant21), – the
irreducible meaning is always present, corresponding to the recta ratio of the
founding fathers of International Law (as found in Francisco de Vitoria’s De Lege,
Francisco Suárez’s De Legibus, Hugo Grotius’s De Jure Belli ac Pacis), which ap-
pears in fact as the ultima ratio.
The lack or absence of the recta ratio leads to the total submission of hu-
man beings to power-holders, to oppressions and atrocities against human be-
ings (epitomized by the holocaust and other genocides of the XXth century), and
ultimately, to chaos. With the recta ratio of classic international legal thinking
17 In his De Legibus (On the Laws, circa 51-43 b.C., book II), M.T. Cicero held that what
is “right and true” is also “eternal”, not deriving from legislation and legal decisions;
cf. Cicero, On the Commonwealth and On the Laws (ed. J.E.G. Zetzel), Cambridge,
University Press, 2003 [reed.], p. 133. Still in his De Legibus (book I), Cicero main-
tained that the whole humankind was “bound together”, and “the right way of life”
makes “all people better”; ibid., p. 116. In his On Duties (De Officiis, 44 b.C.), Cicero
wrote that “everything produced on the earth is created for the use of mankind, and
men are born for the sake of men, so that they may be able to assist one another”;
Cicero, On Duties (eds. M.T. Griffi n and E.M. Atkins), Cambridge, University Press,
2003 [reed.], p. 10. And in his De Republica (circa late 50s-46 b.C.), Cicero concen-
trated on first principles, legitimacy and justice, resorting to natural law; to him,
justice gives “everyone his due”, takes “thought for the interests of mankind”, spar-
ing all human beings; Cicero, The Republic – The Laws, Oxford, University Press,
1998, p. 66 (book III, par. 24).
18 In the first years of our era (up to the year of 63), Seneca’s Letters to Lucilius contain
passages in which he referred to the “common law of humankind” (L.A. Seneca,
Cartas a Lucilio (ed. V. López Soto), Barcelona, Ed. Juventud, 1982, pp. 124 and 282,
and cf. pp. 168 and 375) and affi rmed that virtue is identified with recta ratio (ibid.,
p. 177); and cf. Sénèque, Entretiens – Lettres à Lucilius (ed. P. Veyne), Paris, Éd. R.
Laffont, 1993, pp. 768 and 813).
19 In the XIIIth century, in his Summa Theologiae (Part I), Thomas Aquinas wrote that
human laws only have the quality of law when they accord with right reason, and its
validity depends upon its justice; and to be just, laws ought to accord with the rule of
reason (a precept of natural law). Cf. relevant excerpts in: Aquinas Selected Political
Writings (ed. A.P. D’Entrèves), Oxford, Blackwell, 1970, pp. 121, 125 and 129; and cf.
chapter I, supra, ns. 67-68.
20 Cf. Francisco de Vitoria, Political Writings (eds. A. Pagden and J. Lawrance), Cam-
bridge, University Press, 1991, pp. XIV-XV.
21 As set forth particularly in his Metaphysic of Morals (Fondements de la métaphy-
sique des moeurs, 1785), which in Kant’s conception was an a priori, pointing to-
wards the universalization of norms, to the effect of treating human beings not as
means, but each one as an end in himself, honouring thereby the dignity of human
personality. In addition, in his Critique of Practical Reason (1786), Kant conceptual-
izes conscience as the “internal tribunal” of each person as a “moral being”; I. Kant,
[Critique de] la raison pratique, Paris, PUF, 1963 [reed.], p. 201.
144 Chapter VI
the belief comes to prevail that it is possible to capture the contents of the jus
gentium by human reason.22 Such recta ratio does not fall into subjectivism, as
it presupposes and calls for an objective International Law, endowed with an in-
trinsic validity of its own, which renders it capable of keeping humankind to-
gether, united. It further presupposes and calls for an order of universal values,
which finds expression in the universalist outlook of the law of nations, the Inter-
national Law for humankind. Human conscience, – more precisely the universal
juridical conscience, – appears as the ultimate material source of International
Law, providing the intrinsic foundation of jus gentium, in pursuit of the realiza-
tion of justice.
It goes without saying that, in the historical process of its formation, the
law of nations has benefitted from contributions of distinct lines of thinking,
especially modern International Law in a multicultural world. It would be in-
accurate not to acknowledge the influence of European history in the origin of
the discipline which came to be known as International Law, – in particular the
international legal order as historically emerged in the Peace of Wesphalia in the
mid-XVIIth century, – just as it would be likewise inaccurate not to acknowledge
the process of universalization and of humanization of International Law that
has been gradually taking place for more than a century, with greater intensity in
the last decades, with contributions from distinct cultures.
It is nowadays generally acknowledged that the universality of Interna-
tional Law can recognizedly be achieved only on the basis of pluralism, mutual
respect for cultural diversity, and the pursuance of common aims, converging
ultimately into the welfare of humankind. International Law has indeed under-
gone a process of continuing expansion and universalization in a multicultural
world, so as to fulfill the aspirations of humankind. It is my view that there is,
in the multicultural world of our times, an irreducible minimum, which, insofar
as international law-making is concerned, rests on its ultimate material source:
human conscience. This may admittedly have distinct forms of expression, in
distinct cultures, but I believe they all mean, ultimately, that which is common
to all human beings (and distinguishes them from other species), which guides
their actions, which identifies their values, which assists them in searching the
meaning of their lives, individually and in socially organized collectivities: hu-
man conscience.
It is, ultimately, from this latter, however it may be called in distinct parts
of the world, that International Law, like all law, emanates. The acknowledgment
of the universal juridical conscience as its ultimate material source (largely over-
looked by international legal doctrine in recent decades) has likewise taken place,
for a long time already, in lucid writing in distinct parts of the world and in dif-
ferent cultures. Thus, in the last quarter of the XIXth century, e.g., Chao Phya
Aphay Raja (then main adviser to King Rama V of Thailand), to whom the “ex-
22 G. Fourlanos, Sovereignty and the Ingress of Aliens, Stockholm, Almqvist & Wiksell,
1986, p. 17, and cf. pp. 19-23, 79-81, 160-161 and 174-175.
pression of public conscience” was the fi rst manifestation of International Law,

stated in 1886 that
“(...) Aujourd’hui déjà, les progrès de la conscience publique nous permettent

d’affirmer comme une vérité incontestable que le développement et, par conséquent,
la liberté rationnelle de l’être humain forment le but principal et légitime de tout
droit, national ou international”23.
One decade later, in a similar line of reasoning, S. Sucharitkul pondered in 1983

that International Law
“(...) devrait être humanisé, aussi longtemps que l’on garde l’espoir de survivre (...).
L’humanité tout entière devrait se faire valoir comme sujet de droit dans ce monde
(...) multiculturel. (...) Si (...) l’homme persiste dans sa prudence, l’humanité aura
encore sa chance”.24
In sum, it is human conscience that can lead to, and secure, the universality of
International Law. The universal juridical conscience is the material source par
excellence of the corpus juris of International Law, which nowadays orients itself
to the fulfi lment of the needs and aspirations of humankind as a whole.
III. The Material Source of International Law Beyond State Legal Positivism
Along the history of international legal thinking, resort to “conscience” and
“consciousness” has been much more frequent than one may prima facie assume.
From Grotius to Vattel, from Martens to Alejandro Álvarez and Barile, the doc-
trine of International Law is replenished with invocations to human conscience
to establish the foundations of the discipline and the validity of its rules.25 The
notion of universal juridical conscience has gradually found expression in the
theory and practice of International Law, particularly in the last two centuries,
with the emergence, in the XIXth century, of the concept of communis opinio
juris, and its insertion into the international legal thinking.26
23 Cit. in: S. Sucharitkul, “L’humanité en tant qu’élément contribuant au développe-

ment progressif du Droit international contemporain”, in L’avenir du Droit interna-
tional dans un monde multiculturel / The Future of International Law in a Multi-
cultural World (Colloque de La Haye, novembre 1983, ed. R.-J. Dupuy), The Hague,
Nijhoff/Académie de Droit International de La Haye/U.N.U., 1984, pp. 418-419.
24 S. Sucharitkul, op. cit. supra n. (23), pp. 423 and 426-427.
25 Cf., e.g., M. Koskenniemi, From Apology to Utopia – The Structure of International
Legal Argument, Helsinki, Finnish Lawyers’ Publ. Co., 1989, pp. 82, 92, 95, 97, 113,
120, 182 and 357-358.
26 Due to a large extent to the approach of the German historical school of law (cf.
ibid., p. 367), and the decay of the old positivist dogma of consent (individual volun-
tas) to establish international custom; A. Carty, The Decay of International Law? A
146 Chapter VI
In the first decades of the XXth century, the expression “international ju-
ridical conscience” was used, recalling the classic notion of civitas maxima gen-
tium, in order to foster the spirit of international solidarity.27 In fact, as early as
the beginning of the XXth century, as from 1906, Hugo Krabbe propounded a
universal legal order for the whole of humankind, following the Spanish theo-
logians’ tradition of International Law; but unlike F. Vitoria and F. Suárez, who
based their construction upon natural law, that of H. Krabbe ensued from the
“universal juridical conscience”.28 Léon Duguit, on his turn, envisaged an objec-
tive International Law deriving, not from the sovereignty of States, but rather,
again, from “an international juridical conscience”; his intellectual successor,
Georges Scelle, supported the primacy of International Law over the various na-
tional legal systems.29
In his account of this doctrinal development, Alfred Verdross held that the
general principles of law, which lay at the basis of the domestic law of several na-
tions, were as such recognized by the “universal juridical conscience”.30 Thus, in
the words of A. Verdross,
“la règle juridique est créée par une pratique constante tandis que[, dans le premier
cas,] le principe général naît déjà au moment de sa première reconnaissance par la
conscience juridique universelle”.31
All States, whether they have accepted or not the compulsory jurisdiction of in-
ternational tribunals, are bound by such principles apprehended by the universal
juridical conscience.32
This conceptual evolution was taken further by moving from an interna-
tional into a truly universal dimension. Concern for securing State sovereignty
Reappraisal of the Limits of Legal Imagination in International Affairs, Manchester,

University Press, 1986, pp. 26-28 and 33. Already by the end of the XIXth century
customary law was referred to as “the manifestation of the international juridical
conscience” (by the Swiss jurist A. Rivier, in his Principes du droit des gens, of 1896),
operated by the continuous repetition of acts with the awareness of their necessity;
cit. in ibid., p. 27.
27 Cf., e.g., G. Tassitch, “La conscience juridique internationale”, 65 RCADI (1938) pp.
310-311, 314, 316-317 and 320.
28 A. Verdross, “Coincidences: Deux théories du droit des gens apparues à l’époque
de la création de l’Académie de Droit International”, in Hague Academy of Interna-
tional Law, Livre jubilaire / Jubilee Book (1923-1973, ed. R.J. Dupuy), Leyde, Sijthoff,
1973, pp. 84-85.
29 Ibid., p. 85.
30 Ibid., p. 92; and A. Verdross, “Les principes généraux du Droit dans la jurisprudence
internationale”, 52 RCADI (1935) pp. 223ss.
31 A. Verdross, “Coincidences: Deux théories du droit des gens...”, op. cit. supra n. (28),
p. 93.
32 Ibid., p. 96.
has yielded to concern for jointly guaranteeing the international legal order on
the basis of a sense of objective justice: the overcoming of the voluntarist con-
ception of International Law (incapable of explaining the process of formation
of the norms of general international law) was clearly shown by the line of jur-
isprudential evolution separating, e.g., the obiter dicta of the Permanent Court
of International Justice [PCIJ] in the Lotus case (1927) from those of the Interna-
tional Court of Justice [ICJ] in the North Sea Continental Shelf cases (1969); the
acknowledgement of objective values much contributed to the formation of the
communis opinio juris,33 and the same can be said of the widespread awareness
of the imperative of fulfilment of the basic social needs of the international com-
munity as a whole.
To positivists and political “realists”, resort to the universal juridical con-
science may appear somewhat difficult to demonstrate, if not metajuridical. They
have, accordingly, sought support for their own views mainly in the “will” of
States. They seem indifferent to recourse to conscience, which aimed at setting
up necessary limits and controls to the arbitrariness in the “will” of States. This
is overlooked by them. They seem likewise oblivious of the fact that recourse to
conscience has, behind itself, a long-standing juridical thinking, which, by their
insistence on propounding “realism” – which appears en vogue again, – seems
almost forgotten in our days.
The recourse so commonly and uncritically made nowadays to the allegedly
“creative will” of States neglects the fact that the practice ensuing therefrom is
not at all devoid of ambiguities, incongruencies and contradictions. The creative
role of the universal juridical conscience in pursuance of common goals of the
international community is, in turn, clearly demonstrable. It has been consis-
tently invoked in the theory and practice of International Law: in the elaboration
of adopted texts of international treaties, in the proceedings before international
tribunals and in international case-law, and in the works of international legal
doctrine. The universal juridical conscience is, ultimately, the material source of
International Law.
IV. Invocation and Assertion of Juridical Conscience in

International Treaties
In international practice, the idea of a universal juridical conscience has marked
presence in many debates of the United Nations (above all of the VIth Commit-
tee of the General Assembly, cf. infra), in the work of the Conferences of codifi-
cation of International Law (the so-called “law of Vienna”) and in the respective
33 B. Stern, “La coutume au coeur du Droit international – quelques réflexions”, in

Mélanges offerts à P. Reuter – Le droit international: unité et diversité, Paris, Pédone,
1981, pp. 493, 496 and 487; Maarten Bos, A Methodology of International Law, Am-
sterdam, North-Holland, 1984, p. 251, and cf. pp. 246 and 253-255.
148 Chapter VI
travaux préparatoires of the U.N. International Law Commission [ILC].34 Refer-

ences to conscience, certainly susceptible in our days of a deeper conceptual de-
velopment, appear likewise in other international treaties. The 1948 Convention
against Genocide, e.g., refers, in its preamble, to the “spirit” of the United Na-
tions. Half a century later, the preamble of the Rome Statute of 1998 of the Inter-
national Criminal Court refers to the “conscience of humanity” (second consid-
erandum). And the preamble of the 1994 Inter-American Convention on Forced
Disappearance of Persons, to quote another example, evokes the “conscience of
the hemisphere” (third considerandum of the preamble).
Other examples can be added. The constitutive elements of the Martens
clause – “the principles of humanity and the dictates of the public conscience”
– are expressly invoked in the preambles of the 1977 Additional Protocol II to
the 1949 Geneva Conventions on International Humanitarian Law (fourth con-
siderandum), and of the 1980 Convention on Prohibitions or Restrictions on the
Use of Certain Conventional Weapons (fifth considerandum). Likewise, the 1972
Convention on the Prohibition of Bacteriological (Biological) Weapons and on
Their Destruction states in the last two consideranda of its preamble that the
prohibition of those weapons is to the benefit of all mankind, and that their use
“would be repugnant to the conscience of mankind”.
The universal juridical conscience has been in fact invoked in the travaux
préparatoires of the two Vienna Conventions on the Law of Treaties (1969 and
1986), by Delegations from different parts of the world. Thus, in the Vienna Con-
ference of 1968-1969, which adopted the 1969 Vienna Convention on the Law of
Treaties, the Delegate of Mexico (E. Suárez) stated that “the rules of jus cogens
were those rules which derived from principles that the legal conscience of man-
kind deemed absolutely essential to coexistence in the international community
at a given stage of its historical development”.35 In the same line, the Represen-
tative of Italy (A. Maresca) affirmed that the norms of jus cogens “were norms
of general international law acknowledged by the international community as
a whole, that was to say they were based on the legal conscience of the whole of
mankind”.36
Likewise, the Delegate of France (J.-J. de Bresson) asserted that “the sub-
stance of jus cogens was what represented the undeniable expression of the uni-
versal conscience, the common denominator of what men of all nationalities
regarded as sacrosanct, namely, respect for and protection of the rights of the
34 More recently, it has occupied an important space in the cycle of World Conferences
of the United Nations in the nineties; cf. chapter XXVI, infra.
35 U.N., United Nations Conference on the Law of Treaties – Official Records [UNCLT
– O.R.] (First Session, March/May 1968), vol. I (statement of 04.05.1968), p. 294, par.
7 (emphasis added).
36 U.N., UNCLT – O.R. (Second Session, April/May 1969), vol. II (statement of
12.05.1969), p. 104, par. 39 (emphasis added).
human person”.37 To the Representative of Mali (D. Maiga), also, “the jus cogens
rule would help to strengthen the legal conscience of the nations”.38 The Delegate
of Iraq (M.K. Yasseen), on his turn, warned that “States could not, by treaty, over-
ride those higher norms which were essential to the life of the international com-
munity and were deeply rooted in the conscience of mankind”.39 The Representa-
tive of Uruguay (E. Jiménez de Aréchaga) ventured to predict that, in practice, a
treaty in breach of those higher norms, amounting to “a flagrant challenge to the
international conscience, would be infrequent”.40
Still in the context of the debates on jus cogens, the Delegate of Spain (F. de
Castro) saw it fit also to warn that international court or arbitrators “could not
regard as binding any provision which ran counter to the conscience of the inter-
national community”.41 To the Representative of Poland (S. Nahlik), the basis of
contemporary International Law was to be found in the realities of international
life as expressed in the “conscience” of States.42 And the Delegate of Colombia (H.
Ruiz Varela), likewise, invoked “the rules of the universal legal conscience”.43
If should not pass unnoticed that, already by the late sixties, in the XXth
century, such invocations of the universal juridical conscience, as related to the
peremptory norms of international law, came from Delegates of all latitudes and
distinct juridical and cultural backgrounds. They echoed the pluralist interna-
tional community of those days, which, notwithstanding, felt the need for the as-
sertion of such universal juridical conscience. Thus, contrary to what the spokes-
men of an outdated positivism try to contend, such assertion was a reaction to
the old pattern of domination or manipulation of the international legal order by
a small number of individual big powers, with all the abuses that it entailed.
More recently, in the mid-eighties, the issue was again dwelt upon at the
1986 U.N. Conference on the Law of Treaties between States and International
Organizations or between International Organizations. On the occasion, the
Representative of Brazil (A.A. Cançado Trindade) warned that jus cogens was
“incompatible with the voluntarist conception of international law, because that
conception failed to explain the formation of rules of general international law”.44
And the Delegate of Cyprus (Droushiotis) added that “norms of jus cogens were
37 U.N., UNCLT – O.R. (First Session, March/May 1968), vol. I (statement of 06.05.1968),
p. 309, par. 32 (emphasis added).
38 Ibid., vol. I (statement of 07.05.1968), p. 327, par. 74 (emphasis added).
41 U.N., UNCLT – O.R. (Second Session, April/May 1969), vol. II (statement of
14.05.1969), p. 124, par. 72 (emphasis added).
42 U.N., UNCLT – O.R. (First Session, March/May 1968), vol. I (statement of 06.05.1968),
p. 302, par. 33 (emphasis added).
44 U.N., United Nations Conference on the Law of Treaties between States and Interna-
tional Organizations or between International Organizations – Official Records, vol.
I (statement of 12.03.1986), pp. 187-188, par. 18.
150 Chapter VI
the most important rules of international law, as they were of a universal nature
and contained obligations erga omnes”.45
One could hardly deny the tendency of contemporary international law to
develop the protection of mankind as a whole, – a process which has been fos-
tered by decolonisation and the emergence and development of International
Human Rights Law.46 Even before the insertion of the concept of jus cogens in the
first Vienna Convention on the Law of Treaties (that of 1969), the Delegations of
some States related the emerging concept to the universal juridical conscience,
in the course of the debates at the VIth Committee of the U.N. General Assembly
on the Draft Articles by the ILC on the Law of Treaties.
Thus, as indicated by a study on this specific point, in those debates (of 1963-
1966) of the VIth Committee, prior to the adoption of the 1969 Vienna Conven-
tion, the Delegations of some States related the foundations of jus cogens to the
superior interests, the very maintenance and survival of the international com-
munity. Thus, the Delegation of Cyprus, for example, stated that certain norms
find their essential justification as being “the common expression of the con-
science of the international community”.47 To the French Delegation, the univer-
sal character of jus cogens indicated that certain principles were binding upon
the international community as a whole, while the Italian Delegation, on its turn,
identified in this new trend an evolution towards a “true universal public law”.48
V. Universal Juridical Conscience: The Historical Significance of the

Martens Clause
A clause of major transcendence deserves to be singled out: the so-called Mar-
tens clause, which counts on more than a century of history. Presented by the
Delegate of Russia (Friedrich von Martens) to the I Hague Peace Conference (of
1899), it was inserted into the preambles of the II Hague Convention of 1899 (par.
9) and of the IV Hague Convention of 1907 (par. 8), both pertaining to the laws
and customs of land warfare. Its purpose – pursuant to the wise premonition
of the Russian jurist and diplomat – was to extend juridically the protection to
civilians and combatants in all situations, even though not contemplated by the
conventional norms; to that end, the Martens clause invokes “the principles of
45 In ibid., p. 193, par. 84.

46 S. Sucharitkul, “Évolution continue d’une notion nouvelle: le patrimoine commun
de l’humanité”, in International Law at a Time of Perplexity – Essays in Honour of S.
Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, p. 905.
47 Cit. in: M. Pérez González, “Los Gobiernos y el Jus Cogens: Las Normas Imperativas
del Derecho Internacional en la Sexta Comisión”, in Estudios de Derecho Internac-
ional Público y Privado – Homenaje al Profesor L. Sela Sampil, vol. I, Universidad de
Oviedo, 1970, pp. 107 and 109.
48 Cit. in ibid., pp. 118 and 115, respectively. The modifications introduced by the jus
cogens superveniens were regarded as being due to a change in the “communitarian
conscience” as to the application of international norms; ibid., p. 115.
international law” derived from “established custom”, as well as “the principles

of humanity” and the “dictates of public conscience”. Subsequently, the Martens
clause was again to appear in the common provision, concerning denunciation,
of the four Geneva Conventions of International Humanitarian Law of 1949 (Ar-
ticle 63/62/142/158), as well as in the Additional Protocol I (of 1977) to those Con-
ventions (Article 1(2)), – to quote some of the main Conventions of International
Humanitarian Law.
The Martens clause has thus been endowed, along more than a century,
with continuing validity, – in its invocation of public conscience, – as, however
advanced may the codification of humanitarian norms be, it will hardly be con-
sidered as being truly complete. The Martens clause thus continues to serve as
a warning against the assumption that whatever is not expressly prohibited by
the Conventions on International Humanitarian Law could be allowed; quite
on the contrary, the Martens clause sustains the continued applicability of the
principles of International Law, the principles of humanity and the dictates of
public conscience, independently of the emergence of new situations and of the
development of technology.49 The Martens clause impedes, thus, the non liquet,
and exerts an important role in the hermeneutics and the application of humani-
tarian norms.
The fact that the draftsmen of the Conventions of 1899, 1907 and 1949 and of
Protocol I of 1977 have reiteratedly asserted the elements of the Martens clause
in those international instruments reckons that clause as an emanation of the
material source of International Humanitarian Law 50 and of International Law
in general. In this way, it exerts a continuous influence in the spontaneous for-
mation of the contents of new rules of International Humanitarian Law.51 The
Egyptian jurist Hamed Sultan, e.g., has related the “modern language” of the
Martens clause to longstanding fundamental principles of the Islamic concep-
tion of humanitarian law (such as those of justice and equity, and of the dignity
and integrity of the human person).52
49 B. Zimmermann, “Protocol I – Article 1”, in Commentary on the Additional Proto-

cols of 1977 to the Geneva Conventions of 1949 (eds. Y. Sandoz, Ch. Swinarski and B.
Zimmermann), Geneva, ICRC/Nijhoff, 1987, p. 39.
50 H. Meyrowitz, “Réflexions sur le fondement du droit de la guerre”, in Études et es-
sais sur le Droit international humanitaire et sur les principes de la Croix-Rouge en
l’honneur de Jean Pictet (ed. Ch. Swinarski), Genève/La Haye, CICR/Nijhoff, 1984,
pp. 423-424; and cf. H. Strebel, “Martens’ Clause”, in Encyclopedia of Public Inter-
national Law (ed. R. Bernhardt), vol. 3, Amsterdam, North-Holland Publ. Co., 1982,
pp. 252-253.
51 F. Münch, “Le rôle du droit spontané”, in Pensamiento Jurídico y Sociedad Inter-
nacional – Libro-Homenaje al Prof. D. A. Truyol Serra, vol. II, Madrid, Univ. Com-
plutense, 1986, p. 836; H. Meyrowitz, op. cit. supra n. (50), p. 420.
52 H. Sultan, “La conception islamique du Droit international humanitaire dans les
conflits armés”, 34 Revue egyptienne de Droit international (1978) pp. 7-9, and cf.
p. 4. And cf. also, on the dictates of public conscience in general, e.g., W.B. Hallaq,
152 Chapter VI
The Swiss-Polish jurist Christophe Swinarski pondered that, by intertwin-

ing the principles of humanity and the dictates of public conscience, the Mar-
tens clause establishes an “organic interdependence” of the legality of protection
with its legitimacy, to the benefit of all human beings.53 A monograph published
in Russia in 1999 on the legacy of Martens stressed the primacy of Law in the
settlement of disputes and search for peace.54 Contemporary juridical doctrine
has also characterized the Martens clause as source of general International Law
itself;55 and no one would dare today to deny that the “principles of humanity”
and the “dictates of public conscience” invoked by the Martens clause belong
to the domain of jus cogens.56 The aforementioned clause, as a whole, has been
conceived and reiteratedly affi rmed, ultimately, to the benefit of humankind as
a whole, thus maintaining its topicality. The clause may be considered as an ex-
pression of the raison d’humanité imposing limits to the raison d’État.
VI. Invocation of Juridical Conscience in Judicial Proceedings and

International Case-Law
In the course of the advisory proceedings (written and oral phases) before the
ICJ (1994-1995) pertaining to the requests by the U.N. General Assembly and the
World Health Organization (WHO) for an Advisory Opinion (rendered in 1996)
on the question of the legality (or rather illegality) of nuclear weapons, some of
the intervening States, not surprisingly, invoked the “principles of humanity” or
the “dictates of public conscience” in their arguments. To recall but a couple of
examples, Australia, e.g., expressly invoked the Martens clause, and argued that
the principles of humanity and the dictates of public conscience are not static, an
permeate the whole of International Law in its evolution, calling for the prohibi-
tion of nuclear weapons for all States. Australia further recalled the final pream-
bular paragraph of the Convention against Biological Weapons, pondering that
its warning that those weapons are “repugnant to the conscience of mankind”
applies likewise to nuclear weapons, and that the use of them all would be con-
trary to general principles of humanity.57
On its turn, Japan contended that the use of nuclear weapons, for the con-
siderable injuries inflicted, was clearly contrary to the principle of humanity in
The Origins and Evolution of Islamic Law, Cambridge, Cambridge University Press,
2005, p. 203.
53 C. Swinarski, “Préface”, in V.V. Pustogarov, F.F. Martens..., op. cit. infra n. (54), p.
XI.
54 V.V. Pustogarov, Fedor Fedorovitch Martens – Jurist i Diplomat, Moscow, Ed. Mez-
dunarodinye Otnoscheniya, 1999, pp. 1-287.
55 F. Münch, op. cit. supra n. (51), p. 836.
56 S. Miyazaki, “The Martens Clause and International Humanitarian Law”, in Études
et essais... en l’honneur de J. Pictet, op. cit. supra n. (50), pp. 438 and 440.
57 ICJ, loc. cit., pleadings of Australia (1995), pp. 45, 60 and 63, and cf. p. 68.
the foundation of International Law.58 New Zealand stated that the rationale
of the 1968 Nuclear Non-Proliferation Treaty is that “nuclear weapons are too
dangerous for humanity and must be eliminated”.59 And Egypt asserted that the
threat or use of nuclear weapons as weapons of mass destruction is prohibited
by International Humanitarian Law; the Additional Protocol I of 1977 to the 1949
Geneva Conventions establishes the prohibition of unnecessary suffering (Ar-
ticle 35) and imposes the differentiation between civilian population and military
personnel (Article 48). Thus, by their effects, nuclear weapons, being weapons
of indiscriminate mass destruction, infringe International Humanitarian Law,
which contain precepts of jus cogens, as recalled by successive resolutions of the
U.N. General Assembly; those precepts are the opinio juris of the international
community.60
As to international case-law, a prompt example lies in the case-law of the
Inter-American Court of Human Rights [IACtHR],61 to which one may add the
emerging case-law of the two ad hoc International Criminal Tribunals, for ex-
Yugoslavia and Rwanda. And the case-law itself of the ICJ contains elements de-
veloped as from, e.g., basic considerations of humanity.62
VII. Invocation and Assertion of Juridical Conscience in International

Legal Doctrine
Also in the doctrine of International Law elements are found for the development
of the matter, although, surprisingly, not sufficiently articulated to date. The no-
58 Government of Japan, Written Statement of the Government of Japan [on the Request
for an Advisory Opinion to the ICJ by the World Health Organization], 10.06.1994,
p. 2 (internal circulation); Government of Japan, Written Statement of the Govern-
ment of Japan [on the Request for an Advisory Opinion to the ICJ by the United
Nations General Assembly], 14.06.1995, p. 1 (internal circulation); Government of
Japan, The Oral Statement by the Delegation of Japan in the Public Sitting Held at
the Peace Palace, The Hague, 07.11.1995, p. 1 (internal circulation).
59 ICJ, loc. cit., pleadings of New Zealand (1995), p. 33.
60 ICJ, loc. cit., pleadings of Egypt (1995), pp. 37-41 and 44.
61 Express references to the universal juridical conscience are found, e.g., in some of
my Individual Opinions in the case-law of the IACtHR, e.g., in Advisory Opinion n.
16, on The Right to Information on Consular Assistance in the Ambit of the Guaran-
tees of the Due Process of Law (1999), paragraphs 3-4, 12 and 14; in the Provisional
Measures of Protection in the case of the Haitians and Dominicans of Haitian Ori-
gin in the Dominican Republic (2000), paragraph 12; in the case Bámaca Velásquez
versus Guatemala (merits, judgment of 25.11.2000), paragraphs 16 and 28; among
others.
62 Cf., e.g., A.A. Cançado Trindade, “La jurisprudence de la Cour Internationale de Jus-
tice sur les droits intangibles / The Case-Law of the International Court of Justice on
Non-Derogable Rights”, in Droits intangibles et états d’exception / Non-Derogable
Rights and States of Emergency (eds. D. Prémont, C. Stenersen and I. Oseredczuk),
Bruxelles, Bruylant, 1996, pp. 73-89; and cf. chapter XVI, infra.
154 Chapter VI
tion which I see it fit to denominate universal juridical conscience comes to find

doctrinal expression in relatively recent times (cf. supra), particularly along the
XXth century, with the emergence of the concept of communis opinio juris, to
face the old positivist dogma of individual consent (voluntas) for the formation
of customary law.63 In the first three decades of the XXth century, the expression
“international juridical conscience” was effectively utilized, in a slightly distinct
sense, recalling the classic notion of civitas maxima, so as to promote and foster
the spirit of international solidarity.64
The debates of the Institut de Droit International (New York Session of 1929)
about a project of declaration on human rights may here be recalled. It was ob-
served, on the occasion, that the “spiritual life” and the “juridical conscience” of
the peoples required a new law of nations, with the affirmation of human rights.65
At a given moment of those memorable debates of 1929 of the Institut, – almost
forgotten in our days, – it was pondered, for example, that
“dans la conscience du monde moderne, la souveraineté de tous les États doit être
limitée par le but commun de l’humanité. (...) L’État dans le monde n’est qu’un moy-
en en vue d’une fin, la perfection de l’humanité (...). La protection des droits de
l’homme est le devoir de tout État envers la communauté internationale. (...) Il s’agit
de proclamer les droits que la conscience du monde civilisé reconnaît aux individus
en tant qu’hommes.(...)”.66
At the end of the debates referred to, the Institut (22nd. Commission) in fact
adopted a resolution containing the “Déclaration des droits internationaux de
l’homme”, the first considerandum of which emphatically affirmed that “the ju-
ridical conscience of the civilized world requires the recognition to the individu-
al of rights safeguarded from any threat or breach on the part of the State”.67
Still at the time of the II world war (1944), Alejandro Álvarez sustained that
the principles of law and the precepts of international justice emanated sponta-
neously from the international juridical conscience.68 And, three years later, in a
report submitted to the Institut de Droit International (1947 Lausanne session),
A. Álvarez, amidst the “grave crisis” faced by International Law, reiterated his
view that international justice was a manifestation of the international juridical
63 A. Carty, op. cit. supra n. (26), Manchester, University Press, 1986, pp. 26-28 and 33.
64 Cf., e.g., G. Tassitch, “La conscience juridique internationale”, op. cit. supra n. (27),
pp. 310-311, 314, 316-317 and 320.
65 Cf. Annuaire de l’Institut de Droit International (New York Session), vol. II, 1929, pp.
114, 134-135 and 137.
66 Ibid., pp. 112 and 117.
67 Cit. in ibid., p. 298.
68 To him, “international justice” itself emanates from the “public conscience” or “con-
science of the peoples”; A. Álvarez, La Reconstrucción del Derecho de Gentes – El
Nuevo Órden y la Renovación Social, Santiago de Chile, Ed. Nascimento, 1944, pp.
19-21, 24-25 and 86-87, and cf. p. 488.
conscience, to which the precepts of the law of nations owed their formation;69 he
added that the general interests of the international community should “model”
the “rights of States and individuals” and guide the work of reconstruction of
International Law.70
On his part, in his inspiring monograph International Law in an Expanded
World (1960), B.V.A. Röling also invoked the superior interests of the interna-
tional community as a whole to protect humankind against war, to “protect the
weak against the strong”, to establish an international legal order in which mem-
bers are “legally obliged to abstain from actions unreasonably harmful to oth-
ers”, and to lay the basis – in an expanded world – for the construction of a truly
universal international law.71 Further references to the “juridical conscience” and
“moral conscience” are found, for example, in the Meditación sobre la Justicia
(1963) of Antonio Gómez Robledo, amidst his lucid criticism of legal positivism.72
Still in the mid-sixties, S. Glaser sustained that customary international norms
are those that, “according to universal conscience”, ought to regulate the inter-
national community, for fulfi lling common interest and responding to the de-
mands of justice; and he added that
“C’est sur cette conscience universelle que repose la principale caractéristique du

droit international: la conviction que ses normes sont indispensables pour le bien
commun explique leur reconnaissance en tant que règles obligatoires”.73
The recognition of certain fundamental values, embodying a sense of objective

justice, has much contributed to the ongoing evolution of the communis opinio
juris 74 in the last decades of the XXth century. One acknowledges here a concep-
tual evolution which has moved, as from the sixties, from the international to the
universal dimension (under the great influence of the development of the Inter-
national Law of Human Rights itself), conducive to the identification of the com-
69 A. Álvarez, “Méthodes de la codification du Droit international public – Rapport”,

in Annuaire de l’Institut de Droit International (1947) pp. 38 and 46-47, and cf. pp.
50-51, 54, 64 and 69.
70 Ibid., pp. 44-45 and 68-69, and cf. p. 70.
71 B.V.A. Röling, International Law in an Expanded World, Amsterdam, Djambatan,
1960, pp. XIII, XV, 52-53, 56, 83, 122 and 126. Such goals, – he added, – were prompt-
ed by a “revolt” of international conscience against the horrors (in particular the
criminal Nazi practices) of the II world war, and a new awareness that human be-
ings could no longer be left entirely only as subjects of their respective nation-States
(ibid., p. 114); their rights emanated directly from International Law.
72 A. Gómez Robledo, Meditación sobre la Justicia, Mexico/Buenos Aires, Fondo de
Cultura Económica, 1963, pp. 179 and 185.
73 S. Glaser, L’arme nucléaire à la lumière du droit international, Paris, Pédone, 1964,
p. 18.
74 Maarten Bos, A Methodology..., op. cit. supra n. (33), 1984, p. 251, and cf. pp. 246 and
253-255.
156 Chapter VI
mon interests of the international community and of the generalized recognition

of the imperative to satisfy basic human needs.75 Thus, in the early seventies, it
was possible to behold, – as done by the Nigerian jurist T.O. Elias, for example,
– an “overwhelming trend toward consensus which is an expression of the juridi-
cal conscience of the world community”.76
Later on, in the late eighties, a trend of the international legal doctrine as-
serted that the source of the higher norms of International Law lies in the univer-
sal conscience, wherefrom certain principles of International Law also emanate;
positivist doctrine proved incapable of elaborating a conception of international
law conducive to establishing a true legal order, it thus becoming necessary to
identify in the “universal conscience” the ultimate source of the “supreme norms
of International Law”.77 These are but some examples to disclose that, along the
XXth-century, there were jusinternationalists who had the intuition and sensi-
tiveness to detect the reality of human conscience, beyond the crude “reality” of
the facts.
VIII. Final Observations: The Achievements of International Law and the

Universal Juridical Conscience
Along the time of formation and growth of International Law, resort to the uni-
versal juridical conscience has helped to set necessary limits to excesses of those
who hold public power, whose decisions were identified as the “will” of the States.
This latter has often appeared as a disaggregating factor, accounting for incon-
gruencies and contradictions in State practice. Thus, traditional International
Law, as it stood at the beginning of last century, was characterized by unlimited
State voluntarism, which was reflected in the permissiveness of recourse to war,
of the celebration of unequal treaties, of secret diplomacy, of the maintenance
of colonies and protectorates and of zones of influence. Against this oligarchi-
cal and unjust order principles arose such as those of the prohibition of the use
and threat of force and of the war of aggression (and of the non-recognition of
situations generated therefrom), of the juridical equality of States, of the peace-
ful settlement of international disputes.78 Moreover, there started the struggle
against inequalities (with the abolition of the capitulations, the establishment
of the system of protection of minorities under the League of Nations, and the
adoption of the first international labour conventions of the ILO).
75 B. Stern, “La coutume au coeur...”, op. cit. supra n. (33), p. 487.

76 T.O. Elias, “Modern Sources of International Law”, in Transnational Law in a
Changing Society: Essays in Honour of Ph.C. Jessup (eds. W. Friedmann, L. Henkin
and O. Lissitzyn), N.Y./London, Columbia University Press, 1972, p. 51.
77 G. Sperduti, “La souveraineté, le droit international et la sauvegarde des droits de
la personne”, in International Law at a Time of Perplexity – Essays in Honour of S.
Rosenne, Dordrecht, Nijhoff, 1989, pp. 884-885, and cf. p. 880; he added that the jurist
must tell the truth, beyond positivism, which is illogical (ibid., pp. 879-880).
The universal juridical conscience, unlike the voluntarist conception, has

consistently given expression to the fundamental principles of International Law.
The invocation of these latter came to fulfi l the “ethical demands” of the interna-
tional legal order, as from a renewed jusnaturalist outlook. Such principles came
to illuminate the formation and evolution of the international legal order, given
the flagrant incapacity of legal positivism to explain the formation of custom-
ary norms, of visualizing Law as a means for the realization of justice, and of
recognizing that the ultimate foundation of Law is necessarily found outside the
positive legal order.79
In the mid-XXth century the necessity was recognized of the reconstruction
of International Law with attention turned to the rights inherent to every human
being, – of what the adoption of the Universal Declaration of 1948 gave eloquent
testimony, followed, along five decades, by more than 70 treaties of protection
nowadays in force at global and regional levels,80 in a manifestation of the awak-
ening of the universal juridical conscience to the necessity to secure the effective
protection of the human being in all and any circumstances. International Law
came to experiment, in the second half of the XXth century, an extraordinary
expansion, fostered in great part by the operation of the United Nations and spe-
cialized agencies, besides regional organizations.
Thus, by direct influence of the international organizations, the process of
formation of the norms of International Law became complex and multifaceted,
in the purpose of achieving a wide regulation which fulfilled the needs and aspi-
rations of the international community as a whole.81 The vast normative produc-
tion of the United Nations, for example, was no longer limited to the projects of
the ILC,82 – which retain their value and utility, – but came to extend itself to the
General Assembly, to its VIth Committee (for Legal Affairs), to the Conferences
of Plenipotentiaries convened by the United Nations; furthermore, specialized
agencies of the United Nations system, such as the International Labour Orga-
nization (ILO), the UNESCO, the International Atomic Energy Agency (IAEA),
among others, – besides regional organizations, – came to produce numerous
treaties and conventions of importance in distinct areas of human activity.83
79 Cf. A. Truyol y Serra, Fundamentos de Derecho Internacional Público, 4th. ed., Ma-
drid, Tecnos, 1977, pp. 19, 61, 68, 73, 104-105 and 117.
80 Parallel to that, in the United Nations era the system of collective security was con-
solidated, which, however, did not satisfactorily operate as a result of the deadlocks
generated by the cold war, – though it remains essential today for the preservation
of international peace and security.
81 A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo
82 U.N., The Work of the International Law Commission, 5th. ed., N.Y., U.N., 1996, pp.
1-501.
83 A. Pellet, “La formation du droit international dans le cadre des Nations Unies”, 6
European Journal of International Law (1995) pp. 401-425; F. Cede, “New Approach-
es to Law-Making in the U.N. System”, 1 Austrian Review of International and Com-
158 Chapter VI
The emergence of new States, in the course the historical process of de-
colonization, was to mark deeply its evolution in the fi fties and sixties, amidst
the great impact within the United Nations of the emerging right of self-deter-
mination of peoples. The process of democratization of International Law was
launched.84 In transcending the old parameters of the classic law of peace and
war, International Law was equiped to respond to the new demands and chal-
lenges of international life, with greater emphasis in international cooperation.85
In the sixties up to the eighties, multilateral forums were engaged in an in-
tense process of elaboration and adoption of successive treaties and resolutions
of regulation of the spaces.86 From then onwards international law has gradually
undergone a remarkable transformation. As accurately observed, contemporary
International Law ceased to be a formalistic legal order, to become a “droit maté-
riel”, and “under the pressure of the universal human community (...) the norma-
tive production has enriched”, giving expression to the “values of solidarity and
of justice among peoples”.87
The evolution of International Law along the XXth century bears witness of
advances due, in my understanding, to their ultimate material “source”, the uni-
versal juridical conscience, – despite successive abuses committed against hu-
man beings and victimizing humankind as a whole. There are several elements
that disclose such advances, whether one dwells upon international case-law, or
the practice of States and international organizations and of other subjects of
International Law, or else the more lucid juridical doctrine. From these elements
there ensues, – may I insist on this central point, – the awakening of a universal
juridical conscience, to reconstruct, at this beginning of the XXIst century, Inter-
national Law, on the basis of a new paradigm, no longer State-centric, but rather
placing human beings in a central position and bearing in mind the problems
which affect the whole of humankind.88
Recourse to the universal juridical conscience has thus been in line with the
humanist thinking in International Law, with the acknowledgment of the press-
ing need to set limits to force in the relations among States and other subjects
of International Law. On the one hand, resort to “will” is in line with the factual
parative Law (1996) pp. 51-66; E. McWhinney, Les Nations Unies et la formation du
droit, Paris, Pédone/UNESCO, 1986, pp. 101-129 and 261-287.
84 Cf. H. Valladão, Democratização e Socialização do Direito Internacional, Rio de Ja-
neiro, Livr. José Olympio Ed., 1961, pp. 7-98; P. Buirette-Maurau, La participation du
tiers-monde à l’élaboration du Droit international, Paris, LGDJ, 1983, pp. 19-202.
85 The United Nations gradually turned their attention also to the economic and social
domain, besides international trade, without prejudice to their initial and continued
concern with the preservation of international peace and security.
86 In distinct areas such as those of outer space and the law of the sea.
87 B. Conforti, “Humanité et renouveau de la production normative”, in Humanité et
droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991, pp. 113-114 and 118.
capacity to act and influence of each one of them, which varies from State to State
and other subjects of International Law, and favours the primacy of authority
and force over belief. The former posture, of recourse to the universal juridical
conscience, supports, in turn, the primacy of spirit over matter (which is the view
I have always firmly sustained).
Throughout the successive crisis and disasters that have affected human-
kind, it has notwithstanding remained aware of its creativity and of the need to
be master of its own fate. It is true that humankind has, in a temporal dimension,
witnessed the destruction of civilizations in history, one after another, but it is
equally true that it has remained aware of the importance of conscience to guide
human action and the evolution of humankind itself. As poignantly remarked by
Pierre Teilhard de Chardin, although Susa, Memphis, Athens, and other centres
of civilization, died in their respective epochs, yet a “conscience of the universe”
has kept on evolving and growing along time.89
The destructive forces, both natural disasters and man-made wars, have not
succeeded in hindering the course of evolution of that conscience, and of the
awareness of the need to live with justice and peace in an orderly universe. That
conscience is the ultimate material source of all Law. It is, after all, not surprising
that, despite the rise and fall of civilizations in time (e.g., Rome), the idea of Law
has survived all destruction,90 has moved forward, in my understanding, by hu-
man conscience, in pursuit of the realization of an objective justice.
Over a decade of experience so far, serving as Judge of an international tri-
bunal of human rights, has reinforced my feelings that the universal juridical
conscience is the material source par excellence of International Law. In several
of my Individual Opinions in the case-law of the IACtHR I have sustained my un-
derstanding that it is due ultimately to the universal juridical conscience that we
can witness nowadays the current historical process of humanization of Interna-
tional Law.91 I sincerely hope that the legal doctrine of the XXIst century comes
to dedicate considerably more attention to the material source of International
Law, to the foundations and the validity of the norms of this latter.
The prevailing attitude of international lawyers in the last decades of the
XXth century was to limit themselves to the “formal” sources of International
89 P. Teilhard de Chardin, Himno del Universo, 2nd. ed., Madrid, Ed. Trotta, 2000
[reed.], pp. 90-91.
90 Cf. Montesquieu, Considérations sur les causes de la grandeur des romains et de leur
décadence (1734), Paris, Garnier, 1954 [reed.], pp. 50-51, 62 and 118.
91 Cf. my Concurring Opinion in the Advisory Opinion n. 16, on The Right to Informa-
tion on Consular Assistance in the Framework of the Guarantees of the Due Process
of Law (1999), paragraphs 3-4, 12 and 14; Concurring Opinion in the Provisional
Measures of Protection in the case of the Haitians and Dominicans of Haitian
Origin in the Dominican Republic (2000), paragraph 12; Separate Opinion in the
Bámaca Velásquez versus Guatemala case (merits, 2000), paragraphs 28 and 16;
Concurring Opinion in the Advisory Opinion n. 18, on The Juridical Condition and
Rights of Undocumented Migrants (2003), paragraphs 23-25 and 28-30, esp. par. 29.
160 Chapter VI
Law, as recognized in Article 38 of the ICJ Statute.92 This provision was a product
of its time (1920), and the challenges of the XXIst century do require to go much
further than that. The study of the “sources” of International Law cannot be ap-
propriately undertaken from a strictly positivist outlook, making abstraction of
the values. International Law93 cannot at all be reduced to an instrumental at the
service of power.
Some may argue, and have argued, that the universal juridical conscience
is metajuridical. If one bears in mind that no norm of positive law can become
the source of its own validity, then one need not fear the charge that the material
source of International Law, like that of any law, is indeed metajuridical, and this
in my view does not exempt international lawyers from the duty to consider it in
good faith.94 Jurists of the past (until the seventies) appeared more prepared to
go into an examination of the matter, in greater depth, than most of our contem-
poraries. Hence the reductionist views of International Law that unfortunately
seem to prevail in our days, marked by pragmatism and “technicism”. Many in-
ternational lawyers nowadays seldom dare to go beyond positive law, being on the
contrary receptive – if not subservient – to relations of power and dominance,
and thus paying a disservice to International Law. Jurists cannot make abstrac-
tion of the ineluctable axiological dimension of the discipline, and in my view
cannot truly escape considering its ultimate material source: the universal juridi-
cal conscience.
It is this latter that moves ahead International Law, as all Law. The univer-
sality of International Law cannot possibly be achieved on the basis of positive
law strictly; nor can an international legal order turned to the fulfilment of the
needs and aspirations of humankind. Hence the great necessity, and utmost im-
portance, of taking into due account, first and foremost, the material source of
international law, and of all Law, that which actually moves it forward always: the
universal juridical conscience.
In conclusion, the very dynamics of contemporary international life, moved
by human conscience, has taken care of dismissing the traditional view that in-
ternational norms derive entirely from the “free will” of the States themselves.
It has evidenced that one could only find an answer to the problem of the foun-
dations and validity of this latter in the universal juridical conscience, as from
the assertion of the idea of an objective justice. At this beginning of the XXIst
century, we have the privilege to witness and the duty to foster the process of
92 A provision which is almost 90 years old...

93 Its addressees are the States, international organizations, peoples and human be-
ings, and ultimately humankind, and it ought to fulfi l their needs, among which and
above all the realization of justice.
94 It may be recalled that, as already pointed out in this General Course, – in the proc-
ess of elaboration of the 1970 U.N. Declaration on Principles of International Law
concerning Friendly Relations and Cooperation among States, the understanding
was propounded that the Declaration was intended to express a “universal juridical
conviction”; cf. chapter III, supra.
humanization of International Law, which, in conformity with the new ethos of

our times, comes to dwell more directly upon the identification and realization
of common superior values and goals. In this way, International Law evolves, ex-
pands itself, strengthens and improves itself, and, ultimately, it legitimates itself.
Part IV
Subjects of International Law

Chapter VII States as Subjects of International
Law and the Expansion of
International Legal Personality
I. Introduction: International Legal Personality Expanded

The domain of the subjects of International Law, which in the past was largely
devoted – sometimes exclusively – to States, has lately been much enriched with
the acknowledgement of international organizations and individuals as also sub-
jects of the law of nations. In turning now to this chapter of International Law,
my intention is here to focus on the expansion of international legal personality,
rather than to review classic doctrine on the matter. Th is means to review new
developments on the matter,1 with the advent of international organizations and
of the human person, individually or in groups, and of humankind as a whole,
also as subjects of the law of nations. This does not mean to overlook the inter-
national legal personality of States, which has already been firmly established in
International Law a long time ago, and which has been overworked in the past. It
means to concentrate attention, as from the personality of States, on the expan-
sion of international legal personality in the current process of humanization of
International Law.
II. Statehood and Recognition

The preconditions for statehood in International Law are those of an objective
International Law, irrespective of the “will” of individual States.2 Suffice it at this
stage to focus statehood in the right perspective, as distinguished from the ques-
tion of recognition of States. It is, in fact, precisely in relation to the effects of
recognition that the classic dispute between the declaratory and the constitutive
theses arose.3 Recognition being largely discretional, it has in practice operated
1 In this chapter and in chapters VIII-XI, infra.

2 As to the classic prerequisites of statehood, gradually greater emphasis has shifted
from the element of territory to that of the normative system, and, in more recent
times, to that of the population, thus reflecting the current process of humanization
of International Law; cf. chapter XXI, infra.
3 With regard to recognition in particular, the partisans of the constitutive thesis sus-
tain that the act of recognition is decisive even for the emergence of the interna-
166 Chapter VII
empirically, often escaping from fi xed criteria or preestablished rules.4 It is not

surprising that the declaratory thesis has become much more widely accepted: it
is certainly an exageration to condition the very configuration of the internation-
al personality of a new State, and of its corresponding rights and duties, to the
“will” of the States which recognize it, as upheld in the past by voluntarist posi-
tivism. The extreme view which pretended in the past that the arbitrary “will”
of the States constituted the source not only of their rights but also of their own
existence is wholly surpassed in contemporary International Law,5 thus avoiding
harmful consequences for the international system.6
As to the classic polemics, in respect of recognition, between those who
considered, on the one hand, the State, and, on the other hand, the international
legal system (“objective” International Law) as providing the ultimate “source” of
international rights and duties, it may further be pointed out that a State can per-
fectly “exist” without entering into international relations with some other States,
it can be the bearer of certain rights and duties without it. There are always States
non-recognized by others, negotiations are conducted despite non-recognition,
and the international responsibility of non-recognized States or governments has
at times been asserted. In sum, States do not regard other non-recognized States
as immune from the norms of International Law.
All this demonstrates that the determination of the conditions of existence
of a State is incumbent upon International Law itself. It is, thus, not without
tional personality of the new State and the rights and duties normally associated to
it, while the supporters of the declaratory thesis advocate that the act of recognition
is only a political act, a formal one, which normally precedes the establishment of
diplomatic relations with a State which already exists as such.
4 Cf., on the matter, K. Marek, Identity and Continuity of States in Public Interna-
tional Law, 2nd. ed., Geneva, Droz. 1968, pp. 1-619; J. Verhoeven, “L’État et l’ordre
juridique international – remarques”, 82 Revue générale de Droit international pub-
lic (1978) pp. 749-774; F. Münch, “Quelques problèmes de la reconnaissance en Droit
international”, in Miscellanea W.J. Ganshof van der Meersch, vol. I, Bruxelles/Paris,
Bruylant/LGDJ, 1972, p. 171, and cf. pp. 157-172; Ch. Rousseau, “L’indépendance de
l’État dans l’ordre international”, 73 Recueil des Cours de l’Académie de Droit Inter-
national de La Haye [RCADI] (1948) pp. 213-219.
5 H. Lauterpacht, Recognition in International Law, Cambridge, University Press,
1947, pp. 2, 51, 59, 62-63, 75 and 77.
6 Such position proved wholly unsustainable, as it would amount to render the very
existence of a State a relative question, depending on the individual recognition of
each other State; Ti-Chiang Chen, The International Law of Recognition, London,
Stevens, 1951, pp. 40-42, and cf. pp. 33-38. And, what was even more worrisome, if
the non-recognized State was juridically non-existent, everything would then be
permissible in relation to it, -sufficing it here to recall the declaration of Hitler of the
non-existence of Czechoslovaquia on the eve of the German invasion of 15.03.1939,
and the proclamation by the old Soviet Union of the extinction of Poland before the
Soviet invasion of that country, on 17.09.1939; K. Marek, op. cit. supra n. (4), pp. 146
and 148-149, and cf. also pp. 149-150.
States as Subjects of International Law and the Expansion of International Legal Personality 167
reason that, if in the past, the study of statehood appeared often strictly linked
to that of the unilateral act of recognition, by influence of voluntarist positivism,
modern theory and practice have turned their attention to aspects of statehood
and international legal rules pertaining to statehood itself (e.g., legal status and
competences) independently of the unilateral juridical act of recognition.7 It is
nowadays generally acknowledged that the recognition of States is of a declara-
tory, rather than constitutive nature, as the existence of a State cannot depend on
the manifestation of the “will” of another State. The preconditions for statehood
in International Law were well captured by the 1933 Montevideo Convention on
the Rights and Duties of States, comprising a population, a defined territory, a
normative system and the capacity to enter into relations with other States. Such
factual preconditions, as pointed out by classical doctrine, ensued essentially
from the principle of effectiveness, though modern doctrine goes beyond this lat-
ter and resorts to jus cogens so as to discard any illegal use of force also in the
present domain.8
III. Rights and Duties of States

With the fulfi lment of those preconditions, the new entities, the States, emerged
as subjects of International Law, originally conceived for the realization of the
common good. Their international juridical personality was beyond question.
The fundamental rights and duties of States, ensuing therefrom, were elaborated
by legal doctrine, along with the assertion of the independence of States from
the empire and the papacy, particularly in doctrinal writings of the XVIIIth cen-
tury, such as those of C. Wolff and E. de Vattel.9 States, composed of individuals,
became persons of International Law, endowed with corresponding rights and
duties, by means of an “anthropomorphic” analogy.10
7 K. Marek, op. cit. supra n. (4), pp. 134, 142-144 and 158-160; T.-Ch. Chen, op. cit. supra
n. (6), pp. 3, 28-29, 33-38, 55 and 62; Cf. also H. Kelsen, “Recognition in International
Law – Theoretical Observations”, 35 American Journal of International Law (1941)
pp. 605-617; and cf. A.J.P. Tammes, “The Legal System as a Source of International
Law”, 1 Nederlands Tijdschrift voor Internationaal Recht (1954) pp. 374-384.
8 Cf., e.g., J. Crawford, The Creation of States in International Law, Oxford, Clarendon
Press, 1979, pp. 58, 81, 106-107 and 421; J. Crawford, “The Criteria for Statehood in
International Law”, 48 British Year Book of International Law [BYBIL] (1976-1977)
pp. 93-182.
9 States are thus directly subjects of International Law; cf. E. Jouannet, Emer de Vattel
et l’émergence doctrinale du droit international classique, Paris, Pédone, 1998, pp.
97-98, 255, 311 and 319.
10 Ch. de Visscher, Les effectivités du Droit international public, Paris, Pédone, 1967,
pp. 34-52; C.D. de Albuquerque Mello, Curso de Direito Internacional Público, vol. I,
15th. rev. ed., Rio de Janeiro, Ed. Renovar, 2004, pp. 366-368; L.A. Podestá Costa and
J.M. Ruda, Derecho Internacional Público, vol. I, Buenos Aires, Tipogr. Ed. Argen-
tina, 1979, pp. 53-55.
168 Chapter VII
The aforementioned Convention of Montevideo of 1933 singled out, in its 16

Articles, such rights as those of independence and self-preservation (irrespective
of the recognition by other individual States), of inviolability of territory, besides
the right to juridical equality, among others. Significantly, the “personification”
of the States, composed anyway of human beings, suggested that even in the con-
sideration of the classic theme of statehood, one cannot make abstraction of the
human person, for whom the State ultimately exists, and not vice-versa. In any
case, the 1933 Convention had the merit of identifying and formulating principles
that were to shape the conduct of States in their relations with each other, in
terms of rights and duties of these latter. When, years later, the matter was retak-
en by the U.N. International Law Commission, in May 1949, it was beyond doubt
that inter-State relations were subject to the primacy of International Law.11
Moreover, rights and duties of States were articulated on the basis of the
general principle of the juridical equality of States, which, overcoming subservi-
ence to the policies of the great powers, had found expression during the two
Hague Peace Conferences (of 1899 and 1907), and with renewed force in the sec-
ond Conference. At the II Hague Peace Conference, Ruy Barbosa remarked that
the principle of juridical equality applied in the relations between States as well
as well as individuals.12 In fact, even the rights and duties of States are exercised
or performed by individuals, i.e., the authorities vested with the public power of
States, who take decisions of their behalf. Those rights and duties were construed
of the basis of the principle of juridical equality of States as subjects of Interna-
tional Law, set forth in the U.N. Charter (Article 2(1)). Such principle encom-
passed, despite shortcomings in the practice of States itself, equality of rights and
equality before International Law.13 The rights and duties of States, as set forth,
e.g., in the 1933 Convention of Montevideo, were conceived and formulated in
the framework of the relations of States inter se. But international law underwent
a considerable evolution ever since, encompassing new and diversified areas of
human activity. Thus, in December 1974, the U.N. General Assembly adopted the
celebrated Charter of Economic Rights and Duties of States,14 which expressly re-
ferred to the “international community as a whole” 15 or the “entire international
community” (twice in the preamble), and listed a series of principles to orient
11 R.J. Alfaro, “The Rights and Duties of States”, 97 RCADI (1959) pp. 95-176.
12 R.P. Anand, “Sovereign Equality of States in International Law”, 197 RCADI (1986)
pp. 72 and 74.
13 Cf. ibid., pp. 117-121, and cf. pp. 99 and 105; and cf. chapter III, supra). And cf. II Con-
férence de la Paix, Actes et discours de M. Ruy Barbosa, La Haye, W.P. van Stockum
et Fils, 1907, pp. 213-222 and 316-322.
14 For an account, cf. J. Castañeda, “La Charte des droits et devoirs économiques des
États – Note sur son processus d’élaboration”, 20 Annuaire français de Droit inter-
national (1974) pp. 36-37; and cf. also P.J.I.M. de Waart, “Permanent Sovereignty
over Natural Resources as a Cornerstone for International Economic Rights and
Duties”, 24 Netherlands International Law Review (1977) pp. 304-322.
15 Article 31, and cf. Article 10.
the establishment of a new international economic order,16 in the “promotion of

international social justice”.17
The topic of rights and duties of States has ever since been a recurrent one,
revived from time to time in relation to specific domains of International Law. In
the last two decades, one of such domains has been that of the rights and duties
of riparian States of international rivers (in relation to, e.g., equitable and reason-
able utilization, the duty not to cause sensible harm, freedom of navigation).18
Another has been the law of the sea,19 as illustrated by relevant provisions of the
1982 U.N. Convention on the Law of the Sea (in force as from 16.11.1994): while it
recognizes rights to coastal States, and others, it also sets forth duties erga omnes
concerning the use of the high seas (Part VII), the protection and preservation
of the marine environment (Part XII), thus taking into account the interests of
other States as well as of the international community as a whole.20
Developments in the last two decades suggest that the treatment of even a
classic chapter such as that of the rights and duties of States – and in particular
States’ duties – nowadays goes far beyond the strictly inter-State dimension, and is
approached in a distinct light, bearing also in mind current needs of humankind
as a whole. Nowadays one cannot envisage individual States making abstraction
of other States, and, ultimately, of the international community, which encom-
passes also other subjects of International Law. States themselves have gradually
realized that, for their own survival in the present nuclear age, they ought to be
concerned also with the needs of others and of humankind as a whole.
16 Hardly any other subject raised some much interest among international lawyers
in those days; only in the period 1974-1980, for example, some 600 books were pub-
lished on the matter, besides 1600 articles in specialized periodicals, and 700 stud-
ies and reports on it were prepared in the U.N. Secretariat and related agencies or
organs; cf., on the matter, A.A. Cançado Trindade, Direito das Organizações In-
ternacionais, 3rd. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2003, pp. 381-408, and
sources referred to therein.
17 As stated in the preamble.
18 Cf., e.g, J.A. Barberis, “Bilan de recherches de la section de langue française du Cen-
tre d’Étude et de Recherche de l’Académie”, in Droits et obligations des pays riverains
des fleuves internationaux (1990), The Hague/Dordrecht, The Hague Academy of
International Law/Nijhoff, 1991, pp. 15-57.
19 Cf., e.g., inter alia, S. Bateman, D.R. Rothwell and D. VanderZwaag, “Navigational
Rights and Freedoms in the New Millenium: Dealing with XXth Century Contro-
versies and XXIst Century Challenges”, in Navigational Rights and Freedoms and
the New Law of the Sea (eds. D.R. Rothwell and S. Bateman), The Hague, Nijhoff,
2000, pp. 314-335.
20 Cf., e.g., K. Highet, Rights and Duties of States under the 1982 Law of the Sea Con-
vention, Washington D.C., OAS General Secretariat/Inter-American Juridical Com-
mittee, 2000, pp. 43-75.
170 Chapter VII
IV. States and the Expansion of International Law

The last decades have witnessed an extraordinary expansion of International
Law, with the emergence and participation (as from decolonization) of numer-
ous politically-emancipated States with wide cultural differences, the rise of in-
ternational organizations and their thousands of resolutions of varying juridical
effects, the already vast and ever-growing corpus of international case-law, the
delimitation of new areas of regulation (e.g., communications and regulation of
spaces), among other factors. International Law has thus become a considerably
well-equipped domain of Law, besides being a cultural one. The expansion of
International Law has virtually discarded arguments of the past based on an al-
leged “legal vacuum”, as the possibilities of non liquet became extremely rare.
Such expansion of International Law promptly received judicial recognition.
Thus, in its celebrated Advisory Opinion of 21.06.1971 on Namibia, the Interna-
tional Court of Justice [ICJ] pondered (referring to the regime of the mandates)
that in the supervening half-century “the corpus juris gentium has been consider-
ably enriched”, and this the ICJ, “if it is faithfully to discharge its functions, may
not ignore”. The Court, in fact, seemed to admit that the evolution of the general
practice in the last years was due not only to the practice of States but also to
the practice of international organizations, as the Opinion of 1971 referred to the
practices of the Security Council as well as of the Court itself, besides discussing
the significance and the extent of resolutions of the General Assembly and of the
Security Council.21
The expansion of International Law, soon acknowledged in expert writ-
ing,22 occurred at first at normative level, thus considerably enlarging its scope
of application. States began to address new domains of human activity, and new
concepts emerged in the expanded regulation by International Law of such do-
mains. Gradually, as pointed out by B. Conforti, concern with issues pertaining
to humankind came to mark its presence in the expanded international regula-
tion; States themselves began to bear in mind considerations concerning bonum
commune humanitatis, in the gradual formation of a universalized international
community.23
21 Paragraphs 22, 38, 84 and 105-115 of the Opinion.

22 Cf., e.g., inter alia, E. Jiménez de Aréchaga, “International Law in the Past Third of
a Century”, 159 RCADI (1978) pp. 9-343; I. Brownlie, “International Law at the Fif-
tieth Anniversary of the United Nations – General Course on Public International
Law”, 255 RCADI (1995) pp. 21-228; M.S. Rajan, The Expanding Jurisdiction of the
United Nations, Bombay/Dobbs Ferry N.Y., N.M. Tripathi/Oceana, 1982, pp. 1-236;
A. Truyol y Serra, “L’expansion de la société internationale aux XIXe et XXe siècles”,
116 RCADI (1965) pp. 95-171; Lord McNair, The Expansion of International Law, Je-
rusalem, Hebrew University, 1962, pp. 9-68.
23 B. Conforti, “Humanité et renouveau de la production normative”, in Humanité et
Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991, p. 116, and cf. 113-
120.
In the domain of international environmental protection, for example,

throughout the negotiatory process of the 1997 Kyoto Protocol to the 1992 U.N.
Framework Convention on Climate Change, governmental Delegates themselves
sought to reach a consensus,24 overcoming their individual divergent interests,
and succeeding to adopt the Kyoto Protocol as a package deal, aware as they were
of the importance of facing the challenge of climate change which afected ulti-
mately humankind as a whole.25 The adoption of the Kyoto Protocol reflected the
common consciousness of the far-reaching implications of patterns of produc-
tion and consumption for everyone’s life, and of the pressing need of “protecting
the earth’s climate for the benefit of humankind”.26
The gradual and considerable expansion of International Law has taken place
not only at normative level: it has been, after all, an expansion of the function it-
self of the discipline. Suffice it here to recall one historical example in this regard.
The function itself of International Law transformed and expanded, e.g., by the
prohibition of war as an instrument of national policy:27 it became incumbent on
International Law to regulate all questions pertaining to international peace and
security, including some, – like the regulation of the use of force, – that in the
past were assumed to be the monopoly of the great powers.28
The transformation occasioned by the condemnation of war as an illicit act
had remarkable repercussion in the evolution of the discipline of International
Law itself. The doctrine of the past discoursed within the parameters of the clas-
sical division between the law of peace (droit de la paix) and the law of war (droit
de la guerre). The unequivocal condemnation of war, as an institution and an al-
legedly sovereign prerrogative, operated a profound transformation: the study of
the obsolete notions of war (just or unjust, offensive or defensive, among others)
was abandoned, and the classification itself of the means of peaceful settlement
of international disputes began to fall under the ambit of the law of peace. In the
timely expression of Descamps, from then onwards one could no longer “speak
24 A positive attitude which, years earlier, was also displayed in the negotiation of the
1985 Vienna Convention for the Protection of the Ozone Layer, and the 1987 Mon-
treal Protocol on Substances that Deplete de Ozone Layer; cf., e.g., R.E. Benedick,
Ozone Diplomacy – New Directions in Safeguarding the Planet, 2nd. ed., Cambridge/
Mass., Harvard University Press, 1998, pp. 44-47 and 98-99.
25 H. Schröder, Negotiating the Kyoto Protocol – An Analysis of Negotiation Dynamics
in International Negotiations, Münster/Hamburg, LIT, 2001, pp. 92 and 96, and cf.
pp. 17-18 and 21.
26 S. Oberthür and H.E. Ott, The Kyoto Protocol – International Climate Policy for the
21st Century, Berlin/Heidelberg, Springer-Verlag, 1999, pp. 278 and 311.
27 By the 1928 Pact Briand-Kellogg; cf. chapter IV, supra.
28 Such transformation brought about important consequences for the traditional no-
tions of treatment of belligerents, neutrality, debellatio, territorial acquisitions, cel-
ebration of treaties, – some of them having undergone fundamental modifications,
and others having simply been suppressed; J. Zourek, L’interdiction de l’emploi de la
force en Droit international, Leiden/Genève, Sijthoff/Inst. H.-Dunant, 1974, pp. 42
and 44-46.
172 Chapter VII
juridically of the law of war and of peace”, but one should rather “speak of the
law of peace in face of the illicit fact of war”.29 The expansion of International
Law was meant to be an expansion of the law of peace, – and this should be kept
in mind in our turmoiled days at this beginning of the XXIst century. Attempts
of “revival” of the term “war” (irrespective of qualification, whether defensive or
“preventive”, or any other) would amount to regrettable steps historically back-
wards, besides being wholly unwarranted.
V. The Erosion of the Domestic Jurisdiction of States

The considerable expansion experienced by International Law along the second
half of the XXth century, prompted in particular by the advent of international
organizations and the law-making initiatives undertaken in the framework of
these latter, is evidenced, inter alia, by the concomitant erosion of the objection
of the domestic jurisdiction or the reserved domain of States. Such objection,
which was gradually overcome by international organs, is distinct from the prin-
ciple of non-intervention, which retained its applicability in the ambit of strictly
inter-State relations. In the framework of multilateralism, however, States gradu-
ally realized that the objection of domestic jurisdiction (compétence nationale
exclusive) was self-defeating, and should be avoided, for the sake of the growth of
International Law itself.
The starting point of this development lay in the provision of Article 15(8) of
the Covenant of the League of Nations, which read:
“If the dispute between the parties is claimed by one of them, and is found by the
Council, to arise out of a matter which by International Law is solely within the
domestic jurisdiction of that party, the Council shall so report, and shall make no
recommendation as to its settlement”.
In the practice of the League this restriction on the Council was invoked on only
three occasions.30 It was in one of them, in the Nationality Decrees Advisory
Opinion (1923) that the Permanent Court of International Justice [PCIJ] shed
29 Baron Descamps, “L’influence de la condamnation de la guerre sur l’évolution jurid-

ique internationale”, 31 RCADI (1930) p. 528, and cf. pp. 450, 460-461, 465, 479, 482,
493, 510-511 and 525-526. On the “international criminality” of war, cf. N. Politis, Les
nouvelles tendances du Droit international, Paris, Libr. Hachette, 1927, pp. 126-127.
30 Namely, in the Aaland Islands case (Finland versus Sweden), in the Nationality De-
crees in Tunis and Morocco case (United Kingdom versus France), and in the dispute
concerning the expulsion of the Oecumenical Patriarch from Turkey (Greece versus
Turkey, settled amicably in 1925-1926 by direct negotiations between the parties).
The Aaland Islands case was settled amicably in 1920-1921 by the contending par-
ties, following an opinion delivered by a Commission of Jurists (since the Permanent
Court of International Justice [PCIJ] had not yet been formed), and agreed with by
the League Council.
some light into the problem of domestic jurisdiction, when it stated, in a cel-
ebrated obiter dictum, that
“The question whether a certain matter is or is not solely within the jurisdiction of
a State is an essentially relative question; it depends upon the development of inter-
national relations”.31
Years later, throughout the work at the San Francisco Conference conducive to
the adoption of the United Nations Charter in 1945, the participant Delegations
did not advocate that the determination of matters which fell under the domestic
jurisdiction should be attributed to the interested States. Instead, they favoured
referring that determination to the international organs, in an implicit recogni-
tion of the International Law criterion.32 This fact should be always kept in mind,
for a proper understanding of the subsequent practice of the United Nations on
the application of Article 2(7) of the U.N. Charter; the attribution to the organ
concerned rather than to the interested State of the determination whether a
matter was or not covered by the limitation of Article 2(7) of the Charter helped
to draw attention to its artificiality as a safeguard for State sovereignty.33
Expert writing took varying positions on the problems raised by the domes-
tic jurisdiction clause of the U.N. Charter. A first trend propounded the view
that the reserved domain of States depended upon the fact whether International
Law had or not made of the matter at issue an object of regulation.34 Another
trend simply favoured the International Law criterion for the determination of
the reserved domain.35 At last, a distinct trend visualised different spheres of
jurisdiction or a certain distribution of competence, seemingly to maintain that
31 PCIJ, Nationality Decrees in Tunis and Morocco, Advisory Opinion, 1923, Series B,
n. 4, pp. 23-24.
32 L. Kopelmanas, L’Organisation des Nations Unies, vol. I, Paris, Sirey, 1947, pp. 232
and 241-242; M. S. Rajan, United Nations and Domestic Jurisdiction, New Delhi,
Orient Longmans, 1958, p. 394.
33 R.L. Bindschedler, “La délimitation des compétences des Nations Unies”, 108 RCA-
DI (1963) p. 396; P. Berthoud, La compétence nationale des États et l’Organisation
des Nations Unies (thesis), Neuchâtel, University of Neuchâtel, 1948, p. 32; H. Lau-
terpacht, International Law and Human Rights, London, Stevens, 1950, p. 271; F.
Ermacora, “Human Rights and Domestic Jurisdiction (Article 2(7) of the Charter)”,
124 RCADI (1968) p. 440.
34 H. Kelsen, The Law of the United Nations, London, Stevens, 1950, pp. 776 and 778;
A. Ross, Constitution of the United Nations, Copenhagen, E. Munksgaard, 1950, pp.
120-121 and 131; E. Jiménez de Aréchaga, Derecho Constitucional de las Naciones
Unidas, Madrid, E.F.I., 1958, pp. 104 and 107-108; H. Waldock, “General Course on
Public International Law”, 106 RCADI (1962) pp. 173-191.
35 H. Lauterpacht, op. cit. supra n. (33), p. 215; G. Sperduti, Il Dominio Riservato, Mi-
lano, Giuff rè, 1970, pp. 17-18, 35-40 and 56-58; and cf., in the same sense, earlier, G.
Scelle, “Critique du soi-disant domaine de ‘compétence exclusive’”, Revue de droit
international et de législation comparée (1933) pp. 368 and 369 n. 2.
174 Chapter VII
there were matters which might well fall per se within the reserved domain of
States.36
Article 2(7) of the U.N. Charter deleted the express reference to the Inter-
national Law criterion previously found in the corresponding provision of the
League Covenant (supra). The Charter formula did not provide any ascertainable
standard to operate as an adequate basis for judicial determination. It paved the
way for political organs, such as the General Assembly or the Security Council,
to evaluate in a given case, within the framework of the U.N. Charter, all the is-
sues which may prove relevant to the determination of the problem in any given
case.37 The depth of the problem was promptly depicted in the mid-XXth cen-
tury:
“While the erection of the reserved domain into a constitutional limit upon inter-
national jurisdiction may be relevant in the case of international political organs
not bound to decide in accordance with the legal rights of the parties, it creates an
entirely artificial position in international legal tribunals. If the matter is within the
reserved domain, the tribunal is incompetent to investigate the merits at all. Yet it
cannot determine whether or not the matter is within the reserved domain without
an investigation of the merits”.38
Be that as it may, an examination of cases brought before the United Nations

following the adoption of the 1960 Declaration on the Granting of Independ-
ence to Colonial Countries and Peoples,39 shows in fact that the U.N. political
organs did not much hesitate to take position openly adverse to contentions of
domestic jurisdiction when the issues involved were those of self-determination.
The 1960 Declaration, taken together with the evolving practice by U.N. organs,
gradually asserted the existence of the right of self-determination40 (in the con-
ceptual universe of human rights), thus overcoming eventual objections on the
ground of Article 2(7) of the U.N. Charter. This process has taken place within the
framework of the U.N. Charter as a whole, and thus cannot at all be invoked by
contemporary apologists of the use of force to try to justify unilateral recourse to
force by States, which is a breach of International Law.
36 H. Rolin, “The International Court of Justice and Domestic Jurisdiction”, Interna-

tional Organisation (1954) pp. 43-44; A. Verdross, “The Plea of Domestic Jurisdic-
tion before an International Tribunal and a Political Organ of the United Nations”,
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1968) pp. 37-38.
37 L. Preuss, “Article 2(7) of the Charter of the United Nations and Matters of Domes-
tic Jurisdiction”, 74 RCADI (1949) pp. 645-648.
38 C.H.M. Waldock, “The Plea of Domestic Jurisdiction before International Legal Tri-
bunals”, 26 BYBIL (1954) pp. 140-142, and cf. pp. 131-137; cf. also H.W. Briggs, “United
States v. Bulgaria: Domestic Jurisdiction and Sovereign Determinations of Legal Ir-
responsibility”, in Mélanges offerts à H. Rolin, Paris, Pédone, 1964, pp. 13-29.
39 U.N., G.A. Resolution 1514 (XV), of 14.12.1960.
While explicitly enlarging the scope of the reserved domain of States (in
relation to the League Covenant), the draftsmen of the U.N. Charter at the same
time implicitly limited it by recognising to the organs of the Organisation the
competence to interpret the Charter provisions as applicable to their particu-
lar functions. The whole construction was thus artificial and ambiguous. The
success of the great powers on the phraseology adopted in Article 2(7) of the
U.N. Charter at the San Francisco Conference, by deleting the reference to the
International Law criterion, proved to be an ephemeral one. One year later the
Spanish case reached the United Nations, and the debates on the case brought
to the fore the concept of international concern, opening a wide field of action,
as confirmed by subsequent practice, in situations hitherto deemed to fall exclu-
sively within the reserved domain.41
As Article 2(7) is basically concerned with the relations between the Or-
ganisation and its members, it was less by the express reservation of a domain of
competence than by the actual restrictions of action imposed upon the organs
of the Organisation42 that a reserved domain of States could be secured. Other
provisions of the U.N. Charter (e.g., Article 33) could simultaneously be inter-
preted in such a way as to render the domestic jurisdiction clause innocuous.
The same result was obtained from the interpretation of this clause in combi-
nation with other provisions of the Charter (taken as a whole): Articles 10 and
14 asserting the General Assembly competence to discuss any matter (and rec-
ommended measures) within the scope of the Charter, Article 34 affirming the
Security Council power to investigate any dispute or situation likely to endanger
international peace and security irrespective of origin, or Article 39 on its power
to determine the existence of a threat to or breach of peace.43
41 Not surprisingly, shortly after its adoption, the rule contained in Article 2(7) of
the UN Charter was considered to be nothing but a makeshift (C.B.H. Fincham,
Domestic Jurisdiction, Leiden, Sijthoff, 1948, pp. 184-187), and some changes in the
provision, including its deletion, were contemplated (a possibility envisaged by two
delegations even at the San Francisco Conference). M.S. Rajan, op. cit. supra n. (32),
pp. 528-541; and cf. L. Kopelmanas, L’Organisation des Nations Unies, vol. I, Paris,
Sirey, 1947, p. 248.
42 M. Bourquin, L’État souverain et l’organisation internationale, N.Y., Manhattan
Publ. Co., 1959, p. 28.
43 In practice, U.N. political organs either rejected objections to their competence,
or else took action apparently ignoring them; not seldom debates on competence
were intermingled with discussion on issues of substance. Yet, the United Nations
practice as a whole, – and that of international organizations, – rather than reflect-
ing an arbitraire politique seems to express a possible and to some extent reason-
able interpretation of the domestic jurisdiction clause inserted into the Charter; A.
Ross, “La notion de ‘compétence nationale’ dans la pratique des Nations Unies – une
rationalisation a posteriori”, in Mélanges offerts à H. Rolin, Paris, Pédone, 1964, p.
290.
176 Chapter VII
Out of the empiricism of international practice on the matter,44 a constant

factor in successive cases in U.N. practice was to the effect that a State raising
an objection on the ground of domestic jurisdiction could not impede the inclu-
sion of the matter into the agenda of the international organ seized of it and the
discussion of the matter at the international level.45 This factor afforded evidence
for the view that the reserved domain of States underwent a continuing process
of reduction, appearing rather as a residuum of discretionary authority left by
International Law within the domestic jurisdiction of States.
The material or objective criterion of determination of matters which fall
within the reserved domain of States, whereby there were matters which, by their
own nature, were essentially within the domestic jurisdiction of States, appeared
soon to be groundless. The locus classicus of the problem remained the Nation-
ality Decrees Advisory Opinion, to the effect that this was an essentially relative
question depending upon the development of international relations. The view
was corroborated by the work of the U.N. Special Committee on Principles of In-
ternational Law Concerning Friendly Relations and Co-operation among States
(1964-1970), with particular reference to the principle of non-intervention in mat-
ters within the domestic jurisdiction of any State.46
In a monograph on the subject published three decades ago, I saw it fit to
write, on the basis of the evidence examined, that as the concept was mutable
and depended upon the the development of international relations, an interpre-
tation was needed
“(...) in favour of rendering States accountable for their behaviour affecting interna-
tional society in areas of international concern. The practice of international organi-
sations has not allowed States to determine for themselves the matters falling with-
in their domestic jurisdiction. It has rather stressed their responsibility for breaches
of their international obligations, in view of the dictates and needs of present-day
international life”.47
44 The domestic jurisdiction clause itself constitutes the source of all possible ambigu-
ity, which – it should not pass unnoticed – regional organizations sought to avoid.
Thus, the Inter-American Juridical Committee rejected a proposal for the inclusion
of a domestic jurisdiction clause into the Charter of the Organization of American
States (OAS). The [former] Organisation of African Unity (nowadays African Union)
was from the start less concerned with domestic jurisdiction as such than with the
risks of secession that might threaten the territorial unity and integrity of independ-
ent States. The League of Arab States has reduced the domestic jurisdiction princi-
ple to a clause de style. And the Council of Europe, likewise, minimised contentions
of domestic jurisdiction.
45 As illustrated, e.g., by the South African and Southern Rhodesian cases.
47 A.A. Cançado Trindade, “The Domestic Jurisdiction of States in the Practice of the
United Nations and Regional Organisations”, 25 International and Comparative
Law Quarterly (1976) pp. 715-765.
In fact, in the following decades, States have given up relying on objections of do-
mestic jurisdiction. Bearing in mind the principles and rules governing interna-
tional relations, they rather opted for strengthening multilateralism – given the
intensification of international intercourse and the expansion of International
Law in distinct areas of human activity – and lay emphasis on more international
co-operation in social and economic matters. By the end of the XXth century, it
could hardly be denied that the objection of the reserved domain of States had
become a remnant of the past, of simply historical interest.
Its erosion took place within the ambit of multilateralism, that is, of the rela-
tions between the United Nations Organisation and its member States, and could
not possibly be resorted to or invoked to attempt to justify unilateral action in
the framework of inter-State relations outside the U.N. Charter. As far as inter-
State relations were concerned, the 1970 U.N. Declaration on Principles of Inter-
national Law restated the express prohibition of intervention of one State into
another, and so did the 1974 U.N. Definition of Aggression. The aforementioned
erosion rendered it possible to consider, within the United Nations, matters of
international concern, of interest of the international community as a whole.
This historical development, therefore, cannot possibly be invoked today by the
unfounded heralds of unilateralism.
VI. Final Observations: States and the New Horizons of International

Legal Personality
Traditional International Law as purely inter-State has led to abuse of power by
those who held it. Although States keep on playing a predominant role at the
international level, contemporary International Law has been enriched with the
overcoming of the old inter-State dimension and the contributions of other sub-
jects, such as international organizations, individuals and humankind. The end
of the monopoly of international personality by States and the expansion of such
personality at international level is a guarantee against the abuses of the past,
reducing at international level the scope for oppression or tyranny.48 That abuses
and crimes have been (and are) committed in the name of the public power of the
State is wholly unjustifiable, as the State was originally conceived – it should not
be forgotten – as promoter and guarantor of the common good.49
In the past, States (or more precisely, the great powers) used to invoke their
“vital interests” to “justify” unilateral measures (as some apologists of the use
of force still attempt to do today). Early in the XXth century admonitions were
48 That State monopoly has come to an end even in sensitive areas, such as the regula-
tion of the legitimate use of force, with the advent of the enforcement action under
chapter VII of the U.N. Charter; Ch. Schreuer, “The Waning of the Sovereign State:
Towards a New Paradigm for International Law?”, 4 European Journal of Interna-
tional Law (1993) pp. 447-471.
49 J. Maritain, The Person and the Common Good, Notre Dame, University of Notre
Dame Press, 1966 [reprint 1985], pp. 11-105.
178 Chapter VII
raised against this posture. Thus, in 1924, the Brazilian jurist Clovis Bevilaqua
discarded what there was of “vague and arbitrary” in the once prevailing view
of “vital interests” of States, “so cherished by many international lawyers”.50 And
already by 1916 the Chilean jurist Alejandro Álvarez warned as to the necessity
of “rendering precise with the greatest clarity the place or the situation of In-
ternational Law in the national legislation of each country”.51 Nowadays, it goes
without saying that what is perceived as the “vital interests” of any State cannot
be imposed upon others, and cannot be made to prevail over the common and
superior interests of the international community as a whole.
International Law does not – cannot – recognize, – as warned by H. Mosler
in 1974, – any act by a given State, or some States in “coalition”, directed against
its basic principles and its very foundations.52 International Law has, moreover,
paved the way for the expansion of international legal personality; States them-
selves have contributed to such expansion, moved by the consciousness that they
could hardly find by themselves adequate solutions to the formidable challenges
that they face in modern times. As the ICJ lucidly pointed out more than half a
century ago,
“The subjects of law in any legal system are not necessarily identical in their nature
or in the extent of their rights, and their nature depends upon the needs of the
community. Throughout its history, the development of International Law has been
influenced by the requirements of international life, and the progressive increase in
the collective activities of States has already given rise to instances of action upon
the international plane by certain entities which are not States”.53
The expansion of international legal personality does not mean that States are
bound to weaken and vanish, but rather that they are bound to reorient their out-
look and policies in pursuance of the common good. The new, wider horizons of
international legal personality are not to be faced with resentment by States. Th is
is a historical phenomenon that they have acquiesced with, and, further than
that, they have contributed to. They did so with the awareness that they could
not alone, by themselves, fulfil the new needs and aspirations of the international
community.
This latter, on its turn, is not to be taken nowadays as meaning the inter-
national community of States, – a static concept which would be synonymous
50 Legal Opinion of 30.09.1924, reproduced in A.A. Cançado Trindade, Repertório

da Prática Brasileira do Direito Internacional Público (Period 1919-1940), Brasília,
MRE/FUNAG, 1984, pp. 17 and 31-32.
51 A. Álvarez, Le Droit international de l’avenir, Washington, Institut Américain de
Droit International, 1916, p. 137.
52 H. Mosler, “The International Society as a Legal Community”, 140 RCADI (1974) pp.
33-34.
53 ICJ, Advisory Opinion on Reparations for Injuries Suffered in the Service of the Unit-
ed Nations, ICJ Reports (1949) p. 178.
with the old international society of States, which it is not. It is today much more
than that. In my understanding, the conception of international community en-
compasses today all subjects of International Law, – States, international orga-
nizations, individuals, and humankind. The expansion of the international legal
personality is not to be feared by States either, as it brings about an expansion of
international accountability as well. All subjects of International Law are bear-
ers of rights and duties, conferred upon them directly by the international legal
order.
This contributes to the perennial human search for the realization of justice,
also at the international level. It is not to be forgotten that, as originally con-
ceived, States exist for human beings (who compose them), and not vice-versa.
In recent years, States have at times disclosed their capacity to search for the
realization of the common good, advancing causes – such as those pursued by
the international protection of human rights as well as of the environment – that
well transcend their individual interests. Their conciousness of the ultimate goal
of the pursuit of the common good has led States nowadays to work together
with international organizations and with individuals and entities of the civil
society to fulfil their common needs and aspirations, to the benefit ultimately of
Chapter VIII International Organizations as
Subjects of International Law
I. Introduction: International Organizations and the Modification of the

Structure of the International Legal Order
The advent and multiplication of international organizations, as from the mid-
XXth century, came in a way to fulfi l a functional necessity: States themselves
came to realize that, – as they were originally conceived for the realization of
the common good,1 – besides their basic obligation to preserve future genera-
tions from the scourge of wars, they could no longer exert properly certain public
functions acting individually. The work in areas such as international commu-
nications, the exploration of the seabed and outer space, air navigation over the
high seas or other areas beyond the limits of national jurisdiction, among others,
evidenced to States the need to promote greater international cooperation and
co-ordination, also for performing their public functions with greater efficacy.2
The emergence of international organizations, operating at both universal
and regional levels, and in the most diverse domains of human activity (political,
economic, social, cultural, and of human security), brought about an expansion
of the corpus juris of International Law, starting with the international legal per-
sonality and capacity themselves.3 These latter, which in the past were monopoly
of the States, came to encompass also international organizations, bringing about
1 On the “human end of power”, as “basis of the international order”, cf. Ch. de Viss-
cher, Théories et réalités en Droit international public, 4th. rev. ed., Paris, Pédone,
1970, pp. 151-162.
2 H.G. Schermers, “International Organizations as Members of Other International
Organizations”, in Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit
Menschenrechte – Festschrift für Hermann Mosler (eds. R. Bernhardt et alii), Berlin,
Springer-Verlag, 1983, p. 823; R. Ago, “Le quarantième anniversaire des Nations Un-
ies”, in L’adaptation des structures et méthodes des Nations Unies (Colloque de La
Haye, 1985 – ed. D. Bardonnet), Dordrecht, Académie de Droit International de La
Haye/Nijhoff, 1986, p. 26.
3 Cf. C. Dominicé, “La personnalité juridique dans le système du droit des gens” in
Theory of International Law at the Threshold of the 21st Century – Essays in Honour
of K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 157 and 160-161.
182 Chapter VIII
a reassessment – and expansion – of the chapter of subjects of International Law.

The Wesphalian model of the international legal order, marked by the purely in-
ter-State outlook of International Law, did not resist the challenges of the new
times.
International organizations, of the most distinct kinds and characteristics,
have effectively modified the structure of International Law: they have put an end
to the former State monopoly of international legal personality4 and of privileges
and immunities,5 have expanded treaty-making power, have altered the rules of
their own composition, have come to participate in international judicial pro-
ceedings,6 and have considerably widened the means of international cooperation
and regional and subregional integration. This phenomenon, which was already
noticeable in the sixties and seventies,7 became more and more conspicuous, and
can nowadays be adequately appreciated, in historical perspective, in the ambit
of the Law of International Organizations.8
II. International Organizations and the Ideal of the Realization of Justice

International organizations have, for more than six decades, echoed the aspi-
rations of humankind of pursuit of the ideal of realization of justice, and have
4 As subjects of International Law, international organizations became direct ad-

dressees of its norms (of rights and obligations at international level); J.A. Barberis,
“El Desarrollo del Derecho Internacional Público a partir de la Creación de las Na-
ciones Unidas”, in XIII Curso de Derecho Internacional Organizado por el Comité
Jurídico Interamericano (1986), Washington D.C., OAS General Secretariat, 1987, p.
15, and cf. p. 26.
5 Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo
6 Cf. C.P.R. Romano, “International Organizations and the International Judicial
Process: An Overview”, in International Organizations and International Dispute
Settlement: Trends and Prospects (eds. L. Boisson de Chazournes, C. Romano and
R. Mackenzie), Ardsley/N.Y., Transnational Publs., 2002, pp. 3-36; T. Treves, “Inter-
national Organizations as Parties to Contentious Cases: Selected Aspects”, in ibid.,
pp. 37-46.
7 Cf. W. Friedmann, Mudança da Estrutura do Direito Internacional, Rio de Janeiro,
Livr. Freitas Bastos, 1971, pp. 53-54 and 106-107 (originally published in English in
1964); and cf. Ch. de Visscher, Les effectivités du Droit international public, Paris,
Pédone, 1967, pp. 53-62; P.-M. Dupuy, “Dialogue onirique avec W. Friedmann – Sur
les évolutions du Droit international entre la fin des années soixante et loa veille
du XXIème. siècle”, in Liber Amicorum In Memoriam of Judge J.M. Ruda (eds. C.A.
Armas Barea and J.A. Barberis et alii), The Hague, Kluwer, 2000, pp. 20-21.
8 Cf., generally, e.g., H.G. Schermers and N.M. Blokker, International Institution-
al Law, 3rd. ed. rev., The Hague, Nijhoff, 2001, pp. 1-1198; Ph. Sands and P. Klein,
Bowett’s Law of International Institutions, 5th. ed., London, Sweet & Maxwell, 2001,
pp. 1-580; R.St.J. Macdonald, “Reflections on the Charter of the United Nations”,
in Des Menschen Recht zwischen Freiheit und Verantwortung – Festschrift für K.J.
Partsch, Berlin, Duncker & Humblot, 1989, pp. 29-45.
International Organizations as Subjects of International Law 183
furthermore given their contribution to that end. Their work to this effect has
not, however, passed without difficulty: they had, from the start, to overcome
the then prevailing lack of sensitivity, if not the predominant indifference, in this
respect. It should not pass unnoticed, in this connection, that the Dumbarton
Oaks Proposals, which served as basis for the work of the San Francisco Confer-
ence from which the Charter of the United Nations emerged in 1945, remained
silent – by influence of the great powers – on the inclusion of an express mention
to International Law.
It was, in fact, due to the insistence of the States of lesser power (such as the
Latin American countries) that, at the San Francisco Conference, at last, refer-
ences were included to International Law in the preamble and in Articles 1(1)
and 13 of the U.N. Charter.9 Although International Law was not expressly men-
tioned in the key chapters (V, VI and VII) of the Charter that govern the Security
Council, those general references to it (in the preamble and Article 1) provided a
foundation, however slim, for the U.N. to act on the basis of International Law;
keeping this in mind, “it is indeed one of the notable achievements of the U.N.
system”, – as remarked by O. Schachter on the fi ftieth anniversary of the United
Nations, – that “it has produced a corpus juris of such remarkable diversity and
depth”.10 And it has, thereby, – as pointed out by Ian Brownlie on the same occa-
sion, – contributed to the international ordre public and the rule of law at inter-
national level.11
Article 13(1) of the U.N. Charter served, in fact, as basis for the establish-
ment, in 1947, of the U.N. International Law Commission [ILC].12 Article 13 of
the Charter, resulting from a proposal by China, provided the basis for the whole
work of the ILC and its recognized contribution, along the last decades, to inter-
national law.13 And it was also made possible to broaden the faculties of the U.N.
Economic and Social Council (ECOSOC), which came to count on subsidiary
organs the operation of which was to have incidence in the international legal
9 G.E. do Nascimento e Silva, “A Codificação do Direito Internacional”, 55/60 Boletim

da Sociedade Brasileira de Direito Internacional [BSBDI] (1972-1974) pp. 83-84 and
103.
10 E.g., setting up legal limits on decisions taken; O. Schachter, “Discours: The United
Nations and International Law”, 66 Annuaire de l’Institut de Droit International
(1995)-II, pp. 81-82.
11 I. Brownlie, “International Law at the Fiftieth Anniversary of the United Nations
– General Course on Public International Law”, 255 Recueil des Cours de l’Académie
de Droit International de La Haye [RCADI] (1995) p. 21.
12 Cf. United Nations, The Work of the International Law Commission, 5th. ed., N.Y.,
U.N., 1996, pp. 4-5; Maarten Bos, “Aspects phénomenologiques de la codification
du Droit international public”, Le droit international à l’heure de sa codification
– Études en l’honneur de Roberto Ago, vol. I, Milano, Giuffrè, 1987, pp. 142-143; C.-A.
Fleischhauer, “The United Nations and the Progressive Development and Codifica-
tion of International Law”, 25 Indian Journal of International Law (1985) pp. 1-2.
13 O. Schachter, op. cit. supra n. (10), p. 81.
184 Chapter VIII
order. Thus, due to those references in the constitutive Charter of the United
Nations, the Organization promptly proceeded, in the ambit of its functions, al-
ready in the forties, to its work in the field of the progressive development of
International Law.
Thus, in the mid-XXth century, the international community seemed at last
to have awakened for the imperative of the realization of justice, neglected in the
past, and essential at both national and international levels. In his reminiscences
of the epoch and his reflections on justice, the Mexican jurist Antonio Gómez
Robledo perspicatiously pointed out that, at that time, justice was “simply absent”
in the whole draft articles submitted by the great powers to the consideration
of the other Delegations at the San Francisco Conference of 1945: of everything
one would speak, above all of security, of everything but justice itself. It was not
simple oblivion or involuntary omission, as the express references to “justice” of
the Covenant of the League of Nations were known; it was, therefore, “an inten-
tional cover-up”.14
The reaction of the Delegations of Latin American States contributed to
overcoming that grave omission: they presented an amendment which resulted
in the inclusion of an express reference to “justice” in Article 2(3)15 – under chap-
ter I, pertaining to the purposes and principles – of the U.N. Charter. But it was
a “hard battle”, – added the author, – as to the amendment of Latin American
States the “representatives of the great powers” opposed themselves, alleging that
justice was a “vague concept”.16 If one had started from a strictly positivist pos-
ture, the simple mention to justice would not have been achieved; such reference
was made as a result of the awakening of human conscience. The episode seems
to have suggested that, in historical projection, it would no longer be possible to
conceive an international legal order which would make abstraction of the im-
perative of the realization of justice.
Nowadays, it clearly appears to go without saying that every legal system
aims at securing “le règne de la justice parmi les sujets qu’il régit”,17 – and the
international legal system surely makes no exception to that. This is promptly
recalled, e.g., by the aforementioned Article 1(1) of the U.N. Charter, which sets
forth, among the purposes of the Organization, that of peaceful settlement of
international disputes “in conformity with the principles of justice and interna-
tional law”. The Constitution of the International Labour Organization [ILO],
– to evoke another example, – calls for, in its preamble, an international legal
order based upon “social justice”. That is further recalled by the Constitution
14 “Un encubrimiento doloso”; A. Gómez Robledo, Meditación sobre la Justicia, Mexi-

co, Fondo de Cultura Económica, 1963, p. 8.
15 Cf., e.g., B. Simma et alii (eds.), The Charter of the United Nations – A Commentary,
2nd. ed., vol. I, Oxford, University Press, 2002, p. 111 n. 50.
16 Ibid., p. 9.
17 Ch. Rousseau, “Le droit international et l’idée de justice”, in Le droit international
au service de la paix, de la justice et du développement – Mélanges M. Virally, Paris,
Pédone, 1991, p. 399.
of UNESCO, which, likewise, sets as its purpose (Article 1(1)) the promotion of
international collaboration through education, science and culture in order to
“further universal respect for justice”, for the “rule of law” and for the rights of
the human person.
III. International Organizations and the Expansion of International Legal

Personality and Responsibility
The international legal personality of the United Nations – and, a fortiori, of oth-
er international organizations, – was soon to obtain judicial recognition. Once
the International Court of Justice [ICJ] acknowledged in its landmark 18 Advisory
Opinion of 1949 on Reparations for Injuries Suffered in the Service of the United
Nations that the United Nations was endowed with an objective international
legal personality,19 it could no longer be denied that the U.N., and a fortiori other
international organizations, could act as distinct entities in the exercise of their
respective functions, irrespective of the “will” of individual member States.20
Soon distinct doctrinal trends developed as to the extent of the powers conferred
upon them: to the strict approach that the U.N. could only do what was expressly
provided in its Charter,21 the opposite view was advanced that the U.N. had wide
“inherent powers” which placed it in the same legal position than States.22
The U.N. itself followed a more balanced approach, in the lines of the afore-
mentioned 1949 Advisory Opinion of the ICJ, to the effect that, whilst States
possess the totality of the international rights and duties recognized by Interna-
tional Law, those of an entity such as the U.N. ought to depend on its purposes
and functions, specified or implicit in its constitutive charter and developed in
18 Cf. J.E.S. Fawcett, “The United Nations and International Law”, in The Evolving
United Nations: A Prospect for Peace? (ed. K.J. Twitchett), London, Europa Publ.,
1971, p. 58.
19 ICJ Reports (1949) p. 185.
20 G. Weissberg, The International Status of the United Nations, London/N.Y., Ste-
vens/Oceana, 1961, p. 211; M. Rama-Montaldo, “International Legal Personality and
Implied Powers of International Organizations”, 44 British Year Book of Interna-
tional Law (1970) pp. 144-145.
21 Given that it was an Organization of peaceful co-existence among States (belonging
to distinct socio-economic systems); G. Tunkin, “The Legal Nature of the United
Nations”, 119 RCADI (1966) pp. 11 and 18.
22 F. Seyersted, Objective International Personality of Intergovernmental Organiza-
tions, Copenhagen, 1963, pp. 28-29, 35-38, 40, 45-46, 53-56, 60, 96 and 100; and cf.,
more recently, F. Seyersted, “Basic Distinctions in the Law of International Or-
ganizations: Practice versus Legal Doctrine”, in Theory of International Law at the
Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarc-
zyk), The Hague, Kluwer, 1996, pp. 691-699. But the doctrine of inherent powers has
not passed unchallenged; cf. J. Klabbers, An Introduction to International Institu-
tional Law, Cambridge, University Press, 2002, pp. 77-78.
186 Chapter VIII
practice.23 This doctrine of implied powers, which came to be followed by the

U.N., rendered it possible to it to adapt itself to new circumstances of interna-
tional life and to face new and successive challenges.24 The traditional monopoly
of States of international personality had come to an end.25
The doctrine of implied powers, rather than attributing carte blanche to the
U.N., clarified that its competences would be delimited by its purposes, so that
the exercise of its functions would be valid.26 International organizations such as
the U.N., began to establish (by resolutions) not only new organs or entities not
originally foreseen in their constitutive charters,27 but also their own internal law
to regulate their legal relations with their agents.28 Their treaty-making power
or capacity was promptly asserted and exercised29 (cf. infra). Together with the
acknowledgement of the objective international legal personality of the U.N., the
doctrine of implied powers provided the basis for a reasonable intepretation of
the provisions of its constitutive charter, so as to avoid opposed or diverging
results – as properly warned by H. Kelsen in his The Law of the United Nations
(1950), – and drew attention to the need to resort to fundamental ideas underly-
ing the Charter.30
23 ICJ Reports (1949) p. 180, and cf. p. 182.

24 For a recent assessment, in support of the doctrine of implied powers, cf., e.g., C.M.
Brölmann, “A Flat Earth? International Organizations in the System of Internation-
al Law”, 70 Nordic Journal of International Law / Acta Scandinavica Juris Gentium
(2001) p. 322.
25 Cf. E. Jiménez de Aréchaga, “International Law in the Past Third of a Century, 159
RCADI (1978) pp. 170-171; Quincy Wright, International Law and the United Na-
tions, Bombay/Calcutta/New Delhi, 1960, p. 31 n. 33; A.A. Cançado Trindade, Di-
reito das Organizações Internacionais, 3rd. ed., op. cit. supra n. (5), pp. 10-26.
26 Cf. R. Khan, Implied Powers of the United Nations, New Delhi/Bombay/Bangalore,
Vikas Publ., 1970, pp. 1-222; P. Reuter, “Principes de Droit international public”, 103
RCADI (1961) pp. 519-524.
27 E.g,, as to the U.N., UNCTAD (in 1964) and UNIDO (in 1966); L.B. Sohn, “The De-
velopment of the Charter of the United Nations: The Present State”, in The Present
State of International Law – International Law Association 1873-1973, Deventer,
Kluwer, 1973, p. 58; J. Castañeda, Legal Effects of United Nations Resolutions, N.Y.,
Columbia University Press, 1969, p. 52.
28 C.W. Jenks, The Proper Law of International Organizations, London, Stevens/Ocea-
na, 1962, pp. 35-39; G. Balladore Pallieri, “Le droit interne des organisations interna-
tionales”, 127 RCADI (1969) pp. 30-31.
29 Well before the adoption of the 1986 Vienna Convention on the Law of Treaties be-
tweeen States and International Organizations or between International Organiza-
tions; cf. B. Kasme, La capacité de l’Organisation des Nations Unies de conclure des
traités, Paris, LGDJ, 1960, pp. 7-197; Y. Souliotis, “La capacité des organisations in-
ternationales de conclure des accords d’après leurs actes constitutifs et la pratique”,
25 Revue hellénique de Droit international (1972) pp. 194-233.
30 A. Verdross, “Idées directrices de l’Organisation des Nations Unies”, 83 RCADI
(1953) p. 7.
In its Advisory Opinion of 1980 on the Interpretation of the Agreement of

1951 between the WHO and Egypt, the ICJ warned as to the necessary recogni-
tion of the mutual obligations between international organizations and member
States (and, in particular, host States),31 and recalled that “international organiza-
tions are subjects of International Law”, and, as such, are bound by all the obliga-
tions incumbent upon them by the general rules of International Law, by their
constitutive charters or by treaties or agreements that they become Parties to.32
Furthermore, international organizations also create norms, which bind their
internal organs, and require compliance on the part of States.
Once international organizations had their own international legal personal-
ity and capacity asserted and widely recognized, they contributed decisively, – by
their work in domains such as those of decolonization and self-determination of
peoples, promotion and protection of human rights, environmental protection,
among others, – to the gradual recognition of the international legal personality
and capacity of individuals and groups (such as movements of national libera-
tion) at the international level, within the framework of their respective ambits
of operation. In this respect, in historical perspective, U.N. General Assembly
resolutions, in particular, have, inter alia,
“determined the status of other entities such as Namibia and liberation organiza-
tions and movements. (...) A new category of subjects of international law (...) was
not only characterized as such but actually created through actions of the Assem-
bly”.33
In their turn, international organizations, once created, assumed a life of their

own, and, as legal persons of International Law, came to externalize their own
decisions by means of resolutions, of variable legal contents and effects. They
have contributed to the growth and sophistication of contemporary internation-
al law-making, so as to respond to the needs of the international community
as a whole.34 In adapting themselves to the demands of the new times,35 they
did not conform themselves that their activities were to exhaust themselves in
those expressly foreseen, originally, in their constitutive charters. The “authentic
interpretations” of the constitutive charters” of international organizations have
31 ICJ, Advisory Opinion of 20.12.1980 on Interpretation of the Agreement of 1951 be-

tween the WHO and Egypt, ICJ Reports (1980) p. 94, par. 46.
32 ICJ Reports (1980) pp. 89-90, par. 37.
33 B. Sloan, “General Assembly Resolutions Revisited (Forty Years Later)”, 58 British
Year Book of International Law [BYBIL] (1987) pp. 111-112.
34 D.H. Anderson, “Law-Making Processes in the U.N. System – Some Impressions”, 2
Max Planck Yearbook of United Nations Law (1998) pp. 40, 42 and 48-49.
35 On the adaptations of international organizations to changes in the international
scenario, cf., e.g., G.I. Tunkin, “The Legal Nature of the United Nations”, 119 RCADI
(1966) pp. 16 and 65.
188 Chapter VIII
contributed to the institutionalization36 (with the prevalence of an international

ordre public)37 and, to some extent, to a certain “constitutionalization” of the in-
ternational legal order,38 in pursuance of the common good.39
An organization of universal vocation such as the United Nations, in par-
ticular, made ample use of the doctrine of “implied powers”, so as to perform
faithfully their functions and to seek the fulfi lment of their purposes, in an in-
ternational scenario in constant mutation. Moreover, by overcoming the old ob-
jection of the so-called “domestic jurisdiction of States” (compétence nationale
exclusive),40 the work of international organizations has thereby contributed in a
notable way to the expansion of two other chapters of International Law: those
pertaining to jurisdiction, and to international responsibility.41
The expansion of international legal personality42 is ineluctably accompa-
nied in our days by the expansion of international responsibility. While this latter
was until very recently centered on the international responsibility of States, it
is not surprising that nowadays attention has been turned also onto the interna-
tional responsibility of international organizations; the topic was included in the
program of work of the U.N. International Law Commission [ILC] in 2000 (cf.
infra), which has produced, until mid-2008, six reports and 57 provisionally ap-
36 J. Castañeda, Obras Completas – vol. I: Naciones Unidas, Mexico, Colégio de Méx-

ico/Secretaría de Relaciones Exteriores, 1995, p. 568; and cf., generally, I. Seidl-Ho-
henveldern and G. Loibl, Das Recht der Internationalen Organisationen, Köln/Ber-
lin, C. Heymanns Verlag, 2000, pp. 1-375; C. Zanghi, Diritto delle Organizzazioni
Internazionali, Torino, G. Giappichelli Ed., 2001, pp. 1-406.
37 B. Stern, “L’évolution du rôle des Nations Unies dans le maintien de la paix et de
la sécurité internationales”, in International Law as a Language for International
Relations / Le Droit international comme langage des relations internationales (Pro-
ceedings of the U.N. Congress on Public International Law, New York, 13-17.03.1995),
The Hague, Kluwer/U.N., 1996, p. 63.
38 Cf., e.g., R. Macdonald, “The Charter of the United Nations in Constitutional Per-
spective”, 20 Australian Year Book of International Law (1999) pp. 213-214; O. Sch-
achter, “United Nations Law”, 88 American Journal of International Law (1994) pp.
1-23; P.-M. Dupuy, “The Constitutional Dimension of the Charter of the United Na-
tions Revisited”, 1 Max Planck Yearbook of United Nations Law (1997) pp. 2, 11-19;
T. Sato, Evolving Constitutions of International Organizations, The Hague, Kluwer,
1996, pp. 230-237; B. Fassbender, The United Nations Charter as the Constitution of
the International Community, Leiden, Nijhoff, 2009, pp. 1-187.
39 H.G. Schermers, “We the Peoples of the United Nations”, 1 Max Planck Yearbook of
United Nations Law (1997) pp. 112-113 and 116-117.
40 On the erosion of that objection, cf. chapter VII, item V, supra.
41 As regards this latter, as from the assertion of the legal personality of international
organizations, one came to admit the possibility of these latter appearing as both
active and passive subjects in the matter of international responsibility; M. Pérez
González, “Les organisations internationales et le droit de la responsabilité”, 92 Re-
vue générale de droit international public (1988) pp. 64, 82 and 99-100.
42 Cf. chapters VII-XI.
proved draft articles; by mid-2009 the ILC has concluded its work on the seventh
report. As international organizations had their international legal personality
and capacity consolidated in International Law, the determination of the legal
regime of their international responsibility has become indispensable, so as to
secure their compliance with International Law and to avoid or reduce breaches
of obligations ensuing therefrom.43
The responsibility, be it of an international organization or of a State, con-
stitutes a centre of imputation of its own.44 In his Third Report, the ILC rappor-
teur (G. Gaja) considered the responsibility of an international organization by
“action” or by “omission”.45 Significantly, and not surprisingly, the Fourth Report
acknowledged that the peremptory norms of international law (jus cogens) by
international organizations in the same way as States.46 The point was retaken
and further elaborated in the Fifth Report (of 2007).47 It may well be that the work
of the ILC on the subject at issue comes to shed light on related questions which
have lately been attracting attention of expert writing, such as, e.g., those of the
locus standi in judicio of international organizations before the ICJ;48 of the judi-
43 Cf. comments in A. Rey Aneiros, Una Aproximación a la Responsabilidad Internac-

ional de las Organizaciones Internacionales, Valencia, Ed. Tirant lo Blanch/Univ. da
Coruña, 2006, pp. 26, 34 and 194-195.
44 Cf. P. Klein, La responsabilité des organisations internationales dans les ordres ju-
ridiques internes et en droit des gens, Bruxelles, Bruylant/Éd. Univ. de Bruxelles,
1998, pp. 430-431, 437-438 and 467; and cf. also T. Stein, “Kosovo and the Inter-
national Community – The Attribution of Possible Internationally Wrongful Acts:
Responsibility of NATO or of Its Member States?”, in Kosovo and the International
Community – A Legal Assessment (ed. C. Tomuschat), The Hague, Kluwer, 2002, pp.
181-192; B. Kasme, La capacité de l’Organisation des Nations Unies de conclure des
traités, Paris, LGDJ, 1960, pp. 31-35.
45 U.N./ILC, Third Report on Responsibility of International Organizations (rapporteur
G. Gaja), U.N. doc. A/CN.4/553, of 13.05.2005, pp. 3-4, pars. 8 and 10. And cf., on this
point, e.g., K. Wellens, Remedies against International Organisations, Cambridge,
University Press, 2002, pp. 193-196.
46 U.N./ILC, Fourth Report on Responsibility of International Organizations, U.N. doc.
A/CN.4/564, of 28.02.2006, pp. 18-19, pars. 47 and 49.
47 Cf. U.N./ILC, Fifth Report on Responsibility of International Organizations, U.N.
doc. A/CN.4/583, of 02.05.2007, p. 17, pars. 55-56, and cf. p. 18, par. 61.
48 Cf. Ph. Couvreur, “Développements récents concernant l’accès des organisations
intergouvernementales à la procédure contentieuse devant la Cour Internationale
de Justice”, in Liber Amicorum Judge M. Bedjaoui (eds. E. Yakpo and T. Boumedra),
The Hague, Nijhoff, 1999, pp. 293-323; K. Wellens, Remedies against International
Organisations, op. cit. supra n. (45), pp. 236-261.
190 Chapter VIII
cial control of acts of the U.N. political organs;49 of the impact of international jus
cogens on the Law of International Organizations;50 among others.
IV. The Expansion of International Law Itself by the Law of International

Organizations
As subjects of International Law, international organizations have had a remark-
able operation in, with a considerable impact on, contemporary international
relations, as illustrated, e.g., by the exercise of their capacity in domains such as
those of the law of treaties,51 of protection of their own officials, and of external
relations (right of representation) themselves.52 This is particularly noticeable in
the work of an international organization of universal vocation such as the Unit-
ed Nations. The ICJ itself has recently observed that “while the Security Council
has tended to focus on the aspects of such matters related to international peace
and security, the General Assembly has taken a broader view, considering also
their humanitarian, social and economic aspects”.53
In its Advisory Opinion of 09.07.2004 on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, the ICJ placed the
matter at issue in the perspective of the law of the United Nations itself, in con-
49 Cf., e.g., R. Chemain, “Le contrôle des actes de l’Organisation”, in La Charte des Na-
tions Unies, Constitution mondiale? (eds. R. Chemain and A. Pellet), Paris, Pédone,
2006, pp. 45-63; D. Sarooshi, International Organizations and Their Exercise of Sov-
ereign Powers, Oxford, University Press, 2005, p. 120; M.E. López-Jacoiste Díaz, Ac-
tualidad del Consejo de Seguridad de las Naciones Unidas – La Legalidad de Sus
Decisiones y el Problema de Su Control, Madrid, Univ. Navarra/Thomson/Civitas,
2003, pp. 153-360; E. de Wet, “Judicial Review of the United Nations Security Coun-
cil and General Assembly through Advisory Opinions of the International Court of
Justice”, 10 Schweizerische Zeitschrift für internationales und Europaïsches Recht
(2000), pp. 237-277; F. Mazeron, “Le contrôle de légalité des décisions du Conseil
de Sécurité – Un bilan après les ordonnances Lockerbie et l’arrêt Tadic”, 10 Revue
québécoise de Droit international (1997) pp. 105-136.
50 Cf., e.g., A. Orakhelashvili, “The Impact of Peremptory Norms on the Interpreta-
tion and Application of United Nations Security Council Resolutions”, 16 European
Journal of International Law (2005) pp. 59-88; and cf., generally, A.A. Cançado Trin-
dade, “La Ampliación del Contenido Material del Jus Cogens”, in XXXIV Curso de
Derecho Internacional Organizado por el Comité Jurídico Interamericano – 2007,
Washington D.C., OAS General Secretariat, 2008, pp. 1-15; [Various Authors,] Quel
droit international pour le 21e. siècle? (ed. Y. Sandoz), Bruxelles, Bruylant, 2007, pp.
99, 116-117, 119, 129-131 and 133-134.
51 Cf., e.g., T.I.H. Detter, “The Organs of International Organizations Exercising Their
Treaty-Making Power”, 38 BYBIL (1962) pp. 421-444.
52 Parallel to that, they are endowed, in the domestic legal orders, with the well-known
capacities, acknowledged in numerous international agreements, to celebrate con-
tracts, to acquire goods, and to interpose judicial actions.
53 ICJ Reports (2004) p. 150, par. 27.
sidering that the subject-matter of the General Assembly’s request could not be
regarded as only a bilateral matter between Israel and Palestine. In its view,
“Given the powers and responsibilities of the United Nations in questions relating
to international peace and security, it is the Court’s view that the construction of
the wall must be deemed to be directly of concern to the United Nations. (...) The
Opinion is requested on a question which is of particularly acute concern to the
United Nations, and one which is located in a much broader frame of reference than
a bilateral dispute. (...)”.54
The legal basis and operation of international organizations have much contrib-
uted to the considerable expansion of International Law itself as a whole along
the last six decades. This can be perceived in a multitude of aspects, starting with
the ascertainment itself of opinio juris. The same occurs with regard to their
own treaty-making power, as well as with evolving issues pertaining to their own
composition. With the reassuring growth of multilateralism, international orga-
nizations fostered international cooperation.
1. International Organizations and the Ascertainment of Opinio Juris

General debates preceding the adoption of resolutions in international organiza-
tions have afforded an opportunity for the ascertainment and assessment of the
formation and evolving of the opinio juris.55 In certain historical contexts56 those
resolutions have generally been regarded as reflecting opinio juris.57 In fact, by
direct influence of international organizations, the process of the formation itself
of the norms of International Law became complex and multifaceted, to the ef-
fect of providing regulation which would fulfil the needs and aspirations of the
international community as a whole.
The vast normative production of the United Nations, for example, is no
longer limited to the drafts of the ILC,58 – which retain their value and utility,
– but extend to the General Assembly itself, to its VIth Committee (for Legal Af-
54 Ibid., p. 159, pars. 49-50.

55 H. Bokor-Szegó, “The Contribution of International Organizations to the Formation
of the Norms of International Law”, in Questions of International Law (ed. Hungar-
ian Branch of the International Law Association), Budapest, Progresprint, 1971, pp.
20-21; and, for an assessessment of their varying contents and legal effects, cf., e.g.,
O.Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of
the United Nations, The Hague, Nijhoff, 1966, pp. 68-213.
56 Decolonization, self-determination, permanent sovereignty over natural resources,
economic rights and duties of States.
57 E. Hambro, “Some Notes on the Development of the Sources of International Law”,
17 Scandinavian Studies in Law (1973) p. 92.
58 U.N., The Work of the International Law Commission, 5th. ed., N.Y., U.N., 1996, pp.
1-501.
192 Chapter VIII
fairs), to the Conferences of Plenipotentiaries convoked by the United Nations;

moreover, specialized agencies of the system of the United Nations, such as the
ILO, UNESCO, the International Atomic Energy Agency [IAEA], have produced
numerous treaties and conventions of importance in distinct areas of human
activity.59 The same applies to regional organizations, such as the Organization
of American States [OAS] and the former Organization of African Unity (OAU,
nowadays African Union), the normative production of which is not exhausted,
either, in the useful work of the Inter-American Juridical Committee60 and the
Asian-African Legal Consultative Committee,61 respectively.
In recent years, by initiative of the OAS, the African Union (the former
OAU), and the Council of Europe, numerous international conventions have
been adopted, mainly in the domain of the protection of the rights of the human
person. And the corpus juris thus formed, of the International Law of Human
Rights, has exerted a sensible impact on the evolution of Public International
Law itself.62 Certain declaratory resolutions of the United Nations are nowadays
considered “authentic interpretations” of the U.N. Charter itself.63 All this reveals
the considerable contribution of international organizations, – and above all of
the United Nations, – in the last decades, ultimately to the codification and the
59 A. Pellet, “La formation du droit international dans le cadre des Nations Unies”, 6
European Journal of International Law (1995) pp. 401-425; F. Cede, “New Approach-
es to Law-Making in the U.N. System”, 1 Austrian Review of International and Com-
parative Law (1996) pp. 51-66; E. McWhinney, Les Nations Unies et la formation du
droit, Paris, Pédone/UNESCO, 1986, pp. 101-129 e 261-287.
60 Cf., besides its own series Informes y Recomendaciones del Comité Jurídico Intera-
mericano, e.g.: J.J. Caicedo Castilla, La Obra del Comité Jurídico Interamericano,
Rio de Janeiro, OAS/CJI, 1966, pp. 5-143; A.A. Cançado Trindade, “The Inter-Ameri-
can Juridical Committee: An Overview”, The World Today – London (Nov. 1982)
pp. 437-442; R. Ribeiro, “A Contribuição da Comissão Jurídica Interamericana ao
Desenvolvimento e à Codificação do Direito Internacional”, 16 Curso de Derecho
Internacional Organizado por el Comité Jurídico Interamericano (1989) pp. 150-168.
61 Cf., e.g., AALCC, Asian-African Legal Consultative Committee – Report and Se-
lected Documents (32nd session, Kampala/Uganda, 1993), New Delhi, AALCC Sec-
retariat, 1993, pp. 1-296.
l’oeuvre des Cours Internationales des Droits de l’Homme au développement du
Droit international public”, in La Convention européenne des droits de l’homme à 50
ans, Strasbourg, Conseil de l’Europe (Bulletin d’information n. 50 – numéro spé-
cial), 2000, pp. 8-9; A.A. Cançado Trindade, “The Interpretation of the International
Law of Human Rights by the Two Regional Human Rights Courts”, in Contemporary
International Law Issues: Conflicts and Convergence (Proceedings of the III Joint
Conference ASIL/Asser Instituut, The Hague, July 1995), The Hague, Asser Instituut,
1996, pp. 157-162 and 166-167.
63 K. Skubiszewski, “Remarks on the Interpretation of the United Nations Charter”,
in Völkerrecht als Rechtsordnung Internationale Gerichtsbarkeit Menschenrechte
– Festschrift für Hermann Mosler (eds. R. Bernhardt et alii), Berlin, Springer-Verlag,
1983, p. 899. And cf. chapter V, supra.
progressive development itself of International Law,64 widening and updating its

conceptual universe.
2. International Organizations and Treaty-Making Capacity

The assertion and recognition of the international legal personality of interna-
tional organizations was accompanied pari passu by the acknowledgement of
their treaty-making capacity.65 The advent of international organizations came
thus to enrich considerably also the law of treaties. In fact, attention was drawn
to the treaty-making power of international organizations (operating at both glo-
bal and regional levels) well before the celebration of the 1986 Vienna Conven-
tion on the Law of Treaties between States and International Organizations or
between International Organizations,66 – at times focusing on the treaty-making
capacity of certain organizations in particular.67
It may be recalled that, in the preceding Vienna Convention (of 1969) on the
matter, only treaties between States fell in principle under its (Article 1), – what at
the time was somewhat surprising, particularly after the ICJ had stated, in 1949,
in its landmark Advisory Opinion on Reparations for Injuries, that international
organizations (in the case, the U.N.) were endowed with juridical personality at
international level. Throughout the Vienna Conference of 1968-1969 such exclu-
sion appeared somewhat strange to several Delegations,68 to the extent that Arti-
cle 3 of the Convention saw it fit to add that the exclusion would not prejudice the
juridical value of international agreements between States and other subjects of
International Law and the application to these agreements of the rules contained
in the Convention by which they would be bound by virtue of International Law,
independently of the Vienna Convention.
In any case, that gap was definitively fi lled with the adoption, in 1986, of
the second Vienna Convention on the Law of Treaties between States and Inter-
64 C.-A. Fleischhauer, op. cit. infra n. (135), p. 23.

65 Cf., e.g., F. Seyersted, “International Personality of Intergovernmental Organiza-
tions: Do Their Capacities Really Depend upon Their Constitutions?”, 4 Indian Jour-
nal of International Law (1964) pp. 1-74; R. Socini, Gli Accordi Internazionali delle
Organizzazioni Inter-Governative, Padova, Cedam, 1962, pp. 3-292; J.W. Schneider,
Treaky-Making Power of International Organizations, Geneva, Droz, 1963, pp. 11-
142. among others.
66 Cf., e.g., K. Zemanek (ed.), Agreements of International Organizations and the Vi-
enna Convention on the Law of Treaties, Vienna, Springer-Verlag, 1971, pp. 1-268.
67 Cf., e.g., C. Parry, “The Treaty-Making Power of the United Nations”, 26 BYBIL
(1949) pp. 108-149; B. Kasme, La capacité de l’Organisation des Nations Unies..., op.
cit. supra n. (29), pp. 7-197; P.F. Smets and P. Mertens, “Le ‘Treaty-Making Power’
de l’UNESCO”, 70 Revue générale de Droit international public (1966) pp. 916-960;
among others.
68 Cf. comments in P.K. Menon, “The Law of Treaties with Special Reference to the Vi-
enna Convention of 1969”, 56 Revue de droit international de sciences diplomatiques
et politiques (1978) pp. 133-147, esp. pp. 137-139.
194 Chapter VIII
national Organizations or between International Organizations. Treaty-making

ceased to be a monopoly of States, and this development was in accordance with
the historical process of expansion of international legal personality in Interna-
tional Law.69 The treaty-making power of international organizations is nowa-
days firmly and definitively consolidated in International Law, for what surely
contributed the adoption of the aforementioned Vienna Convention, in 1986.
International organizations have in practice celebrated different kinds of
treaties, such as, with member States, e.g., headquarters agreements, and agree-
ments pertaining to the implementation of their own competences (e.g., in the
case of the U.N., military agreements and truesteeship agreements); and with
non-member States, e.g., agreements of association,70 and agreements of repre-
sentation; and, among themselves, e.g., “accords de liaison” (such as those between
the United Nations and the specialized agencies), agreements of cooperation, and
agreements of succession.71 The basic precepts pertaining to all these agreements,
quite numerous, celebrated in practice by international organizations, are nowa-
days consolidated in the 1986 Vienna Convention on Treaties between States and
International Organizations or between International Organizations.72
3. Composition of International Organizations: Evolving Issues

Significantly, the very composition of the international organizations has nowa-
days ceased to be a monopoly of States. Thus, there are international organiza-
tions that admit today the participation of territories and given regions (which
are no more than “fractions of States”) and which do not have – and nor would
they acquire for their admission into the organizations – international legal per-
sonality: thus, the UPU, e.g., allows such “fractions of States to act as members”,
and the WMO admits that a territory, as from the moment in which it may count
69 Cf. chapters VII-XI, infra.

70 E.g., in the ambit of the former EEC Treaty (Article 238), prior to the European Un-
ion.
71 Cf., e.g., K. Karunatilleke, “Essai d’une classification des accords conclus par les or-
ganisations internationales, entre elles ou avec des États”, 75 Revue générale de Droit
international public (1971) pp. 12-91; F. Seyersted, “Treaty-Making Capacity of Inter-
governmental Organizations: Article 6 of the International Law Commission’s Draft
Articles on the Law of Treaties between States and International Organizations or
between International Organizations”, 34 Österreichische Zeitschrift für öffentliches
Recht und Völkerrecht (1983) pp. 261-267; H. Chiu, The Capacity of International
Organizations to Conclude Treaties, and the Special Legal Aspects of the Treaties So
Concluded, The Hague, Nijhoff, 1966, pp. 1-212.
72 For the account of a participant in the 1986 Vienna Conference which adopted this
Convention, cf. A.A. Cançado Trindade, Direito das Organizações Internacionais,
3rd. ed., op. cit. supra n. (5), 2003, pp. 197-251.
on a meteorological service of its own, be “represented within its organization”73

(cf. infra).
There are entities which, not being States, did not fail thereby to have a per-
manent representation before the United Nations Organization. A pertinent ex-
ample was provided by the Palestine Liberation Organization (P.L.O.), which, on
the basis of resolution 3237 (XXIX), of 22 November 1974, of the U.N. General
Assembly, came to benefit from the status of observer in the United Nations,
it being entitled, ever since, in that condition or capacity, “to participe in the
sessions and in the work of the General Assembly” (par. 1), “to participe in the
sessions and in the work of all international conferences convened under the aus-
pices of the General Assembly” (par. 2), and to participate likewise in the sessions
of “other organs of the United Nations” (par. 3). Similar status and prerrogatives
were granted to the South West Africa People’s Organization (SWAPO) by the
U.N. General Assembly resolution 31/152, of 20.12.1976.
Subsequently, the U.N. went even further in relation to the P.L.O.: by the
end of August of 1989, the President of the U.N. Security Council submitted to
the consideration of the Council the request by the Deputy Permanent Observer
of Palestine to the United Nations in the sense of “participating” in the consider-
ation of the item titled “the situation in the Arab territories occupied” by Israel.
The P.L.O. thereby sought to “enlarge” its status and its functions of observer
(supra) so as to “participate” in the considerations of the Security Council on the
matter at issue. Submitted to voting, the Palestinian request was approved by the
Security Council, and on 30 August 1989 the representative of Palestine (Man-
sour), invited by the President of the Security Council, took a seat at the Council
table to participate in the consideration, by that U.N. organ, of the item titled “the
situation in the Arab territories occupied” by Israel.74
There was, furthermore, the example of Namibia. Well before the schedule
of the celebrations of the independence of Namibia for 21 March 1990, and well
before one could foresee the day of such transformation of Namibia into an inde-
pendent territory, into a State, it was notwishtanding admitted as “full member”
of FAO (in l977) and of ILO (in 1978), what granted it a new status in its rela-
tions with member States in the ambit of those two international organizations.
Moreover, the U.N. Council for Namibia participated effectively – though with-
out right to vote – of important international conferences, such as the Vienna
Conference on Succession of States in the Matter of Treaties (1977) and the five
first sessions of the III U.N. Conference on the Law of the Sea (1973-1982).75
73 Ibid., pp. 218-219, and cf. p. 230.

74 This matter was object of study of my Legal Opinions (to Brazil’s Ministry of Exter-
nal Relations) CJ/112, of 10.03.1988; CJ/148, of 11.11.1988; CJ/157, of 02.03.1989; CJ/194,
of 20.01.1990; and CJ/200, of 12.03.1990.
75 E. Osieke, “Admission to Membership in International Organizations: The Case of
Namibia”, 51 BYBIL (1980) pp. 200-229.
196 Chapter VIII
Although the constitutive charters of international organizations limited

their membership to “States”,76 the more recent practice of international organi-
zations has in this particular gone much further than the letter of their constitu-
tive charters, there having occurred even resolutions, such as those of the U.N.
General Assembly,77 which sought “ full membership” for Namibia or the U.N.
Council for Namibia in the United Nations, in their specialized agencies and
other international organizations and conferences78 (e.g., the position in the UPU
and in the WMO, which, together with the ITU, were to admit non-self-govern-
ing territories as “full members”).79 And there still remained the possibility of
non-independent territories being admitted as “associate members” of certain
international organizations (namely, FAO, WHO, UNESCO, ITU, IMO).80 The
aforementioned considerations disclose that, in the light of the modern law – and
the practice itself – of international organizations, the question of their composi-
tion has assumed a new and complex dimension in our days. Non-State entities
have participated, with status and prerrogatives conferred upon them, of their
work, meetings and conferences. The membership itself of international organi-
zations has in our times ceased to be an exclusive prerrogative or monopoly of
the States.
4. The Growth of Multilateralism and International Cooperation

As from the judicial recognition by the Advisory Opinion of the ICJ on Re-
parations for Injuries (1949), the capacity of international organizations was
established to interpose an international claim of their own, for reparation for
injuries suffered by their agents in the exercise of their functions (“contentious”
capacity). In a wider dimension, international organizations have maintained
relations with States, with other international organizations and other entities,
and, in international relations, they have celebrated the most diverse treaties (cf.
supra). Besides such celebration of agreements (of the organizations inter se),
they have in practice also resorted to techniques such as exchange of observers
and the establishment of liaison missions.
Structurally, they have moreover proceeded to the joinder of organs and
to the creation of a common organ.81 In the last decades the normative corpus
76 E.g., U.N., Arts. 3-4; ILO,, Art. 1(2); WHO, Arts. 3-6; UNESCO, Art. 2(2); IMO, Arts.
5 and 7-8; IAEA, Art. 4; or to “nations”, e.g., FAO, Art. 2; or to “countries”, e.g., IMF,
Art. I, sections 1 and 2; IBRD, section 2(c), (e) and (f)).
77 Resolutions A/RES/32/9E, of 1977, and A/RES/S-9/2, of 1978.
78 Cf. E. Osieke, op. cit. supra n. (75), pp. 190-191.
79 This, on the basis of their own constitutive Charters (UPU, Art. 2; WMO, Art. 3;
ITU, Art. 1 and Annex I); ibid., pp. 190 and 227.
80 In accordance with their own constitutive Charters (FAO, Art. 2 (3)-(5); WHO, Art.
8; UNESCO, Art. 2(3); ITU, Art. 1(3); IMO, Art. 9); ibid., pp. 190 and 227.
81 R.J. Dupuy, “Le droit des relations entre les organisations internationales”, 100 RCA-
DI (1960) pp. 461-488, and cf. 489-527.
of what could be called the “diplomatic law of international organizations” has

been formed; the representation of States before international organizations of
a universal character is nowadays governed by the 1975 Vienna Convention on
the matter; reversely, certain international organisms (e.g., the former EEC, and,
in the ambit of the U.N., the UNDP) have in practice established a representa-
tion before certain States, even though non-members; and, at last, international
organizations have sent representatives to other international organizations (of
which they are not members), so that they reciprocally inform each other of their
respective works and coordinate better joint programmes of work.82
To this effect of better co-ordination, and of maintenance of regular con-
sultations in matters of common interest, specialized agencies such as UNES-
CO, FAO, ILO and WHO have celebrated bilateral agreements between them-
selves.83 The overall framework of the operation of international organizations
has led D. Vignes to ponder rightly that the “finality” which is proper to certain
international organizations, which conduces them to participate in the work of
other organizations, “va encore amener à éclipser quelque peu le caractère de
la représentation étatique”.84 It has tended gradually to do so. It is to be born in
mind, moreover, that, apart form the States, also international organizations can
themselves participate – and have done so – in the process of creation of other
international entities.85
Some international organizations, created by multilateral treaties, continue
to suffer the vicissitudes of politicization and pressures exerted by some States
(mainly the most powerful ones). This is illustrated, e.g., by the episode of the
withdrawal of the United States and the United Kingdom from UNESCO, and
the tensions created around the administration of its Director General who con-
cluded his functions in 1987.86 This is further exemplified, e.g., by the chronic
financial crisis that universal organizations like the United Nations and the ILO
have undergone in recent years, as well as regional organizations like the OAS,
82 J.A. Barberis, “Nouvelles questions concernant la personnalité juridique interna-

tionale”, 179 RCADI (1983) pp. 228-231; M.K. Yasseen, “Création et personnalité ju-
ridique des organisations internationales”, in Manuel sur les organisations interna-
tionales/ A Handbook on International Organizations (ed. R.-J. Dupuy), The Hague/
Dordrecht, Hague Academy International Law/Nijhoff, 1988, p. 48.
83 E. Luard, International Agencies: The Emerging Framework of Interdependence, Lon-
don, MacMillan, 1977 (reprint 1979), pp. 271-272.
84 Ibid., pp. 79-80; and cf. Ph. Cahier, “L’ordre juridique interne des organisations
internationales”, in Manuel ... (ed. R.-J. Dupuy), op. cit. supra n. (82), pp. 246 and
255.
85 There are, in fact, examples of international entities created by the joint initiative of
States and international organizations (e.g., inter alia, the creation, in 1926, by the
League of Nations and by Italy, of the International Institute for the Unification of
Private Law – Unidroit); cf., also for other examples, J.A. Barberis, op. cit. supra n.
(82), p. 218.
86 J.A. Pastor Ridruejo, Curso de Derecho Internacional Público y Organizaciones In-
ternacionales, 6th. ed., Madrid, Tecnos, 1996, p. 803.
198 Chapter VIII
due in part to the delay in the payment of the budgetary quotas (mainly on the
part of States of greater economic power).
But it is equally certain that, with the advent of international organizations,
States have lost the monopoly of conduction of international relations, and can-
not ignore or neglect the endeavours of such organizations in securing respect
for, and observance of, the norms of International Law.87 By means of multilat-
eralism, within international organizations, the more vulnerable States have
sought to mitigate to some extent their worrisome factual inequalities. And by
the same means of multilateralism they came to seek, jointly, the realization of
common objectives.88
In fact, international organizations, and in particular the United Nations,
have much fostered the duty of international cooperation (Article 56 of the U.N.
Charter) in the last decades, despite the divisions – ideological and others – of
the world. This is illustrated by the creation of the UNDP in 1965,89 of UNCTAD
(as a subsidiary organ of the General Assembly) in 1964,90 the initiative – al-
though unattained – of establishment of a new international economic order,91
and the cycle of World Conferences of the United Nations of the nineties and the
turn of the century.92 The fact of, along the last decades, the constant search, e.g.,
of the redefinition of the role of the ECOSOC of the United Nations, the expan-
sion of its composition and domain of operation, as well as the multiplication of
its subsidiary organs93 and the incursion into the field of human development,
– well demonstrate the concern of States with the compliance – even if not full
to date – with the duty of international cooperation.94
In their operation for more than six decades, international organizations
have sought guidance from the relevant norms of their constitutive charters, af-
firming, as to matters which fall in the ambit of their respective competences,
the primacy of the international legal order over the domestic legal order of the
87 D. Vignes, op. cit. infra n. (101), pp. 816 and 813. – The U.N. Security Council, for ex-
ample, has addressed its resolutions not only to States, but at times also to non-State
entities; J.-L. Florent, “Les destinataires non-étatiques des résolutions du Conseil de
Securité”, in Le sujet en Droit international (Colloque du Mans de 2004 de la SFDI),
Paris, Pédone, 2005, pp. 107-115.
88 A. Lewin, “Structures et méthodes de travail des Nations Unies: l’adaptation du
multilatéralisme aux défis de notre temps”, in L’adaptation des structures et méth-
odes des Nations Unies, op. cit. supra n. (2), p. 358.
89 Resolution 2029 of the U.N. General Assembly.
90 Resolution 1995 of the U.N. General Assembly.
91 Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., op.
cit. supra n. (5), pp. 381-403.
93 By geographical distribution as well as by material or functional specialization.
94 R. Paniagua Redondo, La Reforma del Consejo Económico y Social de las Naciones
Unidas (1945-2000), Madrid/Barcelona, Marcial Pons Ed., 2001, pp. 23-38, 49-50, 56,
73-93, 98-101, 127, 133-134 and 161-167.
member States. International organizations (above all those of universal voca-

tion, such as the United Nations) have come to apply general International Law,
at the same time that they have, in turn, given rise to international legal norms.95
The decision-making process, in some instances, evolved from the individual
consent of States to the search for consensus, fostering the spirit of international
cooperation, as notably exemplified, inter alia, by the negotiations of one whole
decade, which culminated in the adoption of the historical U.N. Convention on
the Law of the Sea, opened to signature in Montego Bay, Jamaica, on 10 Decem-
ber 1982.96
It was the great merit of the III U.N. Conference on the Law of the Sea, not
only to have established the rights and duties of States under the 1982 Conven-
tion,97 but also – and above all – to have demonstrated the possibility to seek dis-
tributive justice by means of the international law-making process.98 This would
hardly have been achieved without the contribution of the United Nations, which
rendered possible this dialogue at universal scale. In his closing statement, at the
session of 10 December 1982 of the U.N. Conference in Montego Bay, Jamaica, the
then Secretary-General of the Organization (J. Pérez de Cuéllar), in face of the
fact that 119 countries had signed the Convention on that day, the very day of its
opening for signature, pondered that
95 M. Lachs, “International Law and the United Nations”, in L’adaptation des structures
et méthodes des Nations Unies, op. cit. supra n. (2), p. 39. – The internal structure itself
of international organizations has evolved, as time went on, further generating the
establishment of international contacts between the powers of the State other than
the Executive (as, in the European and American continents, with the Legislative).
96 For a detailed historical account, cf. J.-P. Lévy, La Conférence des Nations Unies sur
le Droit de la Mer – Histoire d’une négotiation singulière, Paris, Pédone, 1983, pp.
17-145. And cf. also T. Treves, “La Decima Sessione della Conferenza sul Diritto del
Mare”, 65 Rivista di Diritto Internazionale (1982) pp. 24-55; V. Marotta Rangel, “A
Nova Convenção sobre Direito do Mar”, 18 Problemas Brasileiros (1981) n. 199, pp.
20-32; J. Reverdin, “Le régime juridique des grands fonds marins”, 39 Annuaire su-
isse de droit international/Schweizerisches Jahrbuch für internationales Recht (1983)
pp. 105-132; S. Rosenne, “The Th ird United Nations Conference on the Law of the
Sea”, 11 Israel Law Review (1976) pp. 1-45.
97 Cf. chapter VII, supra.
98 Ph. Allott, “Making the New International Law: Law of the Sea as Law of the Fu-
ture”, 40 International Journal (1985) pp. 442-443 and 455-457. This, despite the vi-
cissitudes of the renegociation of its Part XI, resulting in the Agreement of 1994,
which modified the legal regime of Part XI referred to (for an examination, cf., e.g.,
G. Jaenicke, “The United Nations Convention on the Law of the Sea and the Agree-
ment Relating to the Implementation of Part XI of the Convention – Treaty Law
Problems in the Process of Revising the Deep Seabed Mining Regime of the Con-
vention”, in Recht zwischen Umbruch und Bewahrung – Festschrift für Rudolf Bern-
hardt (eds. U. Beyerlin et alii), Berlin, [Springer-Verlag], 1995, pp. 121-134), – without
thereby escape criticims (cf., e.g., J.A. Pastor Ridruejo, “Le droit international à la
veille du vingt et unième siècle: normes, faits et valeurs – Cours général de Droit
international public”, 274 RCADI (1998) pp. 262-265).
200 Chapter VIII
“Never in the history of international relations have such a large number of coun-
tries immediately signed the result of their deliberations, thereby committing them-
selves to act in accordance with their obligations. This is a particularly important
lesson to emerge from this Conference”.99
Likewise, two decades earlier, the U.N. contributed decisively for the gradual for-
mation of the corpus juris of the law of outer space, by means of the adoption of
pioneering resolutions in this respect, in the sixties, followed by five treaties on
the matter adopted until the late seventies (in 1967, 1968, 1972, 1975, and 1979,
respectively).100
Thus, even a domain of International Law such as that of regulation of the
spaces, which, in the past, seemed to exhaust itself in the bilateral – and at times
multilateral – relations among States, assumed a new dimension, with the advent
of international organizations in the second half of the XXth century, as exem-
plified by the developments in the chapters of the law of the sea and of the law
of outer space. Although international organizations continue to depend on the
budgetary contributions on the part of member States, – and at times suffer pres-
sures in this regard – it is difficult to imagine today, as perspicatiously pondered
Daniel Vignes, that States may consider to abolish such organizations, or pretend
to do without them.101 What is certain is that States have came to need them for
their own international intercourse, and visualize in them an appropriate vehicle
of expression of international solidarity.
V. The Projected Reforms of the International Organizations, Particularly

of the United Nations
The considerable contribution, particularly of the United Nations, for the for-
mation of the new international agenda of the XXIst century, by means of the
adoption of the final documents of the recent U.N. World Conferences,102 has
regrettably not been accompanied pari passu by the adoption of all the neces-
99 J. Pérez de Cuéllar, “International Law is Irrevocably Transformed”, United Nations

Convention on the Law of the Sea – Index and Final Act of the III U.N. Conference on
the Law of the Sea, N.Y., United Nations, 1983, p. XXX.
100 Cf., e.g., M. Lachs, The Law of Outer Space – An Experience in Contemporary Law-
Making, Leiden, Sijthoff, 1972, pp. 1-152; J.E.S. Fawcett, Outer Space – New Chal-
lenges to Law and Policy, Oxford, Clarendon Press, 1984, pp. 3-122; Bin Cheng, “The
United Nations and the Development of International Law Relating to Outer Space”,
in The Evolution of International Law since the Foundation of the U.N. – Thesaurus
Acroasium, vol. XVI, Thessaloniki/Greece, Institute of International Public Law and
International Relations, 1990, pp. 55-121.
101 D. Vignes, “The Impact of International Organizations on the Development and Ap-
plication of Public International Law”, The Structure and Process of International
Law: Essays in Legal Philosophy Doctrine and Theory (eds. R.St.J. MacDonald and
D.M. Johnston), The Hague, Nijhoff, 1983, pp. 853 and 843.
sary changes in its internal structure, so as to equip adequately the world Or-
ganization to face effectively the new and great challenges of the contemporary
world. Just as the United Nations has much contributed to the evolution of the
international legal order, moving from an initially State-centric outlook towards
a multipolar dimension, marked by a new multicentrism, today, paradoxally, it is
the U.N. itself that resents the pressing need to reform wholly its own structure,
so as to render it in some respects more representative,103 in order to strenghen
multilateralism (cf. supra) and to enable the world Organization itself to respond
adequately the global challenges which likewise require global solutions.104
At regional level, the OAS, for example, succeeded in modifying its internal
structure (on two occasions, in 1970 and in 1985, respectively),105 perhaps for hav-
ing tackled punctual reforms and of an international organization with a more
circumscribed scope of operation. The African Union – to recall another ex-
ample – succeeded in 1999 the former Organization of African Unity (OAU). In
the ambit of the United Nations, however, the debates about the reforms of its
internal structure have been hanging on already for two and a half decades (since
1985), without having attained all the expected concrete results to date.106 The
focus of attention has lately fallen mainly upon the proposals of reform of the
Security Council,107 as well as the revitalization of the U.N. General Assembly
as a forum of universal dialogue,108 added to the widening of the functions of the
ECOSOC so as to foster international cooperation.109
103 With regard to the Security Council, the ECOSOC and the Trusteeship Council.
104 Cf. J.A. Carrillo Salcedo, “Cambios en la Sociedad Internacional y Transforma-
ciones de las Naciones Unidas”, in La ONU, 50 Años Después (coord. P.A. Fernández
Sánchez), Sevilla, Ed. Universidad de Sevilla, 1996, pp. 11-23.
105 Cf. J.C. Baena Soares, “Aspectos Jurídico-Políticos das Recentes Reformas da Carta
da Organização dos Estados Americanos (OEA)”, 87/90 BSBDI (1993) pp. 59-71; J.-M.
Arrighi, “Les réformes à la Charte de l’Organisation des États Américains: Prob-
lèmes de droit des traités”, 43 AFDI (1997) pp. 1-12.
106 Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 4th. ed., Belo
107 Proposed expansion of composition and representativity, as well as the end of the
veto, as propounded by the World Forum of NGOs parallel to the II World Confer-
ence of Human Rights (Vienna, 1993); cf. detailed account in A.A. Cançado Trin-
dade, Tratado de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto
Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 220-231, esp. pp. 222-223.
108 With the eventual transference to this latter of faculties of the U.N. Security Coun-
cil. – To this one may add the eventual extinction of the Trusteeship Council, for
having already fulfi lled its historical role, or its modification so as to come to deal
with global issues, such as human rights and rights of peoples, environment and
sustainable development, economic and human security, among others.
109 For an examination, cf., e.g., M. Seara Vázquez, “La Organización de Naciones Uni-
das: Diagnóstico y Tratamiento”, Las Naciones Unidas a los Cincuenta Años (ed. M.
Seara Vázquez), Mexico, Fondo de Cultura Económica, 1995, pp. 9-39.
202 Chapter VIII
It is to be hoped that common sense comes to prevail (what does not al-
ways happens) and that these proposals, among others, come to materialize in
the foreseeable future. Concretely, so far, the creation has been achieved, in late
2005, of the U.N. Peacebuilding Commission, as an intergovernmental advisory
body, by decision of the U.N. General Assembly acting concurrently with the
U.N. Security Council (G.A. resolution 60/180, of 20.12.2005, par. 1), and, in early
2006, of the U.N. Human Rights Council (replacing the former U.N. Commis-
sion on Human Rights, and consisting of 47 member States, by decision of the
U.N. General Assembly).110 This was the outcome of half a decade (2000-2005) of
intensified consultations.
Expectations were high when the General Assembly adopted the Millenium
Declaration (resolution 55/2, of 08.09.2000), calling for the strengthening of the
United Nations, reasserting the “central position” of the General Assembly, and
stressing the need to intensify efforts to achieve a wider reform of the Securi-
ty Council “in all its aspects” (par. 30). The U.N. Secretary General (Kofi An-
nan) then announced (in September 2003), the creation of a High-Level Panel on
Threats, Challenges and Change, integrated by recognized experts, as the next
step of U.N. reforms. The Panel’s Report drew attention, inter alia, to the need
of a more effective system of collective security.111 In this respect, the Brahimi
Report of 2000112 had already called for greater cooperation of member States of
the U.N. with peace operation of the United Nations.113
The 2004 Report of the High-Level Panel sustained the reform of the Security
Council,114 and recommended the creation of a new U.N. organ, the Peacebuild-
ing Commission, which would operate in coordination with regional organiza-
tions, to render tbe necessary attention to emerging emerging from a sitution of
conflict.115 This document was followed by the Report of the Secretary-General
himself, titled In Larger Freedom: Towards Development, Security and Human
Rights for All (of 21.03.2005), which focused on “the imperative of collective ac-
110 And as its subsidiary organ; U.N. General Assembly resolution 60/251, of 15.03.2006,
pars. 1 and 7.
111 United Nations, A More Secure World: Our Shared Responsibility – Report of the
High-Level Panel on Threats, Challenges and Change (Executive Summary), U.N.,
N.Y., 2004, pp. 1-2.
112 Cf., in general, chapter XXIV, infra, on peaceful settlement of international dis-
putes.
113 Ibid., pp. 2-4; and cf. L. Boisson de Chazournes, “Rien ne change, tout bouge, ou le
dilemme des Nations Unies propos sur le rapport du Groupe de Personnalités de
Haut Niveau sur les menaces, les défis et le chagement”, 109 Revue générale de Droit
international public (2005) pp. 155-156, and cf. pp. 147-161.
114 Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 4th. ed., Belo
115 United Nations, A More Secure World: Our Shared Responsibility..., op. cit. supra n.
(111), pp. 5-6.
tion”,116 with due attention to the rule of law at both national and international
levels.117 It drew further attention to the “complementary functions” of the U.N.
and regional organizations in facing threats to international peace and security,
and supported reforms of both the Security Council (to render it “more widely
representative of the international community as a whole”) and of ECOSOC.118
In mid-September 2005 the Summit of Heads of State and Government at last
met, at the United Nations headquarters in New York. The virtual totality of the
items of the agenda was assembled in a document circulated on 15.09.2005, titled
the 2005 World Summit Outcome. The document, composed of five parts and 178
paragraphs, drew attention to the importance of multilateralism and collective
security,119 and condemned State unilateralism (pars. 72-78), given “the impor-
tance of acting in accordance with the purposes and principles of the Charter”
(par. 79). The 2005 World Summit Outcome further stressed the relevant role of
the United Nations in peacekeeping and peacebuilding,120 and decided to create
a Peacebuilding Commission as an “intergovernmental consultative organ” (par.
97). And it went on to assert that
“Recognizing the need for universal adherence to and implementation of the rule
of law at both the national and international levels, we: – reaffirm our commitment
to the purposes and principles of the Charter and international law and to an inter-
national order based on the rule of law and international law, which is essential for
peaceful coexistence and cooperation among States” (par. 134(a)).
At the end of the prolonged debates that followed, the Summit decided to estab-
lish the aforementioned Human Rights Council and Peacebuilding Commission
(supra). There was, moreover, commitment to give a follow-up to the results of
the World Conferences of the United Nations121 (pars. 155, 157 and 169). The docu-
116 United Nations, In Larger Freedom: Towards Development, Security and Human
Rights for All – Report of the Secretary General, document A/59/2005, of 21.03.2005,
pp. 6 and 24.
117 Ibid., pp. 34-39. And, on the endorsed formulation of the so-called “responsibility
to protect”, emanated from a Canadian proposal, cf., e.g., P. Hilpold, “The Duty to
Protect and the Reform of the United Nations – A New Step in the Development
of International Law?”, 10 Max Planck Yearbook of United Nations Law (2006) pp.
50-54; H. Owada, “The United Nations and the Maintenance of International Peace
and Security – The Current Debate in the Light of Reform Proposals”, 48 Japanese
Annual of International Law (2006) pp. 7-10.
118 Ibid., pp. 52 and 55-62, esp. p. 60; and cf., e.g., B. Fassbender, U.N. Security Council
Reform and the Right of Veto – A Constitutional Perspective, The Hague, Kluwer,
1998, ch. IX, pp. 221-275.
119 Cf. United Nations, 2005 World Summit Outcome, document A/60/L.1, of 15.09.2005,
pp. 1-40, esp. pars. 6-8 and 13-14.
120 Pars. 81-87, 91-92, 97-98 and 106.
204 Chapter VIII
ment added that the Trusteeship Council had already concluded the historical
functions conferred upon him, what called for the deletion of chapter XIII of
the Charter and the reference to it in chapter XII; furthermore, the decision was
taken to delete also the references to “enemy States” contained in Articles 53, 77
and 107 of the Charter (pars. 176-177). There was, however, some disappointment
as to the lack of success in the handling of both the reform of the Security Coun-
cil (postponed ever since), and the new steps towards disarmament and nuclear
non-proliferation. It became apparent that the endeavours towards the reform
of the Security Council were to continue (pars. 146 and 153). The process of the
reform of the United Nations as a whole appears, thus, to be still on its way.
The remarkable expansion of the operation of international organizations –
having so much contributed to the evolution of contemporary International Law
itself – has lately raised the issue of relating them also to the domain of inter-
national responsibility. As already pointed out, the ILC, since its initial steps on
the consideration of the topic “Responsibility of International Organizations”122
(supra), has just completed, in mid-2009, its examination of seven successive re-
ports on it. After all, the acts of international organizations are imputable to
them as subjects of International Law.123 The shortcomings in the operation of
the U.N. system of collective security, e.g., stress the need of wider reforms in
the structure of the United Nations, which come effectively to contemplate the
establishment of a regime of control of legality, not only to govern the relations
between international organizations and member States, but also to assess the
work of international political organs.
This point was raised a few years ago before the ICJ in the Lockerbie cases
(1992), but the reticent position taken by the ICJ on it124 left the issue open for
future search of a solution to the question of the establishment of a regime of
control of international political organs.125 The armed operations in Kosovo and
in Irak at the end of the XXth century further drew attention to the need of con-
trol of legality, also in order to avoid undue unilateralisms.126 Closer attention has
in fact been drawn to the issue of the legality or otherwise of international politi-
122 Cf., e.g., U.N./ILC, Report of the Working Group on Responsibility of International
Organizations – The Responsibility of International Organizations: Scope and Ori-
entation of the Study, U.N. doc. A/CN.4/L.622, de 06.06.2002, pp. 1-3.
123 Ugo Draetta, Principi di Diritto delle Organizzazioni Internazionali, Milano, Giuf-
frè, 1997, pp. 128 e 137.
124 Cf. ICJ, case of the Interpretation and Application of the 1971 Montreal Convention
Arising from the Aerial Incident at Lockerbie (Lybia versus United Kingdom), ICJ
Reports (1992) pp. 15-16.
125 The reticence of the ICJ provoked the comment that it contrasted with the prepar-
edness of the Court of Justice of the European Communities to establish and con-
solidate a system of judicial review; N.D. White, The Law of International Organiza-
tions, Manchester, University Press, 1996, pp. 125-128.
126 Cf. B. Fassbender, “Quis Judicabit? The Security Council, Its Powers and Its Legal
Control”, 11 European Journal of International Law (2000) pp. 220, 225-227 and 230-
cal organs.127 The bombings in the case of Kosovo (1999)128 provide an illustration
of this concern, as an entity such as NATO cannot reasonably expect to have a
military action legitimized ex post facto;129 might is not right.
By the time of the creation of the U.N., it was assumed that each of its organs
would have the faculty to interpret the provisions of the U.N. Charter pertaining
to their respective areas of action,130 and this has been postponing the realiza-
tion of the goal of setting up a control of the legality of the acts of its political
organs, despite the doubts and uncertainties generated by the practice of these
latter, mainly in recent years. Such need has, with the passing of time, become
manifest, especially to the extent that the U.N. becomes increasing engaged in an
international scenario marked by new and intense conflicts, including internal
armed conflicts.131 Despite differences, distinct proposals of reforms of the U.N.,
advanced since 1985, have at least converged into the general premise of the need
of a general restructured framework, overcoming the old inter-State paradigm,
rethinking multilateralism with greater emphasis on the socio-economic and de-
velopmental domain, as, in our days, there seems to be no viable alternative to
multilateralism.132
The current – and apparently chronic – financial crisis undergone by the
United Nations, and so many other international organizations, curiously occurs
at the end of the recent cycle of U.N. World Conferences which have precisely
232; and cf., generally, J. Charpentier, “Le contrôle par les organisations internation-
ales de l’exécution des obligations des États”, 182 RCADI (1983) pp. 151-229.
127 J. Klabbers, “The Life and Times of the Law of International Organizations”, 70 Nor-
dic Journal of International Law / Acta Scandinavica Juris Gentium (2001) pp. 309
and 314, and cf. p. 287; R.St.J. Macdonald, “A Short Note on the Interpretation of the
Charter of the United Nations by the International Court of Justice”, in Liber Ami-
corum Judge S. Oda (eds. N. Ando et alii), The Hague, Kluwer, 2002, pp. 187-189.
128 On that case, cf., e.g., Independent International Commission on Kosovo, The Ko-
sovo Report – Conflict, International Response, Lessons Learned, Oxford, Oxford
University Press, 2000, pp. 1-298.
129 In support of the need of control of the legality of the decisions of the U.N. Security
Council, on the basis of the mechanisms of control set forth in the U.N. Charter
itself, and made to operate to that effect, cf., e.g., M.E. López-Jacoiste Díaz, Actuali-
dad del Consejo de Seguridad de las Naciones Unidas – La Legalidad de Sus Deci-
siones y el Problema de Su Control, Madrid, Thomson Civitas, 2003, pp. 31-360.
130 The 1945 San Francisco Conference came to accept this posture (Report of the Le-
gal Committe IV/2), which set up a dispersal of the power of interpretation within
the U.N.; M. Bedjaoui, Nuevo Orden Mundial y Control de Legalidad de los Actos
del Consejo de Seguridad, Bilbao, Ed. Instituto Vasco de Administración Pública,
[1995,], pp. 29-30 and 34, and cf. p. 128.
131 Cf. ibid., pp. 38, 47, 51, 55, 103, 113, 124-125, 128 and 137.
132 J.P. Renninger, “What Structural Changes Are Needed in the System of Interna-
tional Institutions?”, in The Future Role of the United Nations in an Interdependent
World (ed. J.P. Renninger), Dordrecht, Nijhoff, 1989, pp. 227, 230-239 and 241.
206 Chapter VIII
conformed its “social agenda” for the XXIst century,133 – which appears some-
what paradoxical. The new era in which we live, inaugurated by the events which
have profoundly altered the international scenario as from 1989 (with the fall
of the Berlin wall), discloses to us a world – that of the post-cold war – for the
challenges of which international organizations, starting with the U.N. and those
which integrate the U.N. system itself, may not be, structurally, prepared and suf-
ficiently restructured yet.
VI. Concluding Observations: The Contribution of International

Organizations to the Progressive Development of International Law
The dilution of power, in the international relations not only of States inter se,
but also with international organizations, is altogether beneficial to the interna-
tional community: it operates refraining the temptations of cesarism, the arbi-
trarinesses and the opression, at both international and – above all – domestic
levels.134 The beneficial effects of the operation of the United Nations are undeni-
able, along the last mid-century, in the fields of the maintenance of international
peace and security (and endeavours in favour of disarmament), of the interna-
tional protection of human rights, and of the decolonization and realization of
the right of self-determination of peoples; in these areas, as well as in the treat-
ment of economic, social and cultural questions, the United Nations learned to
adapt itself to the realities of the new times,135 as it endeavours to do it today in
the period of the post-cold war.
1. International Organizations: Contents and Legal Effects of Resolutions

If certain resolutions of an international organ on a given theme are regarded as
intimately linked among themselves, as parts of a continuous process in time,
one will be able to identify in them a more specific content, reflecting an opinio
juris of generalized consensus.136 Such method of crystallization of new concepts
and general principles, – in general subsequently accompanied by certain mech-
anisms of supervision and control, – can come to fill in part the insufficiency of
the traditional modalities of formation of International Law (set forth in Article

134 C. Schreuer, “The Waning of the Sovereign State: Towards a New Paradigm for In-
ternational Law?”, 4 European Journal of International Law (1993) pp. 470 and 448.
135 Cf., e.g., C.-A. Fleischhauer, “The United Nations at Fifty”, 38 German Yearbook of
International Law (1995) pp. 9-25; B. Broms, “The Present Stage in the Work of the
Special Committee on the Charter of the United Nations and on the Strengthening
of the Role of the Organization”, in International Law at a Time of Perplexity – Es-
says in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, pp. 73-90.
136 As occurred a couple of decades ago in respect of the questions of decolonization,
of recognition of the right of self-determination of peoples, and of the permanent
sovereignty of States over their natural resources.
38 of the ICJ Statute), mainly in the regulation of the relations among States in
distinct stages of economic development.137
In practice, in the absence until now of a regime of control of legality of its
acts (supra), each international organ, in the normal exercise of its functions, has
proceeded to the determination of the so-called “constitutionality” of its own
acts. The praxis itself of the organ concerned has so far been a decisive factor
for the determination of the legal ambit of its specific functions,138 as well as an
element of interpretation in the determination of the powers attributed to the
organs of international organizations. Some factors have been taken into account
in assessing the contents and legal effects of resolutions of international organi-
zations, namely, the circumstances of their adoption,139 the consensus they ob-
tained,140 their travaux préparatoires,141 and the presence of certain principles of
law.142 Given the distinct modes of resolutions adopted by international organiza-
tions, it is not surprising that their legal effects are also varied.143 Such resolutions
have contributed to the expansion of International Law, besides fi lling a gap gen-
137 Institut Universitaire de Hautes Études Internationales, Les résolutions dans la for-
mation du Droit international du developpement, Geneva, IUHEI, 1971, pp. 5-19.
138 J. Castañeda, Legal Effects of United Nations Resolutions, N.Y., Columbia University
Press, 1969, pp. 1-16.
139 I.e., if there was intention on the part of the international organ at issue to formulate
propositions, norms or principles existing in International Law.
140 Cf. C.W. Jenks, “Unanimity, the Veto, Weighted Voting, Special and Simple Majori-
ties and Consensus as Modes of Decision in International Organizations”, in Cam-
bridge Essays in International Law – Essays in Honour of Lord McNair, London,
Stevens/Oceana, 1965, pp. 48-63; G. de Lacharrière, “Consensus et Nations Unies”,
14 Annuaire français de droit international [AFDI] (1968) pp. 9-14; S. Bastid, “Ob-
servations sur la pratique du consensus”, in Multitudo Legum Ius Unum – Festchrift
für W. Wengler, vol. I, Berlin, Inter-Recht, 1973, pp. 11-25; F.Y. Chai, Consultation et
consensus: un aspect du fonctionnement du Conseil de Sécurité, N.Y., UNITAR, 1971,
pp. 3-45.
141 On the relations of these latter with the formation of opinio juris, cf. H. Bokor-Szegó,
“The Contribution of International Organizations to the Formation of the Norms of
International Law”, in Questions of International Law (ed. Hungarian Branch of the
International Law Association), Budapest, Progresprint, 1971, pp. 20-21.
142 E.g., the 1960 U.N. Declaration on the Granting of Independence to Colonial Coun-
tries and Peoples, and the 1963 U.N. Declaration on the Elimination of All Forms of
Racial Discrimination (followed, three years later, by the U.N. Convention on the
matter) O.Y. Asamoah, The Legal Significance of the Declarations of the General As-
sembly of the United Nations, The Hague, M. Nijhoff, 1966, pp. 68-213.
143 A clear example would be that of the distinctive features between recommendations
of the General Assembly (Articles 10 to 14 of the U.N. Charter) and decisions of the
Security Council (Article 25), as these latter, unlike the former, have a mandatory
effect; F.A. Vallat, “The Competence of the United Nations General Assembly”, 97
RCADI (1959) pp. 207-287; M.K. Nawaz, “Law and International Organization – A
Perspective on the United Nations”, 17 Indian Journal of International Law (1977)
pp. 234-241.
208 Chapter VIII
erated by the very absence of permanent legislative organs at international level;

they have ensued from the non-institutionalized nature of the process whereby
International Law is created.144
The question of the legal nature and effects of the resolutions of interna-
tional organizations soon generated a considerable specialized bibliography,
not seldom linking the question at issue to that of the “sources” of International
Law.145 In favouring the development of standards of international behaviour,
such resolutions have contributed to mould customary International Law and to
crystallize, in the long run, emerging general principles of International Law,146
in sum, to provide indications on the opinio juris of the international community
as a whole.147
2. Responses to New Needs and Aspirations of the International Community

The work and dynamism of the international organizations have contributed de-
cisively to modify the structure itself of the international legal order. Not seldom
the work of one of them came to have repercussion within the others, and has
even generated structural changes in some of them. This is illustrated by the
episode occurred at the beginning of the nineties, when the then European Eco-
nomic Community (EEC, nowadays European Union) requested its admission as
144 J. Castañeda, op. cit. supra n. (138), pp. 165-196, and cf. 22-138, 177-180 and 150-164.
And cf., generally, e.g., A. El-Erian, “The Legal Organizations of International Soci-
ety”, in Manual of Public International Law (ed. M. Sorensen), London, MacMillan,
1968, pp. 90-92 and 98-100; I.L. Claude Jr., Swords into Plowshares, 4th. ed., N.Y.,
Random House, 1971, pp. 118-162.
145 Cf., inter alia, A.J.P. Tammes, “Decisions of International Organs as a Source of
International Law”, 94 RCADI (1958) pp. 265-363; M. Lachs, “Le rôle des organisa-
tions internationales dans la formation du Droit international”, in Mélanges offerts
à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964, pp. 168-169, and cf.
pp. 157-170; K. Skubiszewski, “Enactment of Law by International Organizations”,
41 BYBIL (1965-1966) pp. 198-274; J. Castañeda, “Valeur juridique des résolutions des
Nations Unies”, 129 RCADI (1970) pp. 205-332; M. Virally, “La valeur juridique des
recommendations des organisations internationales”, 2 AFDI (1956) pp. 66-96. And
cf. chapter V, supra.
146 E. Hambro, “Some Notes on Parliamentary Diplomacy”, in Transnational Law in a
Changing Society – Essays in Honor of Ph.C. Jessup (ed. W. Friedmann, L. Henkin
and O. Lissitzyn), N.Y., Columbia University Press, 1972, pp. 280-297; and cf. also
R. Monaco, “Fonti e Pseudo Fonti del Diritto Internazionale”, 61 Rivista di Diritto
Internazionale (1978) pp. 743-758.
147 E. Hambro, “Some Notes on the Development of the Sources of International Law”,
17 Scandinavian Studies in Law (1973) pp. 77-93; and cf. J. Monnier, “Observations
sur quelques tendances récentes en matière de formation de la volonté sur le plan
multilatéral”, 31 Annuaire suisse de Droit international (1975) pp. 31-51; H. Rolin,
“De la volonté générale dans les organisations internationales”, in La technique et les
principes de droit public – Études en l’honneur de G. Scelle, vol. II, Paris, LGDJ, 1950,
pp. 553-564.
full member of the U.N. Food and Agriculture Organization (FAO). The develop-
ments in this episode were to disclose that the composition itself of international
organizations was no longer a monopoly of States, whenever a request of the kind
was adjusted to the functional purposes of the organization at issue.148
In fact, shortly afterwards, with the corresponding modifications having
been introduced in the Constitution of FAO (on 18.11.1991), the EEC was at last
admitted (on 26.11.1991) as member of FAO, parallel to its member States.149 These
latter, and an international organization (the EEC), came to coexist as members
of another international organization (the FAO). The way was, thus, paved to new
developments in this sense: although the EEC – and more recently the European
Union – did not become a member of the U.N. itself (what would perhaps not ful-
fil their interests), there are, however, areas of common interest between the Eu-
ropean Union and some of the U.N. specialized agencies, – such as, besides FAO,
for example, ILO, UNESCO, UNIDO, – the Statutes of which do not exclude the
possibility that the European Union “participates in their operations”.150
Contemporary international relations have thus become more institutional-
ized and more complex, by the advent and impact of international organizations.
Not always the developments in this area, including the most recent ones, have
taken place with the necessary and desirable conceptual clarity.151 Yet, their in-
ternational legal personality and capacity have been asserted, as entities distinct
from their members, and have enabled them to exert their functions in the fulfi l-
ment of the common interests and in pursuance of the common good. It is, fur-
thermore, to be kept in mind that the international legal personality and capacity
148 Cf. A.A. Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., op.
cit. supra n. (5), pp. 293-331.
149 K. Lenaerts and E. De Smijter, “The European Union as an Actor under Interna-
tional Law”, 19 Yearbook of European Law (1999-2000) p. 135.
150 Ibid., p. 135. On the arrangements, for the voting system within FAO (whether on
the part of the [then] EEC as such, in areas of its exclusive competence, or on the
part of its individual member States, in areas of “national competence”), cf. ibid., p.
135.
151 For example, the Treaty of the European Union, also known as the Treaty of Maas-
tricht (1992), has not escaped criticisms for not having expressly affirmed the le-
gal personality of the European Union, an omission that one would hope would
be promptly remedied; J. Charpentier, “De la personnalité juridique de l’Union Eu-
ropéenne”, in Mélanges en l’honneur du Professeur G. Peiser (eds. J.-M. Galabert and
M.-R. Tercinet), Grenoble, Presses Universitaires de Grenoble, 1995, pp. 93-102. It
has, however, been pondered that the silence of the Treaty of Maastricht in this re-
spect has not at all affected the legal personality of the European Union, because this
latter ensues not from an express provision, but rather from the “general economy”
of its constitutive charter as a whole, and one may infer from this latter the “implicit
existence” of such personality for the faithful exercise of functions attributed to the
European Union by the Treaty of Maastricht itself; ibid., pp. 95-96 and 101-102.
210 Chapter VIII
of the international organizations have guided the relations of these latter both
with their own members152 as well as with the outside world in general.153
It may be recalled that Article 2(6) of the U.N. Charter, e.g., entitles the Unit-
ed Nations to ensure that States which are not its members also act in accordance
with the principles set forth in the U.N. Charter, so far as may be necessary for
the maintenance of international peace and security.154 Moreover, it is nowadays
generally admitted that international norms can be created and enforced irre-
spective of the consent of each or every individual State. A universal organization
such as the United Nations has constantly been adapting itself to changing cir-
cumstances and to face new challenges of the world scenario, so as to provide re-
sponses to new needs and aspirations of the international community. The U.N.
has never been paralysed, not even during the bipolar confrontation, followed by
the détente.155 The U.N. has witnessed the formation and considerable growth of
the corpus juris of the International Law of Human Rights.
In the post cold-war period, new U.N. initiatives consisted in the great peace
operations (post-1989), and in the establishment, on the initiative of the Security
Council, of the ad hoc International Criminal Courts for the Former Yugoslavia
152 Cf., in general, inter alia, J. Boulouis, “Le droit des Communautés Européennes dans
ses rapports avec le droit international général”, 235 RCADI (1992) pp. 19-79.
153 Cf., in general, inter alia, e.g., J.A. Carrillo Salcedo, “El Futuro de la Unión Euro-
pea”, 249 Revista de Occidente (2002) pp. 13-27. – On the particular significance of
the case of the European Union, given its high degree of institutionalization and
its communitarian legal order, cf., e.g., F. Pocar, Lezioni di Diritto delle Comunità
Europee, 2nd. ed., Milano/Varese, Giuffrè, 1979, pp. 9-282; A.H. Robertson, Europe-
an Institutions – Cooperation, Integration, Unification, 3rd. ed., London/N.Y., Ste-
vens/M. Bender, 1973, pp. 150-226 and 287-309; K. Lipstein, The Law of the European
Economic Community, London, Butterworths, 1974, pp. 21-45; P. Pescatore, L’ordre
juridique des Communautés Européennes – Étude des sources du droit communau-
taire, Liège, Presses Universitaires de Liège, 1971, pp. 5-211; P. Pescatore, The Law of
Integration, Leiden, Sijthoff, 1974, pp. 4-115.
154 Such was, by the way, the intention of the founding fathers of the United Nations;
J.A. Frowein, “Reactions by Not Directly Affected States to Breaches of Public In-
ternational Law”, 248 RCADI (1994) pp. 357-358; and cf. C. Tomuschat, “Obligations
Arising for States Without or Against Their Will”, 241 RCADI (1993) pp. 252-257.
– When it comes to this latter, it may be pointed out that the U.N. Security Coun-
cil action has transcended the classic dimension of purely inter-State relations, as
many of its resolutions over recent years have been directed not only to States, but
also to groups (such as insurgent ones) and also individuals; B. Simma, “From Bilat-
eralism to Community Interest in International Law”, 250 RCADI (1994) p. 266.
155 I.L. Claude Jr., “The United Nations of the Cold War: Contributions to the Post-Cold
War Situation”, 18 Fordham International Law Journal (1995) pp. 789-791. – Hu-
manitarian issues have always deserved due attention from the U.N., and from its
predecessor the League of Nations; cf. F. Ermacora, “The Protection of Minorities
before the United Nations”, 182 RCADI (1983) pp. 247-370.
and for Rwanda (in 1993 and 1994, respectively),156 followed by the 1998 Rome
Conference on the Statute of the permanent International Criminal Court.157
The U.N. was no longer concerned only with keeping the peace, but also with
preventing the outbreak or aggravation of conflicts (preventive diplomacy), with
peace-building and avoidance of new conflicts, besides applying enforcement
measures (under chapter VII of the U.N. Charter); it was further concerned with
combatting impunity, and with continuing to promote disarmament.158 The U.N.
has, in sum, contributed decisively to the new ethos of our times. It has witnessed
advances in the principle of universal jurisdiction, as well as in the exercise of
the collective guarantee exercised by States Parties to human rights treaties, all
disclosing the primacy of the raison d’humanité over the raison d’État.159
Despite this conceptual aggiornamento, the widening of the spectre of new
situations for operation of the Security Council has not passed without practical
difficulties. Criticisms have had a bearing mostly, and not surprisingly, on the
indefinition of the Council to distinguish between the invocation of chapter VI
(peaceful settlement of disputes) and of chapter VII (enforcement measures) of
the U.N. Charter, and on the lack of demonstration or of determination of a real
threat to internacional peace for the purposes of the invocation of chapter VII of
the Charter.160 Hence the call of contemporary legal doctrine in the sense that
the enforcement measures referred to be characterized by “clarity and precision”,
so as to refrain from the “indiscriminate use” of euphemisms.161
156 Cf. B. Boutros-Ghali, “A Grotian Moment”, 18 Fordham International Law Journal

(1995) pp. 1609-1616.
157 Cf. B. Boutros-Ghali, An Agenda for Peace, 2nd. ed., N.Y., United Nations, 1995, pp.
5-152; B. Boutros-Ghali, An Agenda for Development, N.Y., United Nations, 1995, pp.
5-126; B. Boutros-Ghali, An Agenda for Democratization, N.Y., United Nations, 1996,
pp. 1-56.
158 B. Boutros-Ghali, An Agenda for Peace, op. cit. supra n. (157), pp. 8-72.
159 A.A. Cançado Trindade, “A Emancipação do Ser Humano como Sujeito do Direito
Internacional e os Limites da Razão de Estado”, in 6/7 Revista da Faculdade de Di-
reito da Universidade do Estado do Rio de Janeiro (1998-1999) pp. 425-434. – For a
penetrating and poignant criticism of the so-called raison d’État, cf. Ernst Cassirer,
El Mito del Estado, Mexico, Fondo de Cultura Económica, 1996 (reed.), pp. 7-352.
160 For criticisms, cf. G. Arangio-Ruiz, “On the Security Council’s ‘Law-Making’”, 83
Rivista di Diritto Internazionale (2000) pp. 609-725; F.L. Kirgis Jr., “The Security
Council’s First Fifty Years”, 89 American Journal of International Law (1995) pp. 516,
525-526, 535 and 537-538.
161 I.L. Claude Jr., op. cit. supra n. (155), p. 793.
Chapter IX The Legal Personality of
the Individual as Subject of
International Law
I. Introduction
The consolidation of the legal personality1 and capacity2 of the individual as sub-
ject of international law constitutes the most precious legacy of the international
legal thinking of the second half of the XXth century. Such thinking overcame
the exclusion of the individual from the international legal order by State legal
positivism, and achieved the rescue of the individual as subject of International
Law. The acknowledgement of the legitimatio ad causam of the individuals in
International Law (active subjectivity) took place as a response to a need of the
international community. The same can be said of the recognition of his condi-
tion as bearer of duties emanating from international law (passive subjectivity).
Individuals appear nowadays as true subjects – rather than simply “actors” – of
International Law.
II. The Individual as Subject of the Emerging Law of Nations

In considering the position of individuals in International Law, the thinking of
the so-called founding fathers of the law of nations is not to pass unnoticed. In
the initial period of formation of International Law the influence exercised by
their writings was indeed considerable, understandably, given the need of articu-
lation and systematization of the matter.3 The doctrinal contribution, in particu-
1 A.A. Cançado Trindade, “El Nuevo Reglamento de la Corte Interamericana de Dere-

chos Humanos (2000) y Su Proyección Hacia el Futuro: La Emancipación del Ser
Humano como Sujeto del Derecho Internacional de los Derechos Humanos”, 28
Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano
– OAS (2001) pp. 33-92.
2 Cf. chapter X, infra.
3 A.A. Cançado Trindade, Princípios do Direito Internacional Contemporâneo,
Brasília, Edit. University of Brasília, 1981, pp. 20-21. For an account of the formation
of the classic doctrine, cf., inter alia, e.g., P. Guggenheim, Traité de droit interna-
tional public, vol. I, Geneva, Georg, 1967, pp. 13-32; A. Verdross, Derecho Internac-
ional Público, 5th. ed., Madrid, Aguilar, 1969 (reimpr.), pp. 47-62; Ch. de Visscher,
214 Chapter IX
lar, of the writings of the Spanish theologians Francisco de Vitoria and Francisco
Suárez, as well as of the Grotian work, is widely acknowledged. Even in our days,
it is necessary to bear in mind those teachings.
In the vision of Suárez (author of the treatise De Legibus ac Deo Legislatore,
1612), the law of nations reveals the unity and universality of the human kind;
States have necessity of a legal system which regulates their relations, as members
of the universal society.4 The learned master of Salamanca, Francisco de Vitoria,
in a pioneering and decisive contribution to the notion of prevalence of the rule
of law (État de Droit), sustained, with rare lucidity, in his acclaimed Relecciones
Teológicas (1538-1539), that the legal order binds everyone – both the rulers and
those ruled, – and, in this same line of thinking, the international community
(totus orbis) has primacy over the free will of each individual State.5
In his celebrated De Indis – Relectio Prior (1538-1539), he reiteratedly warned
that the emperor is not, and has never been, the master of the world.6 In the
conception of Vitoria, the law of nations regulates an international community
constituted by human beings organized socially in States and coextensive with
humanity itself; the reparation of violations of (human) rights reflects an interna-
tional necessity fulfi lled by the law of nations, with the same principles of justice
applying both to the States and to the individuals or peoples who form them. In
his De Indis (chapters VI and VII), Vitoria clarified his understanding of jus gen-
tium as a law for all, individuals and peoples as well as States, “every fraction of
humanity”; jus gentium, in his view, is conformed by the “common consensus of
all peoples and nations”.7 Earlier on, in his De Lege, Vitoria sustained the necessi-
ty of every law to pursue, above all, the common good; and he added that natural
law is found not in the “will”, but rather in right reason (recta ratio).8 More than
four and a half centuries later, his message retains a remarkable topicality.
The conception of jus gentium of Hugo Grotius (De Jure Belli ac Pacis, 1625),
always attentive to the role of civil society, envisaged the State as not an end in
Théories et réalités en Droit international public, 4th. rev. ed., Paris, Pédone, 1970,
pp. 18-32; L. Le Fur, “La théorie du droit naturel depuis le XVIIe. siècle et la doctrine
moderne”, 18 Recueil des Cours de l’Académie de Droit International de La Haye
[RCADI] (1927) pp. 297-399.
4 Cf. Association Internationale Vitoria-Suarez, Vitoria et Suarez – Contribution des
Théologiens au Droit International Moderne, Paris, Pédone, 1939, pp. 169-170.
5 Cf. Francisco de Vitoria, Relecciones – del Estado, de los Indios, y del Derecho de la
Guerra, México, Porrúa, 1985, pp. 1-101; A. Gómez Robledo, op. cit. infra n. (11), pp.
30-39.
6 Francisco de Vitoria, De Indis – Relectio Prior (1538-1539), in: Obras de Francisco de
Vitoria – Relecciones Teológicas (ed. T. Urdanoz), Madrid, BAC, 1960, p. 675.
7 J. Brown Scott, The Spanish Origin of International Law – Francisco de Vitoria and
his Law of Nations, Oxford/London, Clarendon Press/H. Milford – Carnegie En-
dowment for International Peace, 1934, pp. 282-283, 140, 150, 163-165, 170 and 172.
8 F. de Vitoria, La Ley (De Lege – Commentarium in Primam Secundae), Madrid, Tec-
nos, 1995, pp. 5, 23 and 77.
The Legal Personality of the Individual as Subject of International Law 215
itself, but rather a means to secure the legal order “consonant with human intel-
ligence”, so as to improve “common society which embraces all mankind”.9 The
subjects have rights vis-à-vis the sovereign State, which cannot demand obedi-
ence from its citizens in an absolute way (imperative of the common good); thus,
in the vision of Grotius, the raison d’État has limits, and the absolute conception
of this latter is inapplicable in the international as well as internal relations of
the State. In Grotian thinking, every legal norm – whether of domestic law or of
the law of nations – creates rights and duties for the persons addressed to.10 Even
before Grotius, Alberico Gentili (author of De Jure Belli, 1598) sustained, by the
end of the XVIth century, that it is Law that regulates the relationships among
the members of the universal societas gentium.11 In his De Jure Belli Libri Tres
(1612), A. Gentili held that the law of nations was “established among all human
beings”, being “observed by all mankind”.12
One is thus to bear always in mind the true legacy of the Grotian tradition
of international law. The international community cannot pretend to base itself
on the voluntas of each State individually. In face of the historical necessity to
regulate the relations among the emerging States, Grotius sustained that interna-
tional relations are subject to legal norms, and not to the “raison d’État”, which is
incompatible with the existence itself of the international community: this latter
cannot exist without Law.13 The human person and his well-being occupy a cen-
tral position in the system of international relations. In this line of thinking, also
Samuel Pufendorf (author of the De Jure Naturae et Gentium, 1672) sustained
likewise “the subjection of the legislator to the higher law of human nature and
of reason”.14 Pufendorf founded International Law on natural law, envisaging it as
a great system of universal law “embracing even private law”.15
On his turn, Christian Wolff (author of Jus Gentium Methodo Scientifica
Pertractatum, 1749), pondered that, just as individuals ought to, in their associa-
tion in the State, promote the common good, in its turn the State has the correla-
9 P.P. Remec, The Position of the Individual in International Law according to Grotius
and Vattel, The Hague, Nijhoff, 1960, pp. 216 and 203.
10 Ibid., pp. 219-220, 217, 243 and 221. And cf., on his conception of jus gentium, H.
Grotius, De Jure Belli ac Pacis (1625), The Hague, Nijhoff, 1948, pp. 6, 10 and 84-85.
11 A. Gómez Robledo, Fundadores del Derecho Internacional, México, UNAM, 1989,
pp. 48-55.
12 A. Gentili, De Jure Belli Libri Tres (1612), vol. II, Oxford/London, Clarendon Press/
H. Milford – Carnegie Endowment for International Peace, 1933, p. 8.
13 Cf., in this respect, the classic essay by Hersch Lauterpacht, “The Grotian Tradition
in International Law”, 23 British Year Book of International Law (1946) pp. 1-53.
14 Accordingly, the standards of justice applied vis-à-vis the States as well as the indi-
viduals; Hersch Lauterpacht, “The Law of Nations, the Law of Nature and the Rights
of Man”, 29 Transactions of the Grotius Society (1943) pp. 7 and 21-31, esp. p. 26.
15 H. Wehberg, “Introduction”, in S. Pufendorf, Elementorum Jurisprudentiae Univer-
salis Libri Duo (1672), vol. II, Oxford/London, Clarendon Press/H. Milford – Carn-
egie Endowment for International Peace, 1931, pp. XIV, XVI and XXII.
216 Chapter IX
tive duty to seek its perfection.16 Stressing that the law of nations was necessary
rather than voluntary, Wolff defined it as “the science of that law which nations
or peoples use in their relations with each other and of the obligations corre-
sponding thereto”; it “binds nations in conscience”, in order to preserve society
composed of individuals, and to promote the common good.
Wolff stressed that, just as all individuals were free and equal, all nations
likewise were “by nature equal the one to the other”; and he added that “since by
nature all nations are equal, since moreover all men are equal in a moral sense
whose rights and obligations are the same, the rights and obligations of all na-
tions are also by nature the same”.17 Already in the presentation of his treatise,
Wolff wrote with clarity that natural law
“controls the acts of individual men as well as those of nations also, by prescribing
duties both toward themselves and toward each other. And just as it has united in-
dividual men to each other (...) and has established among them a certain society, so
that man is necessary to man (...); so (...) has it united nations, (...) so that nation is
necessary to nation (...). Therefore the entire human race is likened to a living body
(...), and it retains unimpaired health so long as the individual members perform
their functions properly”.18
However, the illuminating thoughts and vision of the so-called founding fathers
of International Law, which conceived it as a truly universal system, regrettably
came to be gradually surpassed by new doctrinal constructions, and mainly by
the emergence of legal positivism. Yet, even with the early emergence of this lat-
ter, doctrinal constructions such as that of Cornelius van Bynkershoek (De Foro
Legatorum, 1721; Questiones Juris Publici – Libri Duo, 1737) continued to uphold
a multiplicity of subjects of jus gentium. To Bynkershoek, e.g., those subjects were
mainly the nations (gentes), but also peoples and other “persons of free will” (in-
ter volentes); legal subjectivity, to him, embraced all those who acted in the field
16 C. Sepúlveda, Derecho Internacional, 13th. ed., Mexico, Ed. Porrúa, 1983, pp. 28-
29. Wolff beheld nation-States as members of a civitas maxima, a concept which
Emmerich de Vattel (author of Le Droit des Gens, 1758), subsequently, invoking the
necessity of “realism”, pretended to replace by a “society of nations” (a less advanced
concept); cf. F.S. Ruddy, International Law in the Enlightenment – The Background
of Emmerich de Vattel’s Le Droit des Gens, Dobbs Ferry/N.Y., Oceana, 1975, p. 95; for
a criticism to this step backwards (incapable of laying the foundation of the princi-
ple of obligation in International Law), cf. J.L. Brierly, The Law of Nations, 6th. ed.,
Oxford, Clarendon Press, 1967 [reprint], pp. 38-40.
17 C. Wolff, Jus Gentium Methodo Scientifica Pertractatum (edition of 1764), vol. II,
Oxford/London, Clarendon Press/H. Milford – Carnegie Endowment for Interna-
tional Peace, 1934, pp. 9-11, 13 and 15-16.
18 Ibid., p. 3.
of jus gentium of his times, and, to approach this latter, resort was to some extent
still made to ratio.19
The beginning of the personification of the State – in fact, of the modern
theory of the State – in the domain of International Law took place, in the mid-
XVIII century, with the work of E. de Vattel (Le Droit des gens ou Principes de la
loi naturelle appliquée à la conduite et aux affaires des nations et des souverains,
1758), which was to have much repercussion in the international legal practice of
his times. The emphasis on State personality and sovereignty led to the concep-
tion of an International Law applicable strictly to the relations among States (the
jus inter gentes, rather than the jus gentium), that is, an inter-State legal order; it
amounted to a reductionist outlook of the subjects of the law of nations, admit-
ting only and exclusively the States as such.20
Subsequently (late XIXth century onwards), legal positivism wholly per-
sonified the State, endowing it with a “will of its own”, and reducing the rights of
human beings to those which the State “conceded” to them. The consent of the
“will” of the States (according to the voluntarist positivism) was erected into the
alleged predominant criterion in International Law, denying jus standi to the in-
dividuals, to the human beings; this rendered difficult a proper understanding of
the international community, and undermined International Law itself, reducing
its dimension to that of a strictly inter-State law, no more above but rather among
sovereign States.21 In fact, when the international legal order moved away from
the universal vision of the so-called “founding fathers” of the law of nations (droit
des gens – supra), successive atrocities were committed against human beings,
against humankind. The disastrous consequences of this historical distortion are
widely known.
III. The Attempted Exclusion of the Individual from the International

Legal Order
The personification of the all-powerful State, inspired mainly in the philosophy
of law of Hegel, had a harmful influence in the evolution of International Law by
the end of the XIXth century and in the first decades of the XXth century. This
doctrinal trend resisted as much as it could to the ideal of emancipation of the
human being from the absolute control of the State, and to the recognition of
the individual as subject of International Law. But the individual’s submission to
the will of the State was never convincing to all, and it soon became openly chal-
lenged by the more lucid doctrine.
Already in the late twenties, the negative outlook of individuals from the
perspective of Hegelian legal philosophy, whereby the State was a supreme ideal
19 K. Akashi, Cornelius van Bynkershoek: His Role in the History of International Law,
The Hague, Kluwer, 1998, pp. 56-59, 174-175 and 178-179, and cf. pp. 68-69.
20 Cf., e.g., E. Jouannet, Emer de Vattel et l’émergence doctrinale du Droit international
classique, Paris, Pédone, 1998, pp. 255, 311, 318-319, 344 and 347.
21 P.P. Remec, The Position of the Individual..., op. cit. supra n. (9), pp. 36-37.
218 Chapter IX
and an end in itself, endowed with a power subject only to its own “will”, was
severely criticized as an obstacle to the achievement of the civitas maxima gen-
tium.22 In opposition to that reactionary position stood, among others, early in
the XXth century, Jean Spiropoulos, in a luminous monograph titled L’individu
en Droit international, published in Paris in 1928: contrary to what ensued from
the Hegelian doctrine, – he pondered, – the State is not a supreme ideal subject
only to its own “will”, is not an end in itself, but rather “a means of realization of
the vital aspirations and necessities of the individuals”, it being, thus, necessary
to protect the human being against the violation of his rights by his own State.23
To him, the gradual emancipation of the individual from the tutelage of the all-
powerful State imposed itself as “a necessary consequence of the evolution of the
international organization” of the new times.24
N. Politis, likewise, was an early and eloquent supporter of the recognition
of the international legal personality of individuals, who were the final address-
ees of all Law.25 Positivism, in turn, appeared subservient to the established legal
order, and endorsed the abuses praticed in the name of this latter. But already
in the mid-XXth century, the most enlightened international legal doctrine was
taking definitively a distance from the Hegelian and neo-Hegelian formulations
of the State as a final repository of the freedom and responsibility of the individu-
als who composed it, and which entirely integrated themselves in it.26
The old polemics, sterile and pointless, between monists and dualists,
erected upon false premises, not surprisingly failed to contribute to the doctri-
nal endeavours in favour of the emancipation of the human being vis-à-vis his
own State. In fact, what both dualists and monists did, in this particular, was to
“personify” the State as subject of International Law. While monists discarded
all anthropomorfism, affi rming the international subjectivity of the State by an
22 J. Spiropoulos, “L’individu et le droit international”, 30 RCADI (1929) pp. 258 and

266; and cf. also J. de Soto, “L’individu comme sujet du droit des gens”, in La tech-
nique et les principes du Droit public – Études en l’honneur de G. Scelle, vol. II, Paris,
LGDJ, 1950, pp. 687-716.
23 J. Spiropoulos, L’individu en Droit international, Paris, LGDJ, 1928, pp. 66, 33 and 55,
and cf. p. 19; an evolution to this effect, he added, would have to bring us closer to
the ideal of the civitas maxima.
24 Ibid., pp. 42-43 and 65.
25 Cf. N. Politis, Les nouvelles tendances du Droit international, Paris, Libr. Hachette,
1927, pp. 76-77, 82-83 and 89-90.
26 W. Friedmann, The Changing Structure of International Law, London, Stevens, 1964,
p. 247.
analysis of the juridical person,27 dualists28 did not contain themselves in their
excesses of characterization of the States as sole subjects of International Law.29
A whole doctrinal trend, of traditional positivism,30 maintained that only the
States were subjects of Public International Law.31 Against this vision emerged
an opposite trend,32 sustaining, a contrario sensu, that ultimately only the indi-
viduals, addressees of all juridical norms, were subjects of International Law (cf.
infra). The idea of absolute State sovereignty, – which led to the irresponsibility
and the alleged omnipotence of the State, not impeding the successive atroci-
ties committed by it (or in its name) against human beings, – appeared with the
passing of time entirely unfounded. The State – it is nowadays acknowledged – is
responsible for all its acts – both jure gestionis and jure imperii – as well as for all
its omissions. Created by human beings themselves, composed by them, it exists
for them, for the realization of the common good. In case of violation of human
rights, the direct access of the individual to the international jurisdiction is thus
fully justified, to vindicate such rights, even against his own State.33
27 Cf. C.Th. Eustathiades, “Les sujets du Droit international et la responsabilité inter-

nationale – Nouvelles tendances”, 84 RCADI (1953) pp. 405-406.
28 Such as H. Triepel and D. Anzilotti mainly.
29 For a criticism of the incapacity of the dualist theory to explain the access of indi-
viduals to international jurisdiction, cf. P. Reuter, “Quelques remarques sur la situ-
ation juridique des particuliers en Droit international public”, in La technique et
les principes du Droit public – Études en l’honneur de G. Scelle, vol. II, Paris, LGDJ,
1950, pp. 542-543 and 551.
30 Formed, besides Triepel and Anzilotti, also by K. Strupp, E. Kaufmann, R. Redslob,
among others.
31 The same posture was adopted by the old Soviet doctrine of International Law, with
emphasis on the so-called inter-State “peaceful coexistence”; cf., e.g., Y.A. Korovin,
S.B. Krylov, et alii, International Law, Moscow, Academy of Sciences of the USSR/
Institute of State and Law, [s/d], pp. 93-98 and 15-18; G.I. Tunkin, Droit international
public – problèmes théoriques, Paris, Pédone, 1965, pp. 19-34.
32 As from the publication, in 1901, of the book by Léon Duguit L’État, le droit objectif
et la loi positive, – formed by G. Jèze, H. Krabbe, N. Politis and G. Scelle, among oth-
ers.
33 S. Glaser, “Les droits de l’homme à la lumière du droit international positif”, in Mé-
langes offerts à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964, pp. 117-
118, and cf. pp. 105-106 and 114-116; A.A. Cançado Trindade, El Acceso Directo del
Individuo a los Tribunales Internacionales de Derechos Humanos, Bilbao, Universi-
dad de Deusto, 2001, pp. 9-104.
220 Chapter IX
IV. The Individual’s Presence and Participation in the International

Legal Order
The individual is, thus, subject of both domestic and international law.34 In fact,
he has always remained in contact, directly or indirectly, with the international
legal order. In the inter-war period, the experiments of the minorities35 and man-
dates 36 systems under the League of Nations, for example, bear witness thereof.37
They were followed, in that regard, by the trusteeship system38 under the United
Nations era, parallel to the development under this latter, along the years, of the
multiple mechanisms – conventional and extraconventional – of international
protection of human rights. Those early experiments in the XXth century were
of relevance for subsequent developments in the international safeguard of the
rights of the human person.39
To that effect of evidencing and reasserting the constant contact of the in-
dividual with the international legal order, the considerable evolution in the last
decades not only of the International Law of Human Rights but likewise of In-
ternational Humanitarian Law, has contributed decisively. Th is latter likewise
considers the protected persons not only as simple object of regulation that they
34 On the historical evolution of the legal personality in the law of nations, cf. H.
Mosler, “Réflexions sur la personnalité juridique en Droit international public”, in
Mélanges offerts à H. Rolin – Problèmes de droit des gens, Paris, Pédone, 1964, pp.
228-251; G. Arangio-Ruiz, Diritto Internazionale e Personalità Giuridica, Bologna,
Coop. Libr. Univ., 1972, pp. 9-268; G. Scelle, “Some Reflections on Juridical Person-
ality in International Law”, in Law and Politics in the World Community (ed. G.A.
Lipsky), Berkeley/L.A., University of California Press, 1953, pp. 49-58 and 336; J.A.
Barberis, “Nouvelles questions concernant la personnalité juridique internationale”,
179 RCADI (1983) pp. 157-238.
35 Cf., e.g., P. de Azcárate, League of Nations and National Minorities: An Experiment,
Washington, Carnegie Endowment for International Peace, 1945, pp. 123-130; J.
Stone, International Guarantees of Minorities Rights, Oxford, University Press, 1932,
p. 56; A.N. Mandelstam, “La protection des minorités”, 1 RCADI (1923) pp. 363-519.
36 Cf., e.g., G. Diena, “Les mandats internationaux”, 5 RCADI (1924) pp. 246-261; N.
Bentwich, The Mandates System, London, Longmans, 1930, p. 114; Quincy Wright,
Mandates under the League of Nations, Chicago, University Press, 1930, pp. 169-
172.
37 C.A. Norgaard, The Position of the Individual in International Law, Copenhagen,
Munksgaard, 1962, pp. 109-131.
38 Cf., e.g., C.E. Toussaint, The Trusteeship System of the United Nations, London, Ste-
vens, 1956, pp. 39, 47 and 249-250; J. Beauté, Le droit de pétition dans les territoires
sous tutelle, Paris, LGDJ, 1962, pp. 48-136; G. Vedovato, “Les accords de tutelle”, 76
RCADI (1950) pp. 613-694.
39 Cf., e.g., C.Th. Eustathiades, “Une nouvelle expérience en Droit international – Les
recours individuels à la Commission des droits de l’homme”, in Grundprobleme des
internationalen Rechts – Festschrift für J. Spiropoulos, Bonn, Schimmlebusch, 1957,
pp. 111-137, esp. pp. 77 and 121 n. 32.
establish, but rather as true subjects of International Law.40 This is what clearly
ensues from the fact that the four Geneva Conventions plainly prohibit to the
States Parties to derrogate – by special agreements – from the rules enunciated
in them and in particular to restrict the rights of the persons protected set forth
in them.41 In effect, the impact of the norms of the International Law of Human
Rights has, in turn, been having already for a long time repercussions in the cor-
pus juris and application of International Humanitarian Law.42 Thus, Interna-
tional Humanitarian Law gradually frees itself from a purely inter-State obsolete
outlook, giving an increasingly greater emphasis – in the light of the principle of
humanity – to the protected persons and to the responsibility for the violation
of their rights.43
The attempts of the past to deny to individuals the condition of subjects of
International Law, for not being recognized to them some of the capacities which
States have (such as, e.g., that of treaty-making), are definitively devoid of any
meaning. Nor at domestic law level, not all individuals participate, directly or
indirectly, in the law-making process, and they do not thereby cease to be sub-
jects of law. That doctrinal trend, attempting to insist on such a rigid definition
of international subjectivity, conditioning this latter to the very formation of in-
ternational norms and compliance with them, simply does not sustain itself, not
even at the level of domestic law, in which it is not required – it has never been
– from all individuals to participate in the creation and application of the legal
norms in order to be subjects (titulaires) of rights, and to be bound by the duties,
enmanated from such norms.
Besides unsustainable, that conception appears contaminated by an omi-
nous ideological dogmatism, which had as the main consequence to alienate the
individual from the international legal order. It is surprising – if not astonishing,
– besides regrettable, to see that conception repeated mechanically and ad nau-
seam by a doctrinal trend, apparently trying to make believe that the intermedi-
ary of the State, between the individuals and the international legal order, would
40 It is what ensues, e.g., from the position of the four Geneva Conventions on In-
ternational Humanitarian Law of 1949, erected as from the rights of the protected
persons (e.g., III Convention, Articles 14 and 78; IV Convention, Article 27).
41 I, II and III Geneva Conventions, Article 6; and IV Geneva Convention, Article 7.
Cf. S. Glaser, op. cit. supra n. (33), p. 123. In fact, as early as in the passage from the
XIXth to the XXth century, the fi rst Conventions on International Humanitarian
Law expressed concern for the fate of human beings in armed confl icts, thus recog-
nizing the individual as direct beneficiary of the international conventional obliga-
tions.
42 Cf. chapter XXIII, infra, on their approximations and convergences, contributing to
improve and strengthen the condition of the individual as titulaire of rights inher-
ent to him in any circumstances.
43 Th. Meron, “The Humanization of Humanitarian Law”, 94 American Journal of In-
ternational Law [AJIL] (2000) pp. 239-278. On the historical roots of this develop-
ment, cf. E.W. Petit de Gabriel, Las Exigencias de Humanidad en el Derecho Inter-
nacional Tradicional (1789-1939), Madrid, Tecnos, 2003, pp. 149, 171 and 210.
222 Chapter IX
be something inevitable and permanent. Nothing could be more fallacious. In

the brief historical period in which that Statist conception prevailed, in the light
– or, more precisely, in the darkness – of legal positivism, successive atrocities
were committed against the human being, in a scale without precedents.
It results quite clear today that there is nothing intrinsic to International
Law that impedes or renders it impossible to non-State actors to enjoy inter-
national legal personality. No one in sane conscience would today dare to deny
that the individuals effectively possess rights and obligations which emananate
directly from International Law, with which they find themselves, therefore, in
direct contact. And it is perfectly possible to conceptualize – even with great-
er precision – as subject of International Law any person or entity, titulaire of
rights and obligations, which emanate directly from norms of International Law.
It is the case of the individuals, who thus have strengthened this direct contact
– without intermediaries – with the international legal order. The international
movement in favour of human rights, launched by the Universal Declaration of
Human Rights of 1948, came to dismiss the aforementioned false analogies, and
to overcome traditional distinctions (e.g., on the basis of nationality): subjects of
law are all human beings as members of the “universal society”.44
Moreover, individuals and non-governmental organizations (NGOs) assume
nowadays an increasingly relevant role in the formation itself of opinio juris com-
munis.45 NGOs have gained considerable visibility throughout the recent cycle of
U.N. World Conferences (1992-2001), by their presence and lobbying in the Con-
ferences themselves46 or by their articulation in their own forums parallel to such
Conferences.47 In recent years, they have been entitled to present on a regular
44 R. Cassin, “L’homme, sujet de droit international et la protection des droits de

l’homme dans la société universelle”, in La technique et les principes du Droit pub-
lic..., op. cit. supra n. (29), vol. I, pp. 81-82.
45 At global level, Article 71 of the U.N. Charter has served as basis to the advisory
status of NGOs acting in the ambit of the U.N., and resolution 1996/31, of 26.07.1996,
of the U.N. Economic and Social Council (ECOSOC), regulates in detail the rela-
tions between the U.N. and NGOs with advisory status (providing the framework
for accreditation of these latter). At regional level, the Permanent Council of the
Organization of American States (OAS) has issued directives (on 15.12.1999) govern-
ing the participation of NGOs and other entities of civil society in OAS activities;
ever since they have appeared regularly before the Council and other OAS organs.
And the European Convention on Recognition of the Legal Personality of Interna-
tional Non-Governmental Organizations (of 24.04.1986), on its turn, provides for
the constitutive elements of the NGOs (Article 1) and for the ratio legis of their legal
personality and capacity (Article 2).
46 The Rules of Procedure of the Preparatory Committee to the U.N. World Confer-
ence against Racism, Racial Discrimination, Xenophobia and Related Intolerance
(Durban, 2001), e.g., contained a provision (Rule 66) which regulated the participa-
tion of NGOs directly in its own work (as from May 2000).
47 For my personal recollections of the World NGO Forum parallel to the U.N. II World
Conference on Human Rights (Vienna, 1993), cf. A.A. Cançado Trindade, Tratado
basis their amici curiae before international tribunals such as the Inter-Ameri-
can and the European Courts of Human Rights, and the ad hoc International
Criminal Tribunals for the Former Yugoslavia and for Rwanda.
In recent years, individuals and NGOs have effectively participated in the
travaux préparatoires of certain international treaties, or influenced them,48
such as, e.g., the 1984 U.N. Convention against Torture and its 2002 Optional
Protocol, the 1989 U.N. Convention on the Rights of the Child, the 1991 Madrid
Protocol (to the 1959 Antarctica Treaty) on Environmental Protection in the Ant-
arctica, the 1997 Ottawa Convention on the Prohibition of Anti-Personnel Mines
and on Their Destruction, the 1998 Rome Statute of the International Criminal
Court, and the 2005 UNESCO Convention on the Protection and Promotion of
the Diversity of Cultural Expressions, – and subsequently in the monitoring of
their implementation.
The growing performance, at international level, of NGOs and other entities
of civil society has had an inevitable impact in the theory of the subjects of In-
ternational Law, contributing to render individuals not only direct beneficiaries
(without intermediaries) of the international norms, but true subjects of Inter-
national Law, and to put an end to the purely inter-State anachronistic dimen-
sion of this latter; moreover, their activities have contributed to the prevalence of
superior common values in the ambit of International Law.49 Individuals, NGOs
and other entities of civil society come, thus, to act in the process of formation as
well as application of international norms.50
This is symptomatic of the democratization of international relations, paral-
lel to a growing conscientization of the multiple subjects of law operating at inter-
national level in pursuance of universal values. Taking into account the presence
in the contemporary international legal order not only of States and international
organizations but also of individuals (however differentiated their legal status
de Direito Internacional dos Direitos Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil,
S.A. Fabris Ed., 2003, pp. 220-231; and cf. also M. Nowak (ed.), World Conference on
Human Rights (Vienna, June 1993) – The Contribution of NGOs, Reports and Docu-
ments, Wien, Manzsche Verlags- und Universitätsbuchhandlung, 1994, pp. 1-231.
48 Cf. G. Breton-Le Goff, L’influence des organisations non gouvernementales (ONG)
sur la négotiation de quelques instruments internationaux, Bruxelles, Bruylant/Éd.
Y. Blais, 2001, pp. 33, 58, 60, 143-144 and 191-192; R. Wedgwood, “Legal Personality
and the Role of Non-Governmental Organizations and Non-State Political Entities
in the United Nations System”, in Non-State Actors as New Subjects of International
Law (Proceedings of the Kiel Symposium of 1998, eds. R. Hofmann and N. Geissler),
Berlin, Duncker & Humblot, 1999, pp. 25-26; P. Klein, “Les Nations Unies, les États
et la société civile: la place et le rôle des organisations non gouvernementales au sein
de l’ONU”, in La démocratisation du système des Nations Unies (Colloque d’Aix-en-
Provence de 2000, ed. R. Mehdi), Paris, Pédone, 2001, pp. 106-107.
49 R. Ranjeva, “Les organisations non-gouvernementales et la mise-en-oeuvre du Droit
international”, 270 RCADI (1997) pp. 22, 50, 67-68, 74 and 101-102.
50 M. Bettati and P.-M. Dupuy, Les O.N.G. et le Droit international, Paris, Economica,
1986, pp. 1, 16, 19-20, 252-261 and 263-265.
224 Chapter IX
might be), the Greek jurist Emmanuel Roucounas sustained that this is indicative
of the rule of law in the international community, and rightly added that
“la préséance du droit traverse États, organisations et individus, et requiert ainsi

l’action de toutes les composantes, identifiées aussi clairement que possible, de la
communauté internationale”.51
In sum, the very process of formation and application of the norms of Inter-
national Law ceases to be a monopoly of the States. Furthermore, beyond the
individual’s presence and participation in the international legal order, to the
recognition of his rights, as subject of International Law, ought to correspond
the procedural capacity to vindicate them at international level. It is by means of
the consolidation of the full international procedural capacity of individuals that
the international protection of human rights becomes reality.52 But even if, by
the circumstances of life, certain individuals (e.g., children, the mentally ill, aged
persons, among others) cannot fully exercise their capacity (e.g., in civil law),
this does not mean that they cease to be titulaires of rights, opposable even to
the State. Irrespective of the circumstances, the individual is subject jure suo of
International Law, as sustained by the more lucid doctrine since the writings of
the so-called founding fathers of the discipline.53 Human rights were conceived
as inherent to every human being, independently of any circumstances.
V. The Rescue of the Individual as Subject of International Law

Although the contemporary international scenario is entirely distinct from that
of the epoch of the so-called founding fathers of International Law (supra), who
propounded a civitas maxima ruled by the law of nations (droit des gens), there is
a recurrent human aspiration, transmitted from one generation to another, along
the last centuries, to the effect of the construction of an international legal order
applicable both to States (and international organizations) and to individuals,
pursuant to certain universal standards of justice. The continuous “rebirth” of
natural law, already referred to,54 reinforces the universality of human rights, as
inherent to all human beings, – in contraposition to positive norms, which lack
51 E. Roucounas, “Facteurs privés et Droit international public”, 299 RCADI (2002) p.

61, and cf. pp. 136-137 and 389-391.
52 Cf. A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Inter-
nacionales..., op. cit. supra n. (33), pp. 17-96; A.A. Cançado Trindade, “Vers la con-
solidation de la capacité juridique internationale des pétitionnaires dans le système
interaméricain des droits de la personne”, 14 Revue québécoise de Droit interna-
tional (2001) n. 2, pp. 207-239.
53 P.N. Drost, Human Rights as Legal Rights, Leyden, Sijthoff, 1965, pp. 226-227, and cf.
pp. 223 and 215.
54 Cf. chapter V, supra.
universality, for varying from one social milieu to another.55 Hence the relevance
of the international legal personality of the individual (as titulaire of rights), also
as a limit to the arbitrary manifestations of State power. The eternal return or
“rebirth” of jusnaturalism has much contributed to the assertion and the consoli-
dation of the primacy, in the order of values,56 of State obligations as to human
rights, and of the recognition of their necessary compliance vis-à-vis the inter-
national community as a whole.57 This latter, witnessing the moralization of Law
itself, assumes the vindication of common superior interests.58 One has gradually
turned to conceive a truly universal legal system.
Still under the impact of the II world war, international legal experts ac-
knowledged the need to reconstruct International Law on the basis of the recog-
nition of the condition of the individual as its subject and of his access to interna-
tional justice. The human person was the reason and ultimate end of all law, and
only thereby would it be possible to “régénérer le droit international sur une base
à la fois morale et juridique”.59 In a report to the Institut de Droit International
(Lausanne session) in 1947, Charles de Visscher stressed the close connection
between human rights and natural law in the framework of the historical evolu-
tion of jus gentium.60
55 Vicente Ráo, O Direito e a Vida dos Direitos, 5th. ed., São Paulo, Ed. Rev. Tribs., 1999,
pp. 85, 101 and 641. And cf. A. Truyol y Serra, “Théorie du Droit international public
– Cours général”, 183 RCADI (1981) pp. 142-143.
56 Gustav Radbruch, particularly sensitive – above all in the mature age – to the value
of justice, summed up the diverse conceptions of natural law as disclosing the fol-
lowing common fundamental features: fi rst, they all provide certain “judgments of
juridical value with a given content”; second, such judgments, which are universal
ones, have always as source, nature, or revelation, or reason; third, such value judg-
ments are “accessible to rational knowledge”; and fourth, such judgments have pri-
macy over positive laws contrary to them; in sum, “natural law ought to prevail al-
ways over positive law”. G. Radbruch, Filosofia do Direito, vol. I, Coimbra, A. Amado
Ed., 1961, p. 70.
58 R.-J. Dupuy, “Communauté internationale et disparités de développement – Cours
général de Droit international public”, 165 RCADI (1979) pp. 190, 193 and 202.
59 Ch. de Visscher, “Les droits fondamentaux de l’homme, base d’une restauration
du Droit international – Rapport”, in Annuaire de l’Institut de Droit International
(1947) p. 9. And cf. M. Pilotti, “Le recours des particuliers devant les juridictions
internationales”, in Grundprobleme des internationalen Rechts – Festschrift für J.
Spiropoulos, Bonn, Schimmelbusch, [1957], p. 351.
60 Ch. de Visscher, “Les droits fondamentaux de l’homme...”, op. cit. supra n. (59), pp.
3-4. The individual, as subject of International Law on his own right, was certainly
distinguishable from his own State, and a wrong done to him was a breach of classi-
cal jus gentium, as universal minimal law; C. Parry, “Some Considerations upon the
Protection of Individuals in International Law”, 90 RCADI (1956) pp. 686-688 and
697-698.
226 Chapter IX
The early international experiments which for decades had been granting
international procedural capacity to the individuals (such as the minorities,
mandates and trusteeship systems, supra) reflected, in fact, the recognition of
superior common values consubstantiated in the imperative of protection of the
human being in any circumstances. The whole new corpus juris of the Interna-
tional Law of Human Rights has been constructed on the basis of the imperatives
of protection and the superior interests of the human being, irrespectively of his
link of nationality or of his political statute, or any other situation or circum-
stance. Hence the importance assumed, in this new law of protection, by the
legal personality of the individual, as subject of both domestic and international
law. The application and expansion of the International Law of Human Rights,
in turn, has repercussions, not surprisingly, and with a sensible impact, in the
trends of contemporary Public International Law.61
As contemporary Public International Law recognizes rights and duties to
the individuals (as evidenced by the international instruments of human rights),
one cannot deny them international personality, without which that recognition
could not take place. In recognizing rights inherent to every human being, In-
ternational Law dismisses the archaic positivist dogma which pretended to re-
duce those rights to those “granted”, in an authoritarian way, by the State. The
recognition of the individual as subject of both domestic and international law,
endowed in both with full procedural capacity (cf. infra), represents a true juridi-
cal revolution, conferring an ethical content upon the norms of both domestic
public law and International Law.
In fact, already in the first decades of the XXth century one recognized the
manifest inconveniences of the protection of the individuals by the intermediary
of their respective States of nationality, that is, by the exercise of discretionary
diplomatic protection, which rendered the “complaining” States at a time “judges
and parties”. One started, as a consequence, to overcome such inconveniences,
to nourish the idea of the direct access of the individuals to the international ju-
risdiction, under certain conditions, to vindicate their rights against States, – a
theme which came to be effectively considered by the Institut de Droit Interna-
tional in its sessions of 1927 and 1929.
In a monograph published in 1931, the Russian jurist André Mandelstam
warned as to the necessity of the recognition of a juridical minimum – with the
primacy of International Law and of human rights over the State legal order,
– below which the international community should not allow the State to fall.
In his vision, the “horrible experience of our time” demonstrated the urgency of
the necessary acknowledgement of this juridical minimum, to put an end to the
61 Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Hu-
manos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 33-50, and vol.
II, 1999, pp. 23-194; A.A. Cançado Trindade, O Direito Internacional em um Mundo
em Transformação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1048-1109; A.A. Cançado
Trindade, El Derecho Internacional de los Derechos Humanos en el Siglo XXI, San-
tiago, Editorial Jurídica de Chile, 2001, pp. 15-58 and 375-427.
“unlimited power” of the State over the life and the freedom of its citizens, and to
the “complete impunity” of the State in breach of the “most sacred rights of the
individual”.62
In his celebrated Précis du Droit des Gens (1932-1934), Georges Scelle criti-
cized the fiction of the contraposition of an “inter-State society” to a (national)
society of individuals: one and the other – he pondered – are formed by individu-
als, subjects of domestic law and of International Law, whether they are individu-
als moved by private interests, or else endowed with public functions (rulers and
public officials) in charge of looking after the interests of national and interna-
tional collectivities.63 G. Scelle then identified “the movement of extension of the
legal personality of individuals”, by means of the emergence of the right of indi-
vidual petition at international level, which led him to conclude that
“Les individus sont à la fois sujets de droit des collectivités nationales et de la col-
lectivité internationale globale: ils sont directement sujets de droit des gens”.64
Very early in Latin America the international legal doctrine flourished on a hu-
manist basis. Thus, already in the XIXth century, in his pioneering work on Prin-
ciples of International Law (1832), Andrés Bello founded International Law on
natural law, which, applied to nations,
“considered the human kind (...) as a great society of which each of them was mem-
ber, and in which some in respect of others have the same duties than the individu-
als of the human species inter se”.65
Also in the American continent, in the XXth century, even before the adoption
of the American and Universal Declarations of Human Rights of 1948, doctrinal
manifestations flourished in favour of the international juridical personality of
the individuals, such as those which are found, for example, in the writings of
62 A.N. Mandelstam, Les droits internationaux de l’homme, Paris, Éds. Internation-

ales, 1931, pp. 95-96 and 138, and cf. p. 103.
63 G. Scelle, Précis de Droit des Gens – Principes et systématique, part I, Paris, Libr.
Rec. Sirey, 1932 (CNRS reprint, 1984), pp. 42-44.
64 Ibid., p. 48. – Also singling out the importance of the attribution to individuals of
international personality and remedies for the protection of their rights, cf. Lord
McNair, Selected Papers and Bibliography, Leiden/N.Y., Sijthoff/Oceana, 1974, pp.
329 and 249; A. Gonçalves Pereira and F. de Quadros, Manual de Direito Internac-
ional Público, 3rd. rev. ed., Coimbra, Almedina, 1995, p. 405, and cf. pp. 381-408.
65 A. Bello, Principios de Derecho Internacional (1832), 3rd. ed., Paris, Libr. Garnier
Hermanos, 1873, pp. 11-12.
228 Chapter IX
Alejandro Álvarez66 and Hildebrando Accioly.67 And Philip Jessup, in 1948, pon-
dered that the old conception of State sovereignty was not consistent with the
higher interests of the international community and the status of the individual
as subject of International Law.68
In Europe, Hersch Lauterpacht, in a substantial work published in 1950, did
not hesitate to assert that “the individual is the final subject of all law”, there being
nothing inherent to international law impeding him to become subject of the law
of nations and to become a party in proceedings before international tribunals.69
On his turn, in a perspicatious essay, published also in 1950, Maurice Bourquin
pondered that the growing concern of the International Law of the epoch with
the problems which affected directly the human being revealed the overcoming
of the old exclusively inter-State vision of the international legal order.70
In his course delivered at the Hague Academy of International Law, three
years later, in 1953, Constantin Eustathiades linked the international subjectivity
of the individuals to the broad theme of the international responsibility (of them,
parallel to that of the States). As a reaction of the universal juridical conscience,
the recognition of the rights and duties of the individual at international level,
and his capacity to act in order to defend his rights, are linked to his capacity
to commit an international delict; international responsibility thus comprises,
in his vision, both the protection of human rights as well as the punishment of
war criminals (forming a whole).71 This development heralded the emancipation
of the individual from the tutelage of his own State; thus, one cannot deny the
individual’s condition of subject of International Law.72
66 A. Álvarez, La Reconstrucción del Derecho de Gentes – El Nuevo Orden y la Reno-

vación Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 46-47 and 457-463, and
cf. pp. 81, 91 and 499-500.
67 H. Accioly, Tratado de Direito Internacional Público, vol. I, 1st. ed., Rio de Janeiro,
Imprensa Nacional, 1933, pp. 71-75. -And cf. also, to the same effect, Levi Carneiro,
O Direito Internacional e a Democracia, Rio de Janeiro, A. Coelho Branco Fo. Ed.,
1945, pp. 121 and 108, and cf. pp. 113, 35, 43, 126, 181 and 195.
68 Ph.C. Jessup, A Modern Law of Nations – An Introduction, New York, MacMillan
Co., 1948, p. 41.
69 H. Lauterpacht, International Law and Human Rights, London, Stevens, 1950, pp.
69, 61 and 51, and cf. p. 70. Such recognition of the individual as subject of rights also
at international law level brings about a clear rejection of the old positivist dogmas,
discredited and unsustainable, of the dualism of subjects in the domestic and inter-
national orders, and of the “will” of States as exclusive “source” of International Law;
cf. ibid., pp. 8-9. On the “natural right” of petition of individuals, exercised also in
the general interest, cf. ibid., pp. 247-251, and cf. pp. 286-291 and 337.
70 M. Bourquin, “L’humanisation du droit des gens”, in La technique et les principes du
Droit public..., op. cit. supra n. (29), vol. I, pp. 21-54.
71 C.Th. Eustathiades, “Les sujets du Droit international...”, op. cit. supra n. (27), pp.
402, 412-413, 424, 586-589, 601 and 612.
72 C.Th. Eustathiades, “Les sujets du Droit international...”, op. cit. supra n. (27), pp.
426-427, 547, 586-587, 608 and 610-611. Although not endorsing the theory of Duguit
The same conclusion was reached by Paul Guggenheim, in a course delivered

also at the Hague Academy, one year earlier, in 1952: as the individual is “subject
of duties” at international law level, one cannot deny his international legal per-
sonality, recognized also in fact by customary International Law itself.73 Still in
the mid-XXth century, in the first years of application of the European Conven-
tion on Human Rights, there was support for the view that the individuals had
become “titulaires of legitimate international interests”, as, in International Law,
a process of emancipation of the individuals from the “exclusive tutelage of the
State agents” had already started.74 In the legal doctrine of that time the recogni-
tion of the expansion of the protection of individuals at the international legal
order became evident.75 In the lucid words of B.V.A. Röling, the overcoming of
legal positivism was reassuring, as the individual, bearer of international rights
and duties, was no longer at the mercy of his State, and
“Humanity of today instinctively turns to this natural law, for the function of law is
to serve the well-being of man, whereas present positive international law tends to
his destruction”.76
This view was in keeping with the posture upheld by the Japanese jurist Kotaro
Tanaka, in his Opinions in cases before the ICJ at The Hague in that epoch, that is,
an International Law transcending the limitations of legal positivism,77 and thus
capable of responding effectively to the needs and aspirations of the international
and Scelle (of the individuals as the sole subjects of International Law), – regarded
as expression of the “sociological school” of International Law in France, – Eustathi-
ades recognized in it the great merit of reacting to the traditional doctrine which
visualized States as the sole subjects of International Law; the recognition of the
international subjectivity of individuals, parallel to that of States, came to transform
the structure of International Law and to foster the spirit of international solidarity;
ibid., pp. 604-610.
73 P. Guggenheim, “Les principes de Droit international public”, 80 RCADI (1952) pp.
116, and cf. pp. 117-118.
74 G. Sperduti, “L’individu et le droit international”, 90 RCADI (1956) pp. 824, 821 and
764. The juridical experience itself of the epoch contradicted categorically the un-
founded theory according to which the individuals were simple objects of the in-
ternational legal order, and destructed other prejudices of State positivism; ibid.,
pp. 821-822; and cf. also G. Sperduti, L’Individuo nel Diritto Internazionale, Milano,
Giuff rè Ed., 1950, pp. 104-107.
75 C. Parry, “Some Considerations upon the Protection of Individuals...”, op. cit. supra
n. (60), p. 722.
1960, p. 2, and cf. pp. XXII and 1-2.
77 Cf. Y. Saito, “Judge Tanaka, Natural Law and the Principle of Equality”, in The Living
Law of Nations – Essays in Memory of A. Grahl-Madsen (eds. G. Alfredsson and P.
Macalister-Smith), Kehl/Strasbourg, N.P. Engel Publ., 1996, pp. 401-402 and 405-
408; K. Tanaka wanted Law to be wholly liberated from both the State (“as asserted
230 Chapter IX
community as a whole.78 In the late sixties, the pressing need was pointed out of
protecting internationally the human person both individually and in groups (cf.
infra), for unless such international protection was secured to individuals and
groups of them, “the fate of the individual” would be “at the mercy of some Staat-
srecht”.79 In an essay published in 1967, René Cassin, who had participated in the
preparatory process of the elaboration of the Universal Declaration of Human
Rights of 1948,80 stressed with eloquence the advance represented by the access
of individuals to international instances of protection, secured by many human
rights treaties:
“(...) If there still subsist on earth great zones where millions of men and women,
resigned to their destiny, do not dare to utter the least complaint nor even to con-
ceive that any remedy whatsoever is made possible, those territories diminish day
after day. The awakening of conscience that an emancipation is possible, becomes
increasingly more general. (...) The first condition of all justice, namely, the possibil-
ity of cornering the powerful so as to subject them to (...) public control, is nowadays
fulfi lled much more often than in the past. (...) The fact that the resignation without
hope, that the wall of silence and that the absence of any remedy are in the process
of reduction or disappearance, opens to moving humanity encouraging perspec-
tives (...)”.81
To Paul Reuter, individuals become subjects of International Law when two

basic conditions are fulfilled, namely, when they are titulaires of rights estab-
lished directly by International Law, which they can exercise, and are bearers
of obligations “sanctioned directly by International Law”.82 A similar view was
upheld by Eduardo Jiménez de Aréchaga, to whom “there is nothing inherent to
the structure of the international legal order” which impedes the recognition to
the individuals of rights that emanate directly from International Law, as well
as international remedies for the protection of those rights.83 Also in this line of
by Hegel and his followers”) and from the nation (Völk, – as asserted by Savigny and
Puchta, and other jurists of the “historical school”); ibid., p. 402.
78 Cf. V. Gowlland-Debbas, “Judicial Insights into Fundamental Values and Interests of
the International Community”, in The International Court of Justice: Its Future Role
after Fifty Years (eds. A.S. Muller et alii), The Hague, Kluwer, 1997, pp. 344-346.
79 J.J. Lador-Lederer, International Group Protection, Leyden, Sijthoff, 1968, p. 19.
80 As rapporteur of the Working Group of the United Nations Commission on Human
Rights, entrustred with the preparation of the Draft Declaration (May 1947 to June
1948).
81 R. Cassin, “Vingt ans après la Déclaration Universelle”, 8 Revue de la Commission
Internationale de Juristes (1967) n. 2, pp. 9-10, and cf. pp. 11-17.
82 P. Reuter, Droit international public, 7th. ed., Paris, PUF, 1993, pp. 235 and 238, and
cf. p. 106.
1980, pp. 207-208; and cf. A. Cassese, International Law, Oxford, OUP, 2001, pp. 79-85.
reasoning, J. Barberis pondered in 1983 that, for individuals to be subjects of law,

it is necessary that the legal order at issue attributes to them rights or obligations
(as is the case of International Law).84
In fact, successive studies of instruments of international protection came
to emphasize precisely the historical importance of the recognition of the inter-
national legal personality of individuals as complaining party before internation-
al organs.85 In my own lectures delivered at the Hague Academy of International
Law in 1987, I pondered that the continuous expansion of International Law is
also reflected in the multiple contemporary mechanisms of international protec-
tion of human rights, the operation of which cannot be dissociated from the new
values acknowledged by the international community.86 At last individuals were
enabled “to exercise rights emanating directly from International Law (droit des
gens)”. And I added:
“In this connection, the insight and conception of Vitoria developed in his manu-
scripts of 1532 (made public in 1538-1539), can be properly recalled in 1987, four-and-
a-half centuries later: it was a conception of a universal law of nations, of individuals
socially organized in States and also composing humanity (...); redress of violations
of (human) rights, in fulfi lment of an international need, owed its existence to the
law of nations, with the same principles of justice applying to both States and indi-
viduals or peoples forming them.
(...) There is a growing and generalized acknowledgement that human rights,
rather than deriving from the State (or from the will of individuals composing the
State), all inhere in the human person, in whom they find their ultimate point of
84 The subjects of law are, thus, heterogeneous, – he added, – and theoreticians who
beheld only States as such to be subjects simply distorted reality, failing to take into
account the transformations undergone by the international community, which
came to admit that non-State actors also possess international legal personality; J.
Barberis, “Nouvelles questions concernant la personnalité juridique internationale”,
179 RCADI (1983) pp. 161, 169, 171-172, 178 and 181.
85 Cf., e.g., A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Lo-
cal Remedies in International Law, Cambridge, University Press, 1983, pp. 1-445;
A.Z. Drzemczewski, European Human Rights Convention in Domestic Law, Oxford,
Clarendon Press, 1983, pp. 20-34 and 341; F. Matscher, “La Posizione Processuale
dell’Individuo come Ricorrente dinanzi agli Organi della Convenzione Europea dei
Diritti dell’Uomo”, in Studi in Onore di Giuseppe Sperduti, Milano, Giuffrè, 1984,
pp. 601-620; J.A. Carrillo Salcedo, Dignidad frente a Barbarie – La Declaración Uni-
versal de Derechos Humanos, Cincuenta Años Después, Madrid, Ed. Trotta, 1999,
pp. 27-145; E.-I.A. Daes (rapporteur spécial), La condition de l’individu et le Droit
international contemporain, U.N. doc. E/CN.4/Sub.2/1988/33, of 18.07.1988, pp. 1-92;
R.A. Mullerson, “Human Rights and the Individual as Subject of International Law:
A Soviet View”, 1 European Journal of International Law (1990) pp. 33-43.
national Protection of Human Rights (At Global and Regional Levels”, 202 RCADI
(1987) pp. 32-33.
232 Chapter IX
convergence. (...) The non-observance of human rights entails the international re-
sponsibility of States for treatment of the human person”.87
VI. The Legal Personality of the Individual as a Response to a Need of the

International Community
International Law itself, in recognizing rights inherent to every human being,
has dismissed the archaic positivist dogma which, in an authoritarian way, in-
tended to reduce such rights to those “conceded” by the State. The recognition of
the individual as subject of both domestic law and international law represents a
true juridical revolution, – to which we have the duty to contribute in the search
for the prevalence of superior values, – which comes at last to give an ethical
content to the norms of both public domestic law and international law (supra).
This transformation, proper of our time, corresponds, in its turn, to the recogni-
tion of the necessity that all States are made answerable for the way they treat all
human beings who are under their jurisdiction, so as to avoid new violations of
human rights.
This accountability would simply not have been possible without the crys-
tallization of the right of individual petition, amidst the recognition of the ob-
jective character of the positive obligations of protection and the acceptance of
the collective guarantee of the compliance with them. This is the real meaning
of the historical rescue of the individual as subject of the International Law of
Human Rights88 (cf. supra). In fact, the recognition of the juridical personality
of the individuals fulfi ls a true necessity of the international community,89 which
today seeks to guide itself by common superior values.90 This expansion of the
international legal personality, nowadays encompassing that of individuals, is a
remarkable feature of the irreversible evolution of contemporary International
Law itself.91
The international subjectivity of the human being (whether a child, an el-
derly person, a person with disability, a stateless person, or any other) erupted
indeed with all vigour in the legal science of the XXth century, as a reaction
of the universal juridical conscience against the successive atrocities committed
87 Ibid., pp. 411-412.

88 Cf. Inter-American Court of Human Rights [IACtHR], Castillo Petruzzi and Others
versus Peru case (Preliminary Objections), Judgment of 04.09.1998, Series C, n. 41,
Concurring Opinion of Judge A.A. Cançado Trindade, p. 62, par. 35.
89 As recognized decades ago (cf. supra).
90 As it can be inferred, e.g., from the historical case of the “Street Children” (case
Villagrán Morales and Others versus Guatemala) before the IACtHR (1999-2001),
the international juridical subjectivity of the individuals is nowadays an irreversible
reality, and the violation of their fundamental rights, emanated directly from the
international legal order, brings about juridical consequences.
91 C. Gutiérrez Espada, Derecho Internacional Público, Madrid, Ed. Trotta, 1995, pp.
32, 231 and 74-76.
against the human kind. An eloquent testimony of the erosion of the purely inter-
State dimension of the international legal order is found in the historical and pio-
neering Advisory Opinion n. 16 of the Inter-American Court of Human Rights
[IACtHR], on the Right to Information on Consular Assistance in the Framework
of the Guarantees of the Due Process of Law (of 01.10.1999),92 which has served
as orientation to other international tribunals and has inspired the evolution in
statu nascendi of the international case-law on the matter.
The IACtHR recognized, in the light of the impact of the corpus juris of the
International Law of Human Rights on the international legal order itself, the
crystallization of a true individual subjective right to information on consular
assistance,93 of which is titulaire every human being deprived of his freedom in
another country;94 furthermore, it broke away from the traditional purely inter-
State outlook of the matter, extending support to numerous individuals victim-
ized by poverty, discrimination, and deprived of freedom abroad.
The subsequent Advisory Opinion n. 17 of the IACtHR, on the Juridical
Condition and Human Rights of the Child (of 28.08.2002), fits into the same line
of assertion of the juridical emancipation of the human being, in stressing the
consolidation of the juridical personality of the child, as a true subject of law and
not simple object of protection, and irrespective of the extent of his legal capac-
ity to exercise his rights for himself (capacity of exercise). This is in accordance
with the Kantian conception of every human person being ultimately an end in
herself, irrespective of her existential condition.
The juridical category of the international legal personality has not shown
itself insensible to the necessities of the international community, among which
appears with prominence that of providing protection to the human beings who
compose it, in particular those who find themselves in a situation of special vul-
nerability, as do the children. In fact, doctrine and international case-law on the
matter sustain that the subjects of law themselves in a legal system are endowed
with attributes that fulfil the needs of the international community.95 Hence, – as
Paul de Visscher pointed out perspicaciously, – while “the concept of juridical
person is unitary as concept”, given the fundamental unity of the human person
who “finds in herself the ultimate justification of her own rights”, the juridical
capacity, on its turn, reveals a variety and multiplicity of scopes.96 But such vari-
eties of the extent of the juridical capacity, – including its limitations in relation
to, e.g., the children, the elderly persons, the persons with mental disability, the
92 IACtHR, Advisory Opinion OC-16/99, Series A, n. 16, pp. 3-123, pars. 1-141, and reso-
lutory points 1-8.
93 Set forth in Article 36(1) of the 1963 Vienna Convention on Consular Relations and
linked to the guarantees of the due process of law under Article 8 of the American
Convention on Human Rights.
94 Cf. paragraph 82 of that Opinion.
95 ICJ, Advisory Opinion on Reparations for Damages, ICJ Reports (1949) p. 178.
96 Paul de Visscher, “Cours Général de Droit international public”, 136 RCADI (1972) p.
56, and cf. pp. 45 and 55.
234 Chapter IX
stateless persons, among others, – in no way affect the juridical personality of all
human beings, as juridical expression of the dignity inherent to them.
VII. The Attribution of Duties to the Individual Directly by

International Law
As already indicated, to the legal doctrine of the XXth century it did not pass
unnoticed that individuals, besides being titulaires of rights at international
level, also have duties which are attributed to them by International Law itself.97
And, – what is more significant, – the grave violation of those duties, reflected
in the crimes against humanity, engages the international individual penal re-
sponsibility, independently from what provides the domestic law on the matter.98
Contemporary developments in International Criminal Law have, in fact, a di-
rect incidence in the crystallization of both the international individual penal
responsibility 99 and the principle of universal jurisdiction.
It may be added that the decisions of the U.N. Security Council to create the
ad hoc International Criminal Tribunals for the former Yugoslavia (1993) and for
Rwanda (1994), added to the subsequent establishment of the permanent Inter-
national Criminal Court (pursuant to the 1998 Rome Statute), for judging those
responsible for grave violations of human rights and of International Humani-
tarian Law, gave a new impetus to the struggle of the international community
against impunity, – as a violation per se of human rights, – besides reaffirming
the principle of the international penal responsibility of the individual100 for such
violations, and seeking thus to prevent future crimes.101
The process of criminalization of grave violations of human rights and of
International Humanitarian Law has, in fact, marked the evolution of contempo-
97 Active and passive subjects of the legal relationship (cf. supra).

98 M.Ch. Bassiouni, Crimes against Humanity in International Criminal Law, 2nd.
rev. ed., The Hague, Kluwer, 1999, pp. 106 and 118; and cf. A. Cassese, International
Criminal Law, Oxford, OUP, 2003, pp. 23-26.
99 The individual as subject, both active and passive, of International Law, titulaire of
rights as well as bearer of duties emanated directly from the law of nations.
100 Cf., in this respect, e.g., D. Th iam, “Responsabilité internationale de l’individu en
matière criminelle”, in International Law on the Eve of the Twenty-First Century
– Views from the International Law Commission / Le droit international à l’aube du
XXe siècle – Réflexions de codificateurs, N.Y., U.N., 1997, pp. 329-337.
101 The antecedents of these recent endeavours of establishment of and international
criminal jurisdiction go back to the old ad hoc international commissions of inquiry
(as from 1919), and above all the célèbres Tribunals of Nuremberg (established in Au-
gust 1945) and of Tokyo (established in January 1946). Cf. M.R. Marrus, The Nurem-
berg War Crimes Trial 1945-1946 – A Documentary History, Boston/N.Y., Bedford
Books, 1997, pp. 1-268; T. Maga, Judgment at Tokyo – The Japanese War Crimes Tri-
als, Lexington, University Press of Kentucky, 2001, pp. 1-171; M.C. Bassiouni, “From
Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent In-
ternational Criminal Court”, 10 Harvard Human Rights Journal (1997) pp. 11-62.
rary international law itself: the establishment of an international criminal juris-

diction is nowadays regarded as an element which strengthens International Law
itself, overcoming basic insufficiencies of the past as to the incapacity to punish
war criminals. The travaux préparatoires102 of the Statute of the permanent In-
ternational Criminal Court, adopted at the Rome Conference of 1998, in contrib-
uting to the prompt recognition, in the ambit of application of the Statute, of the
individual international criminal responsibility, – parallel to the responsibility of
the State, – achieved a great doctrinal advance in the struggle against impunity
for the gravest international crimes.103 Such advance, in our days, is due to the
intensification of the clamour of all humankind against the atrocities which have
victimized millions of human beings everywhere, – atrocities which can no lon-
ger be tolerated and which ought to be fought with determination.104
Attention ought to be drawn to the superior universal values which underlie
the whole theme of the recent creation of an international criminal jurisdiction
on a permanent basis, as well as the current process of criminalization of grave
violations of human rights and of Humanitarian Law, – of crucial importance to
the struggle against impunity.105 The consolidation of the international legal per-
sonality of individuals, as active as well as passive subjects of International Law,
enhances accountability in International Law for abuses perpetrated against
102 Preceeded by the Draft Code of Offences against the Peace and Security of Mankind
(first version, 1991), prepared by the U.N. International Law Commission, which,
in 1994, concluded its (own) Draft Statute of a permanent International Criminal
Court.
103 For a substantial and pioneering study, cf. C.Th. Eustathiades, “Les sujets du droit
international...”, op. cit. supra n. (27), pp. 401-614.
104 To this end, the adoption by the Statute of the International Criminal Court by the
1998 Rome Conference constitutes an achievement of the international community
as a whole, in the struggle against impunity and in defence of dignity of the human
person. Cf., generally, e.g., M.Ch. Bassiouni (ed.), The Statute of the International
Criminal Court – A Documentary History, Ardsley/N.Y., Transnational Publs., 1998,
pp. 1-793; R.S. Lee (ed.), The International Criminal Court – The Making of the Rome
Statute, The Hague, Kluwer, 1999, pp. 1-639; W.A. Schabas, An Introduction to the
International Criminal Court, Cambridge, University Press, 2001, pp. 1-164.
105 As from its judgment (on the merits, of 08.03.1998) in the case of Paniagua Morales
and Others versus Guatemala (also known as che “White Van” case), the IACtHR
has consistently warned as to the State’s duty to struggle against impunity, and
conceptualized impunity as “the total lack of investigation, prosecution, capture,
trial and conviction of those responsible for violations of the rights protected by
the American Convention”; it warned that “impunity fosters chronic recidivism of
human rights violations, and total defencelessness of victims and their relatives”
(Series C, n. 37, par. 173). The Court further affi rmed that the State’s duty to fight
impunity (under Article 1(1) of the American Convention on Human Rights) re-
quired the organization of “the public power to guarantee to the persons under their
jurisdiction the free and full exercise of human rights”, a duty which “imposes itself
irrespective of the fact that those resposible for the violations of those rights are
agents of the public power, private persons, or groups of them” (ibid., par. 174).
236 Chapter IX
human beings. Thus, individuals are also bearers of duties under International
Law, and this reflects the consolidation of their international legal personality.106
Developments in international legal personality and international accountability
bear witness of the formation of the opinio juris communis to the effect that the
gravity of certain violations of fundamental rights of the human person affects
directly basic values shared by the international community as a whole.107
VIII. Personality and Capacity: The Individual’s Access to Justice at

International Level
Ultimately, all Law exists for the human being, and the law of nations is no excep-
tion to that, guaranteeing to the individual his rights and respect for his person-
ality at international level, by means of the exercise of the right of international
individual petition.108 This latter appears as a truly fundamental clause (cláusula
pétrea) of the human rights treaties which provide for it.109 As I have seen it fit to
ponder,
“The right of individual petition shelters, in fact, the last hope of those who did not
find justice at national level. I would not refrain myself nor hesitate to add, – allow-
ing myself the metaphor, – that the right of individual petition is undoubtedly the
most luminous star in the universe of human rights”.110
106 H.-H. Jescheck, “The General Principles of International Criminal Law Set Out in
Nuremberg, as Mirrored in the ICC Statute”, 2 Journal of International Criminal
Justice (2004) p. 43.
107 Cf., e.g., A. Cassese, “Y a-t-il un conflit insurmontable entre souveraineté des États
et justice pénale internationale?”, in Crimes internationaux et juridictions interna-
tionales (eds. A. Cassese and M. Delmas-Marty), Paris, PUF, 2002, pp. 15-29; and cf.,
generally, [Various Authors], La Criminalización de la Barbarie: La Corte Penal In-
ternacional (ed. J.A. Carrillo Salcedo), Madrid, Consejo General del Poder Judicial,
2000, pp. 17-504.
108 Cf. chapter X, infra.
109 To which one can add, – insofar as the American Convention on Human Rights is
concerned, – the other fundamental clause (cláusula pétrea) of the recognition of
the competence of the Inter-American Court of Human Rights in contentious mat-
ters; A.A. Cançado Trindade, “Las Cláusulas Pétreas de la Protección Internacional
del Ser Humano: El Acceso Directo de los Individuos a la Justicia a Nivel Internac-
ional y la Intangibilidad de la Jurisdicción Obligatoria de los Tribunales Internac-
ionales de Derechos Humanos”, in El Sistema Interamericano de Protección de los
Derechos Humanos en el Umbral del Siglo XXI – Memoria del Seminario, vol. I, 2nd.
ed., San José of Costa Rica, IACtHR, 2003, pp. 3-68.
110 IACtHR, case Castillo Petruzzi and Others versus Peru (Preliminary Objections),
Judgment of 04.09.1998, Series C, n. 41, Concurring Opinion of Judge A.A. Cançado
Trindade, p. 62, par. 35.
Human rights do assert themselves against all forms or domination or arbitrary

power.111 In the public hearings before the IACtHR (mainly those pertaining to
reparations), a point which has particularly drawn my attention has been the
remark, increasingly more frequent, on the part of the victims or their relatives,
in the sense that, were it not for their access to the international instance, justice
would never have been made in their concrete cases. Without the right of indi-
vidual petition, and the consequent access to justice at international level, the
rights set forth in human rights treaties would be reduced to a little more than
dead letter.
The human being emerges, at last, even in the most adverse conditions, as
ultimate subject of Law, domestic as well as international. The case of the “Street
Children” (case Villagrán Morales and Others versus Guatemala, 1999-2001), de-
cided by the IACtHR, the first one of the kind in which the cause of the children
abandoned in the streets was brought before an international human rights tri-
bunal,112 and in which some of those marginalized and forgotten by this world
succeeded to resort to an international tribunal to vindicate their rights as hu-
man beings, is truly paradigmatic,113 and gives a clear and unequivocal testimony
that the International Law of Human Rights has nowadays achieved its maturity.
As it can be inferred from this historical case of the “Street Children”, the in-
ternational juridical subjectivity of the individuals is nowadays an irreversible
reality, and the violation of their fundamental rights, emanated directly from the
international legal order, brings about juridical consequences.
As I have seen it fit to sum up in my Concurring Opinion in the aforemen-
tioned Advisory Opinion of the IACtHR on the Juridical Condition and Human
Rights of the Child (2002),
“every human person is endowed with juridical personality, which imposes limits
to State power. The juridical capacity varies in virtue of the juridical condition of
111 A.A. Cançado Trindade, “The Future of the International Protection of Human
Rights”, in B. Boutros-Ghali Amicorum Discipulorumque Liber – Paix, Développe-
ment, Démocratie, vol. II, Bruxelles, Bruylant, 1998, pp. 961-986. – On the need to
overcome the current challenges and obstacles to the prevalence of human rights,
cf. A.A. Cançado Trindade, “L’interdépendance de tous les droits de l’homme et leur
mise-en-oeuvre: obstacles et enjeux”, 158 Revue internationale des sciences sociales
– Paris/UNESCO (1998) pp. 571-582.
112 IACtHR, case Villagrán Morales and Others versus Guatemala, Judgment (merits)
of 19.11.1999, Series C, n. 63, pars. 1-253, and Joint Concurring Opinion of Judges
A.A. Cançado Trindade and A. Abreu Burelli, pars. 1-11.
113 In fact, in that case of the killing of the “Street Children”, the mothers of the mur-
dered children (and the grandmother of one of them), as poor and abandoned as
their sons (and grandson), had access to the international jurisdiction, appeared
before the Court (public hearings of 28/29.01.1999 and of 12.03.2001), and, due to
the judgments of the IACtHR (as to the merits, of 19.11.1999, and reparations, of
26.05.2001), which brought them redress, could at least recover their faith in human
justice.
238 Chapter IX
each one to undertake certain acts. Yet, although such capacity of exercise varies,
all individuals are endowed with juridical personality. Human rights reinforce the
universal attribute of the human person, given that to all human beings correspond
likewise the juridical personality and the protection of the Law, independently of
her existential or juridical condition” (par. 34).
The international legal personality of human beings has in recent years been
forcefully asserted, envisaging them not only in isolation but also in groups. The
issue of the protection of minorities, for example, which occupied much space in
the international agenda of the inter-war period (cf. supra), has reemerged in the
post-cold war period114 (with the outbreak of so many internal armed conflicts in
different latitudes); the entry into force, in February 1998, of the 1994 Framework
Convention for the Protection of National Minorities of the Council of Europe,
exemplifies the renewal of concern with the theme at issue. When one comes
to minorities or human collectivities, it is, more precisely, the individuals who
compose them that are subjects of International Law; thus, the protection they
are entitled to, as such, is in fact extended, through them, to the groups they be-
long to. In this sense, the rights protected disclose an individual and a collective
or social dimensions, but it is the human beings, members of such minorities or
collectivities, who are, ultimately, the titulaires of those rights.115
In this respect, the endeavours undertaken in both the United Nations and
the OAS, throughout the nineties, to reach the recognition of indigenous peo-
ples’ rights through their projected and respective Declarations, pursuant to cer-
tain basic principles (such as, e.g., that of equality and non-discrimination), have
emanated from human conscience. It has been suggested that those endeavours
recognize the debt that humankind owes to indigenous peoples, due to the “his-
torical misdeeds against them”, and a corresponding sense of duty to “undo the
wrongs” done to them.116 This particular development has, likewise, contributed
114 Cf., generally, P. Thornberry, International Law and the Rights of Minorities, Oxford,
Clarendon Press, 1992 [reprint], pp. 38-54; F. Ermacora, “The Protection of Minori-
ties before the United Nations”, 182 RCADI (1983) pp. 257-347.
115 This approach was espoused by the IACtHR in the unprecedented decision (the first
pronouncement of the kind by an international tribunal) in the case of the Commu-
nity Mayagna (Sumo) Awas Tingni versus Nicaragua (2001), which safeguarded the
right to communal property of their lands (under Article 21 of the American Con-
vention on Human Rights) of the members of a whole indigenous community (cf. in
particular paragraph 141 of the Court’s Judgment on the merits). There are also in-
ternational instruments, like the 1989 ILO Convention concerning Indigenous and
Tribal Peoples in Independent Countries (ILO Convention n. 169, in force as from
05.09.1991), which appear to lay more emphasis, as far as duties are concerned, on
the human collectivities as such.
116 A. Meijknecht, Towards International Personality: The Position of Minorities and
Indigenous Peoples in International Law, Antwerpen/Groningen, Intersentia, 2001,
pp. 228 and 233.
to the expansion of the international legal personality of individuals (belonging

to groups, minorities or human collectivities) as subjects of International Law.
Still in respect of the human rights of individuals belonging to groups or
human collectivities, in its more recent Advisory Opinion n. 18, on The Juridi-
cal Condition and Rights of Undocumented Migrants (of 17.09.2003), the IAC-
tHR stressed that the migratory status cannot serve as justification for depriv-
ing them of the enjoyment and exercise of their human rights, including labour
rights. It added that States cannot discriminate, or tolerate discriminatory situ-
ations, to the detriment of migrants, and ought to guarantee the due process of
law to any person, irrespective of her migratory status.117 The Advisory Opinion
of the Court thus benefitted a considerable number of persons, those belonging
to numerous groups of undocumented migrants, exposed to all sorts of abuses in
numerous countries nowadays.
IX. Final Observations: The Historical Significance of the International

Subjectivity of the Individual
The international juridical subjectivity of the human being, as foreseen by the
so-called founders of International Law (the droit des gens), is nowadays a reality.
At this beginning of the XXIst century, this highly significant achievement can
be appreciated within the framework of the historical process of humanization
of International Law, – to which it is a privilege to be able to contribute, – which,
always attentive to fundamental values, comes to occupy itself more directly with
the realization of superior common goals. Furthermore, the international (ac-
tive) subjectivity of the individuals fulfi ls a true necessity of their legitimatio ad
causam, to vindicate their rights, emanated directly from International Law.
In the ambit of the International Law of Human Rights, in the European and
inter-American systems of protection, – endowed with international tribunals,
and operating within the framework of the universality of human rights,118 – the
recognition of the direct access of the individuals to the international justice
reveals, at this beginning of the XXIst century, the new primacy of the raison de
l’humanité over the raison d’État, inspiring the historical process of humaniza-
tion of International Law. On the basis of the right of individual petition is erect-
ed the juridical mechanism of emancipation of the human being vis-à-vis his
own State for the protection of his rights in the ambit of the International Law
117 The Court further warned that States cannot subordinate or condition the observ-
ance of the fundamental principle of equality before the law and non-discrimina-
tion to the aims of their migratory or other policies. In my Concurring Opinion I
sustained that this fundamental principle belongs to the domain of jus cogens, and
stressed the importance of the erga omnes obligations (encompassing also inter-in-
dividual relations) vis-à-vis the rights of undocumented migrants.
118 Cf., e.g., L. Hennebel, Le régionalisme comme garant de l’universalisme des droits de
l’homme (doctoral thesis), vols. I-II, Brussels, Université Libre de Bruxelles, 2005,
pp. 1-575.
240 Chapter IX
of Human Rights. Human conscience thus reaches in our days a degree of evolu-
tion which renders it possible to secure justice at international level by means of
the safeguard of the rights inherent to the human person. The international legal
subjectivity of the individuals is nowadays an irreversible reality, and the human
being emerges, at last, even in the most adverse conditions, as the ultimate sub-
ject of Law, both domestic and international, endowed with full juridico-proce-
dural capacity.
Moreover, it should not pass unnoticed that individuals have already be-
gun to participate effectively in the increasingly complex process of elaboration
of norms of International Law, as illustrated by the growing presence and par-
ticipation of entities of the civil society (NGOs and others) in the international
legal order, as verified in the travaux préparatoires of recent treaties as well as
along the cycle of the great World Conferences of the United Nations during the
nineties and at the turn of the century,119 which addressed issues of concern to
humankind as a whole. Those entities of civil society have also been dedicating
themselves to monitor the observance of, and compliance with, the international
norms, thus bringing to an end the States’ monopoly of the past in this domain.
It is certain that, in this as in so many other domains of the discipline, it is no
longer possible to approach International Law from a merely inter-State outlook.
The subjects of International Law have, already for a long time, ceased to be re-
duced to territorial entities.120
It appears quite clear nowadays that there is nothing intrinsic to Interna-
tional Law that would impede, or render it impossible, to non-State “actors” to
be endowed with international legal personality and capacity. Yet, part of the
contemporary legal doctrine keeps on referring to individuals as “actors” (rather
than subjects) in the international legal order. This is not a juridical term, it is
rather a term of art, to which no specific juridical contents and consequences are
necessarily attached. To call individuals “actors” in International Law is nothing
but a platitude. They are true subjects of International Law, bearers of rights and
duties which emanate directly therefrom. It is perfectly possible to conceptualize
as subject of International Law any person or entity, titulaire of rights and bearer
of obligations, which emanate directly from International Law. It is the case of
individuals, who have their direct contacts – without intermediaries – with the
international legal order thus fostered and strengthened.
This evolution is to be appreciated in a wider dimension. The expansion of
international legal personality, nowadays encompassing that of individuals as ac-

120 More than half a century ago, as acknowledged in the celebrated Advisory Opinion
of the International Court of Justice on Reparations for Damages (1949), the advent
of international organizations had put an end to the States’ monopoly of the inter-
national legal personality and capacity, with all the juridical consequences which
ensued therefrom. Cf., for a general study on the matter, A.A. Cançado Trindade,
Direito das Organizações Internacionais, 3rd. ed., Belo Horizonte/Brazil, Edit. Del
Rey, 2003, pp. 9-853.
tive and passive subjects of International Law, goes pari passu with the acknowl-
edgment of accountability in International Law. This contributes ultimately to
the international rule of law, to the realization of justice also at international
level, thus fulfilling a long-standing aspiration of humankind. In reaction to the
successive atrocities which, along the XXth century, have victimized millions
and millions of human beings, in a scale until then unknown in the history of
humankind, the universal juridical conscience – as the ultimate material source
of all Law, – has restituted to the human being (final addressee of all legal norms,
whether of national or international origin) his condition of subject of both do-
mestic and International Law. Human beings were to benefit from that, and In-
ternational Law was thereby enriched and justified. Having liberated itself from
the chains of Statism, International Law again met with the conception of a true
jus gentium, which, in its early beginnings, inspired its historical formation and
evolution.121 In our days, the way is paved for the construction of a new jus gen-
tium of the XXIst century, the International Law for humankind.
Internacional e os Limites da Razão de Estado”, 6/7 Revista da Faculdade de Direito
da Universidade do Estado do Rio de Janeiro (1998-1999) pp. 425-434.
Chapter X The Legal Capacity of the Individual
as Subject of International Law
I. Introduction
In the ambit of the considerable evolution of the corpus juris of the international
protection of the human person in the last decades, at both normative and pro-
cedural levels, one ought to single out the historical and irreversible achievement
of the access of the individual to justice at the international level, as a true eman-
cipation of the human person from domination or arbitrary power. As all human
beings are titulaires of rights which inhere in them as such, and which are prior
to, and stand above, the State and all forms of political organization, the protec-
tion of such rights cannot exhaust itself in the action of the State. The norms of
protection of those rights emanate directly from International Law.1 On the basis
of this understanding, the way was paved for the assertion and consolidation
of the international capacity of individuals to vindicate those rights directly at
international level.
II. The International Legal Capacity of the Individual: Legal Foundations,

Nature and Scope
1. Legal Foundations of the Access of the Human Being to

International Tribunals
In addition to the acknowledgement of their international legal personality,2 the
access of the individuals to the contemporary international tribunals for the pro-
tection of their rights overcame the traditional doctrine of the domestic jurisdic-
1 A.A. Cançado Trindade, “The International Law of Human Rights at the Dawn of
the XXIst Century”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacional
– Castellón/Spain (1999) p. 213.
Internacional e os Limites da Razão de Estado”, in 6/7 Revista da Faculdade de Di-
reito da Universidade do Estado do Rio de Janeiro (1998-1999) pp. 427-428 and 432-
433.
244 Chapter X
tion of States (or “exclusive” national competence).3 The human person started
having recourse to the international tribunals, to protect herself by norms of
International Law from the arbitrariness of the State.4 Ultimately, all Law exists
for the human being, and the law of nations is no exception to that, guaranteeing
to the individual his rights and respect for his personal integrity.
The question of the procedural capacity of the individuals before the Inter-
national Court of Justice [ICJ], and its predecessor the Permanent Court of In-
ternational Justice [PCIJ], was effectively considered on the occasion of the origi-
nal drafting, by a Committee of Jurists appointed by the old League of Nations,
of the Statute of the PCIJ, in 1920. Of the ten members of the aforementioned
Committee of Jurists, only two – Loder and De Lapradelle – pronounced them-
selves in favour of enabling the individuals to appear as parties before the Hague
Court (jus standi) in contentious cases against (foreign) States. The majority of
the Committee, however, was firmly opposed to this proposition: four members5
objected that the individuals were not subjects of International Law (and could
not, thus, in their view, be parties before the Court) and that only the States were
juridical persons in the international order, – in what they were followed by the
other members.6
The position which prevailed in 1920 – which has been surprisingly and re-
grettably maintained in Article 34(1) of the Statute of the PCIJ to date – was
promptly and strongly criticized in the more lucid doctrine of the epoch (already
in the twenties). Thus, in his memorable monograph Les nouvelles tendances du
Droit international (1927), Nicolas Politis pondered that the States are no more
than fictions, composed as they are of individuals, and that all Law ultimately
aims at the human being, and nothing more than the human being7: this is some-
thing “so evident”, – he added, that
“il serait inutile d’y insister si les brumes de la souveraineté n’avaient pas obscurci
les vérités les plus élémentaires”.8

4 F.A. von der Heydte, “L’individu et les tribunaux internationaux”, 107 Recueil des
Cours de l’Académie de Droit International de La Haye [RCADI] (1962) pp. 329-333,
345 and 356-357, and cf. pp. 301-302; and cf. also, in this respect, e.g., E.M. Borchard,
“The Access of Individuals to International Courts”, 24 American Journal of Inter-
national Law [AJIL] (1930) pp. 359-365.
5 Ricci-Busatti, Baron Descamps, Raul Fernandes and Lord Phillimore.
6 Cf. account in J. Spiropoulos, L’individu en Droit international, Paris, LGDJ, 1928,
pp. 50-51; N. Politis, op. cit. infra n. (7), pp. 84-87; M.St. Korowicz, “The Problem of
the International Personality of Individuals”, 50 AJIL (1956) p. 543.
7 N. Politis, Les nouvelles tendances du Droit international, Paris, Libr. Hachette,
1927, pp. 76-77 and 69.
8 Ibid., pp. 77-78.
The Legal Capacity of the Individual as Subject of International Law 245
And Politis proceeded in the defence of the granting to individuals of the direct
appeal to international instances to vindicate their “legitimate interests”, what
would present the advantage, e.g., of depoliticizing the classic procedure, that
of the inter-State contentieux (the discretionary diplomatic protection). And, at
last, he advanced a forecast, in the sense that the direct action of the individu-
als at international level would be accomplished, sooner or later, because it “re-
sponds to a true necessity of international life”.9
Another criticism to the solution adopted in the matter by the Statute of the
PCIJ (Article 34(1), cf. supra) was formulated by J. Spiropoulos, also in the twen-
ties, for whom that was no impediment for conventional International Law to
secure to individuals a direct action at international level (there having even been
precedents in this sense in the inter-war period); if this did not occur and one
would limit oneself to judicial actions at domestic law level, not seldom the State
would become “judge and party” at the same time, what would be an incongruity.
To the author, the international legal order can address itself directly to individu-
als (as exemplified by the peace treaties of the inter-war period), thereby erecting
them into the condition of subjects of International Law, to the extent that a di-
rect relationship is established between the individual and the international legal
order, which renders him “directly titulaire of rights or of obligations”; thus, one
cannot fail to admit the international legal personality of the individual.10
Moreover, the individual ought to be able to defend himself his rights at
international level, “independently of any tutelage of his State”, and “even against
his own State”.11 Without the granting to individuals of direct means of action at
international level, his rights will continue “without sufficient protection”; only
with such direct action before an international instance, – he added, – an effec-
tive protection of human rights will be achieved, in conformity with “the spirit
of the new international order”. “Certain limits” ought to be established to the
authority of the State, – he concluded, – which is not an end in itself, but rather
a means for the “satisfaction of the human needs”.12
The exclusively inter-State character of the contentieux before the ICJ has
not appeared satisfactory at all. At least in some cases, pertaining to the condi-
tion of individuals, the presence of these latter (or of their legal representatives),
to submit, themselves, their positions, would have enriched the proceedings and
facilitated the work of the Court.13 In such cases, one cannot fail to recognize that
9 Ibid., pp. 82-83 and 89-90, and cf. pp. 92 and 61.
10 J. Spiropoulos, op. cit. supra n. (6), pp. 50-51, 25, 31-33 and 40-41.
11 Ibid., p. 44, and cf. pp. 49 and 64-65.
12 Ibid., pp. 51-52 and 61-62, and cf. pp. 53 and 66.
13 One may recall, e.g., the classic Nottebohm case on double nationality (Liechtenstein
versus Guatemala, 1955), the case concerning the Application of the Convention of
1902 Governing the Guardianship of Infants (Netherlands versus Sweden, 1958), the
cases of the Trial of Pakistani Prisoners of War (Pakistan versus India, 1973), of the
Hostages (United States Diplomatic and Consular Staff in Tehran) (United States
versus Iran, 1980), of East Timor (Portugal versus Australia, 1995), of the Application
246 Chapter X
the predominant element was precisely the concrete situation of human beings,
and not mere abstract questions of exclusive interest of contending States in their
relations inter se. The artificiality14 of the exclusively inter-State character of the
contentieux before the ICJ15 is, thus, clearly disclosed by the very nature of certain
cases submitted to its consideration.
The solution adopted by the Statute of the old PCIJ, and fossilized with the
passing of time in the Statute of the ICJ until the present, is still more open to
criticism if we consider that, already in the first half of the XXth century, there
were international law experiments which effectively granted international pro-
cedural capacity to the individuals. Examples are provided by the system of navi-
gation of the river Rhine, the Project of an International Prize Court (1907), the
Central American Court of Justice (1907-1917, a pioneering international tribunal
which granted direct access to States as well as individuals), as well as, in the era
of the League of Nations, the systems of minorities (including Upper Silesia) and
of territories under mandate, the systems of petitions of the Aaland Islands and
of the Saar, besides the practice of mixed arbitral tribunals and of mixed claims
commissions, of the same epoch.16
This evolution intensified in the era of the United Nations, with the adop-
tion of the system of individual petitions under some of the contemporary hu-
man rights treaties of universal character, and, above all, at regional level, under
the European and American Conventions on Human Rights, which established
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bos-
nia-Herzegovina versus Yugoslavia, 1996), as well as the cases Breard (Paraguay ver-
sus United States, 1998), LaGrand (Germany versus United States, 2001), and Avena
(Mexico versus United States, 2004).
14 For criticisms of such artificiality by a former President of the ICJ itself, cf. R.Y.
Jennings, “The International Court of Justice after Fifty Years”, 89 AJIL (1995) pp.
504-505.
15 Already in the late sixties, S. Rosenne warned that there was nothing inherent to the
character of the ICJ itself that justified the entire exclusion of an individual from the
procedings before it (that might be of his direct interest); cf. S. Rosenne, “Reflections
on the Position of the Individual in Inter-State Litigation in the International Court
of Justice”, in International Arbitration Liber Amicorum for M. Domke (ed. P. Sand-
ers), The Hague, Nijhoff, 1967, p. 249, and cf. p. 242. – The practice of exclusion of the
locus standi in judicio of the individuals concerned before the ICJ, – added Rosenne,
– besides being artificial, in certain contentious cases may even produce “incongru-
ent results”; it thus becomes “highly desirable” that such scheme be reconsidered, in
a way to permit that the individuals concerned themselves can appear before the ICJ
(locus standi) to present directly before this latter their arguments in contentious
cases (ibid., p. 249, and cf. p. 243).
16 For a study, cf., e.g.: A.A. Cançado Trindade, “Exhaustion of Local Remedies in In-
ternational Law Experiments Granting Procedural Status to Individuals in the First
Half of the Twentieth Century”, 24 Netherlands International Law Review (1977) pp.
373-392; M.St. Korowicz, Une expérience de Droit international – La protection des
minorités de Haute-Silésie, Paris, Pédone, 1946, pp. 81-174; among others.
international tribunals (the European and Inter-American Courts, respectively)

of human rights. In fact, the access of individuals to the international tribunals
(European and Inter-American Courts) of human rights reveals a renewal of In-
ternational Law – in the sense of its humanization:17 the individual is erected into
subject of International Law, endowed with international procedural capacity.
2. Juridical Nature and Scope of the Right of International

Individual Petition
The right of individual petition, whereby to the individual is secured the direct
access to justice at international level, is a definitive achievement of the Inter-
national Law of Human Rights.18 It is of the essence itself of the international
protection of human rights the contraposition between individual complainants
and respondent States in cases of alleged violations of the protected rights. It
was precisely in this context of protection that the historical rescue took place of
the position of the human being as subject of the International Law of Human
Rights, endowed with full international procedural capacity.
Three centuries of an international legal order crystallized, as from the trea-
ties of peace of Westphalia (1648), on the basis of the co-ordination of indepen-
dent nation-States, of the juxtaposition of absolute sovereignties, led to the exclu-
sion from that legal order of the individuals as subjects of rights. At international
level, States assumed the monopoly of the condition of subjects of rights; indi-
viduals, for their protection, were left entirely at the mercy of the discretionary
intermediation of their nation-States. The international legal order thus erected,
– which the excesses of legal positivism attempted in vain to justify, – excluded
therefrom precisely the ultimate addressee of the juridical norms: the human
being.
Three centuries of an international legal order thus marked by the prevalence
of State sovereignties and by the marginalization of individuals were incapable
to avoid the massive violations of human rights, perpetrated in all regions of the
world, and the successive atrocities of the last century, including the ones that
take place nowadays.19 Such atrocities awoke the universal juridical conscience to
the necessity to reconceptualize the foundations themselves of the international
legal order, restoring to the human being the central position from where he had
been displaced. This reconstruction, on humanist foundations, took as concep-
17 Cf. chapter IX, supra.

18 A.A. Cançado Trindade, “El Derecho de Petición Individual ante la Jurisdicción In-
ternacional”, 48 Revista de la Facultad de Derecho de México – UNAM (1998) pp.
131-151.
19 Such as the holocaust, the gulag, followed by new acts of genocide, e.g., in South-
East Asia, in central Europe (the former Yugoslavia), in Africa (Rwanda), among oth-
ers; for a recent account, cf., e.g., B. Bruneteau, Le siècle des génocides – Violences,
massacres et processus génocidaires de l’Arménie au Rwanda, Paris, A. Colin, 2004,
pp. 5-233.
248 Chapter X
tual basis entirely distinct canons, such as those of the realization of superior
common values and the common good, of the human being as subject of rights,
and of the objective character of the obligations of protection.20 The international
order of sovereignties has at last yielded to that of solidarity.
This profound transformation of the international legal order, precipitated
as from the Universal and American Declarations of Human Rights of 1948, has
not taken place without difficulties, precisely for requiring a new mentality. It
underwent, moreover, stages, some of which no longer sufficiently studied nowa-
days, also with regard to the consolidation of the right of individual petition. Al-
ready in the beginnings of the exercise of this right it was stressed that, although
motivated by the search for individual redress, the right of petition contributed
also to secure respect for the obligations of objective character incumbent upon
States Parties.21 In several cases the exercise of the right of petition has gone even
further, generating changes in the domestic legal order and in the practice of the
public organs of the State.22 The significance of the right of individual petition
can only be appropiately assessed in historical perspective.23
That transformation, proper of our times, corresponds to the recognition
of the necessity that all States, in order to avoid new violations of human rights,
are made responsible for the way they treat all human beings who are under their
jurisdiction. This would simply not have been possible without the consolidation
of the right of individual petition, amidst the recognition of the aforementioned
objective character of the obligations of protection, and the acceptance of the
collective guarantee of compliance with these latter. This is the real meaning of
20 With a direct incidence of those canons in the methods of interpretation of the

international norms of protection, without necessarily departing from the general
rules of interpretation of treaties set forth in Articles 31-33 of the two Vienna Con-
ventions on the Law of Treaties (of 1969 and 1986).
21 For example, under the original Article 25 of the European Convention on Human
Rights (prior to Protocol n. 11), cf. H. Rolin, “Le rôle du requérant dans la procédure
prévue par la Commission européenne des droits de l’homme”, 9 Revue hellénique
de droit international (1956) pp. 3-14, esp. p. 9; C.Th. Eustathiades, “Les recours in-
dividuels à la Commission européenne des droits de l’homme”, in Grundprobleme
des internationalen Rechts – Festschrift für Jean Spiropoulos, Bonn, Schimmelbusch
& Co., 1957, p. 121; F. Durante, Ricorsi Individuali ad Organi Internazionali, Milano,
Giuff rè, 1958, pp. 125-152, esp. pp. 129-130; among others.
22 With the development of the International Law of Human Rights, it is Public In-
ternational Law itself which is enriched, in the assertion of canons and principles
proper to the present domain of protection, grounded on fundamentally distinct
premises from those which have guided its postulates at the level of purely inter-
State relations. The International Law of Human Rights thus comes to affi rm the
aptitude of Public International Law to secure, in the present context, compliance
with the international obligations of protection on the part of States vis-à-vis all hu-
man beings under their jurisdictions.
vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 100-121.
the historical rescue of the individual as subject of the International Law of Hu-
man Rights.
The assessment of the right of individual petition as a method of interna-
tional implementation of human rights has necessarily to take into account the
basic point of the legitimatio ad causam of the petitioners and of the conditions
of the use and the admissibility of the petitions (set forth in the distinct instru-
ments of human rights which foresee them). It has been particularly under the
European Convention on Human Rights that a vast case-law on the right of indi-
vidual petition at first evolved.24 Both the old European Commission [EComHR]
and the European Court [ECtHR] of Human Rights understood that the concept
itself of victim25 was to be interpreted autonomously under the Convention. This
understanding today finds solid support in the jurisprudence constante under the
Convention, to the effect that the concept of “victim” (under original Article 25)
ought to be interpreted in an autonomous way and independently of concepts of
domestic law such as those of the interest or quality to interpose a judicial action
or to participate in a legal process.26
Thus, in the case Norris versus Ireland (1988), the ECtHR pondered that the
conditions which govern individual petitions under Article 25 of the Convention
“are not necessarily the same as national criteria relating to locus standi”, which
may even serve purposes distinct from those contemplated in the aforementioned
Article 25.27 The autonomy of the right of individual petition at international level
vis-à-vis provisions of domestic law thus clearly ensues therefrom. The elements
singled out in this case-law of protection apply equally under procedures of other
human rights treaties which require the condition of “victim” for the exercise of
the right of individual petition.28
24 It did so recognizing to this latter autonomy, distinct as it is from the substantive

rights listed in title I of the European Convention. Any obstacle interposed by the
State Party at issue to its free exercise would bring about, therefore, an additional
violation of the Convention, parallel to other violations which become proved of the
substantive rights enshrined in this latter.
25 In the light of [original] Article 25 of the Convention.
26 Cf. in this sense: EComHR, case Scientology Kirche Deutschland e.V. versus Ger-
many (1997), 89 Decisions and Reports (1997) p. 170; EComHR, case Greek Federa-
tion of Customs Officials, N. Gialouris, G. Christopoulos and 3333 Other Customs
Officials versus Greece (1995), 81-B Decisions and Reports (1995) p. 127; EComHR,
case K. Sygounis, I. Kotsis and Police Union versus Greece (1994), 78 Decisions and
Reports (1994) p. 77; EComHR, case Association of Air Pilots of the Republic, J. Mata
et Al. versus Spain (1985), 41 Decisions and Reports (1985) p. 222. – According to this
same case-law, to fulfi l the condition of “victim” (under Article 25) there ought to be
a “sufficiently direct link” between the individual complainant and the alleged dam-
age, resulting from the alleged violation of the Convention.
27 ECtHR, case Norris versus Ireland, Judgment of 26.10.1988, Series A, vol. 142, p. 15,
par. 31.
28 On the evolution of the notion of “victim” (including the potential victim) in the
International Law of Human Rights, cf. A.A. Cançado Trindade, “Co-existence and
250 Chapter X
In the inter-American system of protection of human rights, the right of

individual petition has constituted an effective way of facing not only individual
cases but also massive and systematic violations of human rights,29 even before
the entry into force of the American Convention on Human Rights (i.e., in the
early practice of the Inter-American Commission on Human Rights [IAComHR]).
Its importance has been fundamental, and could never be minimized. The con-
solidation of the right of individual petition under Article 44 of the American
Convention on Human Rights was endowed with special significance. Not only
was its importance, for the mechanism of the Convention as a whole, duly em-
phasized in the travaux préparatoires of that provision of the Convention,30 but
it also represented an advance in relation to what, until the adoption of the Pact
of San José in 1969, had been achieved in that respect, in the ambit of the Inter-
national Law of Human Rights.
The European Convention, in turn, only accepted the right of individual pe-
tition originally enshrined in an optional clause (Article 25 of the Convention),
conditioning the legitimatio ad causam to the demonstration of the character-
ization of victim by the individual complainant, – what, in its turn, generated
a remarkable jurisprudential development of the notion of “victim” under the
European Convention. The American Convention, in a distinct way, rendered
the right of individual petition (Article 44 of the Convention) mandatory, of au-
tomatic acceptance by the ratifying States, extending it to “any person or group
of persons, or any non-governmental entity legally recognized in one or more
member States” of the Organization of American States (OAS), – what discloses
the capital importance attributed to it.31
This was, recognizedly, one of the great advances achieved by the American
Convention, at conceptual and normative, as well as operational, levels. One has
to bear always in mind the autonomy of the right of individual petition vis-à-vis
Co-ordination of Mechanisms of International Protection of Human Rights (At

Global and Regional Levels)”, 202 RCADI (1987) pp. 243-299, esp. pp. 262-283.
29 I thus regret not to be able to share the insinuation present in part of the contem-
porary European specialized bibliography on the matter, in the sense that the right
of individual petition would perhaps not be effective in relation to massive and sys-
tematic violations of human rights. The experience accumulated from the other side
of the Atlantic, in the inter-American system of protection, points exactly to the
opposite sense, and thanks to the right of individual petition many lives have been
saved and justice has been accomplished in concrete cases amidst generalized situ-
ations of violations of human rights.
30 Cf. OAS, Conferencia Especializada Interamericana sobre Derechos Humanos – Ac-
tas y Documentos (San José of Costa Rica, 07-22 November 1969), doc. OAS/Ser.
K/XVI/1.2, Washington D.C., OAS General Secretariat, 1978, pp. 43, 47 and 373.
31 The other type of petition, the inter-State one, was only provided for on an optional
basis (Article 45 of the American Convention, unlike the scheme of the original
European Convention – Article 24 – in this particular), again stressing the great
relevance attributed in particular to the right of individual petition by the American
Convention.
the domestic law of the States. Its relevance cannot be minimized, as it may oc-
cur that, in a given domestic legal order, an individual may feel unable, by the
circumstances of a legal situation, to take legal measures by himself. He will not
thereby be deprived of doing it in the exercise of the right of individual petition
under the American Convention, or another human rights treaty.
It would thus not be justified that, after slightly over a quarter of a century
of operation of the American Convention,32 one would admit to surround with
restrictions the wide extent of the legitimatio ad causam, on the part of any per-
son, under Article 44 of the American Convention. Such legitimatio is extended
to every and any petitioner, who can even do without a manifestation on the part
of the victim herself. The right of individual petition, thus widely conceived, has
as an immediate effect the enlargement of the extent of protection, above all
in cases in which the victims (e.g., those detained incommunicado, disappeared
persons, among other situations) find themselves unable to act motu propio, and
stand in need of the iniciative of a third party as petitioner in their behalf.
Nationality disappears as a vinculum juris for the exercise of protection (dif-
ferently from the discretionary diplomatic protection in the inter-State conten-
tieux, based upon fundamentally distinct premises), sufficing that the individual
complainant -irrrespective of nationality or domicile – is (even though tempo-
rarily) under the jurisdiction of one of the States Parties to the human rights
treaty at issue. The denationalization of the protection and the requisites of the
international action of safeguard of human rights,33 besides sensibly widening
the circle of protected persons, enabled the individuals to exercise rights ema-
nated directly from International Law (the droit des gens), implemented in the
light of the aforementioned notion of collective guarantee, and no longer simply
“granted” by the State.
III. The Emancipation of the Individual from His Own State

Each of the procedures which regulate the right of individual petition under in-
ternational treaties and instruments of human rights, despite differences in their
legal nature, has contributed, in its own respective way, to the gradual strength-
ening of the procedural capacity of the complainant at international level.34 In
32 As from its entry into force, on 18 July 1978.

33 On the conditions of admissibility of individual petitions under human rights trea-
ties, cf., e.g., T. Zwart, The Admissibility of Human Rights Petitions, Dordrecht, Ni-
jhoff, 1994, pp. 1-237; A.A. Cançado Trindade, The Application of the Rule of Ex-
haustion of Local Remedies in International Law, Cambridge, Cambridge University
Press, 1983, pp. 1-472; M. Pinto, La Denuncia ante la Comisión Interamericana de
Derechos Humanos, Buenos Aires, Ed. del Puerto, 1993, pp. 23-184.
34 In an express recognition of the relevance of the right of individual petition, the
Declaration and Programme of Action of Vienna, the main document adopted by
the II World Conference of Human Rights (1993), called for its adoption, as an ad-
ditional method of protection, by means of Optional Protocols to the Convention on
252 Chapter X
fact, of all the mechanisms of international protection of human rights, the right
of individual petition is the most dynamic one, in even granting the initiative of
action to the individual himself (the ostensibly weaker party vis-à-vis the public
power), distinctly from the exercise ex officio of other methods (such as those of
fact-finding and reports) on the part of the international supervisory organs. It
is the one which best reflects the specificity of the International Law of Human
Rights, in comparison with other solutions proper to Public International Law.
In the public hearings before the Inter-American Court of Human Rights
[IACtHR], in distinct cases, – above all in the hearings pertaining to reparations,
– a point which has particularly drawn my attention has been the observation,
increasingly more frequent, on the part of the victims or their relatives, to the
effect that, had it not been for the access to the international instance, justice
would never have been done in their concrete cases. Without the right of individ-
ual petition, and the consequent access to justice at international level, the rights
enshrined into the European and American Conventions would be reduced to
a little more than dead letter. It is by the free and full exercise of the right of
individual petition that the rights set forth in the aforementioned Conventions
(added to the African Charter on Human and Peoples’ Rights) become effective.
The right of individual petition shelters, in fact, the last hope of those who did not
find justice at national level.
The right of individual petition – as I have been upholding for years – is a
fundamental clause (cláusula pétrea) of the human rights treaties that provide
for it, upon which is erected the juridical mechanism of the emancipation of the
human being vis-à-vis his own State for the protection of his rights in the ambit
of the International Law of Human Rights.35 In its Judgment in the case of Cas-
tillo Petruzzi and Others versus Peru (preliminary objections, 1998), the IACtHR
safeguarded the integrity of the right of individual petition (challenged by the
respondent State) under the American Convention (Article 44) in the circum-
stances of the case.36
The indispensable and ineluctable complement of the right of international
individual petition lies in the intangibility of the jurisdiction of the international
tribunals of human rights.37 In this connection, it may be recalled that, shortly
the Elimination of All Forms of Discrimination against Women (already adopted)

and to the Convenant on Economic, Social and Cultural Rights (not yet adopted);
cf. Declaration and Programme of Action of Vienna of 1993, part II, pars. 40 and 75,
respectively. That document moreover recommended to the States Parties to human
rights treaties the acceptance of all available optional procedures of individual peti-
tions or communications (part II, par. 90).
35 IACtHR, case of Castillo Petruzzi and Others versus Peru (preliminary objections,
1998), Concurring Opinion of Judge A.A. Cançado Trindade, pars. 35-36.
36 On the importance of that right, cf. in particular paragraph 77 of the Judgment.
37 Para um estudo recente, cf. A.A. Cançado Trindade, El Acceso Directo del Individ-
uo a los Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de
Deusto, 2001, pp. 17-96, esp. pp. 61-76.
after the Court’s Judgment in the case of Castillo Petruzzi and Others versus
Peru, the respondent State (under the Presidency of Mr. A. Fujimori) announced
the “withdrawal” of its instrument of acceptance of the Court’s compulsory ju-
risdiction, with “immediate effects”. In its two Judgments on competence of 24
September 1999, in the cases of the Constitutional Tribunal and of Ivcher Bron-
stein versus Peru, the IACtHR, in asserting its competence to adjudicate on those
cases, declared inadmissible the intended “withdrawal” by the respondent State
of its contentious jurisdiction with “immediate effects”. The Court warned that
its competence could not be conditioned by acts distinct from those of its own. It
added that, in recognizing its contentious jurisdiction, a State accepts the prer-
rogative of the Court to decide on any question affecting its competence, being
unable, later on, to attempt to withdraw suddenly from it, as that would under-
mine the whole international mechanism of protection.
The IACtHR pondered that there exist unilateral acts of the States which are
completed by themselves, in an autonomous way (such as the recognition of State
or government, diplomatic protest, promise, renunciation), and unilateral acts
performed in the ambit of the law of treaties, governed and conditioned by this
latter (such as ratification, reservations, acceptance of the clause of contentious
jurisdiction of an international tribunal). The American Convention could not
be at the mercy of limitations no provided for by it, imposed suddenly by a State
Party for reasons of domestic order. The American Convention did not foresee
the unilateral withdrawal of a clause, and even less of a clause of the importance
of the one which provided for the acceptance of the contentious jurisdiction of
the Court.38 The IACtHR thus proceeded with its examination of the pending
contentious cases against the Peruvian State, – and it could not have been oth-
erwise: this was a duty incumbent upon it, under the American Convention, as
an autonomous judicial organ of international protection of human rights.39 The
Court then decided, in conclusion, that the intended “withdrawal” of the respon-
dent State was “inadmissible”.
38 The sole possibility which the American Convention foresaw was, – the IACtHR
recalled, – that of the denunciation (of the Convention as a whole), with the observ-
ance of a 12-month lapse of time, and without comprising facts prior to the denun-
ciation. This was the same lapse of time set forth in the Vienna Convention on the
Law of Treaties of 1969. Th is was an imperative of juridical security, which ought to
be rigorously observed in the interest of all States Parties.
39 The respondent State had undertaken an international engagement from which it
could not, all of a sudden, withdraw in its own terms. The purported unilateral “with-
drawal” with “immediate effects” of the respondent State had no juridical founda-
tion, – neither in the American Convention, nor in the law of treaties, nor in general
international law. The intended “withdrawal”, besides being unfounded, would have
brought about the ruin, to the detriment of all States Parties to the American Con-
vention, of the inter-American system of protection as a whole, constructed with so
much effort along the last decades.
254 Chapter X
With its important and historical decision in those cases the Court safe-
guarded the integrity of the American Convention,40 which, as the other human
rights treaties, bases its application on the collective guarantee in the operation of
the international mechanism of protection. In fact, the principle of effectiveness
(ut res magis valeat quam pereat/effet utile) comprises both the substantive and
the procedural provisions of human rights treaties, and the objective character
of the obligations of protection and the notion of collective guarantee underlying
those treaties have primacy over additional restrictions interposed by individual
States. The Court’s aforementioned Judgments, in the cases of the Constitutional
Tribunal and of Ivcher Bronstein versus Peru, contributed ultimately to enhance
the foundation of its jurisdiction in contentious matters. With the subsequent
change in government in the country, the Peruvian State rendered “without ef-
fects” the earlier purported “withdrawal” from the Court’s competence, and
“normalized” its relations with this latter (on 09 February 2001),41 then comply-
ing with its Judgments.42
The international remedy which individuals were granted by the right of
individual petition under the American Convention was likewise safeguarded:
the individual’s international procedural capacity thereunder became effective
beyond question. The old and discredited voluntarist conception of the interna-
tional legal order had yielded to a new outlook, that of the emancipation of the
individual from his own State, and of the safeguard of the rights inherent to the
human person. This is what I have been sustaining for years within the IACtHR.
That emancipation of the individual culminates in the consolidation of his inter-
national procedural capacity. As I have pointed out in my Concurring Opinion
in the case of Castillo Petruzzi and Others (preliminary objections, 1998, pars.
42-43) and in my Separate Opinion in the case of the Gómez Paquiyauri Brothers
(merits, 2004, par. 28), both concerning Peru,
40 Cf., subsequently, to the same effect, the Court’s judgments in the cases of Hilaire,
Benjamin and Constantine versus Trinidad and Tobago (preliminary objections,
2001).
41 On that date, the Minister of Justice of Peru visited the headquarters of the Court in
San José of Costa Rica, and handled to the Court’s President two notes, whereby the
Peruvian State expressly recognized its international responsibility for the violation
of the rights of the three dismissed Judges from the Constitutional Tribunal, as well
as of Mr. B. Ivcher Bronstein (with regard to the Court’s Judgments, on the merits,
of 31.01.2001, and 06.02.2001, respectively), and informed of the measures the Pe-
ruvian State was taking in order to reestablish the rights of those persons. IACtHR,
Press Release CDH-CP2/01, of 09.02.2001, pp. 1-2.
42 For a historical account of this episode, cf. A.A. Cançado Trindade, “El Perú y la
Corte Interamericana de Derechos Humanos – Una Evaluación Histórica (Part I)”,
in: 138 Ideele – Revista del Instituto de Defensa Legal – Lima/Peru (June 2001) pp.
108-113; A.A. Cançado Trindade, “El Perú y la Corte Interamericana de Derechos
Humanos (Part II)”, in: 139 Ideele – Revista del Instituto de Defensa Legal – Lima/
Peru (July 2001) pp. 85-88.
“This means to seek to secure, not only the direct representation of the victims or
their relatives (locus standi) in the procedure before the Inter-American Court in
cases already forwarded to it by the Commission (in all stages of the proceedings
and not only in that of reparations), but rather the right of direct access of individu-
als before the Court itself (jus standi), so as to bring a case directly before it (...).43
(...) Above all, this qualitative advance would fulfi ll, in my understanding, an im-
perative of justice. The jus standi – no longer only locus standi in judicio, - without
restrictions, of individuals, before the Inter- American Court itself, represents, – as
I have indicated in my Opinions in other cases before the Court,44 – the logical
consequence of the conception and formulation of rights to be protected under the
American Convention at international level, to which it ought to correspond neces-
sarily the full juridical capacity of the individual petitioners to vindicate them”.
IV. The Locus Standi of Individuals in the Procedures before International

Human Rights Tribunals
The prevalence of this new outlook is, in my view, in historical perspective, one
of the great achievements of International Law in our times: it is materialized by
means of the access of individuals to the international instances of protection
of their rights and the recognition of their international procedural capacity in
cases of violations of human rights. When the systems of protection under the
European and the American Conventions on Human Rights were conceived, the
mechanisms then adopted did not originally provide for direct representation of
individuals in the procedures before the two international human rights tribu-
nals created by the two Conventions (the ECtHR and the IACtHR). The resist-
ances, then manifested,45 – proper of another epoch and under the spectre of
State sovereignty, – to the establishment of a new international jurisdiction for
the safeguard of human rights, were gradually overcome, in a reassuring evolu-
tion which can here be succintly reviewed.46
43 To that end, individuals would do without the Inter-American Commission, which

would, nevertheless, retain functions (like those of fact-fi nding and elaboration
of reports) other than the contentious one, prerrogative of the future permanent
IACtHR.
44 Cf., in this sense, my Separate Opinions in the cases of Castillo Páez (preliminary
objections, Judgment of 30.01.1996), pars. 14-17, and of Loayza Tamayo (preliminary
objections, Judgment of 31.01.1996), pars. 14-17, respectively, both concerning Peru.
45 Which led to the intermediation of the European and Inter-American Commis-
sions of Human Rights, thereby trying to avoid or circumvent the direct access of
individuals to the two regional (European and Inter-American) tribunals of human
rights.
46 For a detailed account, cf. A.A. Cançado Trindade, El Acceso Directo del Individuo...,
op. cit. supra n. (37), pp. 9-104.
256 Chapter X
1. Developments in the European System of Protection

Already in the examination of its first contentious cases, both the ECtHR and the
IACtHR manifested themselves against the artificiality of the originally adopt-
ed scheme of intermediation by the EComHR and the IAComHR, respectively,
between them and the individual complainants. It may be recalled that, quite
soon, since the Lawless versus Ireland case (1960), the ECtHR began to receive,
by means of the delegates of the EComHR, written arguments of the individual
complainant themselves, which not seldom contained criticisms in relation to
the views expounded by the EComHR itself. This measure was regarded as a
sensible one, as the arguments of the alleged victims did not have to coincide
entirely with those of the delegates of the Commission. One decade later, during
the proceedings in the so-called Vagrancy cases, concerning Belgium (1970), the
ECtHR accepted the Commission’s request to give the floor to a lawyer of the
three petitioners; in taking the floor, their lawyer criticized, on a given point, the
opinion expressed by the EComHR in its report on the case.47
The way was paved for the subsequent developments, namely: the granting
of locus standi to the legal representatives of the individual complainants before
the ECtHR (by means of the reform of the Court’s Rules of Procedure of 1982, in
force as from 01.01.1983) in cases lodged with it by the Commission or the States
Parties,48 followed by the adoption of Protocol n. 9 (of 1990) to the European Con-
vention (which entered into force on 01.10.1994). As pointed out by the Explana-
tory Report of the Council of Europe on the matter, Protocol n. 9 granted “a type
of locus standi” to the individuals before the Court, undoubtedly an advance, but
which did not secure them yet the “equality of arms/égalité des armes” with the
respondent States and the full benefit of the utilization of the mechanism of the
European Convention for the vindication of their rights.49
In any case, relations between the ECtHR and the individual complainants
became direct, without counting necessarily on the intermediation of the del-
egates of the EComHR. This pursued a certain logic, as the roles of the complain-
ants and of the Commission are distinct; as the ECtHR pointed out already in its
47 Cf. M.-A. Eissen, El Tribunal Europeo de Derechos Humanos, Madrid, Civitas, 1985,
pp. 28-36.
48 For a detailed study, cf. P. Mahoney, “Developments in the Procedure of the Euro-
pean Court of Human Rights: the Revised Rules of Court”, 3 Yearbook of European
Law (1983) p. 127-167.
49 On Protocol n. 9 (adopted in 1990) to the European Convention, cf. Council of Eu-
rope, Protocol n. 9 to the Convention for the Protection of Human Rights and Funda-
mental Freedoms – Explanatory Report, Strasbourg, C.E., 1992, pp. 3-18; J.-F. Flauss,
“Le droit de recours individuel devant la Cour européenne des droits de l’homme
– Le Protocole n. 9 à la Convention Européenne des Droits de l’Homme”, 36 AFDI
(1990) pp. 507-519; G. Janssen-Pevtschin, “Le Protocole Additionnel n. 9 à la Con-
vention Européenne des Droits de l’Homme”, 2 Revue trimestrielle des droits de
l’homme (1991) n. 6, pp. 199-202.
first case (Lawless), the Commission appeared rather as an organ auxiliary of the
Court. The cases of diverging opinions between the delegates of the EComHR
and the representatives of the alleged victims became frequent, and this came
to be considered as rather normal, if not inevitable. Respondent States in a way
acquiesced with the practice of the delegates of the old Commission to resort
almost always to the assistance of a representative of the victims, or, at least, did
not object to it.
It is not to pass unnoticed that all this evolution was launched, in the Euro-
pean system of protection, gradually, by means, in those days, of the aforemen-
tioned reform of the Rules of Procedure of the ECtHR and the adoption of Proto-
col n. 9 to the Convention. The ECtHR determined the extent of its own powers
by means of the reform of its interna corporis, affecting also the condition itself
of the parties in the procedure before it. Some cases were settled under Protocol
n. 9, in relation to States Parties to the European Convention which ratified the
Protocol.50
As to the enhanced position of individual complainants, it may be recalled
that, in the case Loizidou versus Turkey (preliminary objections, Judgment of
23.03.1995), the ECtHR furthermore discarded the possibility of restrictions – by
the Turkish declarations – in relation to the key provisions of Article 25 (right
of individual petition), and of Article 46 (acceptance of its jurisdiction in con-
tentious matters) of the European Convention. To sustain another position, it
added, “would not only seriously weaken the role of the Commission and Court
in the discharge of their functions but would also diminish the effectiveness of
the Convention as a constitutional instrument of the European public order (or-
dre public)”.51
With the adoption and entry into force of Protocol n. 11 to the European
Convention, the reform of the mechanism of protection of the European Con-
50 Hence the co-existence of Rules of Procedure A (applicable to cases concerning

States Parties to the European Convention which had not ratified Protocol n. 9) and
B (applicable to cases pertaining to States Parties to the Convention which ratified
Protocol n. 9) of the ECtHR.
51 Paragraph 75; the ECtHR discarded the argument of the respondent State that one
could infer the possibility of restrictions to the optional clauses of Articles 25 and 46
of the Convention by analogy with the State practice under Article 36 of the Statute
of the ICJ. The ECtHR not only recalled the practice to the contrary (accepting such
clauses without restrictions) of the States Parties to the European Convention, but
also stressed the fundamentally distinct context in which the two tribunals operate,
the ICJ being “a free-standing international tribunal which has no links to a stand-
ard-setting treaty such as the Convention” (pars. 82 and 68). The ICJ, – reiterated
the ECtHR, – settles legal questions in the inter-State contentieux, distinctly from
the functions of the supe_visory organs of a “normative treaty” (law-making treaty)
like the European Convention. Accordingly, the “unconditional acceptance” of the
optional clauses of Articles 25 and 46 of the Convention does not leave margin for
analogy with the practice of States under Article 36 of the Statute of the ICJ (pars.
84-85).
258 Chapter X
vention took place, with the establishment of a new ECtHR as sole jurisdictional
organ of supervision of the Convention.52 With the advent of Protocol n. 11 (de
1994),53 on 01 November 1998, the individual was at last endowed with direct ac-
cess to an international tribunal (jus standi), as a true subject – with full juridical
capacity – of International Law in the present domain of protection. This became
possible, above all, by virtue of a new mentality as to the protection of human
rights at international level, prompted by human conscience.
On the occasion of the Rome Conference of 2000 in commemoration of the
50th anniversary of the adoption of the European Convention on Human Rights,
in a message I sent to the ECtHR as President of the IACtHR, bearing in mind
the consolidation of the international procedural capacity of individuals in the
procedures before the two Courts, I saw if fit to express my belief that
“instead of threatening ‘to fragment’ International Law, our two Tribunals have
helped, quite on the contrary, to achieve the aptitude of International Law to regu-
late efficiently relations which have a specificity of their own – at intra-State, rather
than inter-State, level, opposing States to individuals under their respective juris-
dictions, – and which require a specialized knowledge from the Judges. In so do-
ing, our two international human rights Tribunals have contributed, on this eve of
the XXIst century, to enrich and humanize contemporary Public International Law.
They have done so as from an essentially and necessarily anthropocentric outlook,
52 For a substantial study, cf. A. Drzemczewski, “A Major Overhaul of the European

Human Rights Convention Control Mechanism: Protocol n. 11”, 6 Collected Courses
of the Academy of European Law (1997)-II, pp. 121-244. And, for an assessment of
its mechanism of application, cf. J.F. Flauss (ed.), La mise en oeuvre du Protocole n.
11: le nouveau Règlement de la Cour Européenne des Droits de l’Homme, Bruxelles,
Bruylant, 2000, pp. 13-135; V. Berger et alii, La procédure devant la nouvelle Cour
Européenne des Droits de l’Homme après le Protocole n. 11, Bruxelles, Bruylant, 1999,
pp. 7-103.
53 Rendering Protocol n. 9 (supra) anachronistic, though of historical interest. Each re-
gional human rights system – conceived and operating in the frameword of the uni-
versality of human rigthts – lives a distinct historical moment. Thus, in the African
system of protection, in 1998 was adopted the Protocol to the African Charter on
Human and Peoples’ Rights, providing for the establishment (as it enters into force)
of an African Charter of Human and Peoples’ Rights. On the travaux préparatoires
of the Burkina Faso Protocol, cf., e.g., “Government Legal Experts Meeting on the
Question of the Establishment of an African Court on Human and Peoples’ Rights”
(Cape Town, South Africa, September 1995), 8 African Journal of International and
Comparative Law (1996) pp. 493-500; and cf. comments in, e.g., M. Mubiala, “La
Cour Africaine des Droits de l’Homme et des Peuples: mimetisme institutionnel ou
avancée judiciaire?”, 102 Revue générale de Droit international public (1998) pp. 765-
780.
as aptly foreseen, since the XVIth century, by the so-called founding fathers of the
law of nations (droit des gens)”.54
With the entry into force of Protocol n. 11 to the European Convention, the total
number of cases brought before the ECtHR, not surprisingly, kept on increasing
considerably. The early statistical data, shortly after its entry into force, speak for
themselves.55 Due to the sharp increase in the number of cases, growing consid-
erably ever since, it was not surprising that, shortly after the adoption and entry
into force of Protocol n. 11 to the European Convention, a “reform of the reform”
was already being contemplated in the European human rights system to face
the overload of cases.56 Such “reform of the reform” has recently seen the light of
day, with the adoption, on 13.05.2004, of Protocol n. 14 to the European Conven-
tion. The Protocol aims at enhancing the ECtHR’s “filtering” methods, foreseeing
“clearly inadmissible cases”, “repetitive cases” and a new admissibility criterion
of applications disclosing that petitioners have not suffered a “significant disad-
vantage”.57

l’oeuvre des Cours internationales des droits de l’homme au développement du Droit
international public”, in La Convention européenne des droits de l’homme à 50 ans
– Bulletin d’information sur les droits de l’homme, n. 50 (special issue), Strasbourg,
Council of Europe, 2000, pp. 8-9 (also published in other idioms of the Council of
Europe).
55 From the end of 1998 (year of the entry into force of Protocol n. 11) to the end of the
year 2000, the number of individual applications lodged with the Court raised from
18164 to 30069; by the year 2004, that total kept on sharply increasing up to 40943.
In the same period, the Court delivered 105 judgments in 1998, a total which raised
up to 695 judgments in 2000 and 718 in 2004. Council of Europe/ECtHR, Survey of
Activities 2004, Strasbourg, ECtHR, 2004, p. 35.
56 Cf., on this point, e.g., L. Wildhaber, “Some Reflections on the First Year of Op-
eration of the ‘New’ European Court of Human Rights”, in Millennium Lectures
– The Coming Together of the Common Law and the Civil Law (ed. B.S. Markesinis),
Oxford, Hart Publ., 2000, pp. 215-224; H. Petzold, “Epilogue: la réforme continue”,
in Protection des droits de l’homme: la perspective européenne – Mélanges à la mé-
moire de R. Ryssdal (eds. P. Mahoney et alii), Köln/Berlin, C. Heymanns Verlag,
2000, pp. 1571-1587.
57 Cf., for details, Council of Europe/Steering Committee for Human Rights, Collec-
tion of Texts on the Reform of the Human Rights Protection System and in Particular
the Protocol n. 14 and Other Texts Adopted at the 114th Session of the Committee
of Ministers (12-13.05.2004), C.E. document CDDH(2004)015 of 03.06.2004, Stras-
bourg, C.E., 2004, pp. 3-66; and, for a recent assessment, cf. G. Cohen-Jonathan and
J.-F. Flauss (eds.), La réforme du système de contrôle contentieux de la Convention
Européenne des Droits de l’Homme (Le Protocole n. 14 et les Recommandations et
Résolutions du Comité des Ministres), Bruxelles, Bruylant/Nemesis, 2005, pp. 9-182;
M. Eaton and J. Schokkenbroek, “Reforming the Human Rights Protection System
Established by the European Convention on Human Rights: A New Protocol n. 14
to the Convention and Other Measures to Guarantee the Long-Term Effectiveness
260 Chapter X
A new concern was expressed in the travaux préparatoires of Protocol n.

14 to the ECHR, to the effect of preserving the individual right of petition to the
ECtHR in order to obtain redress, carefully developed by the ECtHR over the
past 40 years,58 not to be undermined, as a basic pillar of the system of protection
under the ECHR.59 Legal representatives of the victims promptly complained
that the new condition of admissibility – with the aggravation that it could be
decided by one sole judge, thus defying the collegiality of the Court – was con-
trary to the spirit of the ECHR and the jurisprudential evolution thereunder, and
argued that it amounted to a hardly acceptable and undue restriction to the right
of individual petition, a basic foundation of the European system of human rights
protection.60
There is thus nowadays concern that the new admissibility requirement, a
very controversial one, established by Protocol n. 14 to the ECHR, may under-
mine the pro victima approach followed thus far by the ECtHR.61 It is thereby
not surprising that the new admissibility condition of Protocol n. 14 has met
with strong opposition, especially from those who take a principled, rather than a
pragmatic, approach, sustaining, in contradistinction to the “constitutional jus-
tice” outlook, that the right to individual petition, consonant with the “individual
rights” outlook, appears as an end in itself to the extent that it contributes to the
realization of justice.62
of the Convention System”, 26 Human Rights Law Journal (2005) pp. 1-17. For criti-
cisms of that new admissibility criterion of applications, cf. G. Cohen-Jonathan and
J.-F. Flauss (eds.), La réforme du système..., cit. supra (this footnote), pp. 42-44, 59, 73,
113, 122-125, 129 and 189; P. Lemmens and W. Vandenhole (eds.), Protocol n. 14 and
the Reform of the European Court of Human Rights, Antwerpen/Oxford, Intersentia,
2005, pp. 45, 50, 52-54, 59, 62, 64, 68-76 and 78-84.
58 J. Wadham and T. Said, “What Price the Right of Individual Petition: Report of the
Evaluation Group to the Committee of Ministers on the European Court of Human
Rights”, 2 European Human Rights Law Review (2002) pp. 170-172.
59 G. Cohen-Jonathan and J.-F. Flauss (eds. – Various Authors), La réforme du système
de contrôle contentieux de la Convention Européenne des droits de l’homme (Le Pro-
tocole n. 14 et les Recommendations et Résolutions du Comité de Ministres), Brux-
elles, Bruylant/Nemesis, 2005, pp. 19, 42-44, 57-58, 77, 123 and 155, and cf. pp. 42 and
122-125.
60 Ibid., pp. 42 and 122-125.
61 P. Lemmens and W. Vandenhole (eds. – Various Authors), Protocol n. 14 and the Re-
form of the European Court of Human Rights, Antwerpen/Oxford, Intersentia, 2005,
pp. 45, 49-50 and 52.
62 Ibid., pp. 53-54, and cf. pp. 59 and 62. Protocol n. 14 ruptures with the integrity of
the unrestricted right of individual petition, safeguarded thus far, and which has
characterized the evolution of the European human rights system, which remains
crucially important to the victims and should thus be preserved; ibid., 68-70, 72-
76 and 84. The new admissibility criterion of Protocol n. 14 may negatively affect
the very notion of “victim” under the ECHR; it unduly suggests that some human
rights violations may appear “more important” than others. In so doing, it leads to
2. Developments in the Inter-American System of Protection

Insofar as the inter-American system of protection is concerned, a central and
recurrent question in its agenda pertains precisely to the condition of the par-
ties in human rights cases under the American Convention on Human Rights,
and, in particular, to the legal representation or the locus standi in judicio of
the alleged victims (or their legal representatives) directly before the IACtHR, in
cases already submitted to it by the Commission. It is certain that the American
Convention determines that only the States Parties and the Commission have
the right “to submit a case” to the decision of the Court (Article 61(1)); but the
Convention, for example, in providing for reparations, also refers to “the injured
party” (Article 63(1)), by that meaning of course the alleged victims and not the
Commission.63
In fact, the recognition of the locus standi in judicio of the victims (or their
representatives) before the IACtHR64 (infra) has contributed to the “jurisdic-
tionalization” of the mechanism of protection under the American Convention,
besides putting an end to the ambiguity of the function of the IAComHR. This
latter is not a “party” in the process, but rather a guardian of the correct applica-
tion of the Convention. Like the experience accumulated by the ECtHR, since its
first contentious case (the Lawless case, supra), the IACtHR, also in the course
of examination of its first contentious cases, concerning Honduras (reparations,
1989), faced the artificiality of the initial scheme, and reacted against it; the IAC-
tHR received briefs from the relatives and lawyers of the victims, and took note
of them.65
But the really significant step was taken subsequently, in the El Amparo case
(reparations, 1996), concerning Venezuela, a landmark case in this respect. In the
public hearing on this case held by the IACtHR on 27.01.1996, one of its Judges, in
expressing his understanding that at least in that stage of the proceedings there
could be no doubt that the representatives of the victims were “the true com-
plainant party before the Court”, at a given moment began to address questions
to those representatives of the victims (rather than to the delegates of the Com-
mission or to the agents of the respondent State), who presented their answers.66
Until then, in the procedure before the IACtHR, the legal representatives of the
an abandonment of the generalized right to an international remedy, undermining

the right to individual petition and the access of all human rights victims to inter-
national justice; ibid., pp. 79-84.
63 Cf., for a general overview, A.A. Cançado Trindade, “Le système inter-américain de
protection des droits de l’homme: état actuel et perspectives d’évolution à l’aube du
XXIème siècle”, 46 AFDI (2000) pp. 547-577.
64 In cases already submitted to this latter by the Commission.
65 IACtHR, Godínez Cruz and Velásquez Rodríguez versus Honduras cases (Compen-
satory Damages), Judgments of 21.07.1989, Series C, ns. 8 and 7, respectively.
66 Cf. the intervention of Judge A.A. Cançado Trindade, and the answers of the repre-
sentatives of the victims, in IACtHR, Verbatim Records of the Public Hearing Held
262 Chapter X
victims were integrated to the delegation of the Commission with the eufemistic
designation of “assistants” to this latter.67 Shortly after that memorable public
hearing in the El Amparo case, the representatives of the victims presented two
briefs to the IACtHR (of 13.05.1996 and 29.05.1996).68
As from the oral proceedings in the El Amparo case, the way was paved
for the clarification of the locus standi in judicio of the individual complainants
before the IACtHR in its Rules of Procedure. It could hardly be denied that such
locus standi would better fulfi l the imperatives of law and justice under the Con-
vention. The previous Rules of Court of the IACtHR (of 1991) foresaw, in rather
oblique terms, a timid participation of the alleged victims or their representa-
tives in those proceedings, with the intermediation of the Commission.69
The next step, a decisive one, was taken by the new Rules of Court, adopted
on 16.09.1996 (which entered into force on 01.01.1997), Article 23 of which pro-
vided that “at the stage of reparations, the representatives of the victims or of
their next of kin may independently submit their own arguments and evidence”.
This provision paved the way for subsequent developments in the same direc-
tion, to the effect of securing to individuals locus standi in judicio in all phases
of the proceedings before the IACtHR. In effect, the new (and fourth) Rules of
Procedure of the Court (adopted on 24.11.2000, and in force as from 01.06.2001)
strengthened the position of individual complainants by extending their locus
standi to all stages in the procedure before the Court (no longer reparations
only). Article 23 of the new Rules provides that
before the Court on 27.01.1996 on Reparations – El Amparo Case [original in Span-

ish], pp. 72-76 (internal circulation).
67 This “pragmatic” solution, instead of solving the issue of the locus standi of indi-
viduals, created some ambiguities. The same occurred in the European system of
protection until 1982, when the fiction of the “assistants” to the EComHR was at last
overcome by the reform in that year of the Rules of Court of the ECtHR; cf. P. Ma-
honey and S. Prebensen, “The European Court of Human Rights”, in The European
System for the Protection of Human Rights (eds. R.St.J. Macdonald, F. Matscher and
H. Petzold), Dordrecht, Nijhoff, 1993, p. 630.
68 Parallel to that, with regard to the compliance with the judgment of interpretation
of the previous sentence on compensatory damages in the earlier cases of Godínez
Cruz and Velásquez Rodríguez, the representatives of the victims presented likewise
two briefs to the Court (dated 29.03.1996 and 02.05.1996).
69 The first Rules of Procedure of the IACtHR (of 1980), like the fi rst Rules of the EC-
tHR, had been modeled modeled on the Rules of Procedure of the ICJ; but at a very
early stage in their respective work, the two international human rights tribunals
realized that their respective Rules of Procedure had to be adapted to bring them
into line with the particular nature of contentious human rights cases. Hence the
changes of their respective Rules to that end. The second Rules of Procedure of the
IACtHR (of 1991) intended to rationalize the proceedings, rendering them also more
expedite.
“When the application has been admitted, the alleged victims, their next of kin or
their duly accredited representatives may submit their requests, arguments and evi-
dence, autonomously, throughout the proceeding.
When there are several alleged victims, next of kin or duly accredited repre-
sentatives, they shall designate a common intervenor who shall be the only person
authorized to present requests, arguments and evidence during the proceedings,
including the public hearings.
In case of disagreement, the Court shall make the appropriate ruling”.
Thus, under the 2000 Rules of Procedure of the IACtHR, the alleged victims, or
their next of kin or representatives, can autonomously present requests, argu-
ments, and evidence at any point in proceedings before the Court.70
This landmark change introduced by the current Rules of Procedure of the
IACtHR has clarified and enhanced the procedural capacity of individuals, and
ensured the procedural equality of arms, in the whole procedure before the IAC-
tHR. That enhancement is being achieved gradually, in the evolution of the Rules
of Court, as well as by means of the interpretation of certain provisions in the
American Convention71 and in the Court’s Statute, in light of their purpose and
goals.
With regard to the IACtHR’s advisory procedure, it may be pointed out that
the proceedings of last decade concerning Advisory Opinion n. 16, on The Right
to Information on Consular Assistance in the Framework of the Guarantees of
70 The new Rules of Court forms part of a process of improvement and strengthening
of the system of protection under the American Convention as a whole. The next
step of this evolution ought to consist, as I have been sustaining for a long time, of
a Protocol of Reforms to the American Convention on Human Rights (pursuant to
Article 77(1) of the ACHR), preceded by ample consultations with the States Parties
to the Convention, the entities of civil society and the beneficiaries of the system in
general. The future Protocol ought to initially incorporate the advances of the Rules
of Court already achieved. But, in my view, it ought to go beyond that. The substan-
tive part of the Convention (pertaining to the protected rights) ought to be duly
preserved, without alterations, as a growing and rich case-law of the Court is already
developed thereon, being today a juridical patrimony of all countries and peoples of
the region. But the part of the Convention concerning the mechanism of protection
and corresponding procedures certainly requires reforms, aiming at strengthening
them. A Protocol, once it comes into force, constitutes the safest way to obtain real
commitments on the part of the States, without major risks of steps backwards, as to
a more effective mechanism of protection of human rights. To this end I prepared,
and presented to the OAS in May 2001, my Report titled Basis for a Draft Protocol
to the American Convention on Human Rights, to Strengthen Its Mechanism of
Protection (cf. footnote (71), infra).
71 Namely, e.g., Articles 44, 48(1)(f), 63(1), 57 and 61 of the American Convention, and
Article 28 of the Court’s Statute; cf. A.A. Cançado Trindade, Informe: Bases para un
Proyecto de Protocolo a la Convención Americana sobre Derechos Humanos, para
Fortalecer Su Mecanismo de Protección, vol. II, 2nd. ed., San José of Costa Rica,
Inter-American Court of Human Rights, 2003, pp. 3-64.
264 Chapter X
the Due Process of Law (1999), followed by those relating to Advisory Opinion
n. 18, on the Juridical Condition and Rights of Undocumented Migrants (2003),
counted both on a wide public participation both in the written phase and in the
public hearings.72 Such participation dicloses the access to international jurisdic-
tion that individuals enjoy in advisory proceedings under the American Conven-
tion, and the ordre public nature of such proceedings.
As to provisional measures of protection, it may be singled out that, in two
cases in the course of the year 2000 (cases of the Constitutional Tribunal and
of Loayza Tamayo, both concerning Peru), the President of the Court adopted
– at the request directly made by the petitioners themselves – urgent measures
ex officio, for the first time in the history of the Tribunal. Such measures were
confirmed by the plenary of the IACtHR, which ordered (on 14.08.2000 and
03.02.2001, respectively) provisional measures of protection, to avoid irreparable
damages to the petitioners. These two episodes reveal not only the viability, but
also the relevance, of the direct access of the individuals, without intermediar-
ies, to the IACtHR, even more forcefully in a situation of extreme gravity and
urgency.
V. The Individual Right of Direct Access (Jus Standi) to International

Human Rights Tribunals
Further reference can be made to the African system of human rights protec-
tion, which has lately also experienced the process of “jurisdictionalization”, by
means of the decision of the Burkina Fasso Protocol to the African Charter of
Human and Peoples’ Rights, adopted on 10.06.1998, – and entered into force on
25.01.2004, – to set up an African Court of Human and Peoples’ Rights.73 Be-
72 The proceedings of Advisory Opinion n. 16 counted on the participation of 8 inter-

vening States, the IAComHR, 7 individuals representing four national and interna-
tional human rights NGOs, 2 individuals from an NGO in support of the abolition
of death penalty, 2 representatives of a national lawyers’ association, 4 University
professors in their individual capacity, and 3 individuals representing a death-row
inmate. And the proceedings of the Advisory Opinion n. 18 counted on an unprece-
dented degree of participation comprising that of 12 accredited States (among which
5 States intervening in the hearings), the IAComHR, one U.N. agency (the UNHCR),
and 9 entities of civil society and academic centres of several countries of the region,
besides the Central American Council of Human Rights Ombudsmen [Attorneys-
General].
73 Whose Judge have recently been elected (on 22.01.2006), in pursuance of the old ide-
al of realization of international justice. For an account of the travaux préparatoires
and adoption of the 1998 Protocol to the African Charter on Human and Peoples
Rights, cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 214-220; and cf.,
e.g., “Government Legal Experts Meeting on the Question of the Establishment of
an African Court on Human and Peoples’ Rights” (Cape Town, South Africa, Sep-
tember 1995), 8 African Journal of International and Comparative Law (1996) pp.
fore the African Court, the question of the legitimatio ad causam is governed
by Article 5 of the 1998 Burkina Faso Protocol, paragraph 1 of which enables the
African Commission on Human and Peoples’ Rights as well as States Parties to
the African Charter to submit cases to the consideration of the Court (in addi-
tion to African intergovernmental organizations, for issues concerning them).
Paragraph 3 of Article 5, drafted in the form of an optional clause, acknowledges
a true jus standi in judicio, securing the direct access to the Court of individuals
and certain non-governmental organizations74 to lodge cases with it.
New perspectives have thus been lately opened as to the individual’s right
of access to international justice in the African system of human rights protec-
tion.75 But the Protocol still needs to come into force, and States Parties have to
accept the Court’s jurisdiction under the optional clause of Article 34(6) of the
Protocol to the Charter.76 The African Court has also much to contribute, in the
foreseeable future, in addressing the right of access to justice (also at domestic
law level), particularly in view of the difficulties faced in this respect by the Af-
rican Commission to date.77 All these developments and advances ought to be
properly appreciated in historical perspective.
493-500. Cf., further, Ben Kioko, The Process Leading to the Establishment of the
African Court on Human and Peoples’ Rights, Addis Abeba, African Society of In-
ternational and Comparative Law (X Annual Conference), 1998, pp. 5-6 (internal
circulation); I.A. Badawi El-Sheikh, “Draft Protocol to the African Charter on Hu-
man and Peoples’ Rights on the Establishment of an African Court on Human and
Peoples’ Rights – Introductory Note”, 9 African Journal of International and Com-
parative Law (1997) pp. 943-952; and cf. M. Mubiala, “La Cour Africaine des Droits
de l’Homme et des Peuples: mimetisme institutionnel ou avancée judiciaire?”, 102
Revue générale de Droit international public (1998) pp. 765-780, esp. p. 768.
74 Endowed with the status of observers before the African Commission.
75 F. Ouguergouz, The African Charter on Human and Peoples’ Rights, The Hague, Ni-
jhoff, 2003, pp. 723-724 and 755-756; the Protocol to the African Charter, like the
American Convention (and distinctly from the European Convention), does not re-
quire the individual petitioner to be the victim of the alleged violations of human
rights.
76 Cf. F. Viljoen, International Human Rights Law in Africa, Oxford, Univ. Press, 2007,
pp. 424, 435 and 438-451; M. Mubiala, “L’accès de l’individu à la Cour africaine
des droits de l’homme et des peuples”, in La promotion de la justice, des droits de
l’homme et du règlement des conflits par le Droit international – Liber amicorum L.
Caflisch (ed. M.G. Kohen), Leiden, Nijhoff, 2007, pp. 369-378.
77 E.g., given the regretted absence of an express provision, under the African Charter,
specifically on the right to an effective remedy; cf., on this issue, G.M. Musila, “The
Right to an Effective Remedy under the African Charter on Human and Peoples’
Rights”, 6 African Human Rights Law Journal (2006) pp. 442-464. For further chal-
lenges to be surmounted, cf. Association for the Prevention of Torture (APT), The
African Court on Human and Peoples’ Rights – Presentation, Analysis and Commen-
tary: The Protocol to the African Charter on Human and Peoples’ Rights, Establish-
ing the Court (Occasional Paper), Geneva, APT, January 2000, p. 4.
266 Chapter X
1. Antecedents of Domestic Law: The Subjective Right, and the Direct Access
(Jus Standi) to National Tribunals
It may be recalled, in the present context, that the conception of individual sub-
jective right has already a wide historical projection, originated in particular in
the jusnaturalist thinking in the XVIIth and XVIIIth centuries, and systematized
in the juridical doctrine along the XIXth century. Nevertheless, in the XIXth
century and the beginning of the XXth century, that conception remained in the
framework of domestic public law, the subjective right having then been con-
ceived as the prerrogative of the individual such as defined by the legal order at
issue (the objective law).78 Notwithstanding, it could hardly be denied that the
crystallization of the concept of individual subjective right, and its systematiza-
tion, achieved at least an advance towards a better understanding of the indi-
vidual as a titulaire of rights. And they rendered possible, with the emergence of
human rights at international level, the gradual overcoming of positive law. In the
mid-XXth century, the impossibility became clear of the evolution of Law itself
without the individual subjective right, expression of a true “human right”.79
The international juridical personality of the human being crystallized itself
as a limit to the discretion of State power. Human rights freed the conception of
the subjective right from the chains of legal positivism. If, on the one hand, the
legal category of the international juridical personality of the human being con-
tributed to instrumentalize the vindication of the rights of the human person,
emanated from International Law, – on the other hand the corpus juris of the
universal human rights conferred upon the juridical personality of the individual
a much wider dimension, no longer conditioned by the law emanated from the
public power of the State.
The remarkable assertion and expansion of the international juridical sub-
jectivity of the human being in the last decades (supra), leave no individual (as
titulaire of rights) outside this evolution; in the face of the limitations of the
juridical capacity of some individuals, – such as the children, the elderly persons,
the mentally ill, for example, – to exercise their rights for themselves, a legal
representative is recognized to them. But independently of such limitations, the
juridical personality of these latter, – as of every human being, – projects itself
at international level. As it is not possible to conceive rights – emanated directly
from International Law – without the prerrogative of vindicating them, the whole
evolution of the matter has oriented itself towards the crystallization of the right
of the individual to resort directly to the international jurisdictions.80 In sum,
78 Ch. Eisenmann, “Une nouvelle conception du droit subjectif: la théorie de M. Jean

Dabin”, 60 Revue du droit public et de la science politique en France et à l’étranger
(1954) pp. 753-774, esp. pp. 754-755 and 771.
79 J. Dabin, El Derecho Subjetivo, Madrid, Ed. Rev. de Derecho Privado, 1955, p. 64.
80 M. Pilotti, “Le recours des particuliers devant les juridictions internacionales”, in
Grundprobleme des internationalen Rechts – Festschrift für J. Spiropoulos, Bonn,
Schimmelbusch & Co., [1957], p. 351, and cf. pp. 351-362; and cf. S. Séfériadès, “Le
capacity is closely linked to personality; even if, by any situation or circumstance,

an individual does not enjoy full juridical capacity, this does not mean that he
would thereby no longer be a subject of rights.
2. Developments in International Law: The Direct Access (Jus Standi) to

International Human Rights Tribunals
Solid arguments militate in favour of the recognition of the locus standi in judi-
cio, and of the jus standi of the alleged victims in the proceedings before interna-
tional human rights tribunals in cases already referred to them.81 Firstly, to the
acknowledgment of rights, at national as well as international levels, corresponds
the procedural capacity to vindicate or exercise them. The protection of rights
ought to be endowed with the locus standi in judicio of the alleged victims (or
their legal representatives), which contributes to instruct in a better way the cas-
es at issue, and without which this latter is partly devoid of an essential element
(in the search for truth and justice), besides being ineluctably mitigated and in
flagrant procedural imbalance. The jurisdictionalization of the procedure greatly
contributes to remedy and put an end to those insufficiencies and defficiencies,
which can no longer find any justification in our days.
That locus standi of the individuals concerned is the logical consequence, at
the procedural level, of a system of protection purported to guarantee individual
rights at international level, as it is not reasonable to conceive rights without
the procedural capacity to vindicate them. Moreover, the right of freedom of ex-
pression of the alleged victims is an element which integrates the due process of
law, at both national and international levels. The equity and transparency of the
procedure, which are equally applicable to the international supervisory organs,
are beneficial to all, including the individual complainants and the respondent
States.
Secondly, the right of access to justice at international level ought to be
accompanied by the guarantee of the procedural equality of arms (égalité des
armes) in the proceedings before international human rights tribunals, essential
to any jurisdictional system of protection of human rights. Thirdly, in cases of
proven violations of human rights, it is the victims themselves – the true com-
plainant party before the Court at issue – (or their relatives or heirs) who receive
problème de l’accès des particuliers à des juridictions internationales”, 51 RCADI

(1935) pp. 23-25 and 54-60.
81 As developed, e.g., in my Opinions in the following cases before the IACtHR: case
Castillo Páez versus Peru (Preliminary Objections, Judgment of 30.01.1996), Indi-
vidual Opinion, pars. 16-17; case Loayza Tamayo versus Peru (Preliminary Objec-
tions, Judgment of 31.01.1996), Individual Opinion, pars. 16-17; case Castillo Petruzzi
versus Peru (Preliminary Objections, Judgment of 04.09.1998), Concurring Opinion,
pars. 1-46; Advisory Opinion on The Right to Information on Consular Assistance in
the Framework of the Guarantees of the Due Process of Law (of 01.10.1999), Concur-
ring Opinion, par. 30.
268 Chapter X
the reparations and indemnizations: as the victims mark their presence at the
beginning and at the end of the process, there is no sense in denying them pres-
ence during the process.82
Last but not least, it is through the locus standi in judicio, and the jus standi,
of the alleged victims before international human rights tribunals considered
herein, that human beings assert their international legal personality and full
procedural capacity to vindicate their rights, whenever national instances are
incapable of securing the realization of justice. The jurisdictionalization of inter-
national mechanisms of protection, particularly insofar as the operation of the
method of petitions or complaints is concerned,83 leads to the consolidation84 of
the international procedural capacity of individuals as the true complainant par-
ty before the international human rights tribunals at issue. At this beginning of
the XXIst century, the historical reasons for the denial – in my view unjustifiable
from the start – of the locus standi, and the jus standi, at international level, of
the alleged victims of human rights violations, are definitively overcome.85 From
the locus standi one is to evolve towards the right of direct access of individuals
(jus standi) to international human rights tribunals, so as to lodge complaints
directly with them.86
VI. The Right of Access Lato Sensu of Individuals to International Justice

The right of access of individuals to justice, set forth expressly in certain pro-
visions of international human rights treaties, and implicit in several others of
their provisions, means, lato sensu, the right to obtain justice. Endowed with a
82 The advances to this effect (fostering greater precision in the determination of the
facts) contribute to the jurisdictionalization of the mechanism of protection; they
would further require, e.g., the foreseeing of ex officio legal assistance to individual
complainants, whenever they are not in condition of counting on the professional
services of a legal representative.
83 As in the inter-American system of protection.
84 As in the European system of protection.
85 Insofar as the inter-American human rights system is concerned, the necessary
recognition of the locus standi in judicio of the alleged victims (or their legal rep-
resentatives) before the IACtHR constitutes, in this line of reasoning, a most impor-
tant advance, but not necessarily the final stage, of improvement of that system of
protection, at least as I conceive such improvement.
86 Cf., to this effect, A.A. Cançado Trindade, “The Procedural Capacity of the Indi-
vidual as Subject of International Human Rights Law: Recent Developments”, in Les
droits de l’homme à l’aube du XXIe siècle – K. Vasak Amicorum Liber, Bruxelles,
Bruylant, 1999, pp. 521-544. – For this step to be taken, certain prerequisites ought
to be fulfi lled, namely, universality of composition of the regime of protection (with
all States concerned becoming Parties to the human rights treaties at issue), auto-
matic compulsory jurisdiction of international human rights tribunals, endowed
with adequate human and material resources to operate effectively on a permanent
basis.
juridical content of its own, it appears as an autonomous right to the jurisdiction-

al assistance, that is, to the very realization of justice, including due compliance
with judgments. From the standpoint of the individuals, one can here visualize
a true right to the Law, that is, the right to a legal order – at national as well as
international levels – which effectively protects the rights inherent to the human
person.87
This means, at first, that individual complainants before international hu-
man rights tribunals can plead autonomously before them, as is the case in both
the European88 and the inter-American89 systems of protection. In the European
system, they have, moreover, the right to bring their cases directly before the
European Court (jus standi), while in the inter-American system they still have
to count on the IAComHR to that end (locus standi before the Court). Be that as
it may, in the framework of this latter individuals can, once their case is lodged
with the IACtHR, argue also additional violations of the Convention, even if not
contained in the original complaint submitted by the Commission, though they
have to pertain to the facts contained in such complaint.90
This has helped to clarify the distinct procedural positions of the individual
complainants (as the true substantive complaining party under the Convention)
and the Commission.91 The IACtHR has correctly sustained (as in the case of the

vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 523-524.
88 Since Protocols ns. 9 and 11 to the European Convention (supra).
89 Under the current Rules of Procedure of the Inter-American Court (supra).
90 Cf., in this sense, the decision of the IACtHR in the case of the Five Pensioners versus
Peru (2003, pars. 153-155), the first contentious case entirely handled under the new
Rules of Court (effective as from 2001), confi rmed in the handling by the IACtHR of
new contentious cases ever since (2003-2005). In taking such position, seeing to it
also that the right of defence of the respondent State is preserved, the IACtHR has
kept in mind the concomitant imperatives of realization of justice, and of preserva-
tion of the juridico-procedural equality and security in the procedure under the
American Convention.
91 As a “procedural” party, a kind of Ministère Public of the system of protection. Al-
though this question has been definitively solved, with Protocol n. 11 to the Euro-
pean Convention, in the European system of protection, it is a matter still under
discussion in the inter-American system of protection. Thus, as to the distinct role
of the individual petitioners and of the IAComHR in the procedure before the IAC-
tHR, this latter took into consideration the approaches of both the thesis of proce-
dural law, with emphasis on the exclusive faculty of the States Parties and of the
IAComHR to submit a case to the IACtHR (Article 61(1) of the American Conven-
tion), and the thesis of substantive law, – which I sustain, – with emphasis on the
condition of the individuals of titulaires of the rights set forth in the Convention. In
accepting that individual complainants can invoke before it additional violations of
the Convention (other than the ones contained in the original complaint submitted
by the Commission), the IACtHR has rightly leant in favour of the thesis of substan-
tive law.
270 Chapter X
Five Pensioners versus Peru, 2003),92 that the consideration which ought to prevail
is that of the individuals being subjects of all rights protected by the Convention,
as the true substantive complaining party, and as subjects of the International
Law of Human Rights.93 As from the moment when one affi rms, in an unequivo-
cal way, the juridico-international subjectivity of the human person, one ought
to assume the legal consequences ensuing therefrom. The petitioners themselves
are those who, better than anyone else, can assess which rights have presumably
been violated. To pretend to impose a limit to this faculty they have would go
against the right of access to justice at international level.94
As to this right, the American Convention on Human Rights requires not
only the access itself to justice at the level of domestic law (Article 25), but also
the realization itself of material justice. To that end, the Convention determines
the observance of the juridico-procedural guarantees (Article 8), these latter
taken lato sensu, encompassing the whole of procedural requisites which ought
to be observed so that all individuals can adequately defend themselves from any
act emanated from the State power which may affect their rights.95 This applies
also to other international human rights treaties.
92 And subsequently confi rmed in the case of the Gómez Paquiyauri Brothers versus
Peru (merits, 2004); cf. further the Concurring Opinion (pars. 19 and 24) of Judge
A.A. Cançado Trindade in the case of the Five Pensioners versus Peru (merits,
2003).
93 Cf., in this sense, A.A. Cançado Trindade, Informe: Bases para un Proyecto de Pro-
tocolo..., op. cit. supra n. (70), pp. 3-64, esp. pp. 59, 23, 33, 40-44, 50-55 and 64; A.A.
Cançado Trindade, El Acceso Directo del Individuo..., op. cit. supra n. (37), pp. 9-
104.
94 Though it is certain that only the States Parties and the Commission can submit a
case to the Court (Article 61(1) of the Convention), it is also certain that, in provid-
ing for reparations, and referring to “the injured party” (“la parte lesionada / a parte
prejudicada / la partie lésée” – Article 63(1)), the Convention refers to the victims,
and not to the Commission. The artificiality of the formula of Article 61(1) of the
Convention, – which, when adopted in 1969 gave expression to a dogma of the past,
– does not resist the overwhelming truth that the petitioners are the true com-
plaining substantive party before the Court, as subjects of the International Law of
Human Rights and, in my understanding, also of general International Law. Cf. my
Concurring Opinion in the case of the Five Pensioners versus Peru (2003) before the
IACtHR, par. 22.
95 Cf., in this sense (wide scope of the due process): IACtHR, case of the Constitutional
Tribunal versus Peru, Judgment (on the merits) of 31.01.2001, par. 69; IACtHR, case
Ivcher Bronstein versus Peru, Judgment (on the merits) of 06.02.2001, par. 102; IAC-
tHR, case Baena Ricardo and Others versus Panama, Judgment (on the merits) of
02.02.2001, pars. 125-126.
VII. Concluding Observations

The expansion of international legal personality has had as a consequence the
consolidation of the international procedural capacity of individuals in the In-
ternational Law of Human Rights. This was to be expected, and is a reassuring
development, as the logical consequence of the conception and formulation of
internationally protected rights of individuals is necessarily the recognition of
their full juridical capacity to vindicate them at international level. Contempo-
rary international law, moved by human conscience, has, thus, conferred inter-
national legal capacity on individuals, so as not to deprive any of its subjects of
such capacity, bearing in mind the abuses and atrocities committed against them
in the name or in pursuance of public policies of the States.
The human person is thus entitled to defend her own rights nowadays at
both national and international levels. Just as it occurs with international legal
personality,96 there is no impediment, juridically or epistemologically, for Inter-
national Law directly to regulate the international juridical capacity of individu-
als. After all, individuals are, likewise, internationally responsible for the wrongs
they commit, most often in pursuance of State policies.97 But we are still at an
early stage of the historical evolution in this domain of international law, the
impact of which is meant to put an end to impunity at national and international
levels. With the consolidation of the international legal capacity of individuals,
International Law pursues the realization of justice, thus responding to a basic
aspiration of human beings and of humankind as a whole.
The exercise by individuals of their international procedural capacity under
human rights treaties has, in turn, led to an expansion of the notion of “victim” it-
self (including indirect and potential victims) in the International Law of Human
Rights. In the European system of protection, where the condition of “victim” was
required of individual petitioners, this occurred as from the early case-law under
the European Convention, as I pointed out in my lectures at this Hague Academy
of International Law in 1987.98 In the inter-American system of protection, where
that condition is not required of individual petitioners, the notion of victim has
also enlarged, by means of a jurisprudential construction of the IACtHR.
In its case-law99 the IACtHR has stated that both the direct victims and their
close relatives are, in the particular circumstances of the cases at issue, victims
96 Cf. chapter IX, supra.

97 The rights and duties of States (cf. chapter VII, supra) are, after all, those rights ex-
ercised, or duties undertaken, by the individuals who act on their behalf, the holders
of the public power of each State.
98 Cf. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms...”, op.
cit. supra n. (28), pp. 243-299, esp. pp. 262-283.
99 Cf., e.g., its Judgments in the Blake and Bámaca Velásquez cases, followed by those
in the cases of Villagrán Morales and Others versus Guatemala (the “Street Chil-
dren” case, reparations, 2001) and of Myrna Mack Chang versus Guatemala (merits
and reparations, 2003).
272 Chapter X
of (distinct) violations of the protected rights. In this respect, in my Separate

Opinion in the case of Villagrán Morales and Others versus Guatemala (case of
the “Street Children”, Judgment on reparations of 26.05.2001), I pondered (par.
40) that also the indirect victims (the mothers and a grandmother of the five
murdered children)
“have suffered an irreparable loss, as their lives will never more be the same. (...) The
realization of justice contributes at least to structure their psychic life, to reawake their
faith and hope, and to set in order their human relations with their fellowmen. Every
true jurist has, thus, the ineluctable duty to give his contribution to the realization of
justice, from the perspective of the integrality of the personality of the victims”.
In that same Separate Opinion I added that “in the ambit of application of this
new corpus juris, it is undoubtedly the victim who appropriately assumes the
central position. (...) This development appears in conformity with the very aims
of Law, the addressees of whose norms are, ultimately, the human beings” (par.
16). The major juridical revolution of contemporary legal thinking lies, in my
view, in the advent and development of the International Law of Human Rights,
as it is this latter that sustains that individuals, independently of circumstances
of most profound adversity in which they may find themselves, can engage (as ac-
tive subjects of International Law) the international responsibility of the State for
violations of the rights which are inherent to them as human beings. The expan-
sion of the international personality and procedural capacity of the human being
corresponds to a true necessity of the contemporary international legal order.
It ensues, from some of the considerations developed in this chapter, that
the individual’s right of access to justice at international level has a wide scope,
not reducing itself to a formal access, stricto sensu, to the international judicial
instance. In fact, that right, set forth in international human rights treaties and
implicit in several of their provisions, permeates moreover the domestic law of
States Parties,100 and is endowed with a legal content of its own. It means, lato
sensu, the right to obtain justice, the right to the realization itself of justice (in
this sense, a true right to the Law).101
In fact, the protected rights would be illusory if they referred only to the
formulation of procedural guarantees and the conduct of the contending par-
ties, without encompassing also the implementation of judicial decisions, which
– as the ECtHR observed – would hardly conform with the very notion of the
rule of law (prééminence du droit). The correct administration of justice is one
of the essential elements of the rule of law, which includes the execution of judg-
ments, and even more so when these latter seek to secure the intangibility of the
100 Cf., in this sense, E.A. Alkema, “Access to Justice under the ECHR and Judicial Pol-
icy – A Netherlands View”, in Afmaelisrit pór Vilhjálmsson, Reykjavik, Bókaútgafa
Orators, 2000, pp. 21-37.
101 A.A. Cançado Trindade, Tratado de Direito Internacional..., vol. III, op. cit. supra n.
(87), ch. XX, par. 187, p. 524.
guarantees of the due process of law.102 As the ECtHR has rightly warned in its
judgment in the case of Hornsby versus Greece (merits, 1997), the omission or
refusal of public authorities to execute a judgment constitutes a denial of the ac-
cess to justice (at both national and international levels).103 In sum, States Parties
which fail to comply with the judgments of international human rights tribunals,
fail to put an end to the consequences of the original violations – established by
those tribunals – of the respective human rights treaties, thus incurring into an
additional violation of these latter, as well as into a denial of the access to justice
under those treaties.
In conclusion, the assertion of the international legal personality and capac-
ity of individuals in the present domain of protection constitutes a significant
achievement of contemporary International Law. It represents the overcoming of
the classic limitations of the legitimatio ad causam in International Law, which
in the past so much hindered its progressive development towards the construc-
tion of a new jus gentium. An important role was here exercised by the impact of
the proclamation of human rights in the international legal order, in the sense of
humanizing this latter: those rights were proclaimed as inherent to every human
being, irrespectively of any circumstances. The individual became recognized as
subject jure suo of International Law, and to the recognition of the rights which
are inherent to him corresponded ineluctably the procedural capacity to vindi-
cate them, at national as well as international levels.
102 Like many of the judgments of international human rights tribunals.

103 Cf. ECtHR, Hornsby versus Greece case, Judgment of 19.03.1997, [Series A], n. 33, pp.
510-512, pars. 40-41 and 45 (in breach of Article 6(1) of the European Convention on
Human Rights).
Chapter XI Humankind as a Subject of
International Law
I. The Perception and Awareness of Common and Superior Interests of

Humankind as Such
It is not suggested here that, at the present stage of evolution of International
Law, humankind is replacing States as a subject of International Law. What is
here asserted is that States are no longer the sole subjects of International Law;
they nowadays coexist, in that condition, with international organizations and
individuals and groups of individuals; and, moreover, humankind as such has
also emerged as a subject of International Law. As a result, humankind coexists
with States, without replacing them; and States can no longer regard the pursu-
ance of their own interests as the sole motivation for the shaping of International
Law. In fact, the pursuance of State interests has an impact on the effectiveness
of International Law; but the interests of each individual State cannot make ab-
straction of, or prevail upon, the pursuance of the fulfi lment of the general and
superior interests of the international community in matters of direct concern to
this latter (such as, e.g., disarmament, human rights and environmental protec-
tion, erradication of poverty, among others).1
Experience shows that it is when such general interests are duly taken into
account, and are made to prevail, by States as well as by other subjects of Inter-
national Law, that this latter has progressed. It could hardly be denied that the
advances of International Law in the last decades have been achieved when the
general, superior interests of humankind have been properly acknowledged and
given expression to (such as, e.g., in International Human Rights Law, in Inter-
national Environmental Law, in the Law of the Sea, in the Law of Outer Space).
States themselves have contributed to those advances, whenever they have placed
basic considerations of humanity and the general interests of the international
community as a whole above their own individual interests.
In this connection, the ultimate aim of jus cogens is precisely that of secur-
ing the prevalence of the interests and most fundamental values of the interna-

Rio de Janeiro, Ed. Renovar, 2002, pp. 1068, 1083 and 1094-1095.
276 Chapter XI
tional community as a whole.2 The absolute prohibitions of grave violations of

human rights indicate, for example, as recalled by M. Lachs, how
“mankind, or the international community, on its journey through history, found

it necessary to outlaw once and for all certain actions (...). On this, the deniers and
doubters have to agree, if they accept the basic premises of law and the imperative
of its progress”.3
There are, in fact, international obligations pertaining to the safeguard of fun-

damental values of the international community itself, which are distinct from
other international obligations; hence the emergence of concepts such as that of
obligations erga omnes, ensuing from jus cogens, in contemporary International
Law.4
The examination of humankind as a subject of International Law does not
exhaust itself in the identification and assertion of its common and superior in-
terests. It calls for the consideration of the fundamental principle of humanity
and the basic considerations of humanity which nowadays mark presence in the
whole corpus juris of International Law5 (with a conceptual precision), of the legal
consequences of the emergence of humankind as a subject of International Law,
of the relevance of the human rights framework, and, last but not least, of the
question of humankind’s capacity to act and its legal representation.
II. The Fundamental Principle of Humanity

The treatment dispensed to human beings, in any circumstances, ought to abide
by the principle of humanity, which permeates the whole corpus juris of Interna-
tional Law in general, and International Humanitarian Law in particular, con-
ventional as well as customary. Acts which, – under certain international treaties
or conventions, – were regarded as amounting to genocide, or as grave violations
of International Humanitarian Law, were already prohibited even before the en-
2 B. Simma, “From Bilateralism to Community Interest in International Law”, 250

Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1994)
p. 289.
3 M. Lachs, “The Development and General Trends of International Law in Our Time”,
169 RCADI (1980) p. 205.
4 Cf. chapter XII, infra. – The classic vision of a sole and indifferentiated regime of
international responsability no longer corresponds to the present stage of evolu-
tion of the matter in contemporary International Law; V. Starace, “La responsabilité
résultant de la violation des obligations à l’égard de la communauté internationale”,
153 RCADI (1976) pp. 272-275, and cf. pp. 289, 297 and 308. International crimes
and violations of jus cogens (entailing aggravated international responsibility), given
their particular gravity, affect the basic values of the international community as a
whole. C. Tomuschat, “Obligations Arising for States without or against Their Will”,
241 RCADI (1993) p. 224, and cf. p. 307.
5 Cf. chapters XVI-XXIII, infra.
Humankind as a Subject of International Law 277
try into force of such treaties or conventions, by general international law. One
may here invoke, in the framework of this latter, e.g., the universal recognition of
the aforementioned principle of humanity.6 In the perennial lesson of a learned
jusphilosopher, “if not the laws themselves, at least their content was already in
force” before the perpetration of the atrocities of the XXth century, in distinct
latitudes; in other words, added G. Radbruch,
“those laws respond, by their content, to a Law superior to the laws (...). Whereby
we see how, by the turn of a century of legal positivism, that old idea of a Law supe-
rior to the laws is reborn (...). The way to reach the settlement of these problems is
already implicit in the name that the philosophy of Law used to have in the old Uni-
versities and which, after many years of not being used, comes to reemerge today: in
the name and in the concept of natural law”.7
It is not to pass unnoticed that the ad hoc International Criminal Tribunal

for Rwanda [ICTR] rightly pondered, in the case of J.-P. Akayesu (Judgment of
02.09.1998), that the concept of crimes against humanity had already been recog-
nized well before the Nuremberg Tribunal itself (1945-1946). The Martens clause
contributed to that effect (cf. infra); in fact, expressions similar to that of those
crimes, invoking victimized humanity, appeared much earlier in human history.8
The same ICTR pointed out, in the case J. Kambanda (Judgment of 04.09.1998),
that in all periods of human history genocide has inflicted great losses to human-
kind, the victims being not only the persons slaughtered but humanity itself (in
acts of genocide as well as in crimes against humanity).9
It can hardly be doubted the content of the condemnation of grave viola-
tions of human rights, of acts of genocide, of crimes against humanity, and of
other atrocities, was already engraved in human conscience, well before their
tipification or codification at international level, be it in the 1948 Convention
against Genocide, or in other treaties of human rights or of International Hu-
manitarian Law. Nowadays, international crimes are condemned by general as
well as conventional International Law. This development has been fostered by
6 In this respect, it has already been pointed out that “it is increasingly believed that
the role of International Law is to ensure a minimum of guarantees and of humanity
for all, whether in time of peace or in time of war”; J. Pictet, The Principles of Inter-
national Humanitarian Law, Geneva, ICRC, 1966, pp. 29-30.
7 G. Radbruch, Introducción a la Filosofía del Derecho [Vorschule der Rechtsphiloso-
phie], 3rd. Spanish edition, Mexico, Fondo de Cultura Económica, 1965, p. 180.
8 Paragraphs 565-566 of that Judgment.
9 Paragraphs 15-16 of that Judgment. An equal reasoning is found in the Judgments of
the same Tribunal in the aforementioned case J.P. Akayesu, as well as in the case O.
Serushago (Judgment of 05.02.1999, par. 15).
278 Chapter XI
the universal juridical conscience, which, in my understanding, is the ultimate

material source of all Law.10
Contemporary (conventional and general) international law has been char-
acterized to a large extent by the emergence and evolution of its peremptory
norms (the jus cogens), and a greater consciousness, in a virtually universal scale,
of the principle of humanity.11 Grave violations of human rights, acts of geno-
cide, crimes against humanity, among other atrocities, are in breach of abso-
lute prohibitions of jus cogens.12 The feeling of humaneness – proper of a new
jus gentium, of the XXIst century, – comes to permeate the whole corpus juris
of contemporary International Law. I have called this development, – inter alia
in my Concurring Opinion in the Advisory Opinion n. 16 (of 01.10.1999), of the
Inter-American Court of Human Rights [IACtHR], on The Right to Information
on Consular Assistance in the Framework of the Guarantees of the Due Process of
Law, – a historical process of a true humanization of International Law.13
In its 1951 Advisory Opinion on the Reservations to the Convention against
Genocide, the International Court of Justice [ICJ] sustained the recognition of
the principles underlying that Convention as principles which are “binding on
States, even without any conventional obligation”.14 In its jurisprudence constan-
te, the IACtHR, in interpreting and applying the American Convention on Hu-
man Rights, has consistently invoked the general principles of law.15 The same has
done the European Court of Human Rights [ECtHR], in its interpretation and
10 Cf., e.g., Inter-American Court of Human Rights [IACtHR], case of the Massacre
of Plan de Sánchez versus Guatemala (merits, Judgment of 29.04.2004), Separate
Opinion of Judge A.A. Cançado Trindade, par. 13; IACtHR, Advisory Opinion n. 18
(of 17.09.2003), on the Juridical Condition and Rights of Undocumented Migrants,
Concurring Opinion of Judge A.A. Cançado Trindade, pars. 21-30.
11 T.O. Elias, “New Trends in Contemporary International Law”, in Contemporary Is-
sues in International Law (eds. D. Freestone, S. Subedi y S. Davidson), The Hague,
Kluwer, 2002, pp. 11-12.
12 Cf. M.C. Bassiouni, Crimes against Humanity in International Criminal Law, 2nd.
ed. rev., The Hague, Kluwer, 1999, pp. 210-211 (with regard to crimes against human-
ity).
13 Paragraph 35 of the Concurring Opinion.
14 ICJ, ICJ Reports (1951) p. 23.
15 Cf., inter alia, e.g., IACtHR, case of the Five Pensioners versus Peru (Judgment of
28.02.2003), par. 156; IACtHR, Advisory Opinion n. 17, on the Juridical Condition
and Human Rights of the Child (of 28.08.2002), pars. 66 and 87; IACtHR, Advisory
Opinion n. 16, on The Right to Information on Consular Assistance in the Framework
of the Guarantees of the Due Process of Law (of 01.10.1999), pars. 58, 113 and 128. For a
study, cf. A.A. Cançado Trindade, “La Convention Américaine relative aux Droits de
l’Homme et le droit international général”, in Droit international, droits de l’homme
et juridictions internationales (eds. G. Cohen-Jonathan and J.-F. Flauss), Bruxelles,
Bruylant, 2004, pp. 59-71.
application of the European Convention on Human Rights.16 Among such prin-

ciples, those endowed with a truly fundamental character form the substratum
of the legal order itself, disclosing the right to the Law of which are titulaires all
human beings.17 In the domain of the International Law of Human Rights, the
fundamental principles of the dignity of the human person and of the inalienabil-
ity of the rights which are inherent to her fall under this category. In its Advisory
Opinion n. 18, on the Juridical Condition of Undocumented Migrants (2003), the
IACtHR expressly referred to both principles.18
The prevalence of the principle of respect of the dignity of the human person
is identified with the ultimate aim itself of Law, of the legal order, both national
and international. By virtue of this fundamental principle, every person ought to
be respected (in her honour and in her beliefs) by the simple fact of belonging to
humankind, irrespective of any circumstance.19 The principle of the inalienabil-
ity of the rights inherent to the human being, in its turn, is identified with a basic
assumption of the construction of the whole corpus juris of the International Law
of Human Rights. As to the principles of International Humanitarian Law, it has
been convincingly argued that one should consider Humanitarian Law treaties as
a whole as constituting the expression – and the development – of such general
principles, applicable in any circumstances, so as to secure a better protection to
those victimized.20
In the Mucic et alii case (Judgment of 20.02.2001), the ad hoc International
Criminal Tribunal for the Former Yugoslavia [ICTFY] (Appeals Chamber) pon-
dered that both International Humanitarian Law and the International Law of
Human Rights take as a “starting point” their common concern to safeguard hu-
man dignity, which forms the basis of their minimum standards of humanity.21
In fact, the principle of humanity can be understood in distinct ways. Firstly, it
can be conceived as a principle underlying the prohibition of inhuman treat-
ment, established by Article 3 common to the four Geneva Conventions of 1949.
Secondly, the principle referred to can be invoked by reference to humankind as
16 Cf. L. Caflisch and A.A. Cançado Trindade, “Les Conventions Américaine et Eu-
ropéenne des Droits de l’Homme et le droit international général”, 108 Revue géné-
rale de Droit international public (2004) pp. 5-62.
vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 524-525.
18 Par. 157 of that Advisory Opinion. In my own Concurring Opinion (pars. 1-89) in
that Advisory Opinion, I made a detailed and extensive account of my own concep-
tion of the fundamental role and central position of the general principles of law in
every legal system (national or international); cf. also chapter III, supra.
19 B. Maurer, Le principe de respect de la dignité humaine et la Convention Européenne
des Droits de l’Homme, Paris, CERIC/Univ. d’Aix-Marseille, 1999, p. 18.
20 R. Abi-Saab, “Les ‘principes généraux’ du Droit humanitaire selon la Cour Interna-
tionale de Justice”, 766 Revue internationale de la Croix-Rouge (1987) pp. 386 and
389; and cf. Chapter III, supra.
21 Paragraph 149 of that Judgment.
280 Chapter XI
a whole, in relation to matters of common, general and direct interest to it. And
thirdly, the same principle can be employed to qualify a given quality of human
behaviour (humaneness).
In the Celebici case (Judgment of 16.11.1998), the aforementioned ICTFY
(Trial Chamber) qualified as inhuman treatment an intentional or deliberate act
or omission which causes serious suffering (or mental or physical damage), or
constitutes a serious attack on human dignity; thus, the Tribunal added,
“inhuman treatment is intentional treatment which does not conform with the fun-
damental principle of humanity, and forms the umbrella under which the remainder
of the listed ‘grave breaches’ in the Conventions fall”.22
Subsequently, in the T. Blaskic case (Judgment of 03.03.2000), the same Tribunal

(Trial Chamber) reiterated this position.23 Reference has already been made to
the relevance of the Martens clause,24 which can here be reasserted.
III. Humankind and Considerations of Humanity: A Conceptual Precision

From the preceding considerations it can be promptly perceived that distinct
meanings have been attributed to the term “humanity” in contemporary Interna-
tional Law, such as those found in the jurisprudential construction of the ad hoc
ICTFY and the ICTR (supra). This construction is clear in associating “humani-
ty” with the universal principle of respect for the dignity of the human person, or
the sense of humaneness. The ECtHR and the IACtHR have expressed the same
concern by extensively resorting to general principles of law in their converging
jurisprudence constante. The ICJ has likewise resorted to “elementary considera-
tions of humanity”, in a similar line of thinking.25 The sense of humaneness and
the concern with the needed respect for human dignity have thus marked their
presence in the case-law of contemporary international tribunals.
When one comes, however, to consider the expansion of international legal
personality, that is, the emergence of new subjects of today’s universal Interna-
tional Law, a conceptual precision is here rendered necessary. The expanded In-
ternational Law of our days encompasses, as its subjects, apart from the States,
also international organizations, and human beings, either individually or collec-
tively, – disclosing a basic feature of what I see it fit to denominate the historical
process of humanization of International Law. In the framework of this latter

24 Cf. chapter VI, supra.
25 A.A. Cançado Trindade, “La jurisprudence de la Cour Internationale de Justice sur
les droits intangibles” in Droits intangibles et états d’exception (eds. D. Prémont, C.
Stenersen and I. Oseredczuk), Bruxelles, Bruylant, 1996, pp. 53-71, and cf. pp. 73-88;
and cf. chapter XVI, infra.
and in addition to those subjects, humankind has in my view also emerged as a

subject of International Law.
The term “humankind” appears not as a synonym of “humanity” (supra), but
endowed with a distinct and very concrete meaning: humankind encompasses all
the members of the human species as a whole (including, in a temporal dimen-
sion,26 present as well as future generations). In fact, there is nowadays a growing
body of international instruments (treaties, declaratory and other resolutions,
among others) containing express references to “mankind” or “humankind”, and
attributing rights to it. There are nowadays some conceptual constructions in
course to give concrete expression, with juridical consequences, to rights attrib-
uted to humankind.27 It is likely that this conceptual development will intensify
in the years to come. Up to the present, all this results from the aforementioned
growing perception and awareness of common and superior interests, and of
fundamental values shared by the international community as a whole.
IV. The Emergence of Humankind as a Subject of International Law

Along the evolution of contemporary International Law, the international legal
personality, as already pointed out, became no longer the monopoly of the States.
These latter, as well as international organizations and human beings (taken in-
dividually and collectively) became titulaires of rights and bearers of duties ema-
nating directly from International Law.28 And humankind has gradually come
also to appear as a subject of contemporary International Law, of the new jus
gentium of the XXIst century. Although this is a recent development, its roots
go back to the legal thinking of the beginning of the second half of the XXth
century, or even earlier.
It may be recalled that the “conscience of mankind” received judicial recog-
nition already in the Advisory Opinion of 1951 of the ICJ on Reservations to the
Convention against Genocide,29 reappearing in the Draft Articles on the Interna-
tional Responsibility of States (of 1976) of the U.N. International Law Commission
[ILC].30 In doctrine, some of the first formulations of the common law of man-
kind were undertaken in the early XXth century, from the twenties31 onwards. In
26 Cf. chapter II, supra.

27 Cf. chapters XII-XV, infra. – And cf. [Various Authors,] Crimes internationaux et
juridictions internationales (eds. A. Cassese and M. Delmas-Marty), Paris, PUF,
2002, pp. 71, 198 and 256, and cf. pp. 24, 26 and 259-261.
28 Cf. chapters VII-X, supra.
29 ICJ Reports (1951) p. 23.
30 With the inclusion of Article 19, on “international crimes” and “international
delicts”; cf. United Nations, Yearbook of the International Law Commission [YILC]
(1976)-II, part II, pp. 120-122 and 108-110. And cf., subsequently, provisions of the
Draft Code of Offences against the Peace and Security of Mankind, of the same
Commission; U.N., YILC (1986)-II, part I, pp. 56-57, and Draft Articles of 1991.
31 Cf. chapters I, III and VI, supra.
282 Chapter XI
the late forties, Alejandro Álvarez stated that the population (as a constitutive
element of statehood) had at last entered into international life, and what mat-
tered most was the identification of the common interests of the international
community as a whole; to the Chilean jurist, it was the international juridical
conscience and the sentiment of justice that were to achieve the reconstruction
of International Law.32
This line of thinking was to be retaken, in a systematized way, by C.W. Jen-
ks, in 1958,33 and R.-J. Dupuy, in 1986,34 among others; and in 1966, D. Evrigenis
called for a new “universal law”.35 On his turn, in a visionary article published
in 1950, M. Bourquin called for the attribution to the international community
of the function of “guardian of objective law”, above all in face of the threat of a
“massified” civilization. The State itself acted – distinctly from the traditional
conception – not solely in the pursuance of its own interest, but also as a mem-
ber of such international community. The traditional voluntarist conception of
International Law,
“en faisant de la volonté de l’État la seule force génératrice du droit, (...) déforme le
phénomène juridique; (...) elle oublie que le droit est inhérent a toute société, qu’il
existe là-même où aucune organisation étatique ne participe à son élaboration”.36
The human problems which conform the contemporary international agenda

have inevitably drawn increasing attention to the conditions of living of human
beings everywhere, with a direct bearing in the construction of Law itself. Hu-
man beings were again to occupy a central place in the law of nations, – which
led Bourquin to conclude that
“ni au point de vue de son objet, ni même au point de vue de sa structure, le droit des
gens ne peut se définir comme un droit inter-étatique”.37
32 A. Álvarez, “Méthodes de la codification du Droit international public – Rapport”, in

Annuaire de l’Institut de Droit International – Session de Lausanne (1947) pp. 45-47,
50-51, 54, 63-64 and 68-70.
33 C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 1-442; and cf.
C.W. Jenks, “The New Science and the Law of Nations”, in Évolution et perspectives
du droit international – Livre du centenaire de l’Institut de Droit International 1873-
1973, Bâle, Éd. S. Karger, 1973, pp. 330-346.
34 R.-J. Dupuy, La communauté internationale entre le mythe et l’histoire, Paris, Eco-
nomica/UNESCO, 1986, pp. 11-182.
35 D. Evrigenis, “Institutionnalisation des droits de l’homme et droit universel”, Inter-
nationales Colloquium über Menschenrechte (Berlin, Oktober 1966), Berlin, Deut-
sche Gesellschaft für die Vereinten Nationen, 1966, pp. 26-34.
36 M. Bourquin, “L’humanisation du droit des gens”, La technique et les principes du
Droit public – Études en l’honneur de Georges Scelle, vol. I, Paris, LGDJ, 1950, pp. 35
and 45, and cf. pp. 21-54.
37 Ibid., p. 54, and cf. p. 38.
Two decades later, in face of the developments in the law of outer space, there was
support in expert writing for the view that the comunitas humani generis (which
reflected the “moral unity of the human kind” in the line of the thinking of Fran-
cisco de Vitoria) already presented a juridical profi le, rendering “humanity” itself
a “subject of Law”, because “its existence as a moral and political unity” is an idea
which “is progressively becoming reality with all the juridical implications that it
entails”.38 Ever since, this line of thinking has been attracting growing attention,
at least on the part of the more lucid doctrine. To S. Sucharitkul, e.g., there is no
reason to impede humanity to be subject of International Law, it being possible
to that effect to be represented by the international community itself; this is a
conception which is to prevail, through the humanization of international law, so
as “to strengthen the juridical statute of the human being as subject of law” and
to save humanity from an “imminent disaster” (the nuclear threat).39
In the lucid observation of Nagendra Singh, the fact that, as time went on,
concepts and norms of International Law have attained universal acceptance (in
such domains as International Humanitarian Law, the law of treaties, diplomatic
and consular law), independently of the multicultural composition of the inter-
national community, reveals the evolution of International Law towards univer-
salization.40 The need to research into the status conscientiae of the States was
stressed by R. Quadri, who insisted on the international juridical conscience as
the material source of the international legal order wherein pluralism prevailed.41
In Italian international legal doctrine, addressing the “unity of the juridical
world”, a warning is found to the effect that
“il faut voir dans la conscience commune des peuples, ou conscience universelle, la
source des normes suprêmes du droit international. (...) Les principes qui s’inscrivent
dans la conscience universelle (...) sont à considérer comme également présents dans
les ordres juridiques internes (...)”.42
38 L. Legaz y Lacambra, “La Humanidad, Sujeto de Derecho”, in Estudios de Derecho

Internacional Público y Privado – Homenaje al Profesor L. Sela Sampil, vol. II, Ovie-
do, Universidad de Oviedo, 1970, p. 554, and cf. pp. 549-559.
39 S. Sucharitkul, “L’humanité en tant qu’élément contribuant au développement pro-
gressif du Droit international contemporain”, L’avenir du Droit international dans
un monde multiculturel (Colloque de La Haye de 1983, ed. R.-J. Dupuy), La Haye,
Nijhoff/Académie de Droit International de La Haye, 1984, pp. 419 e 425-427.
40 Nagendra Singh, “The Basic Concept of Universality and the Development of Inter-
national Law”, L’avenir du Droit international dans un monde multiculturel, op. cit.
supra n. (38), pp. 240-241, 246 and 256-257.
41 R. Quadri, “Cours général de Droit international public”, 113 RCADI (1964) pp. 326,
332, 336-337, 339 and 350-351.
42 G. Sperduti, “La souveraineté, le droit international et la sauvegarde des droits de
la personne”, in International Law at a Time of Perplexity – Essays in Honour of S.
Rosenne, Dordrecht, Nijhoff, 1989, pp. 884-885.
284 Chapter XI
The rights of humanity transcend, by definition, reciprocity, proper of relations

at the purely inter-State level.43 It has been contended that the international com-
munity should guide itself in the sense of restructuring the international system
so as to secure the survival and well-being of humankind as a whole.44
The ILC, while elaborating its Draft Code of Offences against the Peace and
Security of Mankind, advanced the understanding (in 1986) that it was possible
to conceive a crime against humanity “in the threefold sense of cruelty directed
against human existence, the degradation of human dignity and the destruc-
tion of human culture”. The individual being a guardian of basic ethical values
and a custodian of human dignity, an attack that he suffered could amount to a
crime against humanity to the extent that such attack came to shock “human
conscience”; one could thus find, – in the outlook of the ILC, – a “natural link”
between the human kind and the individual, one being “the expression of the
other”, what led to the conclusion that the term “humanity” (in the expression
“crime against humanity”) meant the human kind as a whole and “in its various
individual and collective manifestations”.45
In fact, already in the beginnings of International Law, recourse was made
to “fundamental notions of humanity” which governed the conduct of States.
What subsequently was denominated “crimes against humanity” emanated,
originally, from customary International Law,46 to develop conceptually, later on,
in the ambit of International Humanitarian Law,47 and, more recently, in that of
International Criminal Law.48 Crimes against humanity are today tipified in the
Rome Statute of the permanent International Criminal Court (Article 7).49 We
43 P.-M. Dupuy, “Humanité, communauté, et efficacité du Droit”, in Humanité et Droit

international – Mélanges René-Jean Dupuy, Paris, Pédone, 1991, p. 137.
44 Ph. Allott, “Reconstituting Humanity – New International Law”, 3 European Jour-
nal of International Law (1992) pp. 219-252, esp. p. 251; and cf. Ph. Allott, Eunomia
– New Order for a New World, Oxford, University Press, 1990, pp. 10 and 186.
45 U.N., YILC (1986)-II, part I, pp. 56-57.
46 S.R. Ratner and J.S. Abrams, Accountability for Human Rights Atrocities in Interna-
tional Law, Oxford, Clarendon Press, 1997, pp. 45-48.
47 Cf. J. Pictet, Développement et principes du Droit international humanitaire,
Genève/Paris, Inst. H.-Dunant/Pédone, 1983, pp. 107 and 77; C. Swinarski, Princi-
pales Nociones e Institutos del Derecho Internacional Humanitario como Sistema
Internacional de Protección de la Persona Humana, San José of Costa Rica, IIDH,
1990, p. 20.
48 Cf. D. Robinson, “Defining ‘Crimes against Humanity’ at the Rome Conference”,
93 American Journal of International Law (1999) pp. 43-57; and, for the historical
antecedents, cf., e.g., H. Fujita, “Le crime contre l’humanité dans les procès de Nu-
remberg et de Tokyo”, 34 Kobe University Law Review (2000) pp. 1-15.
49 Cf., e.g., R.S. Lee (ed.), The International Criminal Court – The Making of the Rome
Statute, The Hague, Kluwer, 1999, pp. 30-31 and 90-102; M.C. Bassiouni, Crimes
against Humanity in International Criminal Law, 2nd. rev. ed., The Hague, Kluwer,
1999, pp. 332 and 363-368.
are, here, in the domain of jus cogens.50 In the occurrence of such crimes vic-
timizing human beings, humanity itself is likewise victimized. This has in fact
been expressly acknowledged by the ICTFY in the Tadic case (1997), wherein it
held that a crime against humanity is perpetrated not only against the victims
themselves, but against humanity as a whole. Again in the Erdemovic case (1996),
the Tribunal sustained that crimes against humanity “shock the collective con-
science”, harm human beings and transcend them, as humanity itself becomes a
victim of them.51
Significant indications pointing towards a common law of mankind can be
found in several treaties in force, in distinct domains of International Law. The
notion of cultural heritage of mankind, for example, can be found, e.g., in the
1972 UNESCO Convention concerning the Protection of the World Cultural and
Natural Heritage.52 In the ambit of International Environmental Law, ever since
the 1972 Stockholm Declaration of the U.N. Conference on the Human Envi-
ronment referred to the “common good of mankind” (Principle 18), examples in
this same line have multiplied themselves, in numerous treaties whereby States
Parties contracted obligations in the common superior interest of humankind.53
It so happens that mankind gradually emerges, and is acknowledged, in contem-
porary International Law, and increasingly so, as a subject of rights in distinct
domains (such as, e.g., International Human Rights Law, International Criminal
Law, International Environmental Law, international regulation of spaces, among
others). A distinct aspect, – the proper treatment of which remaining still to be
undertaken, – is that of its capacity to act.
50 M.C. Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga Omnes”, 59
Law and Contemporary Problems: Accountability for International Crimes and Seri-
ous Violations of Fundamental Human Rights (1996) pp. 67-74.
51 J.R.W.D. Jones, The Practice of the International Criminal Tribunals for the Former
112.
52 Preceded by, e.g., the 1954 Hague Convention for the Protection of Cultural Prop-
erty in the Event of Armed Conflict.
53 E.g., examples in chapter XIII, infra. In addition, another example is found implicit
in references to “human health” in some treaties of environmental law, such as, e.g.,
the Vienna Convention for the Protection of the Ozone Layer (of 1985), preamble
and Article 2; the Montreal Protocol on Substances that Destroy the Ozone Layer
(of 1987), preamble; and Article 1 of the three aforementioned Conventions on ma-
rine pollution.
286 Chapter XI
V. Legal Consequences of the Acknowledgement of Humankind as

Subject of International Law
1. The Relevance of the Human Rights Framework

Recourse to the very notion of humankind as subject of International Law
promptly brings into the fore, or places the whole discussion within, the human
rights framework, – and this should be properly emphasized, it should not be left
implicit or neglected as allegedly redundant. Just as law, or the rule of law itself,
does not operate in a vacuum, humankind is neither a social nor a legal abstrac-
tion: it is composed of human collectivities, of all human beings of flesh and
bone, living in human societies and extended in time. Just as a couple of decades
ago there were questions which were “withdrawn” from the domestic jurisdic-
tion of States to become matters of international concern (essentially, in cases
pertaining to human rights protection and self-determination of peoples),54 there
are nowadays global issues (such as climate change) which are being erected as
common concern of mankind.
Here, again, the contribution of international human rights protection and
environmental protection heralds the end of reciprocity and the emergence of
erga omnes obligations. The human rights framework is ineluctably present in
the consideration also of the system of protection of the human environment
in all its aspects; we are here ultimately confronted with the crucial question of
survival of the humankind, with the assertion – in face of threats to the human
environment – of the fundamental human right to live.
2. The Question of the Capacity to Act and Legal Representation

A subject of law is generally regarded as a bearer of rights and duties conferred
upon him, also endowed with the capacity to act. While it is clear today that hu-
mankind is the addressee of international norms and has emerged as a subject of
International Law (the law of the comunitas humani generis), its capacity to act
is still in statu nascendi; this raises the issue of its legal representation. In this
connection, the most advanced form of representation achieved to date, despite
its shortcomings and setbacks (supra), is that of the 1982 U.N. Convention on the
Law of the Sea,55 given the degree of institutionalization achieved (through the
creation of the International Seabed Authority).
We are at the beginning of a conceptual construction which may still take a
long time and considerable endeavours. The conception of humankind, in a time

55 Cf. A. Blanc Altemir, El Patrimonio Común de la Humanidad – Hacia un Régimen
Jurídico Internacional para Su Gestión, Barcelona, Bosch, 1992, pp. 37-44 and 243-
244; S. Paquerot, Le statut des ressources vitales en Droit international – Essai sur le
concept de patrimoine commun de l’humanité, Bruxelles, Bruylant, 2002, pp. 91-92;
and cf. chapter XIII, infra.
framework encompassing present and future generations, presents the double

advantage of not neglecting the time factor56 and not isolating one generation
from the others. This would lead to the difficulty, already detected in expert writ-
ing, of asserting rights of future generations, which do not yet exist and may be
rather remote in time; yet, it is quite conceivable to establish, among the living,
legal representation on behalf of humankind, comprising its present and future
segments.57
The overriding principle of human solidarity holds the living, the present
generation, accountable to the unborn (future generations, for the stewardship of
the common heritage or concern of humankind, so as not to leave to those who
are still to come the world in a worse condition than it found it. After all,
“We all live in time. The passing of time affects our juridical condition. The pass-
ing of time should strengthen the bonds of solidarity which link the living to their
dead, bringing them closer together. The passing of time should strengthen the ties
of solidarity which unite all human beings, young and old, who experience a greater
or lesser degree of vulnerability in different moments along their existence. (...) In a
general way, it is at the beginning and the end of the existential time that one experi-
ences greater vulnerability, in face of the proximity of the unknown (...)”.58
We are here still in the first steps, and there remains of course a long way to go in
order to attain a more perfected and improved system of legal representation of
humankind in International Law, so that the rights recognized to it thus far can
be properly vindicated on a widespread basis. In my understanding, the present
limitations of the capacity to act on behalf of humankind itself at international
level in no way affect its emerging legal personality, its condition of subject of In-
ternational Law. As I saw it fit to state in my Concurring Opinion in the Advisory
Opinion n. 17 of the IACtHR, on the Juridical Condition and Human Rights of the
Child (2002), the international juridical personality of all human beings remains
intact, irrespective of the existential condition59 or limitations of the juridical
capacity to exercise their rights for themselves; what ultimately matters is that
they all have the right to a legal order (at domestic as well as international levels)
which effectively protects the rights inherent to them (paragraph 71). And this
applies to all human beings as well as to humankind as a whole.

57 Cf. discussion and suggestions in: [Various Authors,] Future Generations and Inter-
national Law (eds. E. Agius, S. Busuttil et alii), London, Earthscan Publs., 1998, pp.
3-165.
58 IACtHR, Advisory Opinion n. 17 (of 28.08.2002) on the Juridical Condition and Hu-
man Rights of the Child, Concurring Opinion of Judge A.A. Cançado Trindade, pars.
4-5.
59 E.g., children, elderly persons, persons with disability, stateless persons, or any oth-
er.
288 Chapter XI
In any case, the modest and slow advances so far achieved towards a regime of
legal representation of humankind, – which are bound to progress in the years to
come, – added to the recognition of its condition as subject of International Law,
constitute yet another manifestation of the current process of humanization of
Public International Law. The original conception of totus orbis of Francisco de
Vitoria in the XVIth century has ever since paved the way for the formation and
crystallization of the notions of an international community as a whole and of
a true universal International Law,60 having humankind as such among its sub-
jects. That conception can and should be revived in our troubled times, in the
context of the circumstances of the contemporary international scenario, if we
really wish to leave a better world to our descendants.61 In my view, we have al-
ready entered into the terra nova of the new jus gentium of the early XXIst cen-
tury, the International Law for humankind.
60 We have already reached a stage of evolution of our discipline which has surely tran-
scended the fragmented jus inter gentes of the not too distant past.
61 Cf. F. de Vitoria, Relecciones del Estado, de los Indios, y del Derecho de la Guerra
(with an Introduction by A. Gómez Robledo), Mexico, Ed. Porrúa, 1985, pp. XLV and
LXXXIV.
Part V
Construction of the International Law

for Humankind
Chapter XII Conceptual Constructions: Jus Cogens
and Obligations Erga Omnes
I. Introduction: Fundamental Values of the International Community

The new jus gentium of our days, the International Law for humankind, already
counts on some conceptual achievements. The fact that the concepts both of the
jus cogens and of the obligations (and rights) erga omnes already integrate the
conceptual universe of International Law discloses the reassuring and necessary
opening of this latter, in the last decades, to certain superior and fundamental
values. This significant evolution of the recognition and assertion of norms of
jus cogens and obligations erga omnes of protection is to be fostered, seeking to
secure their full practical application, to the benefit of all human beings. In this
way the universalist vision of the founding fathers of the droit des gens is being
duly rescued. Other concepts have also found expression in the emerging Inter-
national Law for humankind, such as, e.g., those of common heritage of mankind
and common concern of mankind; and others emerge with the new jus gentium of
this beginning of the XXIst century, such as that of universal jurisdiction. These
new conceptions impose themselves in our days, and, of their faithful observ-
ance, will depend to a large extent the future evolution of contemporary Inter-
national Law.
This latter does not emanate from the inscrutable “will” of the States, but
rather, in my view, from human conscience. General or customary international
law emanates not so much from the practice of States (not devoid of ambiguities
and contradictions), but rather from the opinio juris communis of all the subjects
of International Law (States, international organizations, human beings, peoples,
and humankind as a whole). Above the will stands the conscience. The fact that,
despite all the sufferings of past generations, there persist in our days new forms
of exploitation of man by man, – illustrated by the increasing disparities among
and within nations, amidst chronic and growing poverty, uprootedness, social
exclusion and marginalization, – does not mean that “regulation is lacking” or
that Law does not exist to remedy or reduce such man-made imbalances. It rath-
er means that Law is being ostensibly and flagrantly violated, from day to day, to
the detriment of millions of human beings.
The current process of the necessary humanization of International Law
stands in reaction to that state of affairs. It bears in mind the universality and
292 Chapter XII
unity of the human kind, which inspired, more than four and a half centuries
ago, the historical process of formation of the droit des gens. In rescuing the uni-
versalist vision which marked the origins of the most lucid doctrine of Inter-
national Law, the aforementioned process of humanization contributes to the
construction of the new jus gentium of the XXIst century, oriented by the general
principles of law. This process is enhanced by its own conceptual achievements,
such as, to start with, the acknowledgement and recognition of jus cogens and
the consequent obligations erga omnes of protection, followed by other concepts
disclosing likewise a universalist perspective of the law of nations.
II. International Jus Cogens (Peremptory Norms of General

International Law)
1. Emergence and Content of Jus Cogens

The emergence and assertion of jus cogens in contemporary International Law
fulfi ll the necessity of a minimum of verticalization in the international legal
order, erected upon pillars in which the juridical and the ethical are merged. The
evolution of the concept of jus cogens transcends nowadays the ambit of both the
law of treaties and the law of the international responsibility of the States, so as
to reach general International Law and the very foundations of the international
legal order.1
Jus cogens was definitively incorporated into the conceptual universe of con-
temporary International Law as from the inclusion, among the bases of invalidity
and termination of treaties, of the peremptory norms of general International
Law, in Articles 53 and 64 of the Vienna Convention of 1969 on the Law of Trea-
ties.2 The Convention set forth the concept of jus cogens, without thereby adopt-
ing the thesis – defended in the past by A. McNair 3 – that a treaty could generate
a regime of objective character erga omnes in derrogation of the classic principle
1 Inter-American Court of Human Rights (IACtHR), Advisory Opinion n. 18, on The

Juridical Condition and the Rights of the Undocumented Migrants (of 17.09.2003),
pars. 98-99, and Concurring Opinion of Judge A.A. Cançado Trindade, pars. 65-67.
2 More than three decades earlier, the expression “ jus cogens” was utilized by Judge
Schücking, in his well-known Separate Opinion in the Oscar Chinn case (United
Kingdom versus Belgium); Permanent Court of International Justice (PCIJ), Se-
ries A/B, n. 63, 1934, pp. 148-150, esp. p. 149. One year later, in his course at the
Hague Academy of International Law, Alfred Verdross also utilized the expression
“ jus cogens”, and referred himself to the aforementioned Separate Opinion of Judge
Schücking; cf. A. Verdross, “Les principes généraux du Droit dans la jurisprudence
internationale”, 52 Recueil des Cours de l’Académie de Droit International de La
Haye [RCADI] (1935) pp. 206 and 243.
3 Cf. A.D. McNair, “Treaties Producing Effects ‘Erga Omnes’”, in Scritti di Diritto In-
ternazionale in Onore di T. Perassi, vol. II, Milano, Giuff rè, 1957, pp. 23-36.
Conceptual Constructions: Jus Cogens and Obligations Erga Omnes 293
pacta tertiis nec nocent nec prosunt.4 The concept seems to have been recognized
by the Vienna Convention of 1969 as a whole; if this latter did not adopt the no-
tion of treaties establishing “legal regimes of objective character”, on the other
hand it set forth the concept of jus cogens,5 i.e., of peremptory norms of general
International Law.6 The provisions on jus cogens became the object of analysis of
a wide specialized bibliography.7
4 It may be addded that, during the travaux préparatoires of the Convention under-
taken by the U.N. International Law Commission [ILC], the notion of “community
interest” was made present: at first utilized by J.-M. Yepes in 1950, the idea was later
to appear in the 1st. report by J.L. Brierly (the fi rst rapporteur on the subject), and
in the 1st. report by H. Lauterpacht (the second rapporteur), the became absent
from the reports by G. Fitzmaurice (the third rapporteur), and reappeared at last
in the 2nd. report by H. Waldock (the fourth and last rapporteur on the matter); S.
Rosenne, “Bilateralism and Community Interest in the Codified Law of Treaties”, in
Transnational Law in a Changing Society – Essays in Honour of Ph. C. Jessup (ed. W.
Friedmann, L. Henkin, and O. Lissitzyn), N.Y./London, Columbia University Press,
1972, pp. 207, 212-219 and 226-227; and cf. Ph. Cahier, “Le problème des effets des
traités à l’égard des États tiers”, 143 RCADI (1974) pp. 589-736.
5 For a historical account of the concept, going back to the old Roman law, but reap-
pearing mainly as from the XIXth century, cf. J. Sztucki, Jus Cogens and the Vienna
Convention on the Law of Treaties – A Critical Appraisal, Viena, Springer-Verlag,
1974, pp. 6-11 and 97-108.
6 The term, as such, appeared for the first time in the 3rd. report by G. Fitzmaurice,
and was again to appear in the 2nd. report by H. Waldock; J. Sztucki, op. cit. supra
n. (5), pp. 104-105 and 108. – On the criteria for the determination of the rules of
International Law which could constitute jus cogens, cf. I.M. Sinclair, “Vienna Con-
ference on the Law of Treaties”, 19 International and Comparative Law Quarterly
(1970) pp. 66-69; I.M. Sinclair, The Vienna Convention on the Law of Treaties, Man-
chester, University Press/Oceana, 1973, pp. 124-129, and cf. pp. 129-131.
7 Cf., e.g., Ch.L. Rozakis, The Concept of Jus Cogens in the Law of Treaties, Amsterdam,
North Holland Publ. Co., 1976, pp. 1-194; Ch. de Visscher “Positivisme et jus cogens”,
75 Revue générale de Droit international public (1971) pp. 5-11; M. Virally, “Réflexions
sur le jus cogens”, 12 Annuaire français de Droit international (1966) pp. 5-29; A. Ver-
dross, “Jus dispositivum and Jus Cogens in International Law”, 60 American Journal
of International Law [AJIL] (1966) pp. 55-63; J.A. Barberis, “La liberté de traiter des
États et le jus cogens”, 30 Zeitschrift für ausländisches öffentliches Recht und Völk-
errecht [Z.f.a.o.R.u.V.] (1970) pp. 19-45; U. Scheuner, “Conflict of Treaty Provisions
with a Peremptory Norm of International Law”, 27 and 29 Z.f.a.o.R.u.V. (1967 and
1969) pp. 520-532 and 28-38, respectively; H. Mosler, “Ius cogens im Völkerrecht”, 25
Schweizerisches Jahrbuch für internationales Recht (1968) pp. 1-40; K. Marek, “Con-
tribution à l’étude du jus cogens en Droit international”, in Recueil d’etudes de Droit
International en hommage à P. Guggenheim, Geneva, I.U.H.E.I., 1968, pp. 426-459;
M. Schweitzer, “Ius cogens im Völkerrecht”, 15 Archiv des Völkerrechts (1971) pp.
197-223; G. Gaja, “Jus Cogens beyond the Vienna Convention”, 172 RCADI (1981) pp.
279-313; L. Alexidze, “Legal Nature of Jus Cogens in Contemporary International
Law”, in ibid., pp. 227-268; and other sources referred to in notes (11), (22), (23), (29),
(41), (47) and (53).
294 Chapter XII
The notion of jus cogens seems to have been recognized by the Vienna Con-
vention as a whole, thus transcending the old exclusively bilateralist approach
in its application. Even before the Vienna Conference on the Law of Treaties of
1968-1969, in the debates of 1963 and 1966 of the VIth Committee of the U.N.
General Assembly, it became clear that the majority of the jusinternationalists
of the developing countries and of the countries of Eastern Europe attributed
great importance to the concept of jus cogens, the same occurring during the
Conference, in which there was not much opposition to the concept, although
the Delegations mainly of the Western countries cautiously insisted on the need
of some criteria for the determination of the rules of International Law which
constituted jus cogens.8
As to the evolving question of the discernible contents of jus cogens, it may
be recalled that a comment of the U.N. International Law Commission [ILC], in
its travaux préparatoires on the law of treaties, suggested, as being incompatible
with the rules of jus cogens, treaties which contemplated the illicit use of force
(contrary to the principles of the U.N. Charter), or any other criminal act under
International Law (slave trade, piracy, genocide).9 And already in an Advisory
Opinion of 1951, on the Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, the ICJ pointed out that the humanitar-
ian principles underlying that Convention were recognizedly “binding on States,
even without any conventional obligation”.10
One and a half decades later, the concept of jus cogens was again set forth in
the Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations (1986); in my interven-
tion in the United Nations Conference which adopted it (debates of 12.03.1986 in
Vienna), I saw it fit to warn as to the manifest incompatibility with the concept
of jus cogens of the voluntarist conception of International Law,11 which appeared
incapable to explain even the formation of rules of general international law and
the incidence in the process of formation and evolution of contemporary Inter-
8 I.M. Sinclair, “Vienna Conference...”, op. cit. supra n. (6), pp. 66-69; I.M. Sinclair, The
Vienna Convention..., op. cit. supra n. (6), pp. 124-129.
9 Cit. in I.M. Sinclair, The Vienna Convention..., op. cit. supra n. (6), pp. 121-122, and
cf. pp. 130-131; cf. also accounts in S.P.A. Ferrer, “Los conceptos de ius cogens y ius
dispositivum y la labor de la Comisión de Derecho Internacional”, 21 Revista Es-
pañola de Derecho Internacional (1968) pp. 763-780; E. Schwelb, “Some Aspects of
International Ius Cogens as Formulated by the International Law Commission”, 61
AJIL (1967) pp. 946-975.
10 ICJ, Advisory Opinion of 28 May 1951, ICJ Reports (1951) p. 23.
11 Cf. U.N., United Nations Conference on the Law of Treaties between States and In-
ternational Organizations or between International Organizations (Vienna, 1986)
– Official Records, vol. I, N.Y., U.N., 1995, pp. 187-188 (intervention by the Deputy
Head of the Delegation of Brazil, A.A. Cançado Trindade).
national Law of elements independent of the “free will” of the States.12 With the
assertion of jus cogens in the two Vienna Conventions on the Law of Treaties
(1969 and 1986), the next step consisted in determining in incidence beyond the
law of treaties.
2. Evolving Scope of Jus Cogens

On my part, I have always sustained that it is an ineluctable consequence of the
affirmation and the very existence of peremptory norms of International Law
their not being limited to the conventional norms, to the law of treaties, and
their being extended to every and any juridical act.13 Recent developments point
out in the same sense, that is, that the domain of the jus cogens, beyond the law
of treaties, encompasses likewise general International Law.14 In my Concurring
Opinion in the Advisory Opinion n. 18 (of 17.09.2003) of the Inter-American
Court of Human Rights [IACtHR], on The Juridical Condition and the Rights
of Undocumented Migrants, I sustained my understanding that the jus cogens is
not a closed juridical category, but rather one in evolution and expansion (pars.
65-73). In sum,
“(...) the domain of the jus cogens, beyond the law of treaties, encompasses likewise
general international law. Moreover, the jus cogens, in my understanding, is an open
category, which expands itself to the extent that the universal juridical conscience
(material source of all Law) awakens for the necessity to protect the rights inherent
to each human being in every and any situation. (...) The absolute prohibition of
the practices of torture, of forced disappearance of persons, and of summary and
extra-legal executions, leads us decidedly into the terra nova of the international jus
cogens. (...)” (pars. 68-69).
And I concluded, in this respect, in the same aforementioned Concurring Opin-

ion, that

Assessment”, 59 Revue de droit international de sciences diplomatiques et politiques
– Geneva (1981) pp. 201-240.
13 Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,
vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 415-416; IACtHR, Advisory
Opinion n. 18, on The Juridical Condition and the Rights of the Undocumented Mi-
grants (of 17.09.2003), Concurring Opinion of Judge A.A. Cançado Trindade, pars.
68-73.
14 For the extension of jus cogens to all possible juridical acts, cf., e.g., E. Suy, “The
Concept of Jus Cogens in Public International Law”, in Papers and Proceedings of
the Conference on International Law (Langonissi, Greece, 03-08.04.1966), Geneva,
C.E.I.P., 1967, pp. 17-77.
296 Chapter XII
“The concept of jus cogens in fact is not limited to the law of treaties, and is likewise
proper to the law of the international responsibility of the States. The Articles on the
Responsibility of the States, adopted by the International Law Commission of the
United Nations in 2001, bear witness of this fact. (...) In my understanding, it is in this
central chapter of International Law, that of the international responsibility (perhaps
more than in the chapter on the law of treaties), that the jus cogens reveals its real,
wide and profound dimension, encompassing all juridical acts (including the unilat-
eral ones), and having an incidence (including beyond the domain of State responsi-
bility) on the very foundations of an international law truly universal” (par. 70).
Besides this horizontal expansion, jus cogens is also expanding in a vertical di-
mension, of the interaction between the international and national legal orders
in the present domain of protection. The effect of jus cogens, in this second (verti-
cal) level, has been in the sense of invalidating every and any legislative, admin-
istrative or judicial measure that, at the level of the domestic law of the States,
attempts to authorize or tolerate torture.15 Jus cogens has further been invoked to
secure the absolute prohibition of violation of fundamental rights of the human
person.16
Jus cogens was thus expressly referred to – in connection with superior val-
ues shared by the international community – in the travaux préparatoires of
the 1985 Inter-American Convention to Prevent and Punish Torture.17 The ab-
solute prohibition of forced disappearance of persons was insisted upon in the
preparatory work of the 1994 Inter-American Convention on Forced Disappear-
ance of Persons.18 This reassuring development has led to the emergence of a
true international legal regime against torture, forced disappearances of persons,
extra-legal and arbitrary and summary executions, and illegal and arbitrary de-
tentions.19
As far as international case-law is concerned, two international tribunals
which, in recent years, have considerably contributed to the development of the
material content of the international jus cogens have been the IACtHR and the ad
hoc International Criminal Tribunal for the Former Yugoslavia [ICTFY]. In con-
15 Cf. E. de Wet, “The Prohibition of Torture as an International Norm of Jus Cogens

and Its Implications for National and Customary Law”, 15 European Journal of Inter-
national Law (2004) pp. 98-99.
16 A.A. Cançado Trindade, Tratado de Direito Internacional..., vol. II, op. cit. supra n.
(13), p. 415.
17 Cf. OAS/G.A., Asamblea General de la OEA – XV Período Ordinario de Sesiones
(Cartagena, Colombia), Actas y Documentos, vol. II, part II, Washington D.C., OAS
General Secretariat, 1985, p. 113.
18 Cf. OAS/PC, Informe del Presidente del Grupo de Trabajo Encargado de Analizar el
Proyecto de Convención Interamericana sobre Desaparición Forzada de Personas,
OAS doc. OEA/Ser.G/CP/CAJP-925/93/rev.1, of 25.01.1994, pp. 3-23.
vol. II, op. cit. supra n. (13), pp. 345-358.
formity with the Judgments of the IACtHR in the cases Cantoral Benavides versus
Peru (18.08.2000), Maritza Urrutia versus Guatemala (27.11.2003), Brothers Gó-
mez Paquiyauri versus Peru (08.07.2004), and Tibi versus Ecuador (07.09.2004),
the understanding is sustained that torture, inhuman treatment and extra-judi-
cial executions are in breach of the jus cogens; furthermore, in accordance with
the extensive reasoning of the IACtHR in its historical Advisory Opinion n. 18 on
the Juridical Condition and Rights of Undocumented Migrants (17.09.2003), the
understanding is advanced that the fundamental principle of equality and non-
discrimination has entered into the domain of the jus cogens.20
And pursuant to the decisions of the ICTFY (Trial Chambers), e.g., in the cas-
es Furundzija (10.12.1998), Jelisic (14.12.1999), Kupreskic and Others (14.01.2000),
Kunarac (22.02.2001) and Krstic (02.08.2001), the understanding is maintained
that genocide, torture and attacks against civilians in armed conflicts are in
breach of the jus cogens;21 the ICTFY (Trial Chamber II) reiterated its position, as
to the prohibition – of conventional and customary law – of torture as being of
jus cogens, in the Simic case (Judgment of 17.10.2002, par. 34). In the Furundzija
case, the ICTFY (Trial Chamber) sustained that the absolute prohibition of tor-
ture, under conventional and customary International Law, – having the charac-
ter of jus cogens, and generating obligations erga omnes,22 – was so absolute that
it had incidence not only on actual, but also potential, violations.23
This jurisprudential assertion of prohibitions of jus cogens has taken place in
pursuance of the superior and fundamental values to be protected, shared by the
international community as a whole, from which no derogation or diversion is al-
lowed. The significant jurisprudential contributions, in recent years, particularly
of the IACtHR and the ICTFY on the matter at issue, are oriented in the correct
direction, but there still remains of course a long way to go in the gradual deter-
mination of the material content of the jus cogens.
The concept of jus cogens is in fact not limited to the law of treaties, and is
likewise proper to the law of the international responsibility of the States. The
Articles on the Responsibility of the States, adopted by the ILC of the United Na-
20 Paragraphs 97-101; and cf., for a recent general study, e.g., A.A. Cançado Trindade,
“The Case-Law of the Inter-American Court of Human Rights: An Overview”, in
Studi di Diritto Internazionale in Onore di Gaetano Arangio-Ruiz, vol. III, Napoli,
Ed. Scientifica, 2004, pp. 1873-1898.
21 Cf., e.g., F. Harhoff, “La consécration de la notion de jus cogens dans la jurisprudence
des tribunaux pénaux internationaux”, in Actualité de la jurisprudence pénale in-
ternationale à l’heure de la mise en place de la Cour Pénale Internationale (eds. P.
Tavernier and C. Renaut), Bruxelles, Bruylant, 2004, pp. 65-80.
22 Paragraphs 137-139, 144 and 160, and cf. pars. 151 and 153-154.
23 On this last point, cf. the Judgment of the European Court of Human Rights [EC-
tHR] in the Soering versus United Kingdom case (1989, pars. 144 and 148). – And, on
the practice under the U.N. Covenant on Civil and Political Rights, cf. F. Pocar, “Pat-
to Internazionale sui Diritti Civili e Politici ed Estradizione”, in Diritti dell’Uomo,
Estradizione ed Espulsione – Atti del Convegno di Ferrara (1999) per Salutare G.
Battaglini (ed. F. Salerno), Padova, Cedam, 2003, pp. 89-90.
298 Chapter XII
tions in 2001, bear witness of this fact. Among the passages of such Articles and
their comments which refer expressly to jus cogens, there is one in which it is af-
firmed that “various tribunals, national and international, have affi rmed the idea
of peremptory norms in contexts not limited to the validity of treaties”.24
To the international objective responsibility of the States corresponds neces-
sarily the notion of objective illegality 25 (one of the elements underlying the con-
cept of jus cogens). In our days, no one would dare to deny the objective illegality
of acts of genocide, of systematic practices of torture, of summary and extra-legal
executions, and of forced disappearance of persons, – practices which represent
crimes against humanity, – condemned by the universal juridical conscience,26
parallel to the application of treaties.
In its Judgment of 11 July 1996, in the case concerning the Application of the
Convention against Genocide (Bosnia-Herzegovina versus Yugoslavia), the ICJ af-
firmed that the rights and obligations set forth in that Convention were “rights
and duties erga omnes”.27 And, already in its Advisory Opinion of 1951 on the
Reservations to the Convention against Genocide, the ICJ pointed out that the
humanitarian principles underlying that Convention were recognizedly “binding
on States, even without any conventional obligation”.28
Just as, in the ambit of the International Law of Refugees, the basic principle
of non-refoulement was recognized as being of jus cogens,29 in the domain of the
International Law of Human Rights the character of jus cogens of the funda-
mental principle of equality and non-discrimination was likewise recognized.
The objective illegality is not limited to the aforementioned acts and practices.
As jus cogens is not a closed category (supra), I understand, furthermore, that
no one would dare to deny that, e.g., slave work, and the persistent denial of the
most elementary guarantees of the due process, of law would likewise affront the
universal juridical conscience, and effectively collide with, and are in breach of,
the peremptory norms of the jus cogens. All this doctrinal evolution points to
the direction of the crystallization of the obligations erga omnes of protection;
without the consolidation of such obligations one will advance very little in the
struggle against the violations of human rights.
24 J. Crawford, The International Law Commission’s Articles on State Responsibility

– Introduction, Text and Commentaries, Cambridge, University Press, 2002, p. 188,
and cf. pp. 246 and 127-128.
25 In its Advisory Opinion of 21.06.1971 on Namibia, the ICJ in fact referred itself to a
situation which it characterized as “illegal erga omnes”; ICJ Reports (1971) p. 56, par.
126.
26 IACtHR, case Blake versus Guatemala (Merits), Judgment of 24.01.1998, Separate
Opinion of Judge A.A. Cançado Trindade, par. 25, and cf. pars. 23-24.
27 ICJ Reports (1996) p. 616, par. 31.
28 ICJ, Advisory Opinion of 28 May 1951, ICJ Reports (1951) p. 23.
29 Cf. J. Allain, “The Jus Cogens Nature of Non-Refoulement”, 13 International Journal
of Refugee Law (2002) pp. 538-558.
Manifestations of international jus cogens mark presence in the very man-

ner whereby human rights treaties have been interpreted and applied: the re-
strictions, foreseen in them, to the human rights they set forth, are restrictively
interpreted, safeguarding the rule of law, and demonstrating that human rights
do not belong to the domain of jus dispositivum, and cannot be considered as
simply “negotiable”;30 on the contrary, they permeate the international legal order
itself. In sum and conclusion on the point under examination, the emergence and
assertion of jus cogens evoke the notions of international public order and of a
hierarchy of legal norms, as well as the prevalence of the jus necessarium over the
jus voluntarium; jus cogens presents itself as the juridical expression of the very
international community as a whole, which, at last, takes conscience of itself, and
of the fundamental principles and values which guide it.31
3. The Gradual Expansion of the Material Content of Jus Cogens

I shall now move on to the gradual expansion, in recent years, of the material
content of jus cogens, as acknowledged by contemporary international case-law
on the matter, in particular that of the IACtHR. Such expansion has covered,
as we shall see next, the absolute prohibition of torture and of cruel, inhuman
or degrading treatment; the basic principle of equality and non-discrimination;
and the fundamental character of the right of access to justice. Attention will be
drawn onto the importance of the right of access to justice as an imperative of
jus cogens.
The first stage of the remarkable jurisprudential evolution of the IACtHR on
the matter consisted of the assertion of the absolute prohibition, of jus cogens,
of torture, in every and any circumstance, followed by the same prohibition of
cruel, inhuman or degrading treatment. Thus, in its Judgment of 18.08.2000, in
the case of Cantoral Benavides versus Peru, the IACtHR significantly sustained
that
“(...) Certain acts which were qualified in the past as inhuman or degrading treat-
ment, not as torture, could be qualified in the future in a different way, that is, as tor-
ture, since to the growing demands of protection of human rights and fundamental
freedoms ought to correspond a greater fi rmness to face the infringements to the
basic values of democratic societies (...)” (par. 99).
30 J.A. Pastor Ridruejo, “La Convención Europea de los Derechos del Hombre y el ‘Jus
Cogens’ Internacional”, in Estudios de Derecho Internacional – Homenaje al Profe-
sor Miaja de la Muela, vol. I, Madrid, Ed. Tecnos, 1979, pp. 581-590.
31 A. Gómez Robledo, El Jus Cogens Internacional (Estudio Histórico Crítico), Mexico,
UNAM, 1982, pp. 20-21, 222-223 and 226, and cf. p. 140; and cf. also R.St.J. Mac-
donald, “Fundamental Norms in Contemporary International Law”, 25 Annuaire
canadien de Droit international (1987) pp. 133-134, 140-142 and 148.
300 Chapter XII
In the same sense, in the Judgment of 08.07.2004, in the case of the Brothers
Gómez Paquiyauri versus Peru, the IACtHR pointed out that
“torture is strictly prohibited by the International Law of Human Rights. The prohi-
bition of torture is absolute and non- derrogable, even in the most difficult circum-
stances, such as war, threat of war, ‘fight against terrorism’ and any other delicts,
state of siege or of emergency, commotion or internal confl ict, suspension of con-
stitutional guarantees, internal political instability or other emergencies or public
calamities”.
And the IACtHR clearly found that “it has been conformed an international ju-
ridical regime of absolute prohibition of all forms of torture, both physical and
psychological, a regime which belongs today to the domain of the international
jus cogens” (pars. 111-112).
Years before these significant obiter dicta of the IACtHR, I had warned,
within the Court, as to the need of the jurisprudential development of the pro-
hibitions of jus cogens, in my Separate Opinions in the case of Blake versus Gua-
temala (preliminary objections, Judgment of 02.07.1996;32 merits, Judgment of
24.01.1998;33 and reparations, Judgment of 22.01.199934). In the same line of think-
ing, subsequently to the case of Cantoral Benavides, I reiterated my position on
the matter in my Concurring Opinion in the Judgment (of 14.03.2001) in the case
of Barrios Altos versus Peru,35 as well as in my Separate Opinion in the Judgment
(of 01.09.2001) in the case of Hilaire versus Trinidad and Tobago;36 in my Con-
curring Opinion in the Judgment (of 27.11.2003) in the case of Maritza Urrutia
versus Guatemala;37 in my Separate Opinion in the Judgment (of 08.07.2004) in
the case of the Brothers Gómez Paquiyauri versus Peru (of 08.07.2004);38 and in
my Dissenting Opinion in the cases of the Sisters Serrano Cruz versus El Salvador
(Judgment on preliminary objections of 23.11.2004).39
And in its Judgment of 07.09.2004, in the case of Tibi versus Ecuador, the
IACtHR again acknowledged the existence of “an international juridical regime of
absolute prohibition of all forms of torture, both physical and psychological, a re-
gime which belongs today to the domain of jus cogens. The prohibition of torture
is complete and non-derogable, even in the most difficult circumstances”(par.
32 Pars. 11 and 14 of the Opinion.

33 Pars. 15, 17, 23, 25 and 28 of the Opinion.
34 Pars. 31, 40 and 45 of the Opinion.
35 Pars. 10-11 and 25 of the Opinion.
36 Par. 38 of the Opinion.
37 Pars. 6, 8-9 and 12 of the Opinion.
38 Pars. 1, 37, 39, 42 and 44 of the Opinion.
39 Pars. 2, 32, and 39-41 of the Opinion.
143).40 The IACtHR reiterated this obiter dictum in its Judgment of 06.04.2006 in
the case of Baldeón García versus Peru (par. 121). One year earlier, the Judgment
of the IACtHR (of 11.03.2005) in the case of Caesar versus Trinidad and Tobago,
in the same line of reasoning of its jurisprudential construction of the jus cogens,
rightly took another step forward, in sustaining the absolute prohibition, proper
of the domain of jus cogens, of torture as well as other cruel, inhuman and de-
grading treatment. The absolute prohibition of torture, as well as of such treat-
ment, in all and any circumstances, as a prohibition of jus cogens, forms today
jurisprudence constante of the IACtHR.
But the IACtHR did not limit itself to such prohibition. It went further, in ex-
panding the material content of jus cogens in its historical Advisory Opinion n. 18
(of 17.09.2003), on the Juridical Condition and Rights of Undocumented Migrants,
so as to encompass the basic principle of equality and non-discrimination (pars.
97-101 and 110-111). The IACtHR sustained that States have the duty to respect
and to secure respect for human rights in the light of the general and basic prin-
ciple of equality and non-discrimination, and that any discriminatory treatment
in relation to the protection and exercise of such rights (including labour rights)
generates the international responsability of the States. In the understanding of
the Court, the fundamental principle referred to entered into the domain of jus
cogens, States not being allowed to discriminate, or tolerate discriminatory situ-
ations, to the detriment of migrants, and being under the duty to guarantee the
due process of law to any person, irrespective of her migratory status. States can-
not subordinate or condition the observance of the principle of equality before
the law and of non-discrimination to the objectives of their migratory policies,
among others.
On this new and highly significant jurisprudential advance I presented an
extensive Concurring Opinion (pars. 1-89), in which I supported the position of
the Court, acknowledging that such basic principle permeates the whole juridical
40 In my Separate Opinion in this same case Tibi, I singled out the importance of the
absolute character of such prohibition, and examined the evolution of this latter
in contemporary international case-law (pars. 26 and 30-32 of the Opinion). – The
international regime against torture is today conformed by the U.N. Convention (of
1984, and its Protocol of 2002) and the Inter-American (1985) and European (1987)
Conventions on the matter, in addition to the Special Rapporteur on Torture (since
1985) of the old U.N. Commission on Human Right (CHR), and the Working Group
on Arbitrary Detention (since 1991) of the same CHR (attentive to the prevention
of torture). The three aforementioned coexisting Conventions of struggle against
torture are basically complementary. On its turn, the European Court of Human
Rights affi rmed, in the case Soering versus United Kingdom (Judgment of 07.07.1989),
that the absolute prohibition of torture (also in times of war and other national
emergencies) gives expression to one of the contemporary fundamental values of
democratic societies (par. 88). And the ad hoc International Criminal Tribunal for
the Former Yugoslavia categorically sustained, in the case A. Furundzija (Judgment
of 10.12.1998), that the absolute prohibition of torture has the character of a norm of
jus cogens (pars. 137-139, 144 and 160).
302 Chapter XII
order, and drawing attention to its importance, and that of all general principles
of law, wherefrom the norms and rules emanate, and without which, ultimately,
there is no “juridical order” (pars. 44-46 and 65). In sum, such principles con-
form, in my understanding, the substratum of the legal order itself (pars. 52-58
and 72). The points which I dwelt upon, – also for the evolution of jus cogens and
obligations erga omnes of protection, – I did so in the ambit of the conception of
the civitas maxima gentium and of the universality of the human kind.
Advisory Opinion n. 18 of the IACtHR has had a considerable impact on the
American continent, and its influence is bound to extend itself to other latitudes,
for its content and given the topicality and the relevance of the matter. Both the
Advisory Opinion n. 18 (supra), and the Advisory Opinion n. 16 on The Right to
Information on Consular Assistance in the Framework of the Guarantees of the
Due Process of Law (of 01.10.1999),41 call for and advance the same dynamic or
evolutive interpretation of the International Law of Human Rights. In the Ad-
visory Opinion n. 16, pioneering and a source of inspiration of the international
case-law in statu nascendi on the matter, the IACtHR interpreted the protecting
norms of the American Convention on Human Rights in such a way as to extend
them into new situations, such as that pertaining to the observance of the right
to information on consular assistance.42
The same outlook was adopted by the Court in its subsequent and forward-
looking Advisory Opinion n. 18, on the rights of undocumented migrants, erect-
ed on the evolving concepts of jus cogens and of obligations erga omnes of protec-
tion. The historical trascendence of both Advisory Opinions of the IACtHR has
been acknowledged in the juridical circles of the whole continent, and elsewhere.
They effectively pave the way for the construction of a new jus gentium in this
first decate of the XXIst century: an International Law which is no longer State-
centric, but appears rather attentive to the fulfi lment of the needs and aspira-
tions of humankind as a whole.
Since the IACtHR endorsed the understanding that also the fundamental
principle of equality and non-discrimination has entered into the domain of jus
cogens (supra), in successive contentious cases I have insisted on the need to en-
large further the material content of jus cogens, so as to encompass likewise the
right of access to justice,43 and thus fulfi l the pressing needs of protection of the
41 On the impact and influence of this latter, cf. A.A. Cançado Trindade, “The Hu-
manization of Consular Law: The Impact of Advisory Opinion n. 16 (1999) of the In-
ter-American of Human Rights on International Case-Law and Practice”, 4 Chinese
Journal of International Law (2007) pp. 1-16.
42 On the impact of Advisory Opinion n. 16 on international case-law and practice,
cf. A.A. Cançado Trindade, “The Humanization of Consular Law: The Impact of
Advisory Opinion n. 16 (1999) of the Inter-American Court of Human Rights on
International Case-Law and Practice”, in 6 Chinese Journal of International Law
(2007) n. 1, p. 1-16.
43 Cf., in this sense, my Separate Opinions in the IACtHR’s Judgments in the cases of
the Massacre of Plan de Sánchez versus Guatemala (merits, of 29.04.2004), pars. 22,
human person. I have done so, inter alia, in my Separate Opinion (devoted to the
right of access to justice lato sensu) in the Judgment of the Court (of 31.01.2006)
in the case of the Massacre of Pueblo Bello versus Colombia, drawing attention
to the fundamental importance precisely of the right of access to justice, and
pondering that
“The interrelatedness which I sustain between Articles 25 and 8 of the American

Convention (...) leads to characterize as belonging to the domain of jus cogens the
access to justice understood as the full realization of this latter, that is, as belonging
to the domain of jus cogens the intangibility of all judicial guarantees in the sense of
Articles 25 and 8 taken jointly. There can be no doubt that fundamental guarantees,
common to the International Law of Human Rights and to International Humani-
tarian Law,44 have a universal vocation in being applicable in all and any circum-
stances, conforming an imperative law (belonging to jus cogens), and bringing about
obligations erga omnes of protection” (par. 64).
Shortly afterwards, in my Separate Opinion in the case of López Álvarez ver-

sus Honduras (2006), I saw it fit to insist on my understanding in the sense
that the right to the Law (the access to justice lato sensu) is an imperative of
jus cogens (pars. 52-55). I did likewise, in my Separate Opinion in the Judgment
of the IACtHR in the case Baldeón García versus Peru (merits and reparations,
of 06.04.2006).45 But it was in the case of Goiburú and Others versus Paraguay
29-33 and 35 of the Opinion; and (reparations, of 19.11.2004), pars. 4-7 and 20-27 of
the Opinion; of the Brothers Gómez Paquiyauri versus Peru (of 08.07.2004), pars. 37-
44 of the Opinion; of Tibi versus Ecuador (of 07.09.2004), pars. 30-32 of the Opinion;
of Caesar versus Trinidad and Tobago (of 11.03.2005), pars. 85-92 of the Opinion; of
Yatama versus Nicaragua (of 23.06.2005), pars. 6-9 of the Opinion; of Acosta Cal-
derón versus Ecuador (of 14.06.2005), pars. 4 and 7 of Opinion; of the Massacres of
Ituango versus Colombia (of 01.07.2006), par. 47 of the Opinion; of Baldeón García
versus Peru (of 06.04.2006), pars. 9-10 of the Opinion; of López Álvarez versus Hon-
duras (of 01.02.2006), pars. 53-55 of the Opinion; of Ximenes Lopes versus Brazil (of
04.07.2006), pars. 38-47 of the Opinion.
44 E.g., Article 75 of Protocol I (of 1977) of the Geneva Conventions (of 1949) on Inter-
national Humanitarian Law.
45 In this Separate Opinion in the Baldeón García case, in recalling the precedents
of the jurisprudential construction of the prohibitions of jus cogens (cf. supra), I
disagreed with the reasoning of the majority of the Court which considered that the
State obligations of prevention, investigation and sanction of those responsible (for
human rights violations) would be simple obligations “of means, not of results”. Dis-
tinctly from the majority of the Court, I pondered in that Separate Opinion (pars.
5-7 and 9-12), as well as in my Separate Opinion (par. 23) in the case of the Indigenous
Community Sawhoyamaxa versus Paraguay (Judgment of 29.03.2006) that the obli-
gations of the State are “of diligence and result, not only of conduct (as the adoption
of insufficient and unsatisfactory legislative measures)”. In effect, the examination
of the distinction between obligations of conduct and of result (in the light mainly
of the work of the ILC on State Responsibility) has tended to take place at a purely
304 Chapter XII
(Judgment of 22.09.2006), pertaining to the sinister “Operation Condor” of the

so-called “intelligence services” of the countries of the Southern Cone of South
America (in the epoch of the dictatorships of three decades ago), that the IAC-
tHR at last endorsed the thesis which I had been sustaining therein already for
more than two years,46 in effectively enlarging even further the material content
of jus cogens, so as to comprise the right of access to justice at national and inter-
national levels.47
In its aforementioned Judgment of 22.09.2006 in the case of Goiburú and
Others, the Court, in establishing violations of jus cogens in the cas d’espèce, as-
serted that
“(...) The access to justice constitutes an imperative norm of International Law, and,
as such, it generates obligations erga omnes for the States to adopt the measures
which are necessary not to leave in impunity those violations (...)” (par. 131).
Shortly afterwards, in its Judgment of 29.11.2006 in the case of La Cantuta versus

Peru, the Court made again this same assertion (par. 160). The gradual expansion
of the material content of jus cogens, encompassing lately the right of access to jus-
tice, has occurred pari passu with the recent judicial condemnation of grave viola-
tions of human rights and of massacres, which conform, in my understanding, true
crimes of State.48 In my Separate Opinions in the case of Goiburú and Others,49 as
theoretical level, assuming variations in the conduct of the State, and also a succes-
sion of acts on the part of this latter (cf. A. Marchesi, Obblighi di Condotta e Ob-
blighi di Risultato – Contributo allo Studio degli Obblighi Internazionali, Milano,
Giuff rè, 2003, pp. 50-55 and 128-135), – and without taking sufficiently and duly into
account a situation in which an irreparable harm to the human person suddenly
occurs (e.g., the deprivation of the right to life by the lack of due diligence of the
State). We are here before, definitively, “obligations of result and not of behaviour, as,
otherwise, we would not be before an imperative law, and this would moreover lead
to to impunity”. – More recently, I have insisted on this same point in my extensive
Dissenting Opinion (pars. 1-60) in the case of the Dismissed Workers of the Congress
versus Peru (Interpretation of Judgment, of 30.11.2007).
46 Cf. the text of my Separate Opinion in this case, reproduced in: A.A. Cançado Trin-
dade, Derecho Internacional de los Derechos Humanos – Esencia y Trascendencia
(Votos en la Corte Interamericana de Derechos Humanos, 1991-2006), Mexico, Edit.
Porrúa/Universidad Iberoamericana, 2007, pp. 779-804.
47 Cf. also, in this respect, A.A. Cançado Trindade, “La Ampliación del Contenido Ma-
terial del Jus Cogens”, in XXXIV Curso de Derecho Internacional Organizado por el
Comité Jurídico Interamericano – 2007, Washington D.C., General Secretariat of the
OAS, 2008, pp. 1-15.
48 Cf., in this respect, A.A. Cançado Trindade, “Complementarity between State Re-
sponsibility and Individual Responsibility for Grave Violations of Human Rights:
The Crime of State Revisited”, in International Responsibility Today – Essays in
Memory of O. Schachter (ed. M. Ragazzi), Leiden, M. Nijhoff, 2005, pp. 253-269.
49 Pars. 62-68 of the Opinion, text in ibid., pp. 801-804.
well as in the subsequent cases of Almonacid Arellano versus Chile (Judgment of

26.09.2006, pars. 58-60 of the Opinion), and of La Cantuta versus Peru (Judgment
of 29.11.2006, pars. 49-62 of the Opinion), I stressed the considerable importance
of this expansion of the material content of jus cogens.
On such expansion, I sustained, in my Separate Opinion in the case of La
Cantuta versus Peru (Judgment of 29.11.2006), that
“In cases like the present one, in which the apparatus of the State power was un-
duly utilized to commit crimes of State (in a shocking distortion of the ends of the
State), constituting inadmissible violations of jus cogens, and then to cover-up such
crimes and maintain its agents, perpetrators of them, in impunity, and the relatives
of the victims (also victimized) in the most complete desolation and desperation,
– in cases such as those of La Cantuta and of Barrios Altos, in which the crimes
against human rights were perpetrated in the framework of a proven criminal prac-
tice of the State, – the patient reconstitution and determination of the facts by this
Court constitute, themselves, one of the forms of providing satisfaction – as a form
of reparation – due to the surviving relatives of the victims (who are also victims),
and of honouring the memory of the fatal victims.
Jus cogens resists crimes of State, and imposes sanctions on them, as a re-
sult of the prompt engagement of the aggravated international responsibility of
the State. As a consequence of such crimes, the reparations due assume the form of
distinct obligations of doing, including the investigation, trial and sanction of those
responsible for the crimes of State that they perpetrated (by action or omission).
Law does not cease to exist by the violation of its norms, as the “realists” degraded by
their ineluctable and pathetic idolatry of the established power pretend to insinuate.
Quite on the contrary, imperative law ( jus cogens) promptly reacts to such viola-
tions, and imposes sanctions.
During years I have insisted, within this Court, on the necessity of the recog-
nition and the identification of jus cogens, and have elaborated, in numerous Indi-
vidual Opinions (in the exercise of the functions, both contentious and advisory, of
the Tribunal), the doctrinal construction of the expansion of the material content of
jus cogens and of the corresponding obligations erga omnes of protection, in their
dimensions both horizontal (vis-à-vis the international community as a whole) as
well as vertical (encompassing the relations of the individual with the public power
as well as with non-State entities and other individuals). In this way, the very notion
of “victim” under the American Convention has evolved and expanded; there has
been an enlargement of both the parameters of the protection due to those justicia-
ble, as well as the circle of protected persons” (pars. 58-60).
The gradual expansion of the material content of jus cogens has occurred pari
passu with the recent judicial condemnation of grave violations of human rights
and of massacres, which conform, in my understanding, true crimes of States.50
50 Cf., in this respect, A.A. Cançado Trindade, “Complementarity between State Re-
sponsibility and Individual Responsibility...”, op. cit. supra n. (48), pp. 253-269.
306 Chapter XII
In my Separate Opinion in the case of Almonacid and Others versus Chile 51 I

sought to demonstrate the lack of juridical validity of the so-called self-amnes-
ties,52 incompatible with the American Convention on Human Rights, in gener-
ating the obstruction and denial of justice, and the consequent impunity of those
responsible for the atrocities. I insisted on the necessity of the enlargement of
the material content of the prohibitions of jus cogens (so as to secure the access
to justice at both national and international levels), and I situated, at last, the
conceptualization of the crimes against humanity at the confluence between the
International Law of Human Rights and International Criminal Law.
The meaning of this new expansion of the material content of jus cogens,
by the IACtHR in its Judgment of 22.09.2006, in the case of Goiburú and Oth-
ers, so as to comprise the right of access to justice, and the importance and the
implications of this remarkable jurisprudential advance,53 are emphasized in my
Separate Opinion (parrs. 62-68) in that case, in which, moreover, I dwelt upon
the criminalization of the grave violations of human rights; the crime of State
in the context of State terrorism (the aforementioned “Operation Condor”, and
the cover-up by the State of the perpetrated atrocities); the international respon-
sibility of the State agravated by the crime of State;54 and new elements of the
necessary complementarity between the International Law of Human Rights and
contemporary International Criminal Law.
Such reassuring expansion of the material content of jus cogens acknowl-
edges the imperative of ensuring access to justice even in situations of the most
extreme adversity. The case of the Institute of Rehabilitation of Minors versus
Paraguay (Judgment of 02.09.2004), for example, concerning minors under de-
tention, again revealed, as I pointed out in my Separate Opinion (pars. 3-4), that
the human being, even in the most adverse conditions, emerges as subject of the
International Law of Human Rights, endowed will full international juridico-pro-
cedural capacity.55 To those, numerous others victims in situations of the most
51 The public hearings of which took place in the external session of the IACtHR of
Brasília, on 29.03.2006.
52 As exemplified by the criticized Decree-Law n. 2191, of 18.04.1978, of the Pinochet
regime.
53 Cf. A.A. Cançado Trindade, Évolution du Droit international au droit des gens –
L’accès des particuliers à la justice internationale: le regard d’un juge, Paris, Pédone,
2008, pp. 1-188.
54 Cf., on this point, A.A. Cançado Trindade, “Complementarity between State Re-
sponsibility and Individual Responsibility...”, op. cit. supra n. (48), pp. 253-269.
55 The Court’s Judgment in this latter case duly recognized (pars. 107, 120-121 and 126)
the relevance of the historical reforms introduced by the Court in its fourth Regula-
tions (of 2000), in force as from 2001, in favour of the titularity, of the individuals,
of the protected rights, granting them locus standi in judicio in all the stages of the
contentious procedure before the Court. Cf., in this respect, A.A. Cançado Trindade,
“El Nuevo Reglamento de la Corte Interamericana de Derechos Humanos (2000) y
Su Proyección Hacia el Futuro: La Emancipación del Ser Humano como Sujeto del
Derecho Internacional”, in XXVIII Curso de Derecho Internacional Organizado por
extreme adversity can be added, – e.g., those in infra-human conditions of deten-

tion, in forced displacement from their homes, in condition of undocumented
migrants, in situation of complete defencelessness and also victims of massacres
and their relatives,56 – who, despite so much adversity, have nevertheless had ac-
cess to international justice. Recently, once again, the abandoned and forgotten
of the world again reached an international human rights tribunal in search of
justice, in the cases of the members of the Communities Yakye Axa (Judgment of
17.06.2005) and Sawhoyamaxa (Judgment of 28.03.2006), concerning Paraguay.
In those two recent cases, those forcefully displaced from their homes and an-
cestral lands, and socially marginalized and excluded, effectively reached an in-
ternational jurisdiction, before which they at last found justice.
As the more lucid international legal doctrine points out, international jus
cogens enlarges the ambit of operation of a true international ordre public, ful-
fils the higher interests of the international community as a whole, and stresses
the necessity of judicial control of the observance of the peremptory norms of
International Law.57 In this line of thinking, I saw it fit to ponder, in my Separate
Opinion (par. 154) in the recent case of the Prison of Castro Castro versus Peru
decided by the IACtHR (Interpretation of Judgment, of 02.08.2008), that
“It is not surprising that if has been precisely in the domain of the protection of the
fundamental rights of the human person that the material content of jus cogens is
being defined.58 No one would question today, e.g., that the prohibitions of grave
violations of International Humanitarian Law are effectively prohibitions of inter-
el Comité Jurídico Interamericano – OEA (2001) pp. 33-92; A.A. Cançado Trindade,
“Le nouveau Règlement de la Cour Interaméricaine des Droits de l’Homme: quelques
réflexions sur la condition de l’individu comme sujet du Droit international”, in Lib-
ertés, justice, tolérance – Mélanges en hommage au Doyen G. Cohen-Jonathan, vol. I,
Bruxelles, Bruylant, 2004, pp. 351-365.
56 Cf., e.g., the Judgments of the IACtHR in the cases of the Massacres of Barrios Altos
versus Peru (of 14.03.2001), of Plan de Sánchez versus Guatemala (of 29.04.2004), of
the 19 Tradesmen versus Colombia (of 05.07.2004), of Mapiripán versus Colombia (of
17.09.2005), of the Moiwana Community versus Suriname (of 15.06.2005), of Pueblo
Bello versus Colombia (of 31.01.2006), of Ituango versus Colombia (of 01.07.2006), of
Montero Aranguren and Others (Retén de Catia) versus Venezuela (of 05.07.2006), of
the Prison of Castro Castro versus Peru (of 25.11.2006), of La Cantuta versus Peru (of
29.11.2006).
57 Cf., inter alia, K. Zemanek, “How to Identify Peremptory Norms of International
Law”, in Völkerrecht als Wertordnung – Festschrift für C. Tomuschat (eds. P.-M.
Dupuy et alii), Kehl, N.P. Engel Verlag, 2006, pp. 1108, 1114 and 1117; and cf., for a
discussion, R. Kolb, Théorie du Ius Cogens International, Paris, PUF, 2001, pp. 68-83
and 172-181; cf. also, e.g., E.P. Nicoloudis, La nullité de jus cogens et le développement
contemporain du Droit international public, Athens, Éd. Papazissi, 1974, pp. 41-45
and 227-228.
58 G. Cohen-Jonathan, “Du caractère objectif des obligations internationales relatives
aux droits de l’homme – Quelques observations”, in Les droits de l’homme et la Con-
308 Chapter XII
national jus cogens,59 which project themselves also into the domestic legal order of
the States.60 The international and domestic legal orders appear here in interaction,
in the struggle against violations of jus cogens”.
As I added in that same Separate Opinion, we are before “a humanized (or even
a truly humanist) ordre public in which the public or general interest fully coin-
cides with the prevalence of human rights, – what implies the recognition that
human rights constitute the basic foundation, themselves, of the legal order,61 at
international and national levels. Underlying the concept of jus cogens is the ju-
snaturalist thinking, which leads to peremptory norms as from the assertion and
acknowledgment of ethical values which seek to benefit humankind as a whole” 62
(par. 155).
This is thus the present state of the matter in the jurisprudential construc-
tion, on the part of the IACtHR during the period I have served it as Judge, of the
material content of jus cogens. From the acknowledgment of the absolute prohibi-
tion of torture and of cruel, inhuman or degrading treatment, the IACtHR moved
on to the recognition of the fundamental character of the principle of equality
and non-discrimination, belonging to the domain of jus cogens. And lately, the
IACtHR further stressed the significance of the right of access to justice lato
sensu, – properly understood as the right to realization of material justice, – as
an imperative of jus cogens.
The fact that the right of access to justice (judicial protection and judicial
guarantees) is not formally ranked by certain human rights treaties among non-
derogable rights cannot, in my view, be invoked against the jurisprudential con-
struction situating it as belonging to the domain of jus cogens. Firstly, any restric-
tions to the exercise of the protected rights are to be restrictively interpreted, in
the light of the object and purpose of the human rights treaties at issue; secondly,
States are here bound by obligations of result,63 and cannot at all invoke deroga-
stitution – Études en l’honneur du Prof. G. Malinverni (eds. A. Auer et alii), Genève/

Zurich/Bâle, Schulthess, 2007, pp. 130-133.
59 Cf. L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law – His-
torical Development, Criteria, Present Status, Helsinki, Lakimiesliiton Kustannus/
Finnish Lawyers’ Publ. Co., 1988, pp. 605-606 and 621, and cf. pp. 602-604 and 607-
608.
60 Cf. E. de Wet, “The Prohibition of Torture as an International Norm of Jus Cogens
and Its Implications for National and Customary Law”, 15 European Journal of Inter-
national Law (2004) pp. 98, 100, 105, 112 and 120-121.
61 A.A. Cançado Trindade, O Esgotamento de Recursos Internos no Direito Internac-
ional, 2nd. ed., Brasília, Edit. University of Brasília, 1997, pp. 265-266.
62 Cf. M. Ragazzi, “Alexidze on Jus Cogens (Selected Considerations”, in Theory and
Practice of Contemporary International Law – Essays in Honour of Prof. L. Alexidze
on the 80th Birthday Anniversary, Tbilisi, Inovatia, 2007, pp. 35 and 38.
63 As I have sought recently to demonstrate in my lengthy Dissenting Opinion (pars. 1-
60) in the case of the Dismissed Workers of the Congress versus Peru (Interpretation
tions to evade the obligation to secure the right of access to justice; and thirdly,
States can only avail themselves of permissible and temporary derogations to the
extent that they are not incompatible with their other obligations under Interna-
tional Law and do not involve any form of discrimination.64
Here, the imperative character of the right of access to justice renders such
incompatibility evident.65 It would indeed be inconceivable to deny to any person
the right of access to justice. We can here visualize a true right to the Law, that is,
the right to a legal order which effectively safeguards the rights inherent to the
human person. This is an imperative of jus cogens. In effect, without the right of
access to justice, there is in reality no true legal system. Without the right to the
Law, there is no rule of law, there is ultimately no Law at all.
The evolution of the aforementioned jurisprudential construction ought to
be appreciated in a wider dimension. In the domain of the International Law of
Human Rights, moved by considerations of international ordre public, we are
before common and superior values, underlying it, and which appear as truly
fundamental and irreducible. We are before a humanized (or even truly human-
ist) international ordre public in which the public interest or the general interest
coincides fully with the prevalence of human rights,66 – implying the recognition
that human rights constitute the basic foundation, themselves, of the legal order.
We can here visualize a true right to the Law, that is, the right to a legal order
which effectively safeguards the rights inherent to the human person. Th is evo-
lution, with the recognition of the direct access of individuals to international
justice, discloses, at this beginning of the XXIst century, the advent of the new
primacy of the raison d’humanité over the old raison d’État, to inspire the his-
torical process of humanization of International Law.67
of Judgment, of 30.11.2007).
64 As clarified, e.g., by paragraphs 2 and 1, respectively, of Article 27 of the American
Convention on Human Rights.
65 As I sustained in my recent Separate Opinion (pars. 156-157) in the case of the Prison
Castro Castro versus Peru (Interpretation of Judgment, of 02.08.2008).
66 In this sense, the emergence of a truly jus commune of human rights at interna-
tional level has been suggested; cf. M. de Salvia, “L’élaboration d’un ‘ jus commune’
des droits de l’homme et des libertés fondamentales dans la perspective de l’unité
européenne: l’oeuvre accomplie par la Commission et la Cour Européennes des
Droits de l’Homme”, in Protection des droits de l’homme: la dimension européenne
– Mélanges en l’honneur de G.J. Wiarda (eds. F. Matscher and H. Petzold), 2nd. ed.,
Köln/Berlin, C. Heymanns Verlag, 1990, pp. 555-563; G. Cohen-Jonathan, “Le rôle
des principes généraux dans l’interprétation et l’application de la Convention Eu-
ropéenne des Droits de l’Homme”, in Mélanges en hommage à L.E. Pettiti, Bruxelles,
Bruylant, 1998, pp. 168-169.
67 For a general study of this historical process, cf. A.A. Cançado Trindade, A Hu-
manização do Direito Internacional, Belo Horizonte/Brazil, Edit. Del Rey, 2006, pp.
3-409.
310 Chapter XII
4. Jus Cogens as a Pillar of the New Jus Gentium, the International Law
for Humankind
Jus cogens, nowadays established well beyond the law of treaties, is a conceptual
construction which occupies a central position in the new jus gentium, the Inter-
national Law for humankind. It has met with judicial recognition of contempo-
rary international tribunals, and in greater depth in the case-law of the IACtHR
and of the ICTFY (cf. supra). Jus cogens appears indeed as a pillar of the new
jus gentium, the International Law for humankind. Jus cogens, identified with
general principles of law of material order,68 serves the superior interests of the
international community as a whole;69 such interests, in turn, find expression
in the peremptory norms of International Law (jus cogens), emanating from the
universal juridical conscience in each historical moment, and paving the way for
the construction of a new jus gentium, the International Law for humankind. Jus
cogens exists indeed for the benefit of human beings, and ultimately of human-
kind.
Throughout the years, this has been acknowledged in different parts of the
world and distinct cultural milieux, pointing to the construction of a universal-
ist International Law, the new jus gentium of our times. Thus, to the late Cuban
jurist M.A. D’Estéfano Pisani, for example, the concept of jus cogens, rooted in
natural law, reflects the juridical achievements of humankind; it warns States as
to the need to abide by fundamental principles and peremptory norms, depriving
of legitimacy any act or situation (ensuing from the law of treaties or customary
law) incompatible with them.70 In a similar line of reasoning, the Chinese jurist
Li Haopei criticized positivists for having attempted to base International Law on
a mere assumption, State consent, which was nothing but a “layer of loose sand”,
for, if it were really so, International Law would cease to be effective whenever
States withdrew their consent. He further criticized the attitude of positivists of
intentionally ignoring or belittling the value of general principles of law, and held
that peremptory norms of International Law have emerged to confer an ethical
and universal dimension to International Law and to serve the common interests
of the international community as a whole and, ultimately, of all mankind.71

69 G.M. Danilenko, “International Jus Cogens: Issues of Law-Making”, 2 European
Journal of International Law (1991) p. 45, and cf. pp. 48-49 and 59-65 on the possibil-
ity of the incidence of jus cogens in the elaboration itself of drafts of international
instruments.
70 M.A. D’Estéfano Pisani, Derecho de Tratados, 2nd. ed., Havana/Cuba, Edit. Pueblo y
Educación, 1986 [reprint], pp. 97 and 165-166.
71 Li Haopei, “Jus Cogens and International Law”, in Selected Articles from Chinese
Yearbook of International Law, Beijing/China, Chinese Society of International Law,
1983, pp. 47-48, 57, 59, 61-64 and 74.
It can hardly be denied that general principles of law, proper to any legal
system, at either national or international level,72 do enjoy universal acceptance
or recognition. Such principles guide all legal norms, including those endowed
with a peremptory character; it is thus not surprising that one trend of juridical
thinking has identified them with the domain of jus cogens,73 standing above the
will of States and of other subjects of International Law. Emanating, in my view,
from human conscience, they rescue International Law from the pitfalls of State
voluntarism and unilateralism, incompatible with the foundations of a true in-
ternational legal order.
Those principles reflect the idea of an objective justice, are consubstantial
with the national or international legal system itself, embodying, as they do, su-
perior values, which can fulfi l the aspirations of humankind as a whole.74 Their
continued validity is beyond question, and their relevance becomes evident in
the construction, in our days, of a new jus gentium, the international law for
humankind. Jus cogens brings to the fore, furthermore, the relevance of interna-
tional public order, conformed by the respect for the dignity of the human per-
son; nor surprisingly, most cases of incidence of jus cogens pertain to the position
of the individual as subject of rights.75
The consolidation of erga omnes obligations of protection (infra), ensuing
from peremptory norms of International Law, overcomes the pattern erected
in the past upon the autonomy of the will of the State, which can no longer be
invoked in view of the existence of norms of jus cogens. Nothing is more anti-
thetical to jus cogens than the insistence or reliance on individual State consent.
States are nowadays faced with a dilemma which should have been overcome a
long time ago: either they return to the old voluntarist conception of Interna-
tional Law, abandoning the hope in the primacy of Law over power politics, or
they retake and realize the ideal of construction of a more cohesive and institu-
tionalized international community in the light of the imperatives of the rule of
law and the realization of justice, moving resolutely from jus dispositivum to jus
cogens.76
72 Such as, e.g., bona fides and pacta sunt servanda.

73 R. Kolb, Théorie du jus cogens international, Paris, PUF, 2001, pp. 98-100, 105, 110
and 112.
75 As the norms at issue normally exist for his protection, as once pointed out by rap-
porteur G. Fitzmaurice in the ILC; cf. A. Orakhelashvili, Peremptory Norms in In-
ternational Law, Oxford, University Press, 2008, pp. 246, 508, 512 and 578-579, and
cf. pp. 492-493.
76 And always bearing in mind that the protection of fundamental rights places us
precisely in the domain of jus cogens.
312 Chapter XII
III. Obligations Erga Omnes of Protection
1. Emergence and Scope of the Obligations

It is widely recognized, in our days, that the peremptory norms of jus cogens ef-
fectively bring about obligations erga omnes. In a well-known obiter dictum in
its Judgment in the case of the Barcelona Traction (Second Phase, 1970), the ICJ
determined that there are certain international obligations erga omnes, obliga-
tions of a State vis-à-vis the international community as a whole, which are of
the interest of all the States;
“such obligations derive, for example, in contemporary International Law, from the
outlawing of acts of aggression, and of genocide, and 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”.77
The prohibitions mentioned in this obiter dictum are not exhaustive. To them
new prohibitions have been added in the more recent case-law of some contem-
porary international tribunals (infra), clearly indicating that jus cogens is not a
closed category.
In the construction of the international legal order of the new century, we
witness, with the gradual erosion of reciprocity, the emergence pari passu of su-
perior considerations of ordre public, reflected in the conceptions of the peremp-
tory norms of general International Law (the jus cogens) and of the obligations
erga omnes of protection (owed to everyone, and to the international community
as a whole). Jus cogens, in bringing about obligations erga omnes, characterizes
them as being endowed with a necessarily objective character, and thereby en-
compassing all the addressees of the legal norms (omnes), both those who inte-
grate the organs of the public power as well as private individuals.
77 ICJ, Judgment of 05 February 1970, ICJ Reports (1970) p. 32, pars. 33-34 (emphasis
added). – It has not passed unnoticed that the ICJ, from the start, appears to have
used the concepts jus cogens and obligations erga omnes somewhat interchange-
ably (cf. [Various Authors,] The Fundamental Rules of the International Legal Order
– Jus Cogens and Obligations Erga Omnes (eds. C. Tomuschat and J.-M. Thouvenin),
Leiden, Nijhoff, 2006, pp. 7-8, 36, 310 and 418-419), while they are in fact distinct, the
former belonging to the domain of material or substantive law, and the latter to that
of procedural law. The ICJ has concentrated rather on the effects of jus cogens (ob-
ligations erga omnes), and has still a long way to go on the elaboration of the mate-
rial content of jus cogens itself (cf. [Various Authors,] Quel droit international pour
le 21e. siècle? (ed. Y. Sandoz, Colloque de Neuchâtel de 2007), Bruxelles, Bruylant,
2007, pp. 117, 129, 131, 133-134, 141 and 153), as well as on the juridical consequences
of its breaches.
In my understanding, the concrete and specific purpose of the development

of the legal regime of the obligations erga omnes of protection can be well served
by the identification of, and compliance with, the general obligation of guarantee
of the exercise of the rights of the human person, – set forth in treaties on hu-
man rights protection as well as Humanitarian Law,78 – that is, the obligation to
respect, and to ensure respect for, the norms of protection, in all circumstances.
It can contribute to the consolidation of the obligations erga omnes of protection
of the rights of the human person in any circumstances, in times both of peace
and of armed conflict. It appears somewhat surprising that neither doctrine, nor
case-law, has developed this point sufficiently and satisfactorily up to now.
It is about time, at this beginning of the XXIst century, to develop systemat-
ically the contents, scope and juridical effects or consequences of the obligations
erga omnes of protection in the present domain of protection, bearing in mind
the great potential of application of the underlying notion of collective guarantee,
responsible for some advances already achieved in this domain. The concept of
obligations erga omnes has already marked presence in the international case-
law,79 as illustrated, in so far as the ICJ is concerned, by its Judgments in the cases
of the Barcelona Traction (1970), of the Nuclear Tests (1974), of Nicaragua versus
United States (1986), of East Timor (1995), and of Bosnia-Herzegovina versus Yu-
goslavia (1996), and by the arguments of the parties in the cases of the North-
ern Cameroons (1963) and of South West Africa (1966), as well as by its Advisory
Opinion on Namibia (1971) and the (written and oral) arguments pertaining to
the two Advisory Opinions on Nuclear Weapons (1994-1995).80
Nevertheless, in spite of the distinct references to the existence of obliga-
tions erga omnes in the case-law of the ICJ, this latter has not yet extracted the
consequences of the affirmation of the existence of such obligations, nor of their
violations, and has not defined their legal regime either. The ICJ had a unique
occasion to do it in the East Timor case (Portugal versus Australia, Judgment
of 30.06.1995), having regrettably wasted such opportunity, in relating the erga
omnes obligations (in respect of the right of self-determination of peoples) to
something antithetical to them: the consent of a third State (Indonesia) as basis
of the exercise of its jurisdiction in contentious matters.
78 That general obligation is set forth, e.g., in Article 1(1) of the American Convention
on Human Rights as well as in Article 1 of the Geneva Conventions of International
Humanitarian Law and in Article 1 of the Additional Protocol I (of 1977) to the Ge-
neva Conventions; cf. notes ns. (88) and (89), infra.
79 Including with a reference to them in the tenth Advisory Opinion (of 1989) of the
IACtHR, on the Interpretation of the American Declaration on the Rights and Duties
of Man (par. 38).
80 Cf. M. Ragazzi, The Concept of International Obligations Erga Omnes, Oxford,
Clarendon Press, 1997, pp. 12-13; C. Annacker, “The Legal Regime of Erga Omnes
Obligations in International Law”, 46 Austrian Journal of Public and International
Law (1994) pp. 132-133, and cf. 131-166.
314 Chapter XII
In fact, nothing could be more incompatible with the very existence of the
erga omnes obligations than the positivist-voluntarist conception of Internation-
al Law and the emphasis on the State consent as basis of the exercise of interna-
tional jurisdiction.81 Pursuing a bilateralist and voluntarist approach,82 the ICJ
thus failed, unfortunately, to extract the consequences of the existence of such
obligations erga omnes. Shortly after the ICJ decision in the East Timor case, B.
Simma remarked critically that “it is ironic that the very Court that spelled out
the concept in the first place has now subjected it to the procedural rigours of
traditional bilateralism”.83 No less critical was S. Rosenne, in commenting that
in the cas d’espèce the ICJ “paid no overt attention to the situation in East Timor
itself, although it was certainly aware of it”; to him, with the advent of obligations
erga omnes,
“it seems that something needs to be done to bring international procedural law
into line with that. (...) International judicial procedure, although it has developed
very remarkably especially since 1945, is still cast in a XIXth century mould, and the
strict bilateralism of international litigation is one of its hall-marks”.84
More recently, in its Advisory Opinion of 09.07.2004 on the Legal Consequences

of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ as-
serted the right erga omnes of peoples to self-determination,85 and added that
“the obligations violated by Israel include certain obligations erga omnes. (...) The
obligations erga omnes violated by Israel are the obligation to respect the right of the
Palestinian people to self-determination, and certain of its obligations under inter-
national humanitarian law. (...) All States are under an obligation not to recognize
the illegal situation resulting from the construction of the wall in the Occupied Pal-
estinian Territory (...). In addition, all the States Parties to the Geneva Convention
Relative to the Protection of Civilian Persons in Time of War of (...) 1949 are under
an obligation, while respecting the United Nations Charter and international law,
to ensure compliance by Israel with international humanitarian law as embodied in
that Convention”.86
81 A.A. Cançado Trindade, “O Caso do Timor-Leste (1999): O Direito de Autodeter-

minação do Povo Timorense”, 1 Revista de Derecho de la Universidad Católica del
Uruguay (2000) pp. 73-74.
82 Cf. ICJ, East Timor case (Portugal versus Australia), ICJ Reports (1995) pp. 90-106.
83 B. Simma, “From Bilateralism to Community Interest in International Law”, 250
RCADI (1994) p. 298.
84 S. Rosenne, “Decolonisation in the International Court of Justice”, 8 African Journal
of International and Comparative Law (1996) pp. 567, 571 and 576. For further criti-
cisms, cf. J. Dugard, “1966 and All That – The South West Africa Judgment Revisited
in the East Timor Case”, in ibid., pp. 551, 557-558 and 560-563.
85 ICJ Reports (2004) p. 172, par. 88.
86 ICJ Reports (2004) pp. 199-200, pars. 155 and 159.
Even if, on the one hand, one has not yet succeeded to reach the opposability of
an obligation of protection to the international community as a whole, on the
other hand the International Law of Human Rights nowadays provides elements
for the consolidation of the opposability of obligations of protection to all the
States Parties to human rights treaties (obligations erga omnes partes87). Thus,
several treaties, of human rights protection88 as well as of International Humani-
tarian Law,89 provide for the general obligation of the States Parties to guarantee
the exercise of the rights set forth therein and their observance.
Thus, parallel to the obligations of all the States Parties to those treaties to
protect the rights enshrined therein, and to guarantee their free and full exercise
to all the individuals under their respective jurisdictions, there exists the obliga-
tion of the States Parties inter se to secure the integrity and effectiveness of such
treaties. That general duty of protection (the collective guarantee) is of direct
interest of each State Party, and of all of them jointly (obligation erga omnes par-
tes).
Endeavours to develop the legal regime of obligations erga omnes (with the
determination of their contents, scope and juridical effects or consequences of
their violation) can surely count, in my view, on the potentialities of application
of treaty law in the domain of protection of the rights inherent to the human
person, and in particular of application of the collective guarantee underlying all
human rights treaties, and responsible for some considerable advances already
achieved in this domain. As correctly pointed out by the Institut de Droit Inter-
national, in a resolution adopted at the session of Santiago of Compostela of 1989,
such obligation is applicable erga omnes, as each State has a legal interest in the
safeguard of human rights (Article 1).90 This general obligation of protection (the
collective guarantee) is of direct interest of each State Party, and of all of them
87 On the meaning of the obligations erga omnes partes, opposable to all States Parties
in certaing treaties or to a given community of States, cf. M. Ragazzi, op. cit. supra
n. (80), pp. 201-202; and cf. C. Annacker, op. cit. supra n. (80), p. 135.
88 Cf., e.g., American Convention on Human Rights, Article 1(1); U.N. Covenant on
Civil and Political Rights, Article 2(1); U.N. Convention on the Rights of the Child,
Article 2(1).
89 Article 1 common to the four Geneva Conventions on International Humanitarian
Law of 1949, and Article 1 of the Additional Protocol I of 1977 to the Geneva Conven-
tions of 1949.
90 Cf. I.D.I., 63 Annuaire de l’Institut de Droit International (1989)-II, pp. 286 and 288-
289.
316 Chapter XII
jointly (obligation erga omnes partes). And this is valid in times of peace91 as well
as of armed conflict.92
Some human rights treaties, moreover, establish a mechanism of petitions
or communications which comprises, parallel to the individual petitions, also
the inter-State petitions; these latter constitute a mechanism par excellence of
action of collective guarantee. The fact that they have not been used frequently93
suggests that the States Parties have not yet disclosed their determination to con-
struct an international ordre public based upon the respect for human rights. But
they could – and should – do so in the future, with their growing awareness of
the need to achieve greater cohesion and institutionalization in the international
legal order, above all in the present domain of protection.
Obligations erga omnes are nowadays by no means limited to the domain
of the international protection of the rights inherent to the human person. They
also mark their presence in other domains of contemporary International Law,
such as, e.g., in environmental protection and in disarmament and arms control.
As pertinently recalled by K. Zemanek, the 1987 (amended) Montreal Protocol on
Substances that Deplete the Ozone Layer, as well as the 1992 Framework Conven-
tion on Climate Change and its 1997 Kyoto Protocol, establish obligations which
“are not created for the benefit of individual Contracting Parties but in the interest
of all of them, as a community. (...) Arms control and disarmament treaties are in
some way similar, because they do not establish reciprocal rights and obligations
between the Parties. (...) Instruments such as the Non-Proliferation Treaty (NPT,
1968), the Biological Weapons Convention (1972), the Chemical Weapons Conven-
tion (CWC, 1993), or the Comprehensive Nuclear Test-Ban Treaty (CTBT, 1996) are
salient examples of this particular type of erga omnes obligations”.94
It has been, however, particularly in the domain of the international safeguard

of basic human rights, that obligations erga omnes have been most discussed by
contemporary doctrine thus far. In any case, there could hardly be more elabo-
91 Cf. the arguments of Ireland before the ECtHR, in the Ireland versus United King-
dom case, in: ECtHR, Ireland versus United Kingdom case (1976-1978), Pleadings,
Oral Arguments and Documents, Strasbourg, 1981, vol. 23-II, pp. 21-23 and 27, and
vol. 23-III, pp. 17-19 and 21-26.
92 Irrespective of a State Party being involved or not in a given armed conflict; L. Con-
dorelli and L. Boisson de Chazournes, “Quelques remarques à propos de l’obligation
des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes
circonstances’”, in Études et essais sur le droit international humanitaire et sur les
principes de la Croix-Rouge en l’honneur de Jean Pictet (ed. C. Swinarski), Genève/
La Haye, CICR/Nijhoff, 1984, pp. 29 and 32-33.
93 Cf. S. Leckie, “The Inter-State Complaint Procedure in International Human Rights
Law: Hopeful Prospects or Wishful Th inking?”, 10 Human Rights Quarterly (1988)
pp. 249-301.
94 K. Zemanek, “New Trends in the Enforcement of Erga Omnes Obligations”, 4 Max
Planck Yearbook of United Nations Law (2000) p. 6.
rate examples of mechanisms for application of the obligations erga omnes of

protection (at least in the relations of the States Parties inter se) than the methods
of supervision foreseen in the human rights treaties themselves, for the exercise
of the collective guarantee of the protected rights.95 In other words, the mecha-
nisms for application of the obligations erga omnes partes of protection already
exist, and what is urgently need is to develop their legal regime, with special at-
tention to the positive obligations and the juridical consequences of the violations
of such obligations.
2. Horizontal and Vertical Dimensions of the Obligations

As I had the occasion to hold in my Concurring Opinion in the IACtHR’s Ad-
visory Opinion n. 18, on the Juridical Condition and Rights of Undocumented
Migrants (of 17.09.2003), obligations erga omnes have two dimensions, namely: a)
a horizontal dimension, in the sense that they are owed to the international com-
munity as a whole,96 to all subjects of International Law (supra); and b) a vertical
dimension, in the sense that they bind everyone, both the organs and agents of
the State, of public power, as well as the individuals themselves (including in in-
ter-individual relations, where grave breaches of International Law and of human
rights can occur and have indeed occurred). For the conformation of this vertical
dimension, the advent and evolution of the International Law of Human Righs
have contributed decisively.
Obligations erga omnes of protection, pertaining, in a horizontal dimension,
to the protection of the human beings due to the international community as a
whole, in the framework of conventional International Law bind all the States
Parties to human rights treaties (obligations erga omnes partes), and in the ambit
of general International Law bind all States which compose the organized inter-
national community, whether or not they are Parties to those treaties (obliga-
tions erga omnes lato sensu). In a vertical dimension, the obligations erga omnes
of protection bind both the organs and agents of (State) public power, and the
individuals themselves (in the inter-individual relations).
For the conformation of this vertical dimension have decisively contributed
the advent and the evolution of the International Law of Human Rights. But it is
surprising that, until now, these distinct horizontal and vertical dimensions of
the obligations erga omnes of protection have passed virtually unnoticed from
contemporary legal doctrine. Nevertheless, I see them clearly shaped in the legal
regime itself of the American Convention on Human Rights. Thus, for example,
as to the vertical dimension, the general obligation, set forth in Article 1(1) of the
American Convention, to respect and to ensure respect for the free exercise of
95 Y. Dinstein, “The Erga Omnes Applicability of Human Rights”, 30 Archiv des Völker-
rechts (1992) pp. 16 and 22, and cf. 16-37; and cf. M. Ragazzi, op. cit. supra n. (80), pp.
135 and 213; M. Byers, op. cit. infra n. (100), pp. 234-235.
96 Cf., earlier, IACtHR, case Blake versus Guatemala (Merits), Judgment of 24.01.1998,
Separate Opinion of Judge A.A. Cançado Trindade, par. 26, and cf. pars. 27-30.
318 Chapter XII
the rights protected by it, generates effects erga omnes, encompassing the rela-
tions of the individual both with the public (State) power as well as with other
individuals (particuliers).97
In their turn, the obligations erga omnes partes, in their horizontal dimen-
sion, find expression also in Article 45 of the American Convention, which fore-
sees the mechanism (virtually unexplored so far), of inter-State complaints or
petitions. This mechanism98 constitutes not only a mechanism par excellence of
action of collective guarantee, but also a true embryo of actio popularis in Inter-
national Law, in the framework of the American Convention. In any case, these
dimensions, both horizontal and vertical, reveal the wide scope of the obligations
erga omnes of protection.
The crystallization of the obligations erga omnes of protection of the hu-
man person represents, in reality, the overcoming of a pattern of conduct erected
on the alleged autonomy of the will of the State, from which International Law
sought gradually to liberate itself in giving expression to the concept of jus co-
gens.99 By definition, all the norms of jus cogens generate necessarily obligations
erga omnes. While jus cogens is a concept of material law, the obligations erga
omnes refer to the structure of their performance on the part of all the entities
and all the individuals bound by them. In their turn, not all the obligations erga
omnes necessarily refer to norms of jus cogens.
One ought to secure a follow-up to the endeavours of greater doctrinal and
jurisprudencial development of the peremptory norms of International Law (jus
cogens) and of the corresponding obligations erga omnes of protection of the hu-
man being,100 moved above all by the opinio juris as a manifestation of the uni-
97 Cf., in this respect, in general, the resolution adopted by the Institut de Droit In-
ternational (I.D.I.) at the session of Santiago de Compostela of 1989 (Article 1), in:
I.D.I., 63 Annuaire de l’Institut de Droit International (1989)-II, pp. 286 and 288-
289.
98 As I pointed out in my Concurring Opinion (par. 3) in the case of the Community
of Peace of San José of Apartadó (Provisional Measures of Protection of 18.06.2002)
before the IACtHR.
99 Cf. A.A. Cançado Trindade, “The International Law of Human Rights at the Dawn of
– Castellón (1999) pp. 207-215.
100 On the relationship between jus cogens and erga omnes obligations of protection, cf.:
M. Ragazzi, The Concept of International Obligations Erga Omnes, op. cit. supra n.
(80), pp. 135, 201-202 and 213; Y. Dinstein, “The Erga Omnes Applicability...”, op. cit.
supra n. (95), pp. 16-37; A.J.J. de Hoogh, “The Relationship between Jus Cogens, Ob-
ligations Erga Omnes and International Crimes: Peremptory Norms in Perspective”,
42 Austrian Journal of Public and International Law (1991) pp. 183-214; C. Annacker,
“The Legal Regime of Erga Omnes Obligations...”, op. cit. supra n. (80), pp. 131-166;
M. Byers, “Conceptualising the Relationship between Jus Cogens and Erga Omnes
Rules”, 66 Nordic Journal of International Law (1997) pp. 211-239, esp. pp. 234-235
and 239; J. Juste Ruiz, “Las Obligaciones ‘Erga Omnes’ en Derecho Internacional Pú-
versal juridical conscience, to the benefit of all human beings.101 By means of this
conceptual development one will advance in the overcoming of the obstacles of
the dogmas of the past and in the creation of a true international ordre public
based upon the respect for, and observance of, human rights. Such development
will contribute, thus, to a greater cohesion of the organized international com-
munity (the civitas maxima gentium), centred on the human person.
The general obligation, set forth in Article 1(1) of the American Convention,
to respect and to ensure respect for the free exercise of the rights protected by
it, has a character erga omnes.102 I have seen it fit to point this out in several of
my Separate and Concurring Opinions in the Inter-American Court, outlining
that this is endowed with particular relevance at both conceptual and opera-
tive levels.103 In my understanding, the obligations erga omnes partes are not to
be minimized at the conceptual level, as, by means of the exercise of collective
guarantee, such obligations can pave the way for the crystallization, in the future,
of the obligations erga omnes lato sensu, owed to the international community as
a whole. And, at the operative level, obligations erga omnes partes under human
rights treaties assume special importance, in face of the current diversification
of the sources of violations of the rights enshrined into the Convention, which
requires the clear recognition of the effects of the conventional obligations vis-
à-vis third parties (the Drittwirkung), encompassing also inter-individual rela-
tions.104
blico”, in Estudios de Derecho Internacional – Homenaje al Profesor Miaja de la

Muela, vol. I, Madrid, Tecnos, 1979, p. 228.
101 IACtHR, case Blake versus Guatemala (Merits), Judgment of 24.01.1998, Series C, n.
36, Separate Opinion of Judge A.A. Cançado Trindade, par. 28; IACtHR, case Blake
versus Guatemala (Reparations), Judgment of 22.01.1999, Series C, n. 48, Separate
Opinion of Judge A.A. Cançado Trindade, par. 40.
102 Cf., in this sense, the resolution adopted by the Institut de Droit International (I.D.I.)
at the session of Santiago de Compostela of 1989 (Article 1), in: I.D.I., 63 Annuaire de
l’Institut de Droit International (1989)-II, pp. 286 and 288-289.
103 Cf., to this effect, e.g., my Separate Opinions in the cases of Las Palmeras (Prelimi-
nary Objections, 2000, pars. 13-14), and of the Massacre of Mapiripán (Merits, 2005,
pars. 2-3 and 5), both concerning Colombia, and in my Concurring Opinions in the
case of the Community of Peace of San José of Apartadó (Provisional Measures of
Protection, 18.06.2002, pars. 2-9) and in the case of the Communities of the Jiguami-
andó and of the Curbaradó (Provisional Measures of Protection, 06.03.2003, pars.
4-6), concerning Colombia, and in the case of the Prison of Urso Branco (Provisional
Measures of Protection, 07.07.2004, pars. 2-3 and 6-9), concerning Brazil.
104 Cf., on this point, e.g., D. Spielmann, L’effet potentiel de la Convention Européenne
des Droits de l’Homme entre personnes privées, Bruxelles, Bruylant/Nemesis, 1995,
pp. 17-89; A. Clapham, Human Rights in the Private Sphere, Oxford, Clarendon
Press, 1996 (reed.), pp. 1-356; E.A. Alkema, “The Third-Party Applicability or ‘Drit-
twirkung’ of the European Convention on Human Rights”, in Protecting Human
Rights: The European Dimension – Studies in Honour of G.J. Wiarda (eds. F. Mat-
scher and H. Petzold), Köln/Berlin, C. Heymanns, 1988, pp. 33-45; J. De Meyer, “The
320 Chapter XII
The State is bound by the corpus juris of the international protection of hu-
man rights, which protects every human person erga omnes, in any condition or
circumstance. The State cannot avail itself of the fact of not being a Party to a
given treaty of human rights to evade the obligation to respect, and to ensure re-
spect for, fundamental human rights, acknowledged also in general International
Law, and belonging to the domain of jus cogens, thus transcending the ambit of
the law of treaties.
IV. Obligations Erga Omnes and the Emergence of Actio Popularis

The aforementioned inter-State petitions under certain human rights treaties
may, furthermore, prove to be the embryo of a future actio popularis in the
present domain of protection of the human person. Although those petitions
may disclose some resemblance with petitions lodged by individuals under cer-
tain human rights treaties, the rationale of the latter appears somewhat distinct
from the former. Thus, individual complaints, even when interposed on behalf of
the members of a whole community or human collectivity, seem to be closer to a
form of class action than to actio popularis, however desirable the emergence of
this latter may admittedly be, for the construction of a true international ordre
public on the basis of full respect for the rights of all human beings.
Be that as it may, the general duty to respect, and to ensure respect for, the
protected rights, is of the utmost importance in the present context. It may be re-
called that that duty, as formulated in common Article 1 of the four Geneva Con-
ventions on International Humanitarian Law, was originally meant to “expand
the binding effect” of the State’s acceptance of the Conventions “to the entire
population”.105 That general duty, also enshrined in some human rights treaties,106
was to disclose a considerable potential for protection: it soon formed object of a
vast case-law (mainly of the IACtHR and the ICTFY) which gave precision to its
wide scope, also vis-à-vis third parties, in inter-individual relations, on the basis
of the objective international responsibility of the State.
The theoretical construction of positive obligations of States (to respect, and
ensure respect for, the protected rights) has lent support to this development.
The whole jurisprudence constante of the IACtHR on the matter has oriented
Right to Respect for Private and Family Life, Home and Communications in Rela-
tions between Individuals, and the Resulting Obligations for States Parties to the
Convention”, in Privacy and Human Rights (ed. A.H. Robertson), Manchester, Uni-
versity Press, 1973, pp. 255-275.
105 F. Kalshoven, “The Undertaking to Respect and Ensure Respect in All Circumstanc-
es: from Tiny Seed to Ripening Fruit”, 2 Yearbook of International Humanitarian
Law (1999) p. 27, and cf. pp. 48, 54-55 and 60.
106 Such as, e.g., the U.N. Covenant on Civil and Political Rights, the U.N. Convention
on the Rights of the Child, the American Convention on Human Rights; cf. n. (50),
supra.
itself in this direction. The ICTFY (Trial Chamber), in the case of A. Kupreskic
and Others (2000), for example, pointed out that
“as a consequence of their absolute character, these norms of International Humani-

tarian Law do not pose synallagmatic obligations, i.e., obligations of a State vis-à-
vis another State. Rather (...) they lay down obligations towards the international
community as a whole, with the consequence that each and every member of the
international community has a ‘legal interest’ in their observance and consequently
a legal entitlement to demand respect for such obligations”.107
This refers to what I have termed the horizontal dimension of erga omnes ob-
ligations, which, in a vertical dimension, bind everyone, those who hold public
office as well as private individuals (supra). In fact, the rights protected under
Humanitarian Law and human rights treaties are indeed applied and opposable
erga omnes, what in certain circumstances may enhance the access to justice and
foster the conception of an international ordre public in the present domain of
protection; the mechanism of inter-State petitions under certain human rights
treaties bears witness of considerations of such ordre public.
As for the mechanism of individual petitions, although it is the alleged
wrong suffered by individuals that provides the material basis for their right of
individual petition, there is also a general interest of States Parties to human
rights treaties (providing for that mechanism) in seeing to it the such right of
individual petition is endowed with effectiveness. In this sense, in relation to the
European Convention on Human Rights, for example, I wrote, in a book pub-
lished over two decades ago, that
“in the general framework of the Convention, the right of individual petition, pos-
sessing a judicial character, rests upon the objective character of the engagements
undertaken by the High Contracting Parties to the Convention, as its exercise con-
tributes also to the fulfi lment of the general interest in having the Convention re-
spected”.108
There is here a convergence between the individual and the collective interests,
and this brings us closer to the actio popularis, which seems to emerge or flour-
ish from the very concept of obligations erga omnes. If it is conceded that actio
popularis, as in Roman law, admits that the complainant is seeking to safeguard
not only the collective interest but also his own (affected) individual interest,
there is epistemologically nothing that would render its application not viable
in International Law. On the contrary, it would become a suitable remedy to up-
hold predominantly collective or common interests; it would, in this way, also
107 ICTFY (Trial Chamber), case of A. Kupreskic and Others (case n. IT/95/16/T), Judg-
ment of 14.01.2000, par. 517.
108 A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Rem-
edies in International Law, Cambridge, University Press, 1983, p. 17.
322 Chapter XII
foster the access to international justice, the control of international legality (e.g.,
protecting common spaces beyond national jurisdictions), and the protection of
whole human communities.109
The shortcomings of the South West Africa cases (1966) are surely overcome
in our days; they were proper of a mentality which regrettably hindered for some
time the development of International Law, but which has been discarded by uni-
versal juridical conscience. Examples of possible application could be found in
the domains of human rights protection, of application of International Humani-
tarian Law, of environmental protection (particularly in relation to the so-called
“global commons”). In the domain of the safeguard of human rights, the objec-
tive character of the obligations of protection, the character of ordre public of the
operation of the mechanisms of protection, the convergence on individual and
collective interests in certain cases, are altogether elements bringing us closer to
the actio popularis, as from the concept of obligations erga omnes.110 Actio popu-
laris would be called for, in certain cases of violations of International Law, to
secure the protection of members of whole human collectivities.111 It would have
a scope broader than that of class actions.112
In sum, it is nowadays widely acknowledged that the general duty to en-
sure respect for the protected rights, wide in scope, is applicable erga omnes,
comprising all measures necessary to secure the exercise or enjoyment of those
rights. Ultimately, from the perspective here advocated, all human rights and
Humanitarian Law obligations are applicable erga omnes. The rights inherent to
the human person are surely opposable erga omnes. When the legal regime of
obligations erga omnes (encompassing the juridical consequences of their viola-
tion) consolidates itself beyond question, within a more coherent international
community, the actio popularis at international level may hopefully be also ac-
knowledged without uncertainties. And it may become a legal means to secure
compliance with obligations erga omnes lato sensu (and not only erga omnes par-
tes). But this will ultimately depend on the conscientization of the pressing need
to construct a more institutionalized international community.
V. Concluding Observations
In its development in the last decades, jus cogens has evolved – and ought to
certainly keep on evolving – well beyond the law of treaties. It has had its scope
109 Cf., in this sense, F. Voeff ray, L’actio popularis ou la défense de l’intérêt collectif
devant les juridictions internationales, Paris/Genève, PUF/IUHEI, 2004, pp. 16, 229,
235-236, 322, 366-368 and 384.
110 In this sense, cf. F. Voeff ray, L’actio popularis..., op. cit. supra n. (109), pp. 157-158, 168,
176-179, 209, 245 and 261.
111 Cf. ibid., pp. 282 and 386.
112 Cf. IACtHR, case of the Indigenous People of Sarayaku versus Ecuador (Provisional
Measures of Protection, Resolution of 17.06.2005), Concurring Opinion of Judge
A.A. Cançado Trindade, pars. 3-33).
widened. Thus, the absolute prohibition of grave violations of fundamental hu-

man rights (starting with the fundamental right to life) extends itself, in my view,
well beyond the law of treaties, incorporated, as it is, likewise, in contemporary
customary International Law. Such prohibition gives prominence to the obliga-
tions erga omnes, owed to the international community as a whole. These latter
clearly transcend the individual consent of the States,113 definitively burying the
positivist-voluntarist conception of International Law. Obligations erga omnes of
protection can be fostered and enhanced by the general obligation to respect and
ensure respect for the rights of the human person, underlying treaties on human
rights protection and on Humanitarian Law.
As to its material content, international jus cogens, in my understanding, is
an open category, which expands itself to the extent that the universal juridical
conscience (the material source of all Law) awakens for the necessity to protect
the rights inherent to each human being in every and any situation. It heralds the
advent of a new international legal order committed to the prevalence of supe-
rior common values, and to moral and juridical imperatives, such as that of the
protection of the human being in any circumstances, in times of peace as well as
of armed conflict.
For more than three decades, the concept of obligations erga omnes has
marked presence in international case-law; however, such case-law has not yet
extracted the juridical consequences of the affirmation of the existence of such
obligations, nor of their violations, and has not defined sufficiently their legal
regime either. But if, on the one hand, one has not yet succeeded to reach the
opposability of an erga omnes obligation of protection, owed to the international
community as a whole, on the other hand the International Law of Human Rights
provides nowadays elements conducive to the consolidation of the opposability
of obligations of protection to all the States Parties to human rights treaties (ob-
ligations erga omnes partes).
In the consideration of the evolving jus cogens, there has been general ac-
knowledgement of its expanding material content. The absolute prohibition of
grave violations of fundamental human rights – starting with the rights to life
and to the integrity of the person – extends itself, in my view, well beyond the
law of treaties. Such absolute prohibition, likewise consolidated in contemporary
customary International Law (indeed in general International Law as a whole),
gives prominence to the obligations erga omnes of protection, owed to the inter-
national community. These obligations clearly transcend the individual consent
of States, and herald the advent of a new international legal order, committed to
the prevalence of superior common values. The material content of jus cogens
also comprises today the principle of equality and non-discrimination,114 as well
113 C. Tomuschat, “Obligations Arising for States Without or Against Their Will”, 241
RCADI (1993) p. 365.
114 Pursuant to, e.g., the holdings to that effect in the recent case-law of the IACtHR,
particularly its Advisory Opinion n. 18, of 2003 (cf. supra).
324 Chapter XII
as the access (lato sensu) to justice and the guarantees of the due process of law,
taken necessarily together, and generating obligations erga omnes.115
Erga omnes obligations are owed to the international community as a whole,
which, in my view, comprises all States as well as other subjects of International
Law. One cannot possibly approach those obligations from a strictly inter-State
perspective or dimension, which would no longer reflect the new structure of
the contemporary international legal order. The current phenomenon of the ex-
pansion of the international legal personality and capacity116 is a response to a
true need of the international community of our days. Not only States, but all
other subjects of International Law,117 are bound by erga omnes obligations (as
evidenced by the current and unfortunate diversification of the sources of viola-
tions – on the part of State as well as non-State agents – of the rights of the hu-
man person), owed to the international community as a whole.
The task before us is essentially that of the determination of the legal regime
of obligations erga omnes, with particular attention to the positive obligations
of States and the juridical consequences of violations of erga omnes obligations.
Although jus cogens generates always obligations erga omnes but not all such
obligations are generated by jus cogens, the two concepts are ineluctably inter-
twined. Obligations erga omnes have been taking shape in areas of direct con-
cern to humankind as a whole, such as human rights protection, environmental
protection, disarmament and arms control, to name a few. Jus cogens and obli-
gations and rights erga omnes can be properly addressed in the context of the
considerable transformations of International Law in the last decades, – which
have conferred upon it a necessary and inescapable ethical dimension, – and of
the current historical process – as I perceive and sustain – of humanization of
International Law.
Ultimately, the beneficiaries of the compliance with, and due performance
of, obligations erga omnes are all human beings (rather than the States). And not
only States, but all other subjects of International Law, are bound by erga omnes
obligations, which are owed not only to States, but also to the international com-
munity as a whole, as well as to human beings. Here, again, it clearly appears that
the purely inter-State dimension of International Law has long been surpassed.
There is pressing need today – as I see it, – to overcome the strictly inter-State
approach in addressing obligations and rights erga omnes.
Even if an inter-State approach is still – however inadequately – adopted,
one cannot elude taking into account the human person as subject of Interna-
tional Law. This being so, it seems to me that the rights and duties of all subjects
115 Cf. A.A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Inter-
nacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 29-96;
M. El Kouhene, Les garanties fondamentales de la personne en droit humanitaire et
droits de l’homme, Dordrecht, Nijhoff, 1986, pp. 97, 145, 148, 161 and 241.
116 Cf. chapters VIII-XI, supra.
117 To me, it is impossible here not to take into account the other subjects of Interna-
tional Law, including the human person.
of International Law (including human beings, the ultimate beneficiaries of com-

pliance with erga omnes obligations) should be taken into account in the deter-
mination of the legal regime of obligations erga omnes, and in particular of the
juridical consequences of violations of such obligations. As it becomes accepted
that individuals also have rights erga omnes and that obligations erga omnes are
incumbent upon them, there remains no cogent reason for proceeding to the
determination of the juridical consequences of violations of those obligations on
a strictly inter-State basis.
There appears to be, in fact, nothing new under the sun. Already in the mid-
XVIIIth century, in his Institutiones Juris Naturae et Gentium (originally pub-
lished in 1750), C. Wolff sustained the existence of universal obligations, where-
from there ensued a universal law (droit universel). He further referred to the
“universal justice”, which was that which
“rend au prochain son droit par rapport à toutes les actions, en tant qu’elles regar-
dent les autres”.118
Over two and a half centuries later, obligations erga omnes (in their horizontal
and vertical dimensions), as well as jus cogens, are theoretical constructions of
the jus gentium of our days, the International Law for humankind. In my per-
sonal experience of serving for more than one decade as Judge of an international
human rights tribunal (and of being its President for half a decade), I can report
many instances in which the Court has been faced with situations which dis-
closed an unfortunate diversification of the sources of violations – on the part
of State as well as non-State agents – of the rights of the human person. This
required a clear recognition of the effects of the conventional obligations also
vis-à-vis third parties (the Drittwirkung), including individuals (identified and
unidentified ones).
Hence the importance of the general obligation of States to respect, and to
ensure respect for, the protected rights, in all circumstances.119 It is my view that
this general duty can assist in the vindication of compliance with erga omnes
obligations, as, by means of the collective guarantee of humanitarian treaties,
one may at least secure compliance with the general duty of protection of human
beings (obligation erga omnes partes). One cannot overlook the possibilities of
action, particularly under human rights treaties, to that effect. In the case-law of
the IACtHR, I have, on successive occasions, insisted on this particular point.120
118 In his assertion, “une obligation universelle c’est ce à quoi tout homme est tenu, par-
là même qu’il est homme”; C. Wolff, Principes du droit de la nature et des gens, vol.
I, Amsterdam, Ed. M. Michel Rey, 1758 [reprint], p. 59, and cf. pp. 1-2.
119 Set forth in the 1949 Geneva Conventions on International Humanitarian Law (and
the 1977 Additional Protocol I) as well as in several human rights treaties (cf. notes
(41), (51) and (52), supra).
120 In my Separate Opinion in the case of Las Palmeras concerning Colombia (Prelimi-
nary Objections, Judgment of 04.02.2000), as well as in my Concurring Opinions
326 Chapter XII
Jus cogens, in generating obligations erga omnes, endows them with a necessarily
objective character, encompassing all the addressees of the legal norms (omnes),
– States, international organizations, peoples and individuals, and humankind;
and, as to individuals, both the ones who hold offices of the public power as well
as those who act in their private capacity.
In my understanding, obligations erga omnes incorporate common and
superior interests, as well as fundamental values. Compliance with them is re-
quired not only of States, but also of other subjects of International Law (includ-
ing international organizations as well as peoples and individuals). Related to
jus cogens, such obligations bind everyone. Furthermore, the acknowledgement
of grave breaches of erga omnes obligations is certainly necessary, as it has been
precisely the absolute prohibition of grave violations of International Law and of
fundamental human rights that have given prominence to the obligations erga
omnes of protection; these latter, owed to the international community, and tran-
scending the individual consent of States, appear instrumental in the construc-
tion of the International Law for humankind.
in the Provisional Measures of Protection ordered by the Inter-American Court in

the cases of the Community of Peace of San José of Apartadó (of 18.06.2002, pertain-
ing to Colombia), of the Communities of the Jiguamiandó and of the Curbaradó
(of 06.03.2003, also against Colombia), of the Indigenous People Kankuamo (of
05.07.2004, pertaining likewise to Colombia), of the Indigenous People of Sarayaku
(of 06.07.2004, fi led against Ecuador), of the Prison of Urso Branco (of 07.07.2004,
concerning Brazil), and of the Television Broadcasting Company ‘Globovisión’ (of
04.09.2004, pertaining to Venezuela).
Chapter XIII Conceptual Constructions: Common
Heritage of Mankind and Common
Concern of Mankind
I. Introduction
The challenges facing humankind today could hardly be faced on the basis of
the traditional postulates of reciprocity or mutual interests on a strictly inter-
State dimension. The protection of present and future generations1 and the very
survival of humankind, require proper responses with the mobilization of all
subjects of International Law. To face such challenges, newly emerged and inter-
related concepts have been propounded, such as common heritage of mankind,
common concern of mankind, global commons, sustainable development, inter-
generational equity. The akin concepts, specifically, of common heritage and of
common concern of mankind disclose a spatial and temporal dimensions, and
call for special attention and world-wide cooperation, with the corresponding
rights and duties pertaining to present and future generations, bearing in mind
the needs and aspirations of humankind.
II. The Content and Significance of the Concept of Common Heritage of

Mankind
The construction of the concept of common heritage of mankind in distinct do-
mains of Public International Law (infra) emerged from the acknowledgement of
common interests, in pursuance of the common good, of mankind. The concept
stretched over time, comprising, as beneficiaires, present as well as future gen-
erations. Explanatory theories of the concept, – such as those of res communis
(peaceful utilization by all, freedom of access and equitable sharing by all, on
behalf of all), of the international public domain (utilization by all with gestion
under public law, not open to private appropriation), of public trust (protection
and control of a common good for transmission of one generation into another,
on behalf of the whole international community, with States as “trustees” of nat-
ural resources in the general interest), – disclosed as a common denominator the
identification of common interests, distinct from, and standing above, interests
1 E.g., against ozone layer depletion, environmental deterioration, arms race and
trade, social marginalization and exclusion, among others.
328 Chapter XIII
of individual States, as well as the utilization and control of resources on behalf

of humankind, in a temporal dimension.
The concept at issue was soon to fi nd expression, in the second half of the
XXth century, in domains such as those of the international law of outer space,
the law of the sea, the international law of bioethics, international environmental
law (infra). In his thoughtful Hague Academy lectures of 1982 on the subject,
Alexandre-Charles Kiss argued that, under the concept of common heritage of
mankind, there existed a universal solidarity not only in space (among peoples)
but also in time (among successive generations), and added:
“Cette législation internationale qui consacre certains intérêts supérieurs en cher-

chant à protéger les être humains au-delà des objectifs immédiats des États – et
même parfois contre eux – n’est pas isolé dans le droit international contemporain.
(...) Cette notion d’intérêt commun est aussi le fondement du patrimoine commun
de l’humanité (...). Aucune des dispositions conventionnelles imposant des obliga-
tions aux États dans ces domaines n’a de contrepartie immédiate”.2
Thus, each generation is at a time user and guardian of our common natural
and cultural heritage, and should thus leave it to future generations in no worse
conditions than it received it. Hence the principle of intergenerational equity
(conservation of options, of quality, and of access), lucidly developed by E. Brown
Weiss, as well as the need to protect systems of sustainability of life, ecological
processes, environmental conditions and cultural resources necessary to the sur-
vival of humankind, and the need to preserve a healthy human environment.3
Underlying the concept of common heritage of mankind, one finds not only
the notion of common good or interest (bien commun) of humankind, by also
an expansion of the circle of beneficiaires (encompassing future generations).
Here, the idea of solidarity at universal level is manifest, in its spatial and tem-
poral dimensions.4 It is generally recognized that certain basic principles have
oriented the construction of the new concept of common heritage of mankind,
2 A.Ch. Kiss, “La notion de patrimoine commun de l’humanité”, 175 Recueil des Cours
de l’Académie de Droit International de La Haye [RCADI] (1982) pp. 113 and 229-
231. Moreover, the temporal dimension assumes particular importance in the con-
struction of this new concept, taking into account also future generations: “c’est
cet élargissement du cercle des bénéficiaires aux générations à venir qui donne ses
véritables dimensions au concept de patrimoine commun de l’humanité”; ibid., pp.
240 and 243.
3 Cf., in particular, E. Brown Weiss, In Fairness to Future Generations: International
Law, Common Patrimony and Intergenerational Equity, Tokyo/Dobbs Ferry N.Y.,
U.N.U./Transnational Publs., 1989, pp. 1-291.
4 On the basis of this understanding, “on peut jouir des bénéfices de la nature et de
ses ressources mais on doit en assurer la transmission à l’humanité à venir. On peut
rappeler à cet égard la célèbre formule: nous ne sommes pas les héritiers de nos
ancêtres, mais les débiteurs de nos enfants et de nos petits-enfants”; A.Ch. Kiss, “La
nature, patrimoine commun de l’humanité”, 91 Naturopa (1999) p. 11.
Conceptual Constructions: Common Heritage of Mankind and Common Concern of Mankind 329
namely: the principles of non-appropriation and of exclusion of State sovereignty,

of peaceful uses and purposes, of freedom of access and scientific investigation,
and of rational gestion of the resources (of the heritage) and equitable sharing to
the benefit of all mankind.
1. In the Domain of the International Law of Outer Space

The concept of common heritage of mankind was initially asserted in the domain
of the International Law of Outer Space, e.g., in the 1979 Agreement Governing
the Activities of States on the Moon and Other Celestial Bodies (Article 11(1)).
The Agreement, also known as the Moon Treaty, in fact proclaims the moon
and its resources as the common heritage of mankind (Article 11(1)). Elements
of the concept had also been enshrined into the earlier 1967 Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies,5 which determined the whole of
outer space as being “the province of all mankind” (Article 1(1)),6 “not subject to
national appropriation by claim of sovereignty” (Article 2).
Although expert writing has not been conclusive as to whether common
heritage of mankind and “province of all mankind” are or not to be equated7,
the fact remains that both formulations have jointly contributed to the general
awareness prevailing nowadays that respect for the principles underlying them
and for the outer space environment is beneficial to the whole of humankind.
In fact, in the course of the last decades, the law-making process in the domain
of the Law of Outer Space has determined the rights and obligations – some of
these latter of general character, erga omnes – of the States engaged in activities
in the outer space;8 this law-making process was from the start inspired by the
conscience of the existence of superior common interests.9
The intense normative activity in the formation of the legal regime of the
outer space, mainly of COPUOS and its Legal Subcommittee, in the decades of
the seventies and eighties and at the beginning of the nineties, has, however,
more recently, experienced a certain slowing down, parallel to the tendency of a
commercialization of certain uses of the outer space,10 and amidst the necessity
5 The 1967 Outer Space Treaty, a framework treaty on the matter, setting forth basic
principles on the exploration and use of outer space, was preceded by the 1963 Dec-
laration of Legal Principles Governing the Activities of States in the Exploration and
Use of Outer Space, where the notion of common interest can already be found.
6 In the light of international law and the U.N. Charter (Article 3).
7 Cf., e.g., D. Tan, “Toward a New Regime for the Protection of Outer Space as the
‘Province of All Mankind’”, 25 Yale Journal of International Law (2000) pp. 162-163.
8 M. Lachs, The Law of Outer Space, Leiden, Sijthoff, 1972, pp. 113, 123 e 137-138.
9 J.E.S. Fawcett, Outer Space – New Challenges to Law and Policy, Oxford, Clarendon
Press, 1984, pp. 3-4, and cf. p. 6.
10 Already two decades ago, J.E.S. Fawcett warned that the beginning of the engage-
ment of private enterprises in space activities appeared “ambiguous as well as com-
330 Chapter XIII
of an adequate regulation of specific areas of the legal regime of the outer space.11
Yet, the understanding had already been formed that the scientific-technological
advances ought necessarily to revert to the benefit of humankind as a whole.12 In
this line of thinking, the crystallization is nowadays undeniable, in the domain
of the International Law of the Outer Space, of the general principles of non-ap-
propriation, of peaceful uses and purposes, and of the extension of the benefits of
space exploration to the whole of mankind.13 The concepts of common heritage of
mankind and of “province of all mankind” have surely contributed to this general
awareness.
The 1972 Convention on International Liability for Damage Caused by Space
Objects recognized, in its preamble, the “common interest of all mankind” in
furthering the exploration and use of outer space for peaceful purposes. On its
turn, the 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts
and the Return of Objects Launched into Outer Space invoked “sentiments of hu-
manity” in its preamble; earlier on, the 1967 Outer Space Treaty conceptualized
astronauts as “envoys of mankind in outer space” (Article 5). And the 1976 Con-
vention on Registration of Objects Launched into Outer Space also recognized in
its preamble the “common interest of all mankind” in furthering the use of outer
space for peaceful purposes.
In recent years, the question of the character and utilization of the geosta-
tionary orbit was object of attention of the Legal Subcommittee of the Com-
mittee on the Peaceful Uses of Outer Space (COPUOS), which, in 2000-2001,
reached a consensus among participating Delegations, in the light of the prin-
ciple of equity.14 The understanding was in the sense that the access to the geo-
stationary orbit ought to take place in an equitable way (the orbits of satellite and
the spectrum of radio frequency being “limited natural resources”15); thus, the
country which had already attained such access ought to take “all the practicable
measures” to render it possible for other countries (including developing coun-
tries) also to have it.16
petitive”; ibid., p. 119, and cf. p. 116.

11 Cf. E.W. Ploman, Space, Earth and Communication, London, F. Pinter Publs., 1984,
pp. 160-165.
12 Cf., e.g., [Various Authors,] Ethics, Law, Science, Technology and International Co-
operation (Proceedings of the Córdoba Seminar of 1984), Córdoba, Council of Ad-
vanced International Studies, 1987, pp. 29-188.
13 R.G. Steinhardt, “Outer Space”, in The United Nations and International Law (ed.
Chr.C. Joyner), Cambridge, University Press/ASIL, 1999 [reprint], pp. 338-341 and
344-349.
14 U.N./Committee on the Peaceful Uses of Outer Space [COPUOS], Report of the
Legal Subcommittee (XL Session, Vienna, April 2001), U.N. doc. A/AC.105/763, of
24.04.2001, p. 10.
15 In conformity with Article 44 of the ITU Constitution.
16 U.N./COPUOS, Report of the Legal Subcommittee (XXXIX Session, Vienna, March/
April 2000), U.N. doc. A/AC.105/738, of 20.04.2000, Annex III, pp. 21-22.
The U.N. General Assembly, in its resolutions 55/122, of 08.12.2000,17 and

56/51, of 10.12.2001,18 both on the international cooperation in the peaceful uses
of outer space, took note “with satisfaction” of the consensus referred to reached
by the Legal Subcommittee, and endorsed by COPUOS, on the question of the
character and utilization of the geoestationary orbit. Thus, both COPUOS and
the International Telecommunication Union (ITU) contributed to reaching the
recognition that the geostationary orbit is a limited natural resource, and that
all countries ought to be able to count on the possibility of access to that orbit,
for it not to be regarded as a privilege for a given number of satellites which are
already placed in it.
The aforementioned U.N. General Assembly resolutions 55/122 and 56/51
stated in their preambles (2nd. considerandum) the belief in “the common inter-
est of mankind in promoting and expanding the exploration and use of outer
space for peaceful purposes”, as well as in “continuing efforts to extend to all
States the benefits derived therefrom”. The two resolutions supported the expan-
sion of the scope of international cooperation relating to “the social, economic,
ethical and human dimension in space science and technology applications”.19
2. In the Domain of the Law of the Sea

Over the last two decades, it became generally recognized that, of the expres-
sions the concept of common heritage of mankind has found in distinct domains
of International Law (supra), the most elaborate has been the one in the Law of
the Sea, endowed as it is with an institutionalized framework (infra). The saga of
such concept, – enshrined into the 1982 Montego Bay Convention (Article 136),
– in the domain of the Law of the Sea, goes back to the 1967 address by Ambassa-
dor Arvid Pardo, of Malta, at the U.N. General Assembly. The Maltese proposal,
– which had antecedents in the Law of the Sea,20 – resulted in the adoption, three
years later, of the General Assembly’s declaration that the seabed and ocean floor,
and the subsoil thereof, beyond the limits of national jurisdiction, as well as the
resources of the so-called Area, were the common heritage of mankind.21 In 1975
17 Paragraph 4; resolution reproduced in: U.N. document A/RES/55/122, of 27.02.2001,

p. 2.
18 Paragraph 4; resolution reproduced in: U.N. document A/RES/56/51, of 15.02.2002,
p. 2.
19 Paragraphs 44 and 48, respectively.
20 Such as the consideration, by the U.N. International Law Commission, in the fi fties,
of the idea of reserving the seabed and ocean floor and their resources for the use of
the international community, as well as the proposal of several Delegations, at the
I U.N. Conference on the Law of the Sea (1958), that the continental shelf should be
exploited in the interests and for the benefit of mankind as a whole; U.N./Office of
Legal Affairs, The Law of the Sea – Concept of the Common Heritage of Mankind...,
op. cit. infra n. (24), pp. 1-2, and cf. p. 8.
21 Cf. U.N. General Assembly resolution 2749, of 17.12.1970.
332 Chapter XIII
the concept was incorporated into the Informal Single Negotiating Text of the III
U.N. Conference of the Law of the Sea [UNCLOS], and was at last enshrined into
the 1982 U.N. Convention on the Law of the Sea.22
A well-documented account of the legislative history of the concept of com-
mon heritage of mankind, published in 1996 by the U.N. Office of Legal Affairs
(Division for Ocean Affairs and the Law of the Sea), discloses the intense com-
mon search (aiming at universality) of general principles concerning the peaceful
and equitable uses of the seabed and the ocean floor, and the subsoil thereof, be-
yond the areas of national jurisdiction.23 The aforementioned account acknowl-
edged difficulties in tracing back all the antecedents, at doctrinal level, of the
concept at issue:
“It is difficult to say exactly when the concept of the common heritage of mankind
first arose in human consciousness. The idea, in one form or another, could probably
be traced to ancient times. (...) Suffice it to point out that in the 1830sa Latin Ameri-
can jurist, Andrés Bello, argued that those things which could not be held by one
nation without detriment to the others ought to be considered by the international
community as ‘common patrimony’. In 1898, A.G. de Lapradelle, a French jurist,
advanced the idea that the oceans should be ‘le patrimoine de l’humanité’”.24
As advanced in the course of the III UNCLOS (1973-1982), the concept of com-
mon heritage of mankind can be associated with the creation of an international
regime for the regulation and management of the seabed and ocean floor beyond
the limits of national jurisdiction on behalf of the entire international commu-
nity.25 As originally propounded in the present domain, the new concept sought
the overcoming of unilateralisms, and heralded the advent of a new outlook and
paradigm of International Law itself, turning attention to humankind as a whole
(endowed with international subjectivity) as well as to the imperative of interna-
tional distributive justice. It was not surprising that, in this new outlook, the In-
ternational Seabed Authority, created by the 1982 Montego Bay Convention and
endowed with international legal personality (Article 176), had been conceived so
as to operate to the benefit of humankind as a whole.
The insertion, into the Montego Bay Convention, of the concept of common
heritage of mankind, was not meant only to provide the framework for clauses
concerning the structure of the future Authority, its financing, transfers of tech-
nology, and the like; it went much further than that, in giving expression to a basic
principle orienting the new conventional regime, opposable also to States which
22 Part XI, esp. Articles 136-145 and 311(6).

23 Cf. ibid., pp. 28, 95, 126, 219, 387 and 431.
24 U.N./Office of Legal Affairs, The Law of the Sea – Concept of the Common Heritage
of Mankind (Legislative History of Articles 133 to 150 and 311(6) of the U.N. Conven-
tion on the Law of the Sea), N.Y., U.N., 1996, p. 1, and cf. p. 3.
25 Cf. ibid., pp. 92-93.
were not to ratify the 1982 Convention,26 on behalf of mankind. It had in mind
the seabed and its subsoil beyond the limits of national jurisdiction precisely be-
cause they were the ones most exposed to the ambitions of some States; their
resources – as common heritage of mankind – were meant to belong to human-
kind, forming part of a truly universal regime.27 After all, the principle of liberty
of exploitation (of the traditional International Law of the Sea) appeared no longer
satisfactory, calling for the common heritage of mankind. This latter set forth the
component principles of non-appropriation (of resources) and peaceful utilization
and exploration in the interest of mankind as a whole; as originally conceived, the
new universal regime was to be endowed with a mechanism of its own.28
But as progress, in this and other areas of International Law, has not taken
place in a linear way, the International Seabed Authority experienced vicissitudes
even after the Montego Bay Convention was concluded, – as illustrated by the
Agreement of 1994 for the Implementation of Part XI of the Convention referred
to. The Agreement of 1994 much emptied the concept of common heritage of
mankind of its original content, largely depriving it of great part of its purpose of
distributive justice, and bringing it closer to the old notion of Roman law of res
communis omnium. With that, the function of the International Seabed Author-
ity appeared weakened.
It is not surprising that the 1994 Agreement has been received with a critical
spirit by part of the more enlightened legal doctrine, which characterized it as a
“step backwards”, for representing a victory of the pretensions of a very reduced
number of States endowed with technological capacity to explore on their own
the resources of the international seabed, over the aspirations of the great major-
ity of States, which sought the establishment of a new international economic
order, with more distributive justice and solidarity.29 It appeared as tipping the
balance in favour of technologically advanced States, whose interests prevailed
over the ideal of an equitable distribution of benefits bearing in mind the needs
of the international community as a whole.30
The ideal of universal solidarity, coupled with social responsibility, as
emerged around the res communis humanitatis, was regrettably set aside in fa-
26 G. de Lacharrière, “La réforme du droit de la mer et le rôle de la Conférence des Na-

tions Unies”, in Le nouveau Droit international de la mer (eds. D. Bardonnet and M.
Virally), Paris, Pédone, 1983, p. 31.
27 M. Bennouna, “Les droits d’exploitation des ressources minérales des océans”, in Le
nouveau Droit..., op. cit. supra n. (26), pp. 122-123 and 128-129.
28 C. Douay, “Le droit de la mer et la préservation du mileu marin”, in Le nouveau
Droit..., op. cit. supra n. (26), pp. 238-240.
29 J.A. Pastor Ridruejo, “Le Droit international à la veille du vingt et unième siècle:
normes, faits et valeurs – Cours général de Droit international public”, 274 RCADI
(1998) pp. 264-265.
30 Cf., e.g., J.M. Pureza, O Património Comum da Humanidade: Rumo a um Direito
Internacional da Solidariedade?, Porto, Ed. Afrontamento, 1998, p. 247, and cf. p.
242.
334 Chapter XIII
vour of the old so-called “free” and “liberal” competition.31 This corresponded
to the distorted view of “universality” of the regime of the 1982 Law of the Sea
Convention espoused by the technologically advanced States,32 which was pre-
cisely what the concept of common heritage of mankind purported to overcome.
Although technologically advanced States reinterpreted the concept of common
heritage of mankind as implying freedom of access to the Area for all partici-
pating States for seabed mining (on an equal footing under a licensing system),
the fact remains that the concept entered into the vocabulary of the law of the
sea implying distributive justice and international cooperation with preferential
treatment for the poorer countries; this was the understanding espoused by most
participants at the III UNCLOS.33 As pointed out by M.C.W. Pinto,
“It was an inspiring vision offered to a world at a time when it seemed feasible to
establish a ‘new international economic order’ founded on distributive justice and
cooperation that would replace an old order of exploitative relationships based es-
sentially on power disparities and competition”.34
From the beginning, when it emerged in the ambit of the law of the sea, the con-
cept of common heritage of mankind overcame some resistance. In fact, those
who participated in the prolonged negotiatory process of the Montego Bay Con-
vention of 1982 did not fail to express their concern with the threats of a breaking
down – mainly in the ninth session, in 1980, of the III UNCLOS – of the consen-
sus formed as to the concept of common heritage of mankind.35 But the concept
survived, and found expression in the 1982 Law of the Sea Convention. After the
adoption of the Convention, it was regarded by some as a rather “philosophical”
concept, with “the potential to emerge and crystallize as a legal norm”.36
31 Cf. S. Paquerot, Le statut des ressources vitales en Droit international – Essai sur
le concept de patrimoine commun de l’humanité, Bruxelles, Bruylant, 2002, pp. 85-
103.
32 Cf., for an account, e.g., E.D. Brown, “The 1994 Agreement on the Implementation of
Part XI of the U.N. Convention on the Law of the Sea: Breakthrough to Universal-
ity?”, 19 Marine Policy (1995) n. 1, pp. 5-20.
33 M.C.W. Pinto, “‘Common Heritage of Mankind’: From Metaphor to Myth, and the
Consequences of Constructive Ambiguity”, in Theory of International Law at the
Threshold of the 21st Century – Essays in Honour of K. Skubiszewski (ed. J. Makarc-
zyk), The Hague, Kluwer, 1996, pp. 256 and 265-266.
34 Ibid., p. 267.
35 On the occasion, the Group of 77 warned for the risk of destruction of the whole ne-
gociatory process, and stood against what it regarded as the “illegality” of unilateral
national legislations contrary to the concept of common heritage of mankind, seen
as endowed with an imperative character; cf. account of J.-P. Lévy, La Conférence des
Nations Unies sur le Droit de la Mer – histoire d’une négotiation singulière, Paris,
Pédone, 1983, pp. 98-99.
36 C.C. Joyner, “Legal Implications of the Concept of the Common Heritage of Man-
kind”, 35 International and Comparative Law Quarterly (1986) p. 199.
It is generally recognized nowadays that the formation of the concept of

common heritage of mankind has been influenced by the movement in favour of
the establishment of a new international economic order, which gained ground
mainly in the seventies.37 In my view, the ideal of construction of an interna-
tional legal order with more distributive justice and solidarity at universal scale
is bound to keep on evolving, to the extent that the human spirit is refined in
approaching and fostering the equitable application of international norms, to
States which are juridically equal but remain factually marked by profound in-
equalities, if not iniqüities. Just as advances do not take place in a linear form, nor
do the steps backwards appear irreversible. The ideal of common “heritage” or
“concern” of mankind is surely alive, having managed to permeate the very evolu-
tion of some domains of International Law in the last decades. This is illustrated,
e.g., by a recent document (of 2002) issued by the International Seabed Authority
on the protection of the biological biodiversity in the deep seabed,38 which insists
on marine scientific research39 to be undertaken to the benefit of mankind as a
whole, pursuant to the concept of common heritage of mankind.40
Another illustration lies in the treatment which continues to be dispensed
to the concept of common heritage of mankind, both before and after the Agree-
ment of 1994 referred to. Even those who appeared somewhat complacent as to
the circumstances of the celebration of the aforementioned Agreeement, recog-
nized and anticipated that the normative content of the provisions on common
heritage of mankind appeared as “important precedents” to “force States which
have never felt any obligation to share” the wealth that they control in order to
promote international distributive justice.41
At doctrinal level, underlying the concept of common heritage of mankind
subsists the belief that the advances in International Law are linked to the rec-
ognition of the necessity of interdependence, solidarity and assertion of ethical
37 The triumphalism of the heralds of the so-called “free market” led to exagerations,
such as that of suggesting a “requiem” for the new international economic order;
T.W. Wälde, A Requiem for the ‘New International Economic Order’ – The Rise and
Fall of Paradigms in International Economic Law, Dundee, Univesity of Dundee
(Discussion Paper DP8), 1997, pp. 1-57.
38 International Seabead Authority, Deep Seabed Mineral Development, Bio-Prospect-
ing and the Protection of Biological Diversity in the Deep Seabed and on the High
Seas, April 2002, pp. 1-14.
39 In the “Area” – such as defi ned in Article 1 of the Montego Bay Convention of 1982
– which encompasses the marine and ocean floors and their subsoil beyond the
limits of national jurisdiction.
40 And also in the terms of Article 143(1) of the Montego Bay Convention.
41 K. Baslar, The Concept of the Common Heritage of Mankind in International Law,
The Hague, Nijhoff, 1998, p. 242, and cf. pp. 222-229.
336 Chapter XIII
values in the conduction of international relations.42 As pertinently remarked by

J.A. Carrillo Salcedo, the concept of common heritage of mankind,
“qui appartient à l’imaginaire des nations, (...) pourra servir, à l’avenir, de fonde-
ment à des constructions juridiques qui reconnaîtront et organiseront la destination
universelle des biens, empêcheront leur exploitation au seul profit des riches et des
puissants et permetront la répartition plus équitable de leurs fruits”.43
The realization of the ideal to which the common heritage of mankind gives ex-
pression, leaves no room for distortions of that concept. The universality it origi-
nally aimed at was motivated by international distributive justice, in the light of
equity, rather than by the subsequent search for profit.
3. In the Domain of the International Law of Bioethics

The concept of common heritage of mankind has likewise found expression in
the evolving International Law of Bioethics. As from the mid-XXth century, hu-
man genetics emerged in the scientific developments of the epoch to establish
itself as a new disciplina touching upon the essence and foundation of humanity,
raising issues concerning both life and death and the fi nite nature of human be-
ings,44 for which Law has not yet provided clear and conclusive answers.45 On 11
November 1997 the XXIX General Conference of UNESCO adopted the Univer-
sal Declaration on the Human Genome and Human Rights,46 Article 1 of which
provides that
42 J.-A. Carrillo-Salcedo, “Contribution de la notion d’humanité au renforcement de la

dimension idéologique du droit international”, in K. Vasak Amicorum Liber – Les
droits de l’homme à l’aube du XXIe. siècle, Bruxelles, Bruylant, 1999, pp. 115-126;
B. Conforti, “Humanité et renouveau de la production normative”, in Humanité
et Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991, pp. 113-120; G.
Abi-Saab, “‘Humanité’ et ‘communauté internationale’ dans la dialectique du Droit
international”, in ibid., pp. 10-12; R.-J. Dupuy, “Droit de la mer et communauté inter-
nationale”, Mélanges offerts à P. Reuter – Le Droit international: unité et diversité,
Paris, Pédone, 1981, pp. 223 and 229-230.
43 J.-A. Carrillo Salcedo, “Le concept de patrimoine commun de l’humanité”, in Ouver-
tures en Droit international – Hommage à R.-J. Dupuy, Paris, SFDI/Pédone, 2000, p.
62.
44 J.-F. Mattei, “Introduction”, in Ethical Eye: the Human Genome (ed. J.-F. Mattei),
Strasbourg, Council of Europe, 2001, pp. 11-13.
45 Cf., e.g., Council of Europe, Law and Moral Dilemmas Affecting Life and Death
(Proceedings of the Glasgow Colloquy on European Law of 1990), Strasbourg, C.E.,
1992, pp. 11-34.
46 Endorsed one year later by the U.N. General Assembly itself (resolution A/
RES/53/152), coinciding with the cinquentenary of the 1948 Universal Declaration of
Human Rights.
“The human genome underlies the fundamental unity of all members of the human
family, as well as the recognition of their inherent dignity and diversity. In a sym-
bolic sense, it is the heritage of humanity”.
The provision was intended to draw attention to the rights and duties of every
human being over his “genetic heritage”, and to stress that any improvement in
the knowledge of the human genome should result in the benefit, without dis-
crimination, of humankind as a whole; the protection of the human genome was
thus turned to the safeguard of the integrity of the human species as such and of
the dignity of all individuals as its members.47 In the present domain, at regional
level reference can also be made to the 1996 Council of Europe’s Convention on
Human Rights and Biomedicine, which, in its preamble, asserts the dignity of
the individual as such and in his belonging to the human species, and the need
to secure that advances in biology and medicine benefit humankind as a whole,
encompassing present and future generations.
In the preparatory work of the 1997 UNESCO Universal Declaration on the
Human Genome and Human Rights, the International Bioethics Committee of
UNESCO was engaged in the drafting of a clear and strong provision on the
concept of the common heritage of mankind to be set forth in Article 1; subse-
quently, however, the concept was, – according to an account of its final drafting,
– unfortunately “watered down by government representatives”, by considering
the human genome only “in a symbolic sense” to be the “heritage of humanity”.
According to that account,
“Indeed, the International Bioethics Committee had embraced the ‘common her-
itage of humanity’ concept, but certain government representatives designated to
study and approve the Committee’s final draft declaration understood the common
heritage concept as mandating possible appropriation by international conglomer-
ates and thus a risk to State sovereignty. Others disliked the community aspect.
Ironically, other members of the Bioethics Committee, fearful of possible State sov-
ereignty, preferred to protect the human genome at the level of the individual. Fi-
nally, the French translation of heritage as ‘patrimony’ also created difficulties since
it would be seen as having an economic meaning. Hence, the adoption of the expres-
sion ‘symbolic of the heritage of humanity’”.48
Be that as it may, despite such vicissitudes of the drafting of the aforementioned

Declaration, this latter characterizes the human genome as constitutive of the
47 H. Gros Espiell, “Genética y Derechos Humanos – El Anteproyecto de Declaración

de la UNESCO sobre la Protección del Genoma Humano”, in Scritti in Onore di G.
Gerin, Milano, CEDAM, 1996, pp. 217 and 221-222.
48 B.M. Knoppers, “The Human Genome: Individual Property or Common Heritage?”,
in Ethical Eye: the Human Genome (ed. J.-F. Mattei), Strasbourg, Council of Europe,
2001, p. 115.
338 Chapter XIII
singularity of human beings49 and affirms the responsibility of the international

community as a whole for the preservation of the human species; by resorting to
the concept of common “heritage of humanity”, the 1997 Universal Declaration
“se situe dans le prolongement de la prise de conscience accrue du destin commun

de l’humanité et des responsabilités qui en découlent (...). Dans la Déclaration, la
mise en oeuvre de la notion de patrimoine commun vise à assurer la protection la
plus large du génome humain contre les atteintes susceptibles de mettre en danger
la pérennité même de l’humanité. Enfi n, la notion de patrimoine recouvre les con-
naissances accumulées par l’homme sur lui-même, comme formant un potentiel de
progrès pour l’humanité”.50
UNESCO itself has clarified that the basic idea underlying the reference to the
common “heritage of humanity” in Article 1 of its Universal Declaration on the
Human Genome and Human Rights is that research on the human genome and
the applications flowing therefrom, – which may affect both individuals and
the human species, – are the responsibility of the international community as a
whole, an ethical imperative of humankind. Human dignity is the cardinal prin-
ciple orienting the safeguard of the integrity of the individual and the human
species through the protection of the human genome.51
It should not pass unnoticed that Article 3 of the 1997 Universal Declara-
tion, in referring to the “mutations” undergone by the human genome in each
individual’s natural and social environment, and living conditions (including
health, nutrition and education), stands against “genetic determinism”.52 It may
well be that we are here approaching the frontiers of humanity.53 The present and
emerging domain of International Law gives pride of place to the individual as
such and to his belonging to the human species. The principle of the dignity of
the human person as subject of International Law occupies a central position
49 That is, it applies the concept of human genome to the genome of an individual as
well as to the genomes of all human beings altogether.
50 G.B. Kutukdjian, “Le génome humain: patrimoine commun de l’humanité”, in Per-
sonne humaine et Droit international – H. Gros Espiell Amicorum Liber, vol. I, Brux-
elles, Bruylant, 1997, p. 609, and cf. pp. 606-607.
51 UNESCO, Birth of the Universal Declaration on the Human Genome and Human
Rights, Paris, UNESCO, 1999, pp. 3 and 99-100.
52 That is, the false assumption that an individual would be genetically “programmed”
from the beginning of his existence.
53 As pointed out in this connection, “we are all made from the same matter, but we are
still very, very different. (...) Our main difference in category (...) is metabiological,
metaphysical and spiritual”; J. Reich, “At the Frontiers of Humanity”, in Ethical Eye:
the Human Genome (ed. J.-F. Mattei), Strasbourg, Council of Europe, 2001, p. 127.
The 1997 Universal Declaration thus refutes the strictly genetic conception of hu-
mankind and the mistaken view that an individual would amount to the sum total
of his genes; J.-F. Mattei, “Conclusion”, in ibid., pp. 131 and 135.
herein. Its outlook is essentially universalist, ineluctably transcending a strictly

inter-State dimension. It discloses a conception of the human being, in the soci-
etas gentium and ultimately in the universe itself, which appears remindful of the
original foundations of the droit des gens.
4. In the Domain of International Environmental Law

It is widely acknowledged nowadays that international life has been dramatically
marked by the pressures of two major challenges of our times, namely, the neces-
sities and requirements of protection of the human person as well as of the envi-
ronment. Environmental issues, such as, inter alia, climate change and biologi-
cal diversity, have disclosed a truly global dimension, transcending the strictly
inter-State level and requiring a universal approach. It is thus not surprising to
find reiterated references to “mankind” in various international instruments on
preservation of the environment and on sustainable development, and on pro-
tection of the cultural heritage,54 – on behalf of present and future generations,
– indicating that contemporary International Law can no longer be adequately
approached from an exclusively State-oriented perspective, and also significantly
heralding the advent of a new International Law for humankind.
The 1972 Stockholm Declaration on the Human Environment expressly re-
fers to the “common good of mankind” (Principle 18). Rules on the protection of
the environment are adopted, and obligations to that effect are undertaken, in the
common superior interest of mankind. This has been expressly acknowledged in
some treaties in the field of the environment;55 it is further implicit in references
to “human health” in some environmental law treaties.56 Such acknowledgement,
in addition to that also found in the international law of the outer space and the
54 The notion of cultural heritage of mankind can be found, e.g., in the Conventions
for the Protection of Cultural Property in the Event of Armed Conflict (1954) and for
the Protection of the World Cultural and Natural Heritage (1972) (cf. infra).
55 E.g., preambles of the 1971 Treaty on the Prohibition of the Emplacement of Nu-
clear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the
Ocean Floor and in the Subsoil Thereof; the 1972 Convention on the Prohibition
of the Development, Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction; the 1977 Convention on the Prohibition
of Military or Any Other Hostile Use of Environmental Modification Techniques;
the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter; the 1974 Convention for the Prevention of Marine Pollution from
Land-Based Sources; the 1972 Convention for the Prevention of Marine Pollution by
Dumping from Ships and Aircraft; the 1972 UNESCO Convention for the Protec-
tion of the World Cultural and Natural Heritage.
56 E.g., the 1985 Vienna Convention for the Protection of the Ozone Layer, preamble
and Article 2; the 1987 Montreal Protocol on Substances that Deplete the Ozone
Layer, preamble; Article 1 of the three aforementioned marine pollution Conven-
tions.
340 Chapter XIII
law of the sea57 (supra), calls for a reconsideration of the basic postulates of Inter-
national Law bearing in mind the superior common interests of humankind.
Despite semantic variations in international instruments on environmental
protection when referring to mankind, a common denominator underlying them
all appears to be the common interests of humankind. There seems to be occur-
ring lately, in the present domain of international environmental law, an evolu-
tion from the notion of common heritage of mankind (as emerged in the contexts
of the law of the sea and space law) to that of common concern of mankind. The
U.N. General Assembly resolution 43/53, of 1988, introduced the recognition that
climate change was a “common concern” of mankind, since (in the wording of its
first operative paragraph) climate was “an essential condition which sustains life
on earth”.
Such essential or fundamental condition is inextricably linked to the new
idea of “commonness”. The newly-proposed notion is inspired in considerations
of international ordre public. It appears as a derivative of the earlier “common
heritage” approach, meant to shift emphasis from the sharing of benefits from
exploitation of environmental wealths to fair or equitable sharing of burdens in
environmental protection, and the needed concerted actions to that effect with
a social and a temporal dimensions. It could hardly be doubted, as UNEP itself
has acknowledged, that environmental protection is “decisively linked” to the
“human rights issue”.58
References to the common heritage of mankind are likewise found in oth-
er instruments of the present domain of international law. Thus, e.g., the 1966
UNESCO Declaration on Principles of International Cultural Cooperation pro-
claims that “all cultures form part of the common heritage of mankind” (Article
1(3)). The constitutive charter of UNESCO itself advances the notion of universal
heritage (formed by books, works of art, and other monuments of historical or
scientific interest – Article 1(2)(c)). In its turn, the 1954 Hague Convention for
the Protection of Cultural Property in the Event of Armed Conflict warns in its
preamble that “damage to cultural property belonging to any people whatsoever
means damage to the cultural heritage of all mankind, since each people makes
its contribution to the culture of the world”.59
And the 1972 UNESCO Convention for the Protection of the World Cultural
and Natural Heritage states in its preamble that “parts of the cultural or natural
heritage are of outstanding interest and therefore need to be preserved as part
of the world heritage of mankind as a whole”;60 the Convention sets forth the re-
sponsibility and duty of the “international community as a whole” in the present
57 Cf. N.J. Schrijver, “Permanent Sovereignty over Natural Resources versus the Com-
mon Heritage of Mankind: Complementary or Contradictory Principles of Interna-
tional Economic Law?”, in International Law and Development (eds. P. De Waart, P.
Peters and E. Denters), Dordrecht, Nijhoff/Kluwer, 1988, pp. 95-96, 98 and 101.
58 UNEP, doc. UNEP/ELIU/WG.1/1/2, pp. 1-2, par. 4, and cf. pp. 4-5, pars. 8-9.
59 2nd considerandum.
60 Preamble, 6th considerandum.
domain.61 Most parts of the cultural or natural heritage are, however, under the
jurisdictions of the States; as exclusion of their sovereignty does not occur in this
specific area, international cooperation grows here in importance, so that the
cultural and natural heritage can be preserved and transmitted to future genera-
tions. On 02 November 2001, the General Conference of UNESCO adopted the
Universal Declaration on Cultural Diversity, expressing the aspiration to “greater
solidarity on the basis of recognition of cultural diversity, of awareness of the
unity of humankind”.62 The UNESCO Declaration erects cultural diversity, – or
“plurality of the identities of the groups and societies making up humankind”,
– as “common heritage of humanity”.63
The universal concern with the needed preservation of the world cultural
heritage became manifest in the case of the destruction of the Buddhas of Bami-
yan in March 2001. Even before the confirmation of the demolition of the Bud-
dhas, the U.N. General Assembly adopted resolution 55/243 (of 09.03.2001)64
warning as to “the need to respect the common heritage of humankind”.65 After
the demolition of the Buddhas, the General Assembly of the States Parties to the
1972 UNESCO Convention for the Protection of the World Cultural and Natural
Heritage, likewise, adopted another resolution, on 31.10.2001, condemning the
“wilful destruction of the cultural heritage of Afghanistan by the Taliban forces”
as a crime “against the common heritage of humanity”. These manifestations
acknowledged the “universal interest” in the preservation of the world cultural
heritage in the light of the 1972 UNESCO Convention, generating obligations
erga omnes partes of protection.66
Later on, the General Conference of UNESCO adopted, on 17.10.2003, the
Declaration concerning the Intentional Destruction of Cultural Heritage, in
which it characterized such “intentional destruction” as
61 Preamble, 7th considerandum, and Article 6(1).

62 Preamble, 8th considerandum. The 2001 Declaration stated that “culture should be
regarded as the set of distinctive spiritual, material, intellectual and emotional fea-
tures of a society or a social group”, and that “it encompasses, in addition to art and
literature, lifestyles, ways of living together, value systems, traditions and beliefs”;
preamble, 5th considerandum.
63 Article 1. – It determined that “the defence of cultural diversity is an ethical impera-
tive, inseparable from respect for human dignity” (Article 4). Moreover, it supported
the “pre-eminence of public policy”, as “market forces alone cannot guarantee the
preservation and promotion of cultural diversity” (Article 11).
64 In which it stated it was “deeply concerned and appalled by the Taliban edict of
26.02.2001, ordering the destruction of all statues and non-Islamic shrines of Af-
ghanistan”, a destruction which would be “an irreparable loss for humanity as a
whole”; preamble, 4th and 6th consideranda.
65 Preamble, 2nd considerandum.
66 R. O’Keefe, “World Cultural Heritage: Obligations to the International Community
as a Whole?”, 53 International and Comparative Law Quarterly (2004) pp. 190 and
196-197, and cf. pp. 208-209.
342 Chapter XIII
“a violation of International Law or an unjustifiable offence to the principles of hu-

manity and dictates of public conscience, in the latter case in so far as such acts are
not already governed by fundamental principles of International Law”.67
The 2003 UNESCO Declaration further expressed “serious concern about the
growing number of acts of intentional destruction of cultural heritage”, and re-
called “the tragic destruction of the Buddhas of Bamiyan that affected the inter-
national community as a whole”.68
On its part, the UNESCO Convention for the Safeguarding of the Intangible
Cultural Heritage, also adopted in 2003, sought the protection of the intangible
cultural heritage,69 – and conceptualized this latter as “the practices, representa-
tions, expressions, knowledge, skills (...) that communities, groups and, in some
cases, individuals recognize as part of their cultural heritage”.70 Subsequently, the
Executive Board of UNESCO approved (at its 167th session) the establishment of
the International Coordination Committee for the Safeguarding of the Cultural
Heritage of Iraq, which held its first plenary session at UNESCO headquarters in
Paris on 24-25 May 2004. Its final report began by recalling “the tragic conditions
of the Iraqi cultural heritage since beginning of the embargo and especially since
April 2003”, and stressed the need to safeguard that heritage for the “sake of the
whole humanity”.71
The report next warned that the long history of Iraq’s intangible heritage72
was being “threatened by destruction and looting because of the recent war and
more than ten years of embargo, and will be lost if no prompt action is taken to
safeguard it”.73 The aforementioned report concluded by stressing the “impor-
tant role of intangible heritage” not only in “rebuilding societies” but also “as a
main source of cultural diversity, and as a cornerstone in the identity of groups,
communities and individuals”.74 The General Conference of UNESCO had, ac-
cordingly, – it recalled, – adopted the aforementioned 2003 Convention for the
67 Operative part, section II, paragraph 2.

68 Preamble, 1st and 2nd consideranda. – The Declaration further called upon States
to “take all appropriate measures to prevent, avoid, stop and suppress acts of inten-
tional destruction of cultural heritage, wherever such heritage is located”; operative
part, section III, paragraph 1.
69 Invoking to this effect the international instruments of human rights.
70 Preamble and Article 2(1).
71 UNESCO/International Coordination Committee for the Safeguarding of the Cul-
tural Heritage of Iraq, Final Report (1st. plenary session, Paris, 24-25 May 2004), p.
2, and cf. pp. 3-7 and 10-11.
72 Namely, “five civilizations, five religions in five thousand years of human experi-
ences, (...) history, poetry, arts, literature, (...) and intangible culture”; UNESCO, op.
cit. supra n. (71), p. 2.
73 Ibid., pp. 12-13.
74 Ibid., p. 13.
Safeguarding of the Intangible Cultural Heritage. The report finally formulated

recommendations and identified responsibilities.75
Shortly afterwards, the Committee held the I Cultural Forum for Iraq on
26-27 May 2004, wherein it was further recalled that all wars cause devasta-
tion that destroy the soul and desfigure the memory of the cultural identity of
a people; in the case of the armed attack on Iraq (2003) and the chaos following
it, eight thousand years of human history were now hanging in the balance. The
Forum’s final document, adopted by UNESCO in the form of an “Appeal” on
27.05.2004, expressed the determination to preserve the (tangible and intangible)
cultural heritage of Iraq.76 On its part, the U.N. Security Council, in resolution
1546(2004), of 08.06.2004, inter alia stressed the need for all parties “to respect
and protect Iraq’s archaeological, historical, cultural, and religious heritage”.77
The recent 2005 UNESCO Convention on the Protection and Promotion of
the Diversity of Cultural Expressions, adopted (on 20.10.2005) after prolonged
debates,78 reiterated the conception of cultural diversity as common heritage of
mankind, pondering that “culture takes diverse forms across time and space” and
this diversity is incorporated “in the uniqueness and plurality of the identities
and cultural expressions of the peoples and societies making up humanity”.79 The
Convention added that cultural diversity can only be protected and promoted by
means of the safeguard of human rights.80
The projection of the notion of common heritage of mankind to cultural
and natural heritage acknowledges the configuration of the general interest of
humankind in its protection and conservation. These latter grow in importance,
given the fact that most parts of the corresponding heritage remain under the
respective State jurisdictions (with no exclusion of sovereignty), there being thus
an even greater need to secure that they are preserved and duly transmitted,
as common heritage, to the future generations.81 Furthermore, the universal ju-
75 Cf. ibid., pp. 14-17.

76 Cf. operative paragraph 1, and sections B and C; and cf. UNESCOPRESS, Press Re-
lease n. 2004/47, of 29.05.2004, p. 1. – In the same line of concern, and with regard to
the recent invasion and occupation of Iraq, the U.N. Secretary General (K. Annan),
while deploring, in April 2003, “the catastrophic losses to Iraq’s cultural heritage”
that had just occurred, expressed the determination to join forces with UNESCO
in preventing trade in “stolen Iraqi objects”, and further noted that “Iraq’s cultural
treasures bear witness to an invaluable legacy for all humanity, and their loss is a
wound inflicted on all humankind”; U.N./SG, Press Release of 15.04.2003, p. 1.
78 Cf., e.g., UNESCO/General Conference, document 33-C/23, del 04.08.2005, pp. 1-16,
and Annexes; and cf. G. Gagné (ed.), La diversité culturelle: vers une Convention
internationale effective?, Montréal/Québec, Éd. Fides, 2005, pp. 7-164.
79 Preamble, consideranda 1, 2 and 7 of the Convention of 2005.
80 Article 2(1) of the Convention of 2005.
81 A. Blanc Altemir, El Patrimonio Común de la Humanidad – Hacia un Régimen Jurídi-
co Internacional para Su Gestión, Barcelona, Bosch, 1992, pp. 167-172 and 246-247.
344 Chapter XIII
ridical conscence has evolved towards the clear recognition of the relevance of
cultural diversity to the universality of human rights, and vice-versa, as well as
towards the humanization of International Law, and the configuration of a new
jus gentium at this beginning of the XXIst century, of an International Law for
humankind. And the aforementioned triad of the UNESCO Conventions of 1972,
2003 and 2005 affords, in my perception, one of the many contemporary mani-
festations of the awakening of human conscience to this effect.
III. The Content and Significance of the Concept of Common Concern of

Mankind
1. The Emergence of the New Concept

The two concepts of common heritage and of common concern of mankind tran-
scend the level of strictly inter-State relations, focusing on the needs and aspira-
tions of humankind as a whole, encompassing present and future generations.
Conflicting interpretations and controversies surrounding the earlier concept
of common heritage of mankind (in such distinct domains as the Law of the
Sea and Space Law) have led to the subsequent adoption of a derivative concept,
that of common concern of mankind (in, e.g., International Environmental Law).
The emphasis of this latter falls upon concerted actions in equitable sharing of
burdens (in environmental protection), rather than on the pursuance of benefits
from exploitation of natural resources.82
At a time when the outcome of the 1992 U.N. Conference on Environment
and Development (UNCED, Rio de Janeiro) could not yet be predicted, a Group
of Legal Experts was convened by the United Nations Environmental Program
(UNEP), in Malta, on 13-15 December 1990, in order to lay down the normative
basis for the ongoing negotiating process preparatory to the 1992 U.N. World
Conference. The report of the Group,83 stressing the need to relate preventive to
corrective measures, pondered that corrective measures were being approached
from an intra-generational perspective, while preventive measures were so from
an inter-generational perspective. In addition, there was special emphasis on the
need, in the present domain, to balance the rights of States with the interests of
the international community, an issue which brought to the fore the equitable
sharing of burdens (costs and benefits) in environmental protection.84
82 Cf. UNEP, The Meeting of the Group of Legal Experts to Examine the Concept of the
Common Concern of Mankind in Relation to Global Environmental Issues (ed. D.J.
Attard – Malta, 13-15 December 1990), Nairobi/Kenya, UNEP, 1991, pp. 19-47.
83 Co-rapporteurs, A.A. Cançado Trindade and D.J. Attard.
84 Cf. “Report on the Proceedings of the Meeting, Prepared by Co-Rapporteurs A.A.
Cançado Trindade and D.J. Attard”, in The Meeting of the Group of Legal Experts to
Examine the Concept of the Common Concern of Mankind..., op. cit supra n. (82), pp.
21-23, and cf. pp. 19-26.
The aforementioned UNEP Malta Meeting of 1990, in focussing the debates

on the origin, contents, rationale and implications of the concept of common
concern of mankind, recalled that
“in the past the notion of international concern had been resorted to in the prac-
tice of U.N. organs in dealing with cases pertaining to the protection of human
rights and self-determination of peoples, thus operating a reduction of the domain
of domestic jurisdiction of States. (...) The present concept of common concern of
mankind, which found expression in U.N. General Assembly Resolution 43/53 of
December 1988, wherein climate change was so characterized, went much further,
disclosing a pronounced temporal and social dimension (...), and focusing on issues
which were truly fundamental to all mankind”.85
Being devoid of proprietary connotations, and of controversies on exploitation

of resources, the more recent concept of common concern of mankind appeared
more suitable to address global environmental issues, with due emphasis on the
element of protection. The constitutive elements of common concern were, be-
sides the sharing of burdens of environmental protection (supra), the engage-
ment of all countries and all societies and of all peoples within countries and so-
cieties, and the long-term temporal dimension, encompassing present as well as
future generations. Lastly, the 1990 Malta Meeting acknowledged the relevance
of the human rights framework also for environmental protection, with empha-
sis on social dimension and participation, once again transcending the strict and
purely inter-State dimension.86
The UNEP Group of Experts reconvened shortly later, in Geneva, on 20-22
March 1991. By then a “growing interest of States” in the concept of common
concern of mankind particularly “within the context of negotiations on legal in-
struments on climate change and conservation and sustainable use of biological
diversity” could be identified. It was, however, stressed on the occasion that “the
common concern concept was not meant to substitute the concept of common
heritage”.87 It was agreed on the occasion that
“more attention by the international community would be required with respect to

environmental protection of global commons. The provision of a life of dignity to
all in a clean, safe and healthy environment should be a matter of common concern
of mankind”.88
85 Ibid., p. 20.
86 Ibid., pp. 24-25.
87 Cf. “Report of the II Meeting of the UNEP Group of Legal Experts to Examine the
Implications of the ‘Common Concern of Mankind Concept’ in Relation to Global
Environmental Issues (Geneva, 20-22 March 1991)”, reproduced in A.A. Cançado
Trindade, Direitos Humanos e Meio Ambiente: Paralelo dos Sistemas de Proteção
Internacional, Porto Alegre/Brazil, S.A. Fabris Ed., 1993, pp. 282-283.
88 Ibid., p. 284.
346 Chapter XIII
The last meeting of the UNEP Group of Experts, before the holding of UNCED in
Rio de Janeiro in 1992, took place in Beijing, on 12-14 August 1991. The summary
report of the Group89 indicated that
“the recently emerged concept of common concern of mankind was sufficiently flex-
ible to warrant its general acceptance as providing a broad basis for the considera-
tion of global environmental issues. (...) The concept of common concern of man-
kind should relate both to environment and to development”.90
At last, the U.N. Framework Convention on Climate Change and the Convention
on Biological Diversity, adopted by UNCED in Rio de Janeiro in 1992, lent express
support, in their respective preambles, to the new concept of common concern
of mankind. The former set forth, among its principles, that the parties should
protect the climate systems for “the benefit of present and future generations of
humankind”, on “the basis of equity” and in accordance with their “common but
differentiated responsibilities and respective capabilities” (Article 3(1)).
2. The Contribution of the New Concept

While the concept of common concern of mankind has lately been utilized in
the particular domain of international environmental law, the concept of com-
mon heritage of mankind has been invoked, for a longer time, bearing in mind
distinct objects (as perspicatiously pointed out by K. Baslar and J.M. Pureza),
namely: resources in areas beyond national jurisdiction (sharing of benefits), or
preservation of the global environment (sharing of burdens or responsibilities),
or natural resources and cultural heritages situated within the jurisdiction of
States (functional concept of trusteeship of resources).91 As it is hard to have a
89 Co-rapporteurs, A.A. Cançado Trindade and A. Malhotra.

90 UNEP, Beijing Symposium on Developing Countries and International Environmen-
tal Law (Beijing/China, 12-14 August 1991), Nairobi, UNEP, 1992, p. 4. On this last
point, the report added that “the environmental problems of developing countries
were often a reflection of the inadequacy of development”; it accordingly propound-
ed an “equitable sharing of burdens”, with the “main responsibility for cleaning up
the environment” being incumbent upon those countries primarily responsible for
the “current emission of pollutants into the environment”, namely, the developed
countries. Lastly, the Beijing report acknowledged the “linkages between the do-
main of environmental protection and that of human rights”; ibid., pp. 4 and 6-8. On
such linkages, cf. A.Ch. Kiss and A.A. Cançado Trindade, “Two Major Challenges of
Our Time: Human Rights and the Environment”, in Human Rights, Sustainable De-
velopment and Environment (Brasilia Seminar of 1992, ed. A.A. Cançado Trindade),
2nd. ed., Brasilia/San José of Costa Rica, IIDH/BID, 1995, pp. 289-290.
91 K. Baslar, The Concept of the Common Heritage of Mankind..., op. cit. supra n. (41),
pp. 277-279, and cf. pp. 107-108; the author further points out that the concept of
common heritage of mankind and the principle of permanent sovereignty over nat-
ural resources are not contradictory, but rather complementary to each other, as the
uniform theoretical framework applicable to all such situations, resort has been
made to the term “concern” instead of “heritage” in the ambit of International
Environmental Law; yet, both concepts share the same notion of commonness
and they both invoke mankind, pursuant to the same universalist outlook.
The more recent concept of “common concern of mankind” has deliberately
avoided proprietary connotations, already referred to, and has proved particularly
suitable to address global environmental issues (e.g., depletion of the ozone layer
and global climate changes). The term common (notion of commonness), in both
concepts, has brought to the fore the notion of obligations erga omnes, engaging
all countries and societies, and all peoples within them; the term concern has
suggested a primary focus on the causes of problems and conflicts, the preventive
character of regimes of protection and the general obligation of due diligence;
and the term mankind, again in both concepts, has disclosed the long-term tem-
poral dimension (encompassing present as well as future generations).92
In fact, the interests of future generations, and the responsibilities towards
these latter, nowadays not only attract increasing attention on the part of expert
writing,93 but also recognizedly underlie some international conventions, such
as, e.g., the 1992 U.N. Framework Convention on Climate Change, the 1997 Kyoto
Protocol to the U.N. Framework Convention on Climate Change, the 1985 Vienna
Convention for the Protection of the Ozone Layer, the 1987 Montreal Protocol on
Substances that Deplete the Ozone Layer.94 In addition, the General Conference
of UNESCO adopted, on 12 November 1997, the Declaration on the Responsibili-
ties of the Present Generations Towards Future Generations, so as “to ensure that
the present generations are fully aware of their responsibilities towards future
generations”, on the basis of a spirit of intra-generational and inter-generational
“solidarity for the perpetuation of humankind”.95 The 1997 Declaration added,
inter alia, that “the present generations should strive to ensure the maintenance
and perpetuation of humankind with due respect for the dignity of the human
person” (Article 3).
former starts where the latter ends (ibid., pp. 135 and 138). And cf. also J.M. Pureza,
O Património Comum da Humanidade..., op. cit. supra n. (30), pp. 286-288, and cf.
pp. 258-263.
92 UNEP, The Meeting of the Group of Legal Experts to Examine the Concept of the
Common Concern of Mankind..., op. cit. supra n. (82), pp. 20-22.
93 Cf. E. Brown Weiss, In Fairness to Future Generations..., op. cit. supra n. (3), pp. 1-
291; E. Agius and S. Busuttil et alii (eds.), Future Generations and International Law,
London, Earthscan Publ., 1998, pp. 3-197.
94 Already in 1959, the U.N. Declaration on the Rights of the Child, e.g., stated in its
preamble (5th considerandum) that “mankind owes to the child the best it has to
give”.
95 Preamble, 5th, 6th, 9th, 10th and 11th consideranda; and Article 1; cf. also Articles 2,
7 and 8. The Declaration acknowledged the current threats to “the very existence of
humankind and its environment”; preamble, 4th considerandum.
348 Chapter XIII
3. The Co-existence between Common Heritage and Common Concern of

Mankind, and Their Legacy to International Law
The concept of common concern of mankind, however, has by no means super-
seded that of common heritage of mankind. The two seem to coexist in contem-
porary International Law. Both are invoked in international treaties and practice.
The concept of common concern of mankind, as I well recall from the debates
of the UNEP Group of Experts (in Malta, 1990; Geneva, 1991; and Beijing, 1991)
on the matter, purported to rid itself of the controversies around the element of
exploitation of resources (e.g., of the seabed and ocean floors beyond national
jurisdiction), associated with, and often surrounding, the earlier expression of
“common heritage of mankind”. It was never meant to replace this latter.
In fact, as both concepts – those of common heritage and of common con-
cern of mankind – emerged and entered into the lexicon of contemporary Pub-
lic International Law, they have contributed decisively, each one in its own way,
to conceiving and propounding humankind as titulaire of rights,96 a conception
which has undergone a significant evolution in recent years. Common heritage
and common concern of mankind, despite their differences of approach, are akin
concepts, which nowadays co-exist. This is, in a way, to be expected, since, as
already pointed out, it would be unlikely that one sole concept could be uni-
formly applied always, in any context whatsoever, even when one or more of its
constitutive principles or elements would be missing. The concept of common
concern of mankind has given its contribution to the survival of the basic ratio-
nale underlying the earlier concept of common heritage of mankind, when this
latter appeared weakened or undermined by the storm of so-called “free-market”
voluntarism in the mid-nineties.
Furthermore, even if the concept of common concern of mankind might
appear somewhat abstract when compared with that of common heritage of
mankind, there is nothing that epistemologically would impede the former to
be endowed, like the latter, with the acknowledgement of concrete legal obliga-
tions, and institutions or mechanisms to instrumentalize compliance with such
obligations. This would bring common concern closer to common heritage of
mankind. In my view, there is here no antagonism between the two concepts,
which can in fact reinforce each other. After all, they share a common quest for
the prevalence of superior common values shared by the international commu-
nity as a whole, over the interests of an individual State or a small group of States,
the technologically more advanced ones. Both concepts have been constructed
to respond to the needs and aspirations of humankind.
In the co-existence between common heritage and common concern of
mankind, there is another aspect of significance at conceptual level, which could
not pass unnoticed here. Both concepts have flourished in the same line of in-
ternational legal thinking, with natural law roots. In their respective substantial
doctoral theses on the common heritage of mankind, José Manuel Pureza and
96 Cf. chapter XI, infra.

Kemal Baslar converge in rightly situating the matter in the realm of natural
law, as an emanation of the universal juridical conscience, moving it away from
legal positivism and protecting the State against its own weaknesses and short-
sightedness.97 The natural law origin of the both concepts of common heritage
of mankind and common concern of mankind bears witness of the overcoming
of the classic inter-State dimension of International Law and heralds the advent
of a universalist outlook of International Law. Such universalist approach is one
which legal positivism has appeared incapable to conceive or promote, as its out-
look is ineluctably fragmented into sovereign units.
The conceptions of common heritage and of common concern of mankind
embody universal solidarity and social responsibility (rather than competitive-
ness), emanate from human conscience (rather than from the free “will” of States),
reflect basic values of the international community as a whole (rather than State
interests), and strengthen the notion of an international ordre public (rather than
a fragmented contractual vision). They do so in order to face the new global chal-
lenges to the international community as a whole, and indeed to all humankind,
and to provide adequate and satisfactory responses to them, which the systems
of positive law by themselves simply cannot do.
Furthermore, they disclose the shortsightedness of legal positivism, liberal
mercantilism and political “realism”. They rescue the thinking of the founding
fathers of International Law,98 and, under the influence of the impact of the In-
ternational Law of Human Rights,99 bear witness of the revival of natural law (ap-
prehended by sound human reason) and of the ideal of civitas maxima gentium.
They further bear witness of the reassuring evolution of International Law from a
State-centric international legal system into a true International Law for human-
kind, as the new jus gentium of our times.
There will of course always be those who, out of their professed “realism”,
will argue that, as such concepts of common heritage and of common concern of
mankind have not yet reached their plenitude, they are utopian, and will never
serve their purpose. Those skeptics are, however, oblivious of the fact that those
concepts, against “realist” projections of a few years ago, have become part of
contemporary conventional international law. Those skeptics are equally oblivi-
ous of the strength of ideas, so brilliantly portrayed by Stefan Zweig. In his biog-
raphy of Erasmus of Rotterdam (1467-1536), S. Zweig, one of the more lucid writ-
ers of the XXth century, singled out, in the precious legacy of the great humanist,
97 Cf. J.M. Pureza, O Património Comum da Humanidade..., op. cit. supra n. (30), pp.
95-98, 101-102, 117-118 and 286-288; K. Baslar, The Concept of the Common Heritage
of Mankind..., op. cit. supra n. (41), pp. 8-11, 20-23, 26, 71, 354, 357, 367-368 and 379-
380.
99 Cf. A.A. Cançado Trindade, “The Contribution of International Human Rights
Law to Environmental Protection, with Special Reference to Global Environmental
Change”, in Environmental Change and International Law: New Challenges and Di-
mensions (ed. E. Brown Weiss), Tokyo, U.N.U. Press, 1992, pp. 244-312.
350 Chapter XIII
the tolerance, – and I would here add distributive justice, – and the end, without
violence, to the conflicts which divide human beings and peoples. Although the
ideal of Erasmus has not been accomplished until now, it is not thereby devoid of
value. In the penetrating words of S. Zweig,
“An idea which does not come to be materialized is, for that reason, invincible, since
it is no longer possible to prove its falseness; (...) only the ideals which have not
become worn-out and committed by the realization continue acting in each genera-
tion as an element of moral impulse. Only the ideas which have not been complied
with return eternally. (...) What Erasmus (...) left to us as legacy (...) was not anything
else but the (...) very old wish of all the religions and myths of a future and continued
humanization of humanity and of a triumph of reason (...), that renews faithfully, in
the heart of humankind, the idea of a future age of a higher human feeling”.100
IV. Concluding Observations

It is not at all surprising that, even in a classic domain of International Law such
as that of regulation of spaces, humankind has also emerged as a subject of In-
ternational Law,101 initially through the acknowledgement, in the domains of the
law of outer space and of the law of the sea, of the concept of common heritage
of mankind (cf. supra). Announced by successive U.N. General Assembly resolu-
tions102 (the most significant one having been General Assembly resolution 2749
(XXV) of 17.12.1970103), the concept entered into conventional international law
by consensus, enshrined as it was in such treaties as the 1979 Treaty on Outer
Space Including the Moon and Other Celestial Bodies and the 1982 Law of the
Sea Convention.
The basic principles are always present, informing and conforming the in-
ternational instruments at issue, and orienting their interpretation and applica-
tion: be it the International Seabed Area (principles of non-appropriation, shar-
ing of benefits of deep seabed mining, peaceful uses, international management
through the Authority, and protection of the seas for future generations), be it
the outer space and celestial bodies (principles of non-appropriation, peaceful
uses, freedom of access and of scientific research), what is here envisaged are
not the interests of individual States, but rather the general concern to secure
the benefits for all humankind, in a spirit of conservation of resources and their
100 S. Zweig, Triunfo y Tragedia de Erasmo de Rotterdam, 5th. ed., Barcelona, Ed. Juven-
tud, 1986, pp. 205-207; S. Zweig, Érasme – Grandeur et décadence d’une idée, Paris,
Grasset, 2002 (reed.), pp. 183-185.
101 Cf. chapter XI, supra.
102 Cf. C.-A. Colliard, “Espace extra-atmosphérique et grands fonds marins”, in Hu-
manité et Droit international – Mélanges R.-J. Dupuy, Paris, Pédone, 1991, p. 104.
103 Containing the Declaration of Principles Governing the Seabed and the Ocean
Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, approved
by 108 votes to zero, with 14 abstentions.
transmission, in no worse condition, to future generations. A deeper awareness

of the temporal dimension of International Law is here manifest.
The rationale of the concept of common heritage of mankind is clear, in-
spired in human solidarity, and oriented by the principles of non-appropriation,
peaceful uses and purposes and rational utilization, and equitable sharing of
benefits by all. This last principle, that of the equitable sharing of benefits, is the
one which, in practice, was to become the bone of contention in controversies
between developing and developed countries as to the proper implementation of
the concept of common concern of mankind. Thus, despite its conceptual clarity,
the concept of common heritage of mankind, as set forth in the 1982 U.N. Con-
vention on the Law of the Sea,104 suffered a setback with the renegotiation – un-
der pressure of the United States – of Part XI of the Convention of Montego Bay,
modified by the Agreement of 1994, which favoured the technologically more
advanced States in the exploitation of resources of the seabed and ocean floor be-
yond the limits of national jurisdiction.105 But the concept at issue has survived.
Yet, it is not surprising that one of the terms of the concept of common heri-
tage of mankind – that of “heritage” – has, in the ambit of international environ-
mental law, been replaced by another term, leading to the distinct formulation of
common concern of mankind. The intention was to make this latter devoid of the
connotation of exploitation and sharing of resources or benefits.106 Six constitu-
tive elements of the concept of common concern of mankind have been identi-
fied, namely: first, the concentration of the concept – devoid of proprietary con-
notations – in truly fundamental questions for all humankind, pursuant to the
notion of commonness; second, the necessary engagement, in the treatment of
such questions of common interest, of all countries, all societies and all the social
segments within the countries and the societies; third, – as already pointed out
(cf. supra), – the long-term temporal dimension (underlying the term humanity),
to encompass both the present and the future generations; fourth, the emphasis
on the element of protection, on the basis of considerations of humanity and of
ordre public, transcending reciprocity; fifth, the attention primarily to the causes
of the problems (both for their prevention and for the responses to be given); and
sixth, the equitable sharing of responsibilities as an instrumental principle in the
application of the concept of common concern of mankind.
It should not pass unnoticed, – and it should perhaps be stressed, – that,
in this conceptual construction, what was kept in mind was not the sharing of
resources or benefits, but rather of responsibilities. Despite its formulation, in
such a way as to overcome the controversies around the element of exploitation
of resources which had surrounded the parallel concept of common heritage of
104 Part XI, especially Articles 136-145 and 311(6).

105 J.A. Pastor Ridruejo, “Le Droit international à la veille du vingt et unième siècle...”,
op. cit. supra n. (29), pp. 264-265.
106 Framework Convention on Climate Change (of 1992), preamble and Article 3(1);
Convention on Biological Diversity (of 1992), preamble; and cf. Protocol (of 1991) on
Environmental Protection to the Antarctica Treaty, preamble.
352 Chapter XIII
mankind, there has persisted a varying terminology in international legal in-

struments. As to its object, the concept of common heritage of mankind has ap-
peared as a particularly rich and multifaceted one. It was initially applied as to
material resources (so as to avoid State or group appropriations and save them for
mankind), then also to cultures,107 and more recently expanded in also applying
in bioethics to the human genome.108 In retrospect, the oscillations of the con-
cept of common heritage of mankind seem to suggest that the concept at issue
has perhaps been misunderstood. It was assumed that it referred to the sharing,
or partition, of benefits or resources (cf. supra), when it would have been more
adequate to have linked it clearly and expressly to the conservation, or transmis-
sion, of the “common heritage” from one generation to another.
Perhaps it would have been more fruitful if the concept of common concern
had preceded that of common heritage, taking the latter as a materialization of
the former.109 As precisely the opposite occurred, the concept of “common con-
cern” has at least succeeded, in a way, in “saving” that of “common heritage” of the
misunderstandings that were to surround it. The concept of common concern of
mankind came to stress universally shared values. This conceptual development
– which certainly requires further elaboration – serves as a warning to the ob-
stacles to be overcome in the construction, in a larger dimension (not only spatial
but also temporal) and pursuant to the same universalist outlook, of the new
International Law for humankind, at this beginning of the XXIst century.
107 As from the 1966 UNESCO Declaration of Principles of International Cultural Co-
operation.
108 Cf. H. Gros Espiell, “The Common Heritage of Humanity and the Human Genome”,
3 Law and the Human Genome Review (1995) pp. 89-101, esp. pp. 97-100; M. Bedjaoui,
“Le génome humain comme patrimoine commun de l’humanité, ou la génétique de
la peur à l’espérance”, in Federico Mayor Amicorum Liber, vol. II, Bruxelles, Bruy-
lant, 1995, pp. 913-915, and cf. pp. 905-912.
109 Cf. A.Ch. Kiss, “The Common Heritage of Mankind: Utopia or Reality?”, 40 Interna-
tional Journal (1985) p. 440.
Chapter XIV Conceptual Constructions:
The Right to Peace and the Right
to Development
I. The Formulation of the Right to Peace in International Law

The search for peace, and the construction of the right to peace, have historical
roots that become notorious with the projects of perpetual peace of the XVIIIth
century, such as those of Saint-Pierre (1712) and of I. Kant (1795). Yet, such projects
proved incapable to date to accomplish their common ideal, precisely for laying
too heavy an emphasis, in their endeavours to restrict and abolish wars, specifi-
cally on inter-State relations, overlooking the bases for peace within each State1
and the role of non-State entities. It may appear somewhat surprising that the
search for peace has not yet sufficiently related domestic and international lev-
els, this latter going beyond a strictly inter-State dimension. Recent attempts to
elaborate on the right to peace have, however, displayed a growing awareness that
its realization is ineluctably linked to the achievement of social justice within and
between nations.2
1. Elements of the Right to Peace in International Law

The conceptual construction of the right to peace in International Law has ante-
cedents in successive initiatives taken, in distinct contexts at international level,
along the XXth century.3 Elements provided by Public International Law of rel-
evance for the acknowledgement of the right to peace can be found in the 1928
1 The project of Kant (cf. I. Kant, Sobre la Paz Perpetua [1795], 4th. ed., Madrid, Tec-
nos, 1994, pp. 3-69) at least sought to establish a link between inter-State and the
internal constitution of each State. On the insufficiencies of the classic endeavours
to abolish wars sic et simpliciter, cf. G. del Vecchio, El Derecho Internacional y el
Problema de la Paz (Spanish edition of the original Il Diritto Internazionale e il
Problema della Pace), Barcelona, Bosch, 1959, pp. 51-52, 62-64, 67 and 121-123.
2 Cf. ibid., pp. 52, 63-64 and 151; A.A. Cançado Trindade, O Direito Internacional em
um Mundo em Transformação, Rio de Janeiro, Ed. Renovar, 2002, p. 1062.
3 Cf., generally, D. Uribe Vargas, El Derecho a la Paz, Bogotá, Universidad Nacional
de Colombia, 1996, pp. 1-250; D. Uribe Vargas, “El Derecho a la Paz”, in Derecho In-
ternacional y Derechos Humanos/Droit international et droits de l’homme (eds. D.
354 Chapter XIV
General Treaty for the Renunciation of War (the so-called Briand-Kellog Pact);4
in Articles 1 and 2(4) of the United Nations Charter,5 complemented by the 1970
U.N. Declaration on Principles of International Law Concerning Friendly Rela-
tions and Cooperation among States,6 the 1970 Declaration on the Strengthening
of International Security,7 and the 1974 Definition of Aggression;8 in the Code
of Offences against the Peace and Security of Mankind, drafted by the U.N. In-
ternational Law Commission; and in resolutions of the U.N. General Assembly
pertaining to the right to peace,9 relating it to disarmament.
The 1974 Charter on Economic Rights and Duties of States in fact acknowl-
edged the States’ duty to coexist in peace and to achieve disarmament.10 Other
international instruments have done the same.11 It has been argued that the right
to peace entails as a corollary the right to disarmament; attention has in this
respect been drawn to the fact that limitations to, or violations of, the rights of
the human person have often been associated with the outbreak of conflicts, the
process of militarization and the expenditure of arms (especially nuclear weap-
ons and other weapons of mass destruction),12 which have often led to arbitrary
deprivation of human life in large scale. International Law, moved ultimately by
Bardonnet and A.A. Cançado Trindade), The Hague/San José of Costa Rica, IIDH/
Hague Academy of International Law (1995 External Session), 1996, pp. 177-195.
4 Endeavouring to overcome the dangerous system of the equilibrium of forces by
condemning war as an means of settlement of disputes and an instrument of foreign
policy, and heralding the new system of collective security and the emergence of the
right to peace; J. Zourek, L’interdiction de l’emploi de la force en Droit international,
Leiden/Genève, Sijthoff/Inst. H.-Dunant, 1974, pp. 39-48.
5 The relevant U.N. provisions. together with the 1928 General Treaty for the Renun-
ciation of War, became major sources – the legal nature of which was unchallenged
by States – of limitations of resort to force by States; I. Brownlie, International Law
and the Use of Force by States, Oxford, Clarendon Press, 1963 (reprint 1981), pp. 83
and 91.
6 U.N. General Assembly resolution 2625 (XXV), of 24.10.1970.
7 U.N. General Assembly resolution 2374 (XXV), of 16.12.1970.
8 U.N. General Assembly resolution 3314 (XXIX), of 14.12.1974.
9 U.N. General Assembly resolution 33/73, “Declaration on the Preparation of Society
to Live in Peace”, of 15.12.1978; U.N. General Assembly resolution 39/11, “Declara-
tion on the Right of Peoples to Peace”, of 12.11.1984; cf. also U.N. General Assembly
resolution 34/88, of 1979.
10 Articles 26 and 15, respectively.
11 For example, references to the right to peace and disarmament can be found in the
1982 World Charter for Nature (preamble, par. 4(c), and Principles 5 and 20).
12 A.A. Tikhonov, “The Inter-relationship between the Right to Life and the Right to
Peace; Nuclear Weapons and Other Weapons of Mass-Destruction and the Right
to Life”, The Right to Life in International Law (ed. B.G. Ramcharan), Dordrecht,
Nijhoff/Kluwer, 1985, pp. 97-113; Ph. Alston, “Peace, Disarmament and Human
Rights”, Armement, développement, droits de l’homme, désarmement (Colloque à
l’UNESCO, 1982) (ed. G. Fischer), Paris/Bruxelles, Bruylant, 1984, pp. 325-330.
Conceptual Constructions: The Right to Peace and the Right to Development 355
the universal juridical conscience, has reacted to that, in prohibiting the threat or
use of all weapons of mass destruction, including nuclear weapons.13
2. Recent Developments in the Formulation of the Right to Peace

The antecedents of the right to peace also comprise the long-standing tradi-
tion of UNESCO of sponsoring studies to foster a culture of peace.14 Within the
framework of such tradition, UNESCO launched the initiative, in 1997, of the
formulation of the human right to peace. To that end, the then Director-General
of UNESCO (F. Mayor) convened a Group of Legal Experts (acting in their indi-
vidual capacity)15 which, at the end of their meetings of Las Palmas Island (Feb-
ruary 1997) and Oslo (June 1997), produced the Draft Declaration on the Human
Right to Peace. Its preamble16 read that
“Peace, a common good of humanity, is a universal and fundamental value to which

all individuals and all peoples, and in particular the youth of the world, aspire”.
The right to peace was duly inserted into the framework of human rights,17 which
was taken into account to assert peace as a right and a duty. It was asserted as
a right inherent in all human beings, embodying demands of the human per-
son and of peoples to the ultimate benefit of humankind. The Draft Declaration
called upon all subjects of international law (States, international organizations
and individuals) to promote and implement that right as the foundation of a gen-
uine culture of peace. The document was prepared as a contribution of UNESCO
to the 50th anniversary (in 1998) of the Universal Declaration of Human Rights.
After the Las Palmas and Oslo meetings, UNESCO launched consultations
with member States, 42 of which having replied a letter of the Director-General
until the end of October 1997.18 The Draft Declaration became object of much
attention when revised by governmental experts from 117 member States, at
UNESCO headquarters in Paris, in March 1998. The document, as submitted to
13 Cf. chapter XVII, infra.

14 Cf., e.g., inter alia, F. Mayor, The New Page, Paris/Aldershot, UNESCO/Dartmouth,
1995, pp. 1-10 and 59-67; J. Symonides and K. Singh, “Constructing a Culture of
Peace: Challenges and Perspectives – An Introductory Note”, in From a Culture of
Violence to a Culture of Peace, Paris, UNESCO, 1996, pp. 9-30.
15 The Group was composed of A. Aguiar, M. Bedjaoui, R. Ben Achour, A.A. Cançado
Trindade, A. Eide, H. Gros Espiell, G. Guerin, I. Nguema, R. Ranjeva, E. Roucounas,
J. Symonides, K. Vasak (rapporteur) and C. Zanghi.
16 Seventh considerandum.
17 A.A. Cançado Trindade, “The Right to Peace and the Conditions for Peace”, 21 Diál-
ogo – The Human Right to Peace: Seed for a Possible Future – UNESCO/Paris (June
1997) pp. 20-21.
18 UNESCO/General Conference (29th Session, Paris), Report by the Director-General
on the Human Right to Peace, document 29 C/59, of 29.10.1997, p. 5.
356 Chapter XIV
them, affirmed that “violence in all its forms is intrinsically incompatible with
the right of every human being to peace”,19 and added categorically that peace
ought to be based upon “the intellectual and moral solidarity of mankind”.20 At
the end of the debates, three main positions of the participants were discernible:
those fully in support of the recognition of the right to peace as a human right,
those who regarded it rather as a “moral right”, and those to whom it was an “as-
piration” of human beings.21
The main difficulty, as acknowledged by the Report of the Paris meeting,
was its official recognition as a legal right.22 While there was general agreement
in regarding peace as a universal value and a common good of humankind, some
governmental representatives expressed difficulties in reckoning the existence of
true human right to peace and its legal consequences.23 Thus, at the close of the
XXth century, it so appeared that some governments were not yet prepared to
assume legal obligations ensuing from the formulated right to peace...
This was surely regrettable, though perhaps not so surprising, given the tur-
moiled world in which we live. States seem to be oversensitive, perhaps more
than human beings, particularly when what they realize to be at stake is not the
well-being of the human beings they represent and are supposed to protect, but
rather what they regard – in their often incongruous practice – as being their
own vital interests, in the perception of power-holders. Be that as it may, the
aforementioned UNESCO exercise of formulation of the right to peace is rightly
oriented towards an international law for humankind.
It is a conceptual construction which is helpful to the formation of a new jus
gentium, responsive to the needs and aspirations of human beings and peoples.
Other relevant elements to the attainment of peace can be found in the domain
of disarmament.24 In recent years the recognition of the right to peace has been
fostered by the advent and evolution of the International Law of Human Rights25
19 Operative part I, paragraph 4.

20 Considerandum 12 of preamble, and operative part I, paragraph 1. It further recalled
the responsibilities of present generations towards future generations, to leave them
a better world, with respect for International Law and human rights; consideran-
dum 14 of preamble.
21 UNESCO/Executive Board, Report by the Director-General on the Results of the
International Consultation of Governmental Experts on the Human Right to Peace
(Final Report), document 154 EX/40, of 17.04.1998, p. 10.
22 Cf. ibid., pp. 2 and 10.
23 Cf. A. Aguiar, “Perfi les Éticos y Normativos del Derecho Humano a la Paz”, in B.
Boutros-Ghali Amicorum Discipulorumque Liber – Paix, Développement, Démocra-
tie, vol. II, Bruxelles, Bruylant, 1998, pp. 884-894, and cf. pp. 878-884.
24 Cf. chapter XVII, infra.
25 In fact, as early as in 1968 the Final Act of the I World Conference on Human Rights
of the United Nations (held in Teheran) contained several references to the relation-
ship between the observance of human rights and the maintenance of peace; cf.
U.N., Final Act of the International Conference on Human Rights (1968), U.N. doc.
and of International Environmental Law; the conception of sustainable develop-

ment, as endorsed by the 1992 U.N. Conference on Environment and Develop-
ment, e.g., points to the ineluctable relationship between the rights to peace and
to development.
II. The Formulation of the Right to Development in International Law

Somewhat distinctly, the conceptual construction of the right to development
has attained, at this beginning of the XXIst century, a degree of consensus re-
flected in international instruments (such as the final documents of the recent
U.N. World Conferences)26 which does not yet appear to have been achieved to
the same extent by the parallel construction of the right to peace. Yet, the two
appear ineluctably intertwined, and both the rights to peace and to development
have in recent years drawn attention, in the domain of International Law, to the
needs of humankind.
1. Elements of the Right to Development in International Law

From the international legal thinking of the second half of the XXth century
a distinction emanates between the international law of development and the
right to development. The former, with its various components,27 emerged as an
objective international normative system regulating the relations among juridi-
cally equal but economically unequal States, and aimed at the transformation of
those relations on the basis of international cooperation (U.N. Charter, Articles
55-56) and considerations of equity, so as to redress imbalances among States and
to give them all – particularly the developing countries – equal opportunities
to attain development.28 This trend of the international law of development was
erected upon a predominantly inter-State basis.
A/CONF.32/41, N.Y., U.N., 1968, pp. 4, 6, 9, 14 and 36. And the U.N. General Assem-
bly, on its turn has constantly been attentive to address the requirements of survival
of humankind as a whole.
27 Right to economic self-determination, permanent sovereignty over natural wealth
and resources, principles of non-reciprocal and preferential treatment for develop-
ing countries and of participatory equality of developing countries in international
economic relations and in the benefits from science and technology.
28 Cf., e.g., M. Virally, “Vers un droit international du développement”, 11 Annuaire
français de droit international (1965) pp. 3-12; H. Gros Espiell, Derecho Internacion-
al del Desarrollo, Valladolid, Universidad de Valladolid, 1975, pp. 11-47; P. Buirette-
Maurau, La participation du tiers-monde à l’élaboration du droit international,
Paris, LGDJ, 1983, pp. 131-137, 160-167 and 185-202; M. Bulajic, Principles of Inter-
national Development Law, Dordrecht, Nijhoff, 1986, pp. 39-77; A. Pellet, Le droit
international du développement, 2nd. ed., Paris, PUF, 1987, pp. 3-124.
358 Chapter XIV
Distinctly, the right to development, as proclaimed in the 1986 U.N. Decla-

ration on the Right to Development,29 addressed the matter from the perspective
of human beings and peoples,30 without excluding States from its construction. It
appeared, as propounded by the 1986 Declaration,31 as a subjective human right,
embodying demands of the human person and of peoples which ought to be re-
spected, to the benefit, ultimately, of humankind. The aforementioned Declara-
tion contained elements already embodied, mutatis mutandis, both in the In-
ternational Law of Human Rights and in sources of International Development
Law.32 Not surprisingly, the conceptual construction of the right to development
went well beyond the strictly inter-State dimension.
This new and significant trend was in a way heralded, at normative level,
by the 1981 African Charter on Human and Peoples’ Rights, in providing for the
right of all peoples to their economic, social and cultural development (Article
22). Five years later, the 1986 U.N. Declaration on the Right to Development not
only placed the human person as the “central subject of development”,33 but also
qualified the right to development as an inalienable human right of “every human
person and all peoples”, by virtue of which they are “entitled to participate in, and
29 Adopted by the U.N. General Assembly resolution 41/128, of 04.12.1986, with 146
votes in favour, one against and 8 abstentions, and containing a preamble with 17
paragraphs and 10 Articles in its operative part.
30 Finding inspiration in such provisions as Article 28 of the 1948 Universal Declara-
tion of Human Rights and Article 1 of both U.N. Covenants on Human Rights.
31 Cf., e.g., M.M. Kenig-Witkowska, “The U.N. Declaration on the Right to Develop-
ment in the Light of Its Travaux Préparatoires”, in International Law and Devel-
opment (eds. P. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff, 1988, pp.
381-388; G. Abi-Saab, “Le droit au développement”, 44 Annuaire suisse de droit inter-
national (1988) pp. 9-24; A.A. Cançado Trindade, “Environment and Development:
Formulation and Implementation of the Right to Development as a Human Right”,
3 Asian Yearbook of International Law (1994) pp. 15-40; J. Álvarez Vitta, Derecho
al Desarrollo, Lima, Cult. Cuzco Ed., 1988, pp. 8-108. And cf., even before the 1986
Declaration, K. M’Baye, “Le droit au développement comme un droit de l’homme”, 5
Revue des droits de l’homme/Human Rights Journal (1972) pp. 505-534; J.A. Carrillo
Salcedo, “El Derecho al Desarrollo como Derecho de la Persona Humana”, 25 Revista
Española de Derecho Internacional (1972) pp. 119-125.
32 Such as, e.g., the 1974 Charter of Economic Rights and Duties of States, the 1974
Declaration (and Programme of Action) on the Establishment of a New Interna-
tional Economic Order, and relevant U.N. General Assembly resolutions; cf., e.g.,
J. Castañeda, “La Charte des droits et devoirs économiques des États”, 20 Annuaire
français de droit international (1974) pp. 31-77; P.J.I.M. de Waart, “Permanent
Sovereignty over Natural Resources as a Cornerstone for International Economic
Rights and Duties”, 24 Netherlands International Law Review (1977) pp. 304-322;
A. Eide, “Maldevelopment and ‘the Right to Development’: A Critical Note with a
Constructive Intent”, in Le Droit au développement au plan international (Colloque
– Académie de droit international de La Haye, 1979), The Hague, Sijthoff/Nijhoff,
1980, pp. 400-410.
33 Article 2(1), and preamble.
contribute to, and enjoy economic, social, cultural and political development”,
in which all human rights “can be fully realized” (Article 1). It is clear from the
1986 U.N. Declaration that the active subjects or beneficiaries of the right to de-
velopment are the human beings and peoples, and the passive subjects are those
responsible for the realization of that right,34 with special emphasis on the obliga-
tions conferred upon the States, individually and collectively. The measures en-
visaged for that realization extend to both national and international levels.35 The
major significance of this trend lies in the recognition or assertion of the right to
development as an “inalienable human right”.36
The 1986 U.N. Declaration on the Right to Development saw it fit to under-
line that, in order to promote development, equal and urgent attention should
be given to the implementation of civil, political, economic, social and cultural
rights (given their indivisibility and interdependence), and the observance of cer-
tain human rights cannot thus justify denial of others; likewise, all aspects of the
right to development are indivisible and interdependent and each of them is to be
considered in the context of that right as a whole.37 The recognition of the right to
development as a human right by the U.N. Declaration can only come to reinforce
other previously formulated human rights.38
In fact, in the context of development initiatives, the right to development
reinforces existing rights, and renders it unwarranted to invoke so-called re-
quirements of material development in order to try to justify restrictions to the
exercise of guaranteed human rights. The right to development was meant to
enhance, never to restrict, pre-existing rights. This is so, given the complemen-
tary nature of all human rights. All aspects of the right to development, in their
turn, are likewise interdependent and to be taken into account in the context of
the whole.39 The formulation of the right to development could only have been
undertaken in the light of the conceptual unity and indivisibility of all human
rights. It was at last understood that economic development was not an end in it-
self, but rather a means to achieve wider social objectives as imperatives of social
justice. The right to development as a human right has emerged and crystallized
to serve this purpose.
In this framework, economic, social and cultural rights became deserv-
ing of special attention; as warned in the work of the U.N. Working Group on
34 Mainly States but also human beings – cf. Articles 3(1) and (3), 4(1), 2(2) and 8.
35 Articles 3(1), 4, 8 and 10. On the identification of obstacles to overcome, cf. Articles
5 and 6(3) and Preamble.
36 Article 1(1).
37 Articles 6(2) and 9(1), and Preamble.
38 Moreover, it has contributed to focus on the promotion and protection of the rights
pertaining at a time to individuals and to members of human collectivities as well
as on the priority search for solutions to generalized gross and flagrant violations of
human rights.
39 Thus, a denial of the right to development is bound to entail adverse consequences
for the exercise of civil and political as well as economic, social and cultural rights.
360 Chapter XIV
the Right to Development, the State cannot simply abandon its responsibility
in this domain to the forces of the market. There is urgent need to put an end to
the tendency to separate economic development from social development, mac-
roeconomic policies (aiming at economic growth) from the social objectives of
development; the concepts contained in the 1986 Declaration on the Right to De-
velopment should be incorporated into the policies and programs of all agencies
and organs of the U.N. system, including the Bretton Woods institutions (World
Bank and International Monetary Fund).40
2. Crystallization of the Right to Development as a Human Right

The crystallization of the right to development as a human right is to a large ex-
tent due to the universalist perspective pursued by the United Nations, prompted
by the fundamental changes undergone, and challenges41 faced, by the interna-
tional community. When, in 1990, the U.N. Global Consultation on the Right
to Development as a Human Right was held at the U.N. Palais des Nations in
Geneva, the right to development appeared, as I well remember, already incor-
porated to the lexicon of International Law. An aspect which was particularly
emphasized in the U.N. Global Consultation42 was the relevance of participation
of all individuals (and particularly of those coming from the most vulnerable sec-
tors of societies) and the much-needed equality in the distribution or sharing of
the benefits of development.43 In my intervention at that U.N. Global Consulta-
tion, while referring to the temporal dimension of the right to development, I saw
it fit to alert inter alia that
“the requirements of material development could not be invoked to justify restric-

tions to the exercise of guaranteed human rights; this is so given the interaction
between human rights and development (...) and the [1986] Declaration’s warning
that all aspects of the right to development are also indivisible and interdependent
and to be taken into account in the context of the whole”.44
40 U.N., document E/CN.4/AC.45/1994/L.4/Rev.1, of 14.10.1994, pp. 1-26.

41 Inter alia, decolonization, erradication of chronic poverty, imperatives of social
justice, safeguard of human rights, disarmament, environmental sustainability, re-
shaping of the world scenario in the post-cold war era.
42 Which counted on five thematic rapporteurs (os distinct aspects of the subject),
namely, G. Abi-Saab, A.A. Cançado Trindade, V. Kartashkin, A. Pellet and D. Türk.
43 U.N. Centre for Human Rights, The Realization of the Right to Development, N.Y.,
U.N., 1991, pp. 25, 33-38, 44-47 and 53.
44 A.A. Cançado Trindade, Legal Dimensions of the Right to Development as a Human
Right: Some Conceptual Aspects, U.N. doc. HR/RD/1990/CONF.36, of 1990 (U.N.
Global Consultations on the Right to Development as a Human Right), pp. 1-17, esp.
p. 13. And, for a detailed account of the aforesaid U.N. Global Consultation, cf. A.A.
Cançado Trindade, Direito das Organizações Internacionais, 3rd. ed., Belo Hori-
zonte, Belo Horizonte/Brazil, Ed. Del Rey, 2003, pp. 409-442.
In fact, in the decade following that of the formulation of the 1986 Declaration,
the right to development found significant endorsements in the final documents
adopted by the U.N. World Conferences of the nineties,45 which have brought it
into the conceptual universe of contemporary International Law. In any case,
this seemed to have been the understanding of the U.N. General Assembly deci-
sion 48/141 (of 20.12.1993),46 which, in its preamble, reaffirmed inter alia that “the
right to development is a universal and inalienable right which is a fundamental
part of the rights of the human person”. The implementation of the right to de-
velopment as a human right can be considered appropriately within the universe
of International Human Rights Law, as the U.N. Declaration itself refers in its
preamble to the relevant instruments of the United Nations and its specialized
agencies.47
3. The Conceptual Construction of Human Development

It is significant that, four years after the formulation of the right to development
as a human right in the 1986 U.N. Declaration on the matter, the United Na-
tions Development Program (UNDP) started working on the elaboration of the
concept of human development, in the framework of a reassessment of the guide-
lines of the three previous United Nations Decades for Development. The turn-
ing point was its first Human Development Report, of 1990, which, questioning
the propriety of statistical indicators such as the gross national product (GNP) to
measure development adequately, turned attention to other aspects through the
adoption of a new index, called human development index (HDI).48
It was asserted that any measure of development should not be limited to
the search for economic growth (GNP) only, but should be much more com-
prehensive, combining indicators of education, health and income. It was soon

46 On the creation of the post of United Nations High Commissioner for Human
Rights.
47 For the implementation of this right one could thus consider the utilization of mech-
anisms developed in the field of human rights, such as, e.g., the reporting system,
the monitoring (by a working group or a special rapporteur) of situations manifestly
resulting from the condition of underdevelopment (directly affecting the realiza-
tion of the right to development), the undertaking of in-depth studies (identifying
problems concerning some economic and social rights, for example, pertaining to
health, housing, education). A.A. Cançado Trindade, Legal Dimensions of the Right
to Development..., U.N. doc. HR/RD/1990/CONF.36, of 1990, op. cit. supra n. (44), pp.
1-17.
48 It comprised three key components – longevity (life expectancy), knowledge (educa-
tion) and income (decent living standards), – so as to provide a more comprehensive
measurement of human progress; cf. UNDP, Human Development Report 1990, New
York, UNDP, 1990, pp. 1-113. The UNDP started from the premises that human be-
ings ought to be at the centre of all development, and that human development is “a
process of enlarging people’s choices”; ibid., pp. III, 1, 6 and 11.
362 Chapter XIV
realized that to the new HDI index other indicators of human progress should be
added, such as human freedom and the advances in the cultural domain: hence
the proposed new index of political freedom, so as to evaluate the situation of
this latter in the light of human rights.49 The concept of human development
propounded by the UNDP was directly linked also to the issue of the observance
of human rights.50 In the fourth Human Development Report, of 1993, the UNDP
centered attention on the basic theme of people’s participation, warning that
“although the achievements in human development have been significant during

the past three decades, the reality is continuing exclusion. More than a billion of the
world’s people still languish in absolute poverty, and the poorest fi fth find that the
richest fi fth enjoy more than 150 times their income”.51
Earlier UNDP Reports concentrated on the components of development of

the people (investing in human capabilities) and for the people (ensuring that
economic growth is distributed widely and fairly), whereas the 1993 Report ap-
proached development by the people (giving everyone a chance to participate).52
The implications of placing people at the centre of politico-economic changes53
are considerable, and do challenge traditional concepts: one moves, e.g., from
national to people’s security (food, health, employment, safe environment), from
old models of development to new models of sustainable human development,
49 Cf. PNUD, Desarrollo Humano: Informe 1991, Bogotá, PNUD/Tercer Mundo Ed.,
1991, pp. 51-57, and cf. pp. 17-235. – The UNDP next called for the establishment of a
network – at international level – of social security for those in need, and of global
consultations conducive to a new “international covenant” on human development
placing people in the centre of national policies and international cooperation for
development; cf. PNUD, Desarrollo Humano: Informe 1992, Bogotá, PNUD, 1992, pp.
25, 30 and 35, and cf. pp. 21 and 85-112.
50 Human development, besides not limiting itself to certain social sectors (such as
education or health), stresses the necessity to develop human capacities; freedom
itself – in a democracy – constitutes a vital component of human development. In
the understanding of UNDP, the sources of information should not be limited to the
“negative aspects” (such as human rights violations), but should also encompass the
responses and achievements of each country in this area. Human development and
freedom and political participation are closely related, but in this wide outlook one
is equally to consider the situation of economic and social rights (cf. ibid., pp. 39,
69-72, 77 and 83-84, and cf. p. 64).
51 UNDP, Human Development Report 1993, N.Y./Oxford, Oxford University Press,
1993, p. 1. The UNDP pondered that the new motivation in our times ought to be the
rebuilding of societies around genuine human needs and the fight against “global
poverty”, as “poverty anywhere is a threat to prosperity everywhere”; ibid., pp. 1 and
8-9. Here, again, poverty was seen as a “formidable barrier to participation, whether
within or between nations”; ibid., pp. 27 and 21.
52 Ibid., p. 3.
53 As recent U.N. World Conferences have rightly done; cf. chapter XXVI, infra.
from outmoded forms of international cooperation to new forms of international

cooperation directly focused on people’s needs.54 The new emphasis placed on
people’s empowerment and the strengthening of democracy has a direct bearing
on human rights protection.55
Subsequently, the UNDP came to focus on the new dimensions of human
security as a universal concern, no longer related to the territory of nation-States,
but rather to people, to their needs in daily life (e.g., protection from the threats
of hunger, disease, unemployment, crime, social conflicts, political repression,
environmental hazards).56 It further pointed out that the paradigm of the con-
cept of sustainable human development values the quality of human life as an
end in itself, rather than wrongfully seeing human beings as merely the means of
producing material goods.57 Human development challenges for the XXIst cen-
tury, in the view of the UNDP, include providing basic services to all deprived
people, accelerating job-led growth, reducing population growth, and making
global compacts for fighting poverty and improving the physical environment.
Empowering people, the UNDP argued, “is a sure way to link growth and human
development”, and this latter discloses a “holistic development paradigm” em-
bracing “both productivity and equity, both economic and social development”,
placing people at the centre of its concerns.58
54 Cf. ibid., pp. 1-8.

55 Democratic practices cannot in fact be confined within national borders; they are to
be followed at international level by all countries, and international fi nancial agen-
cies, in assuming responsibility to prevent economic recession and unemployment
and their negative impact upon economic, social and cultural rights. – For a study,
cf., e.g., A.A. Cançado Trindade, “Democracia y Derechos Humanos: Desarrollos
Recientes, con Atención Especial al Continente Americano”, Federico Mayor Ami-
corum Liber – Solidarité, Égalité, Liberté, Bruxelles, Bruylant, 1995, pp. 371-390.
56 UNDP, Human Development Report 1994, N.Y./Oxford, Oxford University Press,
1994, pp. 22 and 24, and cf. pp. 22-40.
57 Ibid., pp. 13 and 17.
58 Ibid., pp. 122-123. People are regarded “not merely as the beneficiaries of economic
growth but also as the real agents of every change in society – whether economic,
political, social or cultural. To establish the supremacy of people in the process of
development – as the classical writers always did – is not to denigrate economic
growth. It is to rediscover its real purpose”; ibid., p. 124. And cf., generally, A.A.
Cançado Trindade, “Human Development and Human Rights in the International
Agenda of the XXIst Century”, in Compilation – Human Development and Human
Rights Forum (August 2000), San José of Costa Rica, UNDP/Inter-American Court
of Human Rights, 2001, pp. 23-38.
364 Chapter XIV
4. Lessons from the Crystallization of the Right to Development

The links between human development and human rights hardly require any
demonstration.59 Development is now seen as encompassing social justice and
the strengthening of democratic institutions (public participation). Within this
framework, the centrality of people in all development strategies or process is
beyond question. Likewise, the whole construction of the right of development in
the framework of inter-State relations has yielded to the formulation of the right
to development as a human right. Here, again, the anthropocentric framework
has come to prevail. The wide acknowledgement of the right to development has
contributed to the earned centrality of human beings, of humankind, in contem-
porary International Law.
The 1990 U.N. Global Consultation on the Right to Development (supra)
drew attention to the need for “greater transparency in negotiations and agree-
ments between States and international financial and aid institutions” and for
democratization of intergovernmental financial agencies.60 Its final report sig-
nificantly warned that “prevailing models of development have been dominated
by financial rather than human considerations”; these models
“largely ignore the social, cultural and political aspects of human rights and human
development, limiting the human dimension to questions of productivity. They fos-
ter greater inequalities of power and control of resources among groups and lead to
social tensions and conflicts. (...) The growing burden of indebtedness and structural
adjustment falls heaviest on the poorest and weakest sectors of society and has clear
human rights implications. (...) The prevailing terms of trade, monetary policy, and
certain conditions tied to bilateral and multilateral aid, which are all perpetuated by
the non-democratic decision-making processes of international economic, fi nancial
and trade institutions, also frustrate the full realization of the right to development
as a human right”.61
The 1986 Declaration, the follow-up endeavours of the U.N. Working Group on
the Right to Development, and the final documents of the recent U.N. World
Conferences convened in the nineties and the beginning of the XXIst century
have been attentive to conditions of life, and, more particularly, to the condition
of vulnerable groups, in special need of protection. Given the current phenom-
enon of aggravation of poverty, which affects a considerable part of humankind,
International law cannot be indifferent to the current search for new models of
development conducive to the eradication of poverty and the attainment of sus-
59 A.A. Cançado Trindade, “Human Development and Human Rights in the Interna-
tional Agenda of the XXIst Century”, in Compilation..., op. cit. supra n. (58), pp.
23-38.
60 U.N. Centre for Human Rights, The Realization of the Right to Development, N.Y.,
U.N., 1991, pp. 50-51.
61 Ibid., p. 48.
tainable development. There still remains a long way to go in order to achieve the
full realization of the right to development, but its conceptual construction as a
human right has succeeded in introducing ethical considerations in the conduct
and assessment of the contemporary practice of International Law. In human-
izing the conception and process of development itself, the right to development
has brought about the need to devise some form of its institutionalized imple-
mentation in the years to come.
The experience in International Human Rights Law and in International De-
velopment Law can assist in that purpose, as it has not been confined to meeting
basic human needs, but has in fact gone much further, towards empowerment, in
the civil, political, economic, social and cultural domains. Meeting basic needs
and achieving people’s empowerment go hand in hand. The concern with living
conditions everywhere has come at last to permeate the present-day international
legal system, corresponding to a new ethos of our times. The international agenda
of this beginning of the XXIst century has, with the crystallization of the right
to development as a human right, continued to expand considerably, besides res-
cuing the central position of human beings in the universe of the law of nations,
pursuant to a necessarily anthropocentric outlook, which points towards the
emergence of the new jus gentium, the International Law for humankind.62

vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 412-420.
Chapter XV Conceptual Constructions:
Responsibility for International
Crimes and Universal Jurisdiction
I. Introduction
Recent international case-law in the domain of human rights protection has
brought to the fore the recurrent theme of the complementarity between the
international responsibility of the State and the international criminal responsi-
bility of the individual. The subject at issue has gained momentum in the light of
recent developments in the law on the international responsibility of the State as
well as in International Criminal Law. The co-existence and complementarity of
the international responsibility of States and the international criminal respon-
sibility of individuals is related to the current trend towards the criminalization
of grave violations of human rights, as well as the relationship between State
responsibility and the struggle against impunity and the endeavours towards the
realization of justice. The conceptualization of the crime of State, its configura-
tion and the relationship of that notion with the superior interests of the inter-
national community, deserve closer attention from contemporary international
legal doctrine, as much as the juridical consequences of the crime of State, and
the principle of universal jurisdiction.
II. The International Responsibility of the State and of the Individual:

Recent Developments
The complementarity of the international responsibility of the State and of the
individual for grave violations of human rights has clearly ensued from succes-
sive cases of massacres recently lodged with the Inter-American Court of Human
Rights [IACtHR], – such as the cases of Myrna Mack Chang (2003) and of the
Massacre of Plan de Sánchez (2004) concerning Guatemala, of the 19 Tradesmen
(2004) and of the Massacre of Mapiripán (2005) concerning Colombia, and of the
Moiwana Community versus Suriname (2005). Such cases cannot pass unnoticed
in the examination of the theme of the co-existence and complementarity of the
international responsibility of States and the international criminal responsibil-
ity of individuals.
In its Judgment on the merits and reparations in the case of Myrna Mack
Chang versus Guatemala, of 25 November 2003, the IACtHR established that the
368 Chapter XV
violation of the right to life of Myrna Mack Chang occurred in aggravating cir-
cumstances, as it resulted from “a covered-up operation of military intelligence
undertaken by the Presidencial Office (Estado Mayor) and tolerated by several
authorities and institutions”, amidst “a pattern of selective extrajudicial execu-
tions launched and tolerated by the State itself”, and a “climate of impunity”.1
Moreover, the Court established that the aforementioned operation of military
intelligence of the Presidencial Office (Estado Mayor) “sought the hiding of the
facts and the impunity of those responsible for them, and, to that end, under the
tolerance of the State, resorted to all types of measures, among which were found
hostilities, threats and murders of those who collaborated with justice”, affecting
the independence of the Judiciary.2 That this case was one of aggravated inter-
national responsibility of the State was further evidenced by the aforementioned
facts and the abusive invocation of the so-called “secret of State” leading to an
obstruction of justice.3
In the case of the Massacre of Plan de Sánchez (2004), the IACtHR estab-
lished Guatemala’s responsibility for grave human rights violations under the
American Convention on Human Rights. As demonstrated in the case, the
crimes committed in the course of the execution, by military operations, of a
State policy of “tierra arrasada”, including the massacre of Plan de Sánchez per-
petrated on 18 July 1982, were intended to destroy wholly or in part the members
of indigenous Maya communities. The respondent State accepted its interna-
tional responsibility under the American Convention for the grave human rights
violations resulting from the massacre of Plan de Sánchez.
In its Judgment on the merits of the case, of 29 April 2004, the IACtHR
determined that those violations “gravely affected the members of the maya-
achí people in their identity and values”, and, insofar as they occurred within a
“pattern of massacres”, they had “an aggravated impact” in the establishment of
the international responsibility of the State.4 In turn, earlier on, the Guatemalan
Commission for the Historical Clarification, in its report Guatemala – Memoria
del Silencio, had established the occurrence of 626 massacres committed by the
forces of the State during the armed conflict, mainly the Army, supported by
paramilitary structures.5 In the view of the Guatemalan Truth Commission, the
1 Paragraphs 138-139, 150, 154 and 157 of the Judgment.

2 Paragraph 215 of the Judgment.
3 Cf. pars. 174-181 of the Judgment; and cf. also, on the matter, CEH, Guatemala, Me-
moria del Silencio – Informe de la Comisión para el Esclarecimiento Histórico, vol.
VI, Annex I, Guatemala, 1999, pp. 242 and 244.
4 Paragraph 51 of the Judgment.
5 95 of them had been perpetrated between 1978 and 1984 (with violence intensi-
fied in 1981-1983), and in this period 90 had been executed in areas inhabited pre-
dominantly by the Maya people. The acts of extreme violence, in the assessment of
that Commission, disclosed the characteristics of “acts of genocide”, – specifically
against members of the peoples maya-ixil, maya-achi, maya-k’iche’, maya-chuj and
maya-q’anjob’al, in four regions of the country; Comisión para el Esclarecimiento
Conceptual Constructions: Responsibility for International Crimes and Universal Jurisdiction 369
grave and massive human rights violations engaged both the individual respon-
sibility of the “intellectual or material authors” of the “acts of genocide” as well as
the “responsibility of the State”, as most of those acts were the product of a State
“policy preestablished by a superior command to its material authors”.6
In the recent case of the massacre of the Moiwana Community, the IACtHR
ordered (Judgment of 15.06.2005) distinct measures of reparations to the surviv-
ing, and forcefully displaced, members of that Surinamese community, so as also
to preserve their cultural identity.7 And in the likewise recent case of the Mas-
sacre of Mapiripán (Judgment of 15.09.2005), Colombia accepted international
responsibility before the Court, specifically for the acts of its own agents, but
the IACtHR went further, in determining the responsibility of the State for the
deaths of 49 persons perpetrated by the so-called paramilitary (as “third par-
ties”), who counted in the cas d’espèce on the tolerance, acquiescence or collabo-
ration of the armed forces of the State.8
III. State Responsibility, the Criminalization of Grave Violations of Human

Rights and the Realization of Justice
The process of criminalization of grave violations of human rights and of Interna-
tional Humanitarian Law 9 has effectively accompanied pari passu the evolution
of contemporary International Law itself: the establishment of an international
Histórico, Guatemala – Memoria del Silencio, vol. III, Guatemala, CEH, 1999, pp.
316-318, 358, 375-376, 393, 416 and 417-423.
6 Ibid., p. 422.
7 In my lengthy Separate Opinion in that case, I dwelt upon the legal subjectivity of
peoples in International Law, the reaction of the universal juridical conscience to
the projection of suffering in time, the duties of the living towards their dead in the
origins and development of International Law, and the reparations for damages to
what I deemed it fit to term the “project of life as well as of post-life”, bearing in mind
the cultural manifestations of the victimized members of the Moiwana Community
(pars. 1-93 of my Separate Opinion).
8 Paragraphs 96.30-39, 96.43 and 116 of the Judgment.
9 Cf. G. Abi-Saab, “The Concept of ‘International Crimes’ and Its Place in Contem-
porary International Law”, in International Crimes of State – A Critical Analysis
of the ILC’s Draft Article 19 on State Responsibility (eds. J.H.H. Weiler, A. Cassese
and M. Spinedi), Berlin, W. de Gruyter, 1989, pp. 141-150; B. Graefrath, “Interna-
tional Crimes – A Specific Regime of International Responsibility of States and Its
Legal Consequences”, in ibid., pp. 161-169; P.-M. Dupuy, “Implications of the Insti-
tutionalization of International Crimes of States”, in ibid., pp. 170-185; M. Gounelle,
“Quelques remarques sur la notion de ‘crime international’ et sur l’évolution de la
responsabilité internationale de l’État”, in Mélanges offerts à P. Reuter – Le droit in-
ternational: unité et diversité, Paris, Pédone, 1981, pp. 315-326; L.C. Green, “Crimes
under the I.L.C. 1991 Draft Code”, 24 Israel Yearbook on Human Rights (1994) pp.
19-39; S.R. Ratner and J.S. Abrams, Accountability for Human Rights Atrocities in
International Law, Oxford, Clarendon Press, 1997, pp. 11, 13-15 and 22-23.
370 Chapter XV
criminal jurisdiction10 is regarded in our days as an element which strengthens

International Law itself, overcoming a basic lack and its insufficiencies of the past
as to the incapacity to judge and punish those responsible for grave violations
of human rights and of International Humanitarian Law. In fact, the travaux
préparatoires of the Statute of Rome of 1998 on the International Criminal Court
[ICC] led to the prompt acknowledgment, in the ambit of its application,11 of the
international criminal responsibility of the individual for the most serious inter-
national crimes.
Such initiative has given a new impetus to the struggle of the international
community against impunity, as a violation per se of human rights;12 by means
of the affirmation and crystallization of the international criminal responsibility
of the individual for international crimes, it has thus sought to prevent future
crimes.13 In the ambit of the inter-American system of human rights, in the case
Paniagua Morales and Others versus Guatemala (Judgment of 08.03.1998), the
IACtHR had the occasion to formulate a clear warning as to the duty of the State
to fight impunity.14 The IACtHR affirmed the duty of the State15 to “organize the
public power to guarantee to persons subject to its jurisdiction the free and full
exercise of human rights”, a duty which – the Court significantly added – “ap-
plies irrespectively of whether those responsible for the violations of those rights
are agents of the public power, private individuals, or groups of them” (par. 174).
10 Comprising the establishment by the U.N. Security Council of the ad hoc Tribunals
for former Yugoslavia in 1993, and for Rwanda in 1994, and the adoption of the 1998
Rome Statute of the permanent International Criminal Court.
11 Attention is to be drawn to the superior universal values which underlie the whole
theme of the creation of an international criminal jurisdiction, with a permanent
basis. It may be recalled that the 1998 Rome Statute of the ICC succeeded in setting
forth general principles of criminal law, notwithstanding the conceptual differences
between the Delegations of countries of droit civil and those of countries of common
law.
12 W.A. Schabas, “Sentencing by International Tribunals: A Human Rights Approach”,
7 Duke Journal of Comparative and International Law (1997) pp. 461-517.
13 Cf., on the matter, e.g., D. Thiam, “Responsabilité internationale de l’individu en
matière criminelle”, in International Law on the Eve of the Twenty-First Century
– Views from the International Law Commission / Le droit international à l’aube
du XXe siècle – Réflexions de codificateurs, N.Y., U.N., 1997, pp. 329-337. Further-
more, the criminalization of grave violations of human rights and of International
Humanitarian Law has found expression in the establishment, in our time, of the
principle of universal jurisdiction; cf. A.A. Cançado Trindade, Tratado de Direito
Internacional dos Direitos Humanos, Porto Alegre/Brazil, S.A. Fabris Ed., vol. III,
1st. ed., 2003, p. 413, and ibid., vol. II, 1st. ed., 1999, pp. 385-400 and 404-412.
14 Since “impunity fosters chronic recidivism of human rights violations, and total
defenselessness of victims and their relatives” (IACtHR, Series C, n. 37, par. 173).
15 Under Article 1(1) of the American Convention on Human Rights.
The recognition of the State’s duty to fight impunity16 nowadays finds expression
in the jurisprudence constante of the IACtHR.
While an international tribunal of human rights (such as the European and
Inter-American Courts, and, more recently, the African Court) cannot deter-
mine the international criminal responsibility of the individual, and an inter-
national criminal tribunal (such as the ad hoc International Criminal Tribunals
for the Former Yugoslavia [ICTFY] and for Rwanda [ICTR], and the ICC) can-
not determine the responsibility of the State, impunity is most likely bound to
persist, being only partially santioned by one and the other. The international
responsibility of the State contains elements of both civil and penal nature, in the
present stage of evolution of International Law. Such responsibility of the State is
neither exclusively civil (as suggests the duty of reparation for damages), nor ex-
clusively penal (as suggests the legitimacy of a sanction). It appears as a collective
responsibility of the State, parallel to the international criminal responsibility of
the individual.
Reparations can be endowed with a sanctioning or repressive character,17 so
as to secure the realization of justice and put an end to impunity (cf. infra). The
fulfi lment of the exemplary or dissuasive purposes can – and must – be sought
by means not only of indemnizations, but also of other (non pecuniary) forms
of reparation. One ought to, moreover, keep in mind that, while the reparation
(material and moral) benefits directly the injured party, the sanction (or repres-
sive action against the transgressing State), in turn, benefits the international
community itself as a whole; not to admit that would amount to consent that the
State responsible for the violation subtracts itself from the Law.18
Already by the mid-XXth century there was doctrinal support for the co-
existence of the international responsibility both of individuals (physical per-
sons) and of States (juridical persons), as International Law binds them all (as
their subjects). In the case of the States, their responsibility is collective, and H.
Kelsen, for example, admitted that a State, in incurring into a grave violation of
International Law, commits a delict or a crime.19 In warning that the individual
responsible for such violation acted in the name of the State, H. Kelsen also ad-
16 Those considerations by the IACtHR were reiterated by it in new obiter dicta in the
Judgments on reparations in the cases Loayza Tamayo (1998, par. 170), Castillo Páez
(1998, par. 107), Blake (1999, par. 64), Villagrán Morales and Others (2001, par. 100),
Cesti Hurtado (2001, par. 63), Cantoral Benavides (2001, par. 69), Bámaca Velásquez
(2002, par. 64), Trujillo Oroza (2002, par. 97), – to which other obiter dicta in the
same sense may be added in its recent Judgments in the cases Juan Humberto
Sánchez (2003, par. 143) and Bulacio (2003, par. 120).
17 M. Gounelle, “Quelques remarques sur la notion de ‘crime international’...”, op. cit.
supra n. (9), pp. 317-318.
18 H. Lauterpacht, op. cit. infra n. (29), pp. 355-357.
19 Cf. H. Kelsen, Principles of International Law, N.Y., Rinehart & Co. Inc., 1952, pp. 9,
11-13, 97-100, 104-105, 107 and 114-117.
372 Chapter XV
mitted that the responsibility of the State can be both objective and absolute, as,
in given circumstances, it can also have as basis the fault or culpa.20
In fact, even if one admits the principle of the objective or absolute respon-
sibility of the State (as did the IACtHR in the case of “The Last Temptation of
Christ”, concerning Chile, Judgment of 05 February 2001), this does not mean
that the responsibility based on fault or guilt is entirely dismissed in every and
any hypothesis or circumstance. There are cases, – such as the aforementioned
cases of Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the 19 Trades-
men, of the Massacre of Mapiripán, of the Moiwana Community, – in which the
intention of the State to cause the damage or its negligence in avoiding it can be
demonstrated; the fault or guilt (intent) becomes, here, the indispensable basis of
the responsibility of the State,21 aggravated by this circumstance.
IV. Complementarity between the International Responsibility of States

and the International Criminal Responsibility of Individuals
The international responsibility of the State and the international criminal re-
sponsibility of the individual do not exclude, but rather complement, each other.
This is so because a public agent operates on behalf of the State, and both the
State and its agent answer for the acts or omissions imputable to both. The inter-
national tribunals of human rights pronounce on the international responsibility
of the State, and the ad hoc international criminal tribunals (for the former Yu-
goslavia and for Rwanda), and the ICC on that of the individuals at issue. Neither
the former, nor the latter, encompass the totality of the matter in its present stage
of evolution. Yet, there does not appear to be any juridical impediment for the
concomitant determination of the international responsibility of the State and
the international criminal responsibility of the individuals, – despite the insuf-
ficient development of the matter, reflected in the persistent compartmentalized
approach to the international responsibility of the State and the international
criminal responsibility of individuals.
The evolution of the law on international responsibility should not yield to
the rigid compartmentalization between civil and criminal responsibility found
in the national legal systems. Nothing seems to impede that it contains elements
of one and the other, both conforming the international responsibility. This latter
is endowed with a specificity of its own. A State can be internationally respon-
sible for a crime, imputable both to its agents who committed it, and to the State
itself as juridical person of International Law. To deny this would be to create an
obstacle to the development of International Law in the present domain of the
international responsibility.
Even those who sustain that criminal responsibility falls only upon the indi-
viduals who commit the crimes and not upon the collective persons (the States),
as societas delinquere non potest, admit, nevertheless, the existence and evolu-
20 Ibid., pp. 122-123.

21 Cf., in this sense, H. Lauterpacht, op. cit. supra n. (29), pp. 359-361 and 364.
tion nowadays of forms of criminal responsibility of juridical persons in the do-

mestic law of distinct countries.22 The engagement of the criminal responsibility
of the juridical person (e.g., in environmental protection) results from the very
capacity to act and the necessity to preserve superior social and common values.
The State, juridical person (although of abstract quality) and subject of Interna-
tional Law, has rights and duties governed by this latter; its conduct is directly
and effectively foreseen and regulated by the law of nations (droit des gens).23 The
State, as well as its agents, ought, thus, to be accountable for the consequences
of their acts or omissions. In a situation such as the one aforementioned, the de-
termination of the international criminal responsibility of the individual is not,
thus, sufficient, as the State, in whose name its agents committed a crime, con-
tributed itself, as a juridical person of International Law, to the perpetration or
occurrence of such crime.
In the recent cases of Myrna Mack Chang, of the Massacre of Plan de Sán-
chez, of the 19 Tradesmen, of the Massacre of Mapiripán, of the Moiwana Com-
munity, the crimes of State were materialized both by the execution (planned
as from the highest rank of the public power) of the crimes, as well as by the
subsequent cover-up of the facts, the prolonged obstruction of justice, and the
impunity of those responsible for it, thus generating an aggravated responsibil-
ity. At conceptual level, it is surely difficult not to admit the occurrence of a crime
of State in general International Law, above all insofar as there is intention (fault
or guilt), or tolerance, acquiescence, negligence, action or omission, on the part
of the State in relation to grave violations of human rights and of International
Humanitarian Law perpetrated by its agents, in pursuance of a State policy. In
such circumstances, societas delinquere potest.
In the domain of Law, every person constitutes a centre or unity of imputa-
tion. In the case of the physical person, one is before the concrete and living unit
of each human being, while the juridical person, which is a creation or construc-
tion of Law, also constitutes a centre or unit of imputation for conducts attributed
to individuals who act on their own behalf, and for the consequences for which
the juridical person itself, as well as its agents, ought to be accountable. In sum,
the juridical personality of a collective entity (such as the State) is a construction
of the Law, and constitutes a unit of imputation of its conducts, undertaken by
the individuals who compose such collective entity and act on its behalf; thus,
both the juridical person as well as those individuals ought to be accountable for
the consequences of their acts or omissions,24 particularly when they bring about
grave violations of human rights and of International Humanitarian Law. In my
22 Cf. J. Barboza, “International Criminal Law”, 278 Recueil des Cours de l’Académie de
Droit International de La Haye [RCADI] (1999) pp. 82 and 96.
23 Cf., e.g., G. Arangio-Ruiz, Diritto Internazionale e Personalità Giuridica, Bologna,
Coop. Libr. Univ., 1972, pp. 9-19; J.A. Barberis, Los Sujetos del Derecho Internacional
Actual, Madrid, Tecnos, 1984, pp. 26-35.
24 In this sense, L. Recaséns Siches, Tratado General de Filosofía del Derecho, 16th ed.,
Mexico, Ed. Porrúa, 2002, p. 272.
374 Chapter XV
view, the international responsibility of the State and the international criminal
responsibility of the individual do not exclude each other, but, quite on the con-
trary, they appear complementary to each other and ineluctably intertwined.
V. Some Considerations on the Crime of State Revisited
1. Configuration of the Crime of State

This leads me to the consideration of the typology of culpability, and, in the
framework of this latter, of the configuration of the crime of State. In his masterly
monograph The Problem of Guilt, the jusphilosopher Karl Jaspers distinguished
four types of culpability, namely, the criminal, political, moral and metaphysical
ones.25 After addressing the distinct consequences of those modalities of culpa-
bility,26 K. Jaspers persuasively concluded that “there are crimes of State, which
are always and at the same time crimes of given individuals”; if such crimes were
always judged by the international community, – he added, –
“Humanity would be united in an ethos comprehensible to all. What we have our-

selves suffered would no longer be repeated (...)”.27
In the same line of thinking, another jusphilosopher, Paul Ricoeur, in his essay
La mémoire, l’histoire, l’oubli, in evoking the thought of K. Jaspers, referred like-
wise to the culpability for State policies of criminal responsibility, and expressly
utilized the term “crime of State”.28
25 The criminal one resulted from acts which objectively breached unequivocal laws,
and which were demonstrable before a tribunal; the political one resulted from ac-
tions of the governors, of the State, of which the governed ones were co-responsible,
as “every person is co-responsible of how he is governed”; the moral one resulted
from the actions of each individual, having by judge the conscience itself; and the
metaphysical one, whereby “there is a solidarity between men (...) which makes each
one responsible for (...) the crimes which take place in their presence or with their
knowledge”. K. Jaspers, El Problema de la Culpa, Barcelona, Ed. Paidós/Universidad
Autónoma de Barcelona, 1965 [reed. in Spanish, 1998], pp. 53-54.
26 Namely: the criminal one leading to sanction or punishment; the political one to
responsibility; the moral one to regret and renovation; and the metaphysical one to
“a transformation of the human conscience of himself before God”; ibid., p. 57.
27 Ibid., p. 131.
28 P. Ricoeur, La mémoire, l’histoire, l’oubli, Paris, Éd. du Seuil, 2000, pp. 423, 434 and
609. Such political culpability “résulte de l’appartenance de fait des citoyens au
corps politique au nom duquel les crimes ont été commis. (...) Cette sorte de culpa-
bilité engage les membres de la communauté politique indépendamment de leurs
actes individuels ou de (...) leur degré d’acquiescement à la politique de l’État. Qui a
bénéficié des bienfaits de l’ordre public doit d’une certaine façon répondre des maux
créés par l’État dont il fait partie”; ibid., pp. 615 and 620.
Also in the more lucid doctrine of International Law one can find elements
conducive to the configuration of the crime of State. Thus, already in 1937, Hersch
Lauterpacht warned that the traditional respect for State sovereignty refrained
the development of the law of the international responsibility, particularly where
it marked more presence, namely, as to the consequences of responsibility. Thus,
the traditional theory limited responsibility only to the reparation for damages
(material and moral), without it being possible for States, as a result of their sov-
ereignty, to be punished. This vision, however, in exempting the State from the
consequences of its own violations of the Law, appeared entirely arbitrary, lim-
iting the action of justice at international level.29 This being so, – argued that
author with vehemence and against the then prevailing doctrine, –
“la violation du droit international peut être telle qu’elle nécessite, dans l’intérêt de
la justice, une expression de désapprobation dépassant la réparation matérielle. (...)
Abolir ces aspects de la responsabilité entre les États serait adopter, du fait de leur
souveraineté, un principe que répugne à la justice et qui porte en lui-même un en-
couragement à l’illegalité. Ce serait permettre aux individus, associés sous la forme
d’État, d’acquérir, quant aux actes criminels commis (...), un degré d’immunité qu’ils
ne possèdent pas agissant isolément; c’est une immunité couvrant des actes qui,
parce qu’ils sont collectifs et aidés par la puissance presque infi nie de l’État mod-
erne, jouissent d’un pouvoir de destruction virtuellement illimité. C’est la personni-
fication courante de l’État, impliquant une distinction artificielle entre l’association
et les membres qui la composent, qui a contribué a suggérer ce principe anarchique
d’irresponsabilité morale et juridique. (...) Il ne peut guère y avoir d’espoir pour le
droit international et la morale si l’individu, agissant comme l’organe de l’État peut,
en violant le droit international, s’abriter effectivement derrière l’État impersonnel
et métaphysique; et si l’État, en cette capacité, peut éviter le châtiment en invoquant
l’injustice de la punition collective”.30
As well pointed out by C.Th. Eustathiades in a substantial and pioneering study

half a century ago, States and individuals are subjects of International Law, and
one cannot pretend that the international criminal responsibility of the indi-
vidual replaces or “eliminates” that of the State; the responsibility of this latter
can also be engaged by an international delict, bringing about sanctions in in-
ternational law which have a “repressive function”.31 The individual and the State
responsibility can perfectly cumulate.32
In our days, the consolidation of the specificity of crimes against humanity
seems to point into the same direction. Such crimes, purporting to humiliate and
29 H. Lauterpacht, “Règles générales du droit de la paix”, 62 RCADI (1937) pp. 339 and
349-350.
30 Ibid., pp. 350-352.
31 C.Th. Eustathiades, “Les sujets du droit international et la responsabilité interna-
tionale – nouvelles tendances”, 84 RCADI (1953) pp. 415, 417, 448, 604 and 607-608.
32 Ibid., p. 603.
376 Chapter XV
“dehumanize” the victims and thus affecting humanity itself, are particularly
grave, and are not committed by individuals acting in isolation or on their own.
On the contrary, more often than not, they are perpetrated collectively, they
pursue discriminatory and criminal policies, in a complex, organized and coldly
planified way;33 as they, thus, quite often amount to State policies, they are true
crimes of State, surrounded by attempts to secure impunity and by obstructions
of justice. The 1998 Rome Statute of the ICC lists a series of acts, amounting to
crimes against humanity, when “committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack”
(Article 7).
To the extent that such acts conform systematic practices of grave violations
of human rights as part of a State policy, they are true crimes of State (crimes
d’État).34 The determination of the responsibility of the State for them fulfils a le-
gitimate concern of the international community as a whole.35 Furthermore, the
succession of genocides perpetrated along the XXth century36 stands as a serious
warning that massive violations of the rights of the human person have been ac-
companied by a State policy of “dehumanization” of the victims, so as to pretend
to act in pursuance of an alleged “right of the State to persecute or to massacre”;37
or, in other words, to perpetrate a true crime of State.
These are not “abstractions”, as part of the legal doctrine insists on portray-
ing them, so as to elude consideration of the matter. It is well-known that many
crimes of the kind have been surrounded by public campaigns of propaganda or
“dehumanization” of the victims, added to other strategies, depriving them of
their homes, their property, their agriculture of subsistence, their nationality,
their cultural identity, their modus vivendi itself, – for the final perpetration of
crimes of State. Moreover, it should not pass unnoticed that reiterated and con-
siderable difficulties have been encountered when it comes to “demobilizing”,
or putting an end to, the mounted State apparatus of extermination38 of various
kinds (whether it be composed of secret police, so-called “intelligence” services,
death squads, so-called paramilitary, police battalions, or whatever).
33 Y. Jurovics, Réflexions sur la spécificité du crime contre l’humanité, Paris, LGDJ,

2002, pp. 14-15, 21-23, 52-53, 72-73, 92-93, 132-133, 183, 192, 198-199, 228-229, 279, 283,
329, 331, 335, 360-361, 375-376, 405 and 439, and cf. pp. 440.
34 Cf. J. Verhaegen, Le Droit international pénal de Nuremberg: acquis et régressions,
Bruxelles, Bruylant, 2003, pp. 10-11, 22, 51-53, 62 and 86.
35 Cf., v.g., R. Besné Mañero, El Crímen Internacional – Nuevos Aspectos de la Respon-
sabilidad Internacional de los Estados, Bilbao, Universidad de Deusto, 1999, pp. 78-
79, 186, 215, 218, 221 y 230-231.
36 Armenia, Soviet Rusia, the Holocaust, Cambodia, former Yugoslavia, Rwanda.
37 B. Bruneteau, Le siècle des génocides – Violences, massacres et processus génocid-
aires de l’Arménie au Rwanda, Paris, A. Colin Éd., 2004, pp. 222 and 233.
38 For the historical example of denazification, cf., e.g., J.H. Herz, “An Historical
Perspective”, in State Crimes – Punishment or Pardon (1988 Conference Papers),
Queenstown/Maryland, Aspen Institute, 1989, pp. 11-22.
2. The Crime of State in Relation to the Fundamental or Superior Interests of

the International Community
There is another aspect to be singled out in relation to the configuration of the
crime of State, linked to the protection of the fundamental or superior interests
of the international community itself as a whole.39 Thus, from this perspective,
the crime of State appears as a grave violation of peremptory International Law
(jus cogens), which affects directly its principles and foundations, and which con-
cerns the international community as a whole, not having to be dealt with by
analogy with categories of domestic criminal law. In any case, the concept of
crime of State ought to be studied in depth, and not to be avoided. The crime
of State appears, in sum, as a particularly grave violation of International Law
bringing about an aggravated responsibility (amidst aggravating circumstances,
thus evoking a category of criminal law); the gravity of the violation affects di-
rectly the fundamental values of the international community as a whole.40 The
detractors of the concept of crime of State, instead of keeping in mind such val-
ues, were to relate that concept to a mistaken analogy with criminal law in the
sense that it is endowed with in domestic law.
It was necessary to wait for years for new doctrinal developments to pave the
way for a certain “criminalization” of the relationship of responsibility, reducing
the space occupied earlier by State voluntarism. A former rapporteur of the U.N.
International Law Commission [ILC] on the theme of the International Respon-
sibility of the State, Roberto Ago, established, beyond the previous theoretical
schemes, a gradation of violations of the State obligations, therefrom emerging,
in 1976, his well-known proposal of Article 19 of the Draft on the Responsibil-
ity of the States, incorporating the concept of “international” crime and distin-
guishing it from “international delict”.41 The acts of “particularly serious nature”
would correspond to “international crimes” affecting the fundamental values of
39 Cf., e.g., J. Barboza, “International Criminal Law”, op. cit. supra n. (22), p. 97; J. Qui-
gley, “The International Law Commission’s Crime-Delict Distinction: A Toothless
Tiger?”, 66 Revue de droit international de sciences diplomatiques et politiques –
Genève (1988) pp. 119-120.
40 A. Pellet, “Can a State Commit a Crime? Defi nitely, Yes!”, 10 European Journal of In-
ternational Law (1999) pp. 426-427; C. Tomuschat, “International Crimes by States:
An Endangered Species?”, in International Law: Theory and Practice – Essays in
Honour of Eric Suy (ed. K. Wellens), The Hague, M. Nijhoff, 1998, pp. 253 and 265.
41 The ILC itself, in its commentary on the matter, compared the adoption of the for-
mulation which recognized the distinction between the two concepts (international
crimes and delicts) in the codification of the law on the international responsibility
of the State with the setting forth of the category of jus cogens in the law of treaties;
U.N., Yearbook of the International Law Commission [YILC] (1976)-II, part II, par.
73, p. 122. With the proposed Article 19 of the aforementioned Draft of the ILC, two
regimes of responsibility would be formed: one for non-compliance of obligations of
fundamental importance to the international community as a whole, and another
for non-compliance with of obligations of minor or less general importance.
378 Chapter XV
the international community, and the others – not revealing the same degree of
gravity – would amount to “international delicts”.42 A new vision of the law on
international responsibility began to emerge, taking into account the basic values
and the needs of the international community as a whole.
Nevertheless, the advances in this area have taken place not in a steady way,
but rather – as it often so occurs – moving back and forth, like a pendulum. The
fact that the final Draft Articles on the Responsibility of the States, adopted by
the ILC in 2001, entered into details on the so-called “countermeasures” (which
reflect what there is of most primitive in International Law, that is, the use of re-
prisals in a new version), and discarded and fi led, somewhat lightly, the concept
of international crime or “crime of State”, is a reflection of the world in which we
live. Ubi societas, ibi jus. The relatively summary treatment dedicated by the Ar-
ticles on the Responsibility of the States (2001) of the ILC to the grave violations
– and their consequences – of obligations under peremptory norms of general
International Law (essentially in Articles 40-41),43 reveals the insufficient con-
ceptual development of the matter until our days, in an international community
which is still in search of a greater degree of cohesion and solidarity.
As well recalled by G. Abi-Saab, an analogy with domestic criminal law was
not what Roberto Ago had in mind in advancing in 1976 the concept of interna-
tional crime or crime of State in the well-known Article 19 of the Draft Articles
on the Responsibility of the State of the ILC. The distorted analogy with domes-
tic criminal law ignores the specificity of the crime of State in International Law,
and regrettably minimizes the recognition of the fundamental or superior inter-
ests of the international community, the emergence – in its wide dimension – of
jus cogens in the domain of the international responsibility of the States, and the
necessity to establish an aggravated regime of the international responsibility of
the State.44 And the main purpose of this regime is precisely
“to defend the normative integrity of the legal system itself against patterns of be-
haviour which go against its most fundamental principles and thus undermine its
regular functioning and credibility. (...) It can legitimately be feared that setting
aside the dual regime of responsibility would be widely perceived as a reversal of the
evolution of general International Law from a community-oriented system back to
a purely intersubjective one”.45
42 Cf. comments and examples in ibid., pp. 95-122.

43 Cf. comments in J. Crawford, The International Law Commission’s Articles on State
Responsibility, Cambridge, University Press, 2002, pp. 242-253.
44 The establishment of such regime was precisely the purpose of the aforementioned
Article 19 of the Draft Articles on the Responsibility of the State of the ILC; G. Abi-
Saab, “The Uses of Article 19”, 10 European Journal of International Law (1999) pp.
339-351.
45 Ibid., pp. 350-351.
The reaction to the grave and systematic violations of human rights and of Inter-
national Humanitarian Law came to constitute in our days a legitimate concern
of the international community as a whole.46 This takes place even more forcefully
when the victims are vulnerable and defenceless (as in the aforementioned cases),
and when the structure of public power is distorted and comes to be utilized to
breach the rights inherent to the human person. As from the moment when the
international community starts to profess certain fundamental and superior val-
ues, one has to accept the consequence of the establishment of a special regime of
aggravated responsibility (corresponding to the crime of State) whenever there is
an attempt against those values or a violation of the norms which protect them.47
One ought to definitively rescue the outlook of the matter which bears in mind
the fundamental or superior interests of the international community, which has
led to the configuration of the crime of State, endowed with a specificity of its
own in International Law.
VI. Juridical Consequences of the Crime of State

The aggravated responsibility is, precisely, that which corresponds to a crime
of State. The crime of State becomes evident when the State’s intention (fault or
culpa) to cause the damage, or its negligence to avoid, can be demonstrated, as in
the aforementioned recent cases of Myrna Mack Chang, of the Massacre of Plan
de Sánchez, of the 19 Tradesmen, of the Massacre of Mapiripán, and of the mas-
sacre of the Community Moiwana; the responsibility of the State is aggravated by
that circumstance. The well-known Article 19 of the Draft on the Responsibility
of the State (1976) of the ILC (supra), in providing on “international crimes”, had
in mind precisely the establishment of an aggravated degree of responsibility, for
given violations of International Law.48 It did not intend at any moment at all to
suggest an analogy with categories of domestic criminal law. Once accepted the
aggravated responsibility, one ought to determine its juridical consequences.
Already in 1939, well before being rapporteur of the ILC on the International
Responsibility of the States, Roberto Ago pondered that one same material fact
can be apprehended by distinct rules of a same legal order, attributing to it legal
circumstances also distinct, generating the obligation to repair or legitimating
the application of a sanction.49 Thus, either the obligation of reparation, or the
application of a sanction, or both at the same time can be conformed; to R. Ago,

Porto Alegre/Brazil, S.A. Fabris Ed., vol. I, 2nd. ed., 2003, p. 244; ibid., vol. III, 1st.
ed., 2003, p. 415.
47 G. Abi-Saab, “The Concept of ‘International Crimes’ and Its Place in Contemporary
International Law”, in International Crimes of State..., op. cit. supra n. (9), pp. 144-
145.
48 I. Sinclair, “State Responsibility: Lex Ferenda and Crimes of State”, in International
Crimes of State..., op. cit. supra n. (9), p. 242.
49 Roberto Ago, “Le délit international”, 68 RCADI (1939) pp. 424 and 426.
380 Chapter XV
“sanction and reparation can thus subsist one beside the other, with effects of the
same delict”.50 A same legal fact can, thus, generate distinct consequences, such
as reparation and sanction. For a particularly grave wrongfulness (e.g., a grave
violation of human rights or of International Humanitarian Law), the compensa-
tory reparation (for the victim or her relatives) may not be sufficient, the punitive
reparation (e.g., investigation of the facts and punishment of those responsible
for them) being also necessary. Both may appear necessary for the realization of
justice.
In 1958, the Cuban jurist F.V. García Amador, rapporteur of the ILC on the
Responsibility of the States, observed that certain forms of reparation have a clear
and distinctly punitive purpose (punitive damages/dommages-intérêts punitifs),
implying the imputation of responsibility of a penal character to the State for
violation of certain international obligations, – in particular, grave violations of
fundamental human rights, similarly to the crimes against humanity.51 Thus, the
duty itself “to provide reparation” (with a connotation initially of civil law) varies
in accordance with “the character and role of the reparation” in given cases; in
this way, the reparation not always assumes the same form, and not always has
the same purpose, and, insofar as punitive damages are concerned (cf. infra), it
contains a penal element of responsibility.52
The whole chapter of the reparations for violations of human rights requires
a greater conceptual and jurisprudential development, as from the recognition
of the close relationship between the right to reparation and the right to justice.
Such development is imperative, particularly in face of the grave and systematic
violations of human rights, which, in turn, require a firm disapproval of the illicit
conduct of the State, and reparations of a dissuasive character, so as to guarantee
the non-repetition of the harmful facts, bearing in mind both the expectations of
the relatives of the victim as well as the superior needs and interests of the social
milieu.
In fact, one cannot deny the close link between the reparation and the strug-
gle against impunity, as well as the guarantee of non-repetition of the harmful
facts, always and necessarily from the perspective of the victims. The true repa-
ratio, linked to the realization of justice, requires the overcoming of the hinder-
ing of the duties of investigation and sanction of those responsible for the facts,
and the end to the impunity. That is, reparations can perfectly be endowed with
a character both compensatory and sanctioning, with the purpose of putting an
end to impunity and of securing the realization of justice, – this being perfectly
in accordance with the current stage of evolution of International Law.53
50 Ibid., pp. 428-429.

51 F.V. García Amador, “State Responsibility – Some New Problems”, 94 RCADI (1958)
pp. 396-398.
52 Ibid., p. 409.
53 The ample terms of Article 63(1) of the American Convention on Human Rights, e.g.,
have in fact opened to the IACtHR a wide horizon in the matter of reparations.
Reparations with exemplary or dissuasive purposes, corresponding to an

aggravated responsibility, can assist in the guarantee of non-repetition of the
harmful facts, and in the struggle against impunity. In my several years of experi-
ence as Judge of the IACtHR, I have been able to verify that States have less diffi-
culty in complying with pecuniary reparations than with reparations pertaining
to the duty of investigating and sanctioning those responsible for the violations
of human rights, that is, ultimately, to the realization of justice. Non-pecuniary
reparations are often much more important than what one could prima facie as-
sume, even for putting an end to the violations and removing their consequences,
in the terms of Article 63(1) of the American Convention.
Although the figure of the “punitive damages” is not strange to the com-
parative national case-law, nor to the international arbitral case-law,54 it is not
my purpose here to invoke it in the sense in which it has been utilized – in other
contexts – of exemplary reparation of a necessarily pecuniary character (imply-
ing considerable amounts55). Far from it. In the present context of protection,
endowed with a specificity of its own, other forms of reparation, of non-pecu-
niary character, have been commonly identified as “obligations of doing”, once
again suggesting a reductionist analogy with solutions proper of civil law. These
forms of reparation can be perfectly considered as endowed with a character at
a time compensatory and sanctioning56 (containing elements of both civil and
penal nature).
They have exemplary or dissuasive purposes, in the sense of preserving the
memory of the violations occurred, of providing satisfaction (a sense of realiza-
tion of justice) to the relatives of the victim, and of contributing to guarantee-
ing the non-repetition of those violations (also by means of the education and
in-training in human rights).57 “Punitive damages” can also be conceived in
54 Cf., e.g., inter alia, R.W. Hodgin and E. Veitch, “Punitive Damages Reassessed”, 21
International and Comparative Law Quarterly (1972) pp. 119-132; and cf. examples
of (national and international) practice in D. Shelton, Remedies in International Hu-
man Rights Law, Oxford, University Press, 2000, pp. 74-75 and 288-289. And there
are those who behold a tendency to a clear recognition of punitive damages in in-
ternational law; cf., e.g., N.H.B. Jorgensen, “A Reappraisal of Punitive Damages in
International Law”, 68 British Year Book of International Law (1997) pp. 247-266.
And, for a project of doctrinal construction, cf. G. Arangio-Ruiz, “Second Report on
State Responsibility”, in U.N., YILC (1989)-II, part I, pp. 31-35, 40-43 and 47-54.
55 And bringing about the risk of a “commercialization” of justice.
56 Whether those reparations are termed “exemplary”, or else “punitive damages”, their
basic purpose remains the same, in recognizing the gravity of the facts, sanctioning
the State at issue for the grave violations incurred into, recognizing and alleviating
the great suffering of the survivors, and seeking the guarantee of non-repetition of
the breaches; in providing adequate redress, they purport to reconstruct the harmed
social milieu. IACtHR, case of the Massacre of Plan de Sánchez (reparations, 2004),
Separate Opinion of Judge A.A. Cançado Trindade, par. 25.
57 To these effects were the reparations ordered by the IACtHR in the case of Myrna
Mack Chang concerning Guatemala (Judgment of 25.11.2003).
382 Chapter XV
this sense, resembling “obligations of doing” of both compensatory as well as

sanctioning character (thus overcoming the dichotomy between civil and penal,
proper of the regime of responsibility in domestic law).
Reparations of the kind have effectively a character at a time compensa-
tory and sanctioning; thus understood, “punitive damages” in reality are already
been applied, for a long time, in the domain of the international protection of
human rights,58 – a practice remindful of the evocation of the expression of the
well-known character of Molière, Monsieur Jourdain, qui parlait la prose sans
le savoir 59... . In contemporary International Law in evolution, “punitive dam-
ages” lato sensu 60 (beyond the purely pecuniary outlook inadequately attributed
to them) can appear as an appropriate response or reaction of the international
legal order against the crime of State.61
Truth Commission reports published in recent years62 disclose the system-
atic occurrence of crimes of State, resulting from the execution of State policies,
devised at the highest level, of torturing, murdering, and forcefully disappear-
58 From the rich case-law of the IACtHR in the matter of reparations, for example,
some significant examples may be recalled. In the case of Aloeboetoe versus Suri-
name (Judgment of 10.09.1993), the Court ordered the reopening of a school and the
creation of a foundation to assist the beneficiaries. In the case of Villagrán Morales
and Others versus Guatemala (case of the “Street Children”, Judgment of 26.05.2001),
the IACtHR ordered the designation of an educative centre with a name referring to
the victims of the case; likewise, in the case of Trujillo Oroza versus Bolivia (Judg-
ment of 27.02.2002), the Court again ordered the designation of an educative centre
with the name of the victim. In the case of Cantoral Benavides versus Peru (Judg-
ment of 03.12.2001), the IACtHR ordered the State to provide a scholarship of Uni-
versity studies to the victim. In the case of Barrios Altos concening Peru (Judgment
of 30.11.2001), the IACtHR ordered reparations in educative services and the pay-
ment of expenses of health services. And in the case of Durand and Ugarte versus
Peru (Judgment of 03.12.2001), the Court again ordered the payment of expenses of
health assistance or services and psychological support.
59 M. Jourdain: – “(...) Il y a plus de quarante ans que je dis de la prose, sans que j’en
susse rien, et je vous suis le plus obligé du monde de m’avoir appris cela”. Molière,
Oeuvres Complètes (Le bourgeois gentilhomme, 1670, act II, scene V), Paris, Éd. Seuil,
1962, p. 515.
60 It ought not to pass unnoticed that, e.g., the Declaration adopted by the United
Nations World Conference against Racism, Racial Discrimination, Xenophobia and
Related Intolerance (Durban, 2001), in foreseeing measures of reparation, compen-
sation, indemnization and of other kinds for the human sufferings and the “trag-
edies of the past” (pars. 98-106), and the corresponding Programme of Action, in
providing for reparations and indemnizations (pars. 165-166), utilize a language
which discloses affinities with the conception of “punitive damages” lato sensu.
61 N.H.B. Jorgensen, The Responsibility of States for International Crimes, Oxford,
University Press, 2003, pp. 231 and 280.
62 Such as, e.g., those of Peru, Guatemala, Chile, Argentina, among others.
ing persons.63 They warn against responding to crimes committed by non-State

entities (including terrorist groups) with crimes perpetrated by the State itself:
the results are invariably the disruption of the rule of law (État de droit), social
decomposition, killings of innocent people, impunity and corruption.64
In those reports, there is provision for punitive damages, of the aforemen-
tioned kind; for example, in its Final Report (adopted on 27.08.2003), the Com-
mission on Truth and Reconciliation of Peru, in referring to “reconciliation by
means of the education in values”,65 recommended a series of educational mea-
sures and courses of “humanistic formation”, so as to achieve “the most integral
formation of the person”.66 Such measures, conceived as a form of reparation, dis-
closed a wider dimension, being also measures of prevention against violence and
abuses victimizing the human person, and revealing a temporal dimension. They
bear witness of the acknowledgement that, in the mid- and long run, many of the
challenges to human rights protection can be faced with efficacy only through
education.
VII. The Principle of Universal Jurisdiction

The study of responsibility for grave violations of international law necessarily
encompasses the principle of universal jurisdiction. This latter has a long history,
which dates back to the thinking of the founding fathers of the law of nations.
Throughout the history of the discipline, jurisdictional powers have been assert-
ed and exercised on the basis mainly of certain basic principles, namely, those
of territoriality,67 of nationality or active personality,68 of passive personality,69
and of protection;70 in addition, that of universal jurisdiction, with its variations
63 G. Citroni, L’Orrore Rivelato – L’Esperienza della Commissione della Verità e Ricon-

ciliazione in Perù: 1980-2000, Milano, Giuff rè, 2004, pp. 1-163.
64 Cf., e.g., Comisión de la Verdad y Reconciliación [CVR], Informe Final – Conclu-
siones Generales, Lima/Peru, CVR, 2003, pp. 11-20, 30 and 34-43, and cf. pp. 24 and
26-29; and for a recent evaluation, cf. Defensoría del Pueblo [DP], A Dos Años de la
Comisión de la Verdad y Reconciliación, Lima/Peru, DP/Informe Defensorial n. 97,
2005, pp. 17-333.
65 Paragraph 4.2.7 of the Report.
66 Informe Final de la Comisión de la Verdad y Reconciliación, Lima, 27.08.2003, pp.
133-134.
67 Although widely applied in traditional International Law, for facts occurred in the
State’s territory, the principle is not an absolute one, co-existing with the other prin-
ciples.
68 When the alleged wrongs were committed by nationals of the State at issue.
69 For facts attributed to non-nationals of the State, perpetrated outside the State’s ter-
ritory, whenever the victims are its nationals.
70 For facts occurred outside the State’s territory, irrespective of the nationality of the
authors, when the alleged wrongs affect the State’s interests or the exercise of its
prerrogatives.
384 Chapter XV
in history, has been resorted to for sanctioning mainly grave violations of Inter-
national Humanitarian Law and International Human Rights Law.71 There is an
interplay among such principles, in the struggle against impunity.
The assertion of the principle of universal jurisdiction for sanctioning those
grave violations discloses the understanding that these latter affect not only the
victims and their communities, but the international community as a whole.72
Attentive and responsive to the gravity of the crimes perpetrated, the principle
of universal jurisdiction bears witness of shared core values of the international
community as a whole, pursuant to a universalist approach on the basis of con-
cepts of natural law.73 It is a principle proper to the International Law for human-
kind.
The principle of universal jurisdiction was initially admitted in cases of pi-
racy,74 and later in cases of war crimes, as well as slave trading;75 in relation to
such crimes it became regarded as part of the jus gentium. The duty aut dedere
aut judicare (to extradite or to exercise jurisdiction) came to be further applied
in crimes against internationally protected persons.76 The international practice
on the matter is not wholly uniform, presenting variations, from certain national
jurisdictions which also seek to base themselves on the principle of universal ju-
71 The nationality of the perpetrators, and the State territory where the alleged wrongs
were committed, become thus immaterial.
72 M. Itsouhou Mbadinga, “Le recours à la compétence universelle pour la répression des
crimes internationaux: étude de quelques cas”, 81 Revue de droit international de sci-
ences diplomatiques et politiques (2003) pp. 286-287; A. Remiro Brotons, “La Respon-
sabilidad Penal Internacional por Crímenes Internacionales y el Principio de Jurisdic-
ción Universal”, in Creación de una Jurisdicción Penal Internacional (ed. C. Escobar
Hernández), Madrid, Escuela Diplomática (Colección n. 4), 2000, pp. 204-205.
73 M.Ch. Bassiouni, “The History of Universal Jurisdiction and Its Place in Interna-
tional Law”, in Universal Jurisdiction – National Courts and the Prosecution of Seri-
ous Crimes under International Law (ed. S. Macedo), Philadelphia, Univ. of Pennsyl-
vania Press, 2004, pp. 42-43.
74 Cf., nowadays, on the repression of piracy on the high seas or in any other place out-
side the jurisdiction of any State, the 1982 U.N. Convention on the Law of the Sea,
Articles 100-101.
75 Both the 1928 Bustamante Code and the 1940 Montevideo Treaty on International
Penal Law, for example, provided universal jurisdiction over slave trading; cf. Am-
nesty International, Universal Jurisdiction: The Duty of States to Enact and Imple-
ment Legislation (ch. II: The History of Universal Jurisdiction), London, A.I., 2001,
pp. 2, 10-11, 18 and 28, and cf. pp. 32-33.
76 Cf., e.g., the 1973 Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons Including Diplomatic Agents, the 1979 Inter-
national Convention against the Taking of Hostages, the 1988 Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation. And cf.
also, in the same line, the 1970 Hague Convention for the Suppression of Unlawful
Seizure of Aircraft, the 1971 Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation.
risdiction,77 to contemporary international tribunals – such as the ad hoc ICTFY

and ICTR, and the ICC, – which envisage to operate on the basis of that principle
in a complementary way with national jurisdictions (principle of complementar-
ity).78
Yet, a clear evolution can here be perceived: as from the 1948 Convention
against Genocide (providing for territorial jurisdiction, with competence of the
forum commissi delicti), a step forward was taken, a quarter of a century later,
by the 1973 U.N. Convention against Apartheid, moving from territoriality to
an optional exercise of universal jurisdiction; and one decade later, yet another
step forward was taken, by the 1984 U.N. Convention against Torture, which sets
forth the duty to try those responsible for acts of torture, thus enhancing the
principle aut dedere aut judicare.79
On their turn, the 1949 Geneva Conventions on International Humanitar-
ian Law, in acknowledging grave breaches of their corpus juris (I Convention,
Article 49; II Convention, Article 50; III Convention, Article 129; IV Convention,
Article 146) and the corresponding needed universal repression of such breach-
es,80 contributed to the aforementioned evolution. The need for such repression
of those breaches was reasserted by Protocol I of 1977 (Article 85)81 to the Geneva
Conventions, in the same line of evolution of the matter.
The opinio juris communis on universal jurisdiction is still in the process of
formation, which is a steady process, with the decay of the static outlook of the
legal positivism of the past; that process advances in face of crimes which affect
the “essence of humanity” and call for repression and justice, in an international
legal order determined to ensure a minimum of ordre public.82 Universal juris-
77 For a comparative study, cf., e.g., [Various Authors,] El Principio de Justicia Uni-
versal, Madrid, Ed. Colex, 2001, pp. 103-158; and, for a case-study, cf., e.g., J. Lagos
Erazo, El ‘Caso Pinochet’ ante las Cortes Británicas, Santiago, Edit. Jur. de Chile,
1999, pp. 17-336.
78 Cf. the 1998 Rome Statute of the ICC, preamble, par. 10, and Articles 12-14.
79 A. Peyró Llopis, La compétence universelle en matière de crimes contre l’humanité,
Bruxelles, Bruylant, 2003, pp. 17, 23, 25 and 28; for the suggestion that the principle
of universal jurisdiction would be a corollary of the obligations erga omnes, cf. ibid.,
pp. 43-44. And cf., in relation to the prevalence of jus cogens, K. Parlett, “Universal
Civil Jurisdiction for Torture”, 4 European Human Rights Law Review (2007) p. 402;
M.T. Kamminga, “Lessons Learned from the Exercise of Universal Jurisdiction in
Respect of Gross Human Rights Offenses”, 23 Human Rights Quarterly (2001) p. 949;
M. Henzelin, Le principe de l’universalité..., op. cit. infra n. (85), pp. 438-439.
80 Cf., e.g, C. Swinarski, A Norma e a Guerra, Porto Alegre/Brazil, S.A. Fabris Ed., 1991,
pp. 43-44.
81 Cf. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Addi-
tional Protocols of 08 June 1977 to the Geneva Conventions of 12 August 1949, Geneva,
ICRC/Nijhoff, 1987, pp. 989-1004.
82 Ibid., pp. 2-4, 9, 34, 38 and 130-131. Cf. also M.C. Bassiouni and E.M. Wise, Aut
Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law, Dor-
drecht, Nijhoff, 1995, pp. XIII and 24.
386 Chapter XV
diction responds to the universal need to sanction and prohibit grave violations
of International Law, of International Humanitarian Law, and International Hu-
man Rights Law, and to fight impunity 83 anywhere, irrespective of territorial or
national links with the crimes perpetrated.
Legal reasoning in support of the application of the principle of universal
jurisdiction has invoked fundamental ethical values shared by the international
community,84 recta ratio,85 and the conscience of humankind,86 and has, further-
more, related such application of that principle to the contemporary develop-
ment of international justice itself. Moreover, the application of the principle of
universal jurisdiction, ineluctable in cases of crimes that shock the conscience of
humankind, moves us closer to the ideal of the civitas maxima.
According to this latter, above consent (the will), is the right use of reason;
it is the recta ratio which guides the will of States, and is conducive to the neces-
sary, rather than voluntary, law of nations,87 holding all of them together, bound
in conscience, in the civitas maxima gentium, the legal community of the whole
of humankind. This ideal, pursued notably by Christian Wolff in the XVIIIth
century, has its historical roots in the Stoics in ancient Greece, has survived to
date, and has been recalled from time to time.88
It repeals all that shocks the universal juridical conscience. In the concep-
tual construction of the civitas maxima gentium, nations need each other’s as-
sistance to repress grave crimes (wherever they may occur) and to promote the
common good (commune bonum promovere),89 pursuant to the dictates of the
right reason.90 If this understanding is hopefully constantly pursued, the prin-
ciple of universal jurisdiction is to be applied universally, in all corners of the
world, without selectivity.91
83 To this end, the 1968 Convention on the Non-Applicability of Statutory Limitations

to War Crimes and Crimes against Humanity, e.g., recognizes the need “to secure
its universal application” (preamble, 7th considerandum).
84 C. Keith Hall, “Universal Jurisdiction: New Uses for an Old Tool”, in Justice for
Crimes against Humanity (eds. M. Lattimer and Ph. Sands), Oxford/Portland, Hart,
2007 [reprint], pp. 55-56.
85 M. Henzelin, Le principe de l’universalité en droit pénal international, Genève/Mu-
nich/Bruxelles, Univ. Genève/Helbing & Lichtenhahn/Bruylant, 2000, pp. 82-83.
86 A. Bailleux, La compétence universelle au carrefour de la pyramide et du réseau,
Bruxelles, Bruylant, 2005, p. 137.
87 Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum (1764 – Series The
Classics of International Law, ed. J. Brown Scott), Prolegomena, p. 2, par. 4.
88 Cf., e.g., over half a century ago, W. Schiffer, The Legal Community of Mankind, N.Y.,
Columbia University Press, 1954, pp. 63-78.
89 C. Wolff, Jus Gentium..., op. cit. supra n. (87), p. 5, pars. 12-13.
90 Ibid., p. 7, par. 21.
91 As Christian Wolff furthermore upheld in 1764, since all persons are by nature
equal, so all nations too are by nature equal one to the other (gentes etiam omnes
natura inter se aequales sunt); cf. ibid., p. 6, par. 16.
On the basis of concepts of natural law, the principle of universal jurisdic-

tion acknowledges that grave violations of International Law and of the rights of
the human person do affect the international community as a whole, and that,
therefore, one ought to go well beyond the classic principles of territoriality and
nationality in their sanction and erradication, and in the pursuance of values
shared by the international community as a whole.92 Indications to that effect are
found not only in doctrine, but also in contemporary international case-law.
Thus, in that respect, the ICTFY, for example, has stressed the significance
of the advances of the principle of universal jurisdiction in the D. Tadic case;
in its decision of 02.10.1995 on the cas d’espèce, the ICTFY (Appeals Chamber)
pondered that “one cannot but rejoice at the thought that, universal jurisdiction
being nowadays acknowledged in the case of international crimes, a person sus-
pected of such offences may finally be brought before an international judicial
body (...)”.93 Earlier on, in the same D. Tadic case, the ICTFY (Trial Chamber), in
its decision of 10.08.1995, stated that
“the crimes which the International Tribunal has been called upon to try are not
crimes of a purely domestic nature. They are really crimes which are universal in
nature, well recognized in International Law as serious breaches of International
Humanitarian Law, and transcending the interest of any one State. (...) In such cir-
cumstances, the sovereign rights of States cannot and should not take precedence
over the right of the international community to act appropriately as they affect the
whole of mankind and shock the conscience of all nations of the world. There can
therefore be no objection to an international tribunal properly constituted trying
these crimes on behalf of the international community”.94
Yet another reference to the “collective conscience” was made by the ICTFY
(Trial Chamber), in its judgement of 29.11.1996, in the Erdemovic case, where it
added that crimes against humanity are characterized essentially by the concept
of “humanity as victim”.95
92 The principle of universal jurisdiction thus gives concrete expression to common

or fundamental values of the international community as a whole; the fundamental
principle of the dignity of the human person requires the absolute prohibition of
grave violations of International Law, as well as the fight against impunity of such
breaches which affect humankind as a whole. [Various Authors,] Crimes interna-
tionaux et juridictions internationales (eds. A. Cassese and M. Delmas-Marty),
Paris, PUF, 2002, pp. 21, 63, 71, 198, 256 and 260-261, and cf. pp. 24, 26 and 259-261.
This calls for a victim-oriented approach to the exercise of universal jurisdiction; L.
Reydams, Universal Jurisdiction – International and Municipal Legal Perspectives,
Oxford, University Press, 2004 [reprint], pp. 26-27, 77 and 221-222.
93 Paragraph 62.
94 Paragraph 42.
95 Paragraphs 27-28.
388 Chapter XV
The principle of universal jurisdiction, in sum, entails the non-applicability

of statutory limitations in relation to crimes which affect humanity itself, thus
transcending the traditional principle of territoriality of criminal law; universal
jurisdiction is in a way shared by all States, and any of them can prosecute those
responsible for such crimes, as member of the international community. Thus, in
the struggle against impunity, it is the entire international community itself that
responds and takes action, and the principle of universal jurisdiction prevails
over norms of domestic law, to avoid the application of these latter leading to
impunity.96
In the struggle against impunity, the IACtHR was the first international tri-
bunal to declare null and void – lacking legal effects – provisions of domestic law
(laws of self-amnesty) incompatible with the American Convention on Human
Rights, in its Judgment of 14.03.2001 in the case of Barrios Altos, concerning
Peru. The IACtHR stated that
“all amnesty provisions, provisions on prescription and the establishment of meas-

ures designed to eliminate responsibility are inadmissible, because they are intended
to prevent the investigation and punishment of those responsible for serious human
rights violations such as torture, extra-judicial, summary or arbitrary execution and
forced disappearance, all of them prohibited because they violate non-derogable
rights recognized by International Human Rights Law”.97
Subsequently, in the same line of reasoning, in its Judgment of 18.09.2003 in the

Bulacio versus Argentina case, the IACtHR added that
“In accordance with the conventional obligations assumed by the States, no provi-
sion or institute of domestic law, among which the prescription, could be opposed to
the compliance with the decisions of the Court as to the investigation and sanction
of those responsible for violations of human rights. If it were otherwise, the rights
set forth in the American Convention [on Human Rights] would be deprived of an
effective protection. This understanding of the Court is in conformity with the let-
ter and the spirit of the Convention, as well as the general principles of law; one of
those principles is that of pacta sunt servanda, which requires that to the provisions
of a treaty the effet utile is secured at the level of the domestic law of the States Par-
ties”.98
96 [Various Authors,] Crímen Internacional y Jurisdicción Universal (El Caso Pinochet)

(eds. M. García Arán and D. López Garrido et alii), Valencia, Ed. Tirant lo Blanch,
2000, pp. 52, 64-65, 67, 71-72, 76 and 85.
97 Paragraph 41.
98 Paragraph 117.
VIII. Concluding Observations

The reaction to the grave and systematic violations of human rights and of In-
ternational Humanitarian Law constitutes nowadays a legitimate concern of
the international community as a whole; such reaction imposes itself even more
forcefully when the victims are vulnerable and defenceless,99 and the structure
of public power is deformed and put at the service of repression and not of the
search for the common good. The international criminal responsibility of the
individual does not exempt that of the State; the two kinds of responsibility co-
exist, an acknowledgement of this being of crucial importance to the erradica-
tion of impunity. Both the State and its agents are direct addressees of norms of
contemporary international law; the conduct of both is foreseen and regulated by
this latter; thus, both the State and its agents are to be held accountable for the
consequences of their acts and ommissions.
All of us who have had the experience and responsibility to work with dedi-
cation in the international contentieux of human rights know that the crimes
of State effectively do exist, and we know what that means. The international
criminal responsibility of the individual does not exempt that of the State. We
are still in the beginning of a long process of evolution in this area, in which the
recent establishment of the ICC constitutes a point of major relevance in the
struggle against impunity, but not the culminating point in what pertains to the
international responsibility of the States. This latter falls outside the ambit of
competence of the ICC.
The determination of the international responsibility of the States is rather
of the competence of the international tribunals of human rights, which, in their
turn, cannot determine the international criminal responsibility of individuals.
This compartmentalized conception of international responsibility – of States
and of individuals – leads, in one case and the other, to the erradication of impu-
nity only in a partial way. For such erradication to be total, integral, one ought to
affirm and determine, concomitantly, the responsibility both of the State and of
the individual (the State agent), complementary as they are.
The crime of State is much more than a possibility, it is a reality, as disclosed
by the facts, e.g., of the aforementioned recent cases of Myrna Mack Chang, of
the Massacre of Plan de Sánchez, of the 19 Tradesmen, of the Massacre of Mapi-
ripán, and of the Moiwana Community. The contemporary doctrine of Interna-
tional Law should not keep on attempting to elude the question. If the expression
“crime of State” may appear to many international lawyers (apparently petrified
by the spectre of State sovereignty) objectionable for suggesting an inadequate
analogy with juridical categories of domestic criminal law, this does not mean
that the crime of State does not exist. The facts of the aforementioned recent
99 As in the cases of Myrna Mack Chang (2003) and of the Massacre of Plan de Sánchez
(2004) concerning Guatemala, of the 19 Tradesmen (2004) and of the Massacre of
Mapiripán (2005) concerning Colombia, and of the Moiwana Community versus
Suriname (2005), recently decided by the IACtHR.
390 Chapter XV
cases provide a clear evidence that it does indeed exist. Even if one keeps on
searching for it another denomination, this does not thereby mean that the crime
of State ceases to exist.
While it keeps on intending to elude the question, the contemporary doc-
trine of international law will be succumbing to the spectre of State sovereignty,
and withholding the evolution itself of the law of nations in the present domain
in our days. While it keeps on denying the existence of the crime of State, it will
be depriving the human person, ultimate titulaire of the rights inherent to her,
– and which precede, and are superior to, the State, – of the safeguard and the
exercise of such rights, starting with the right to justice; it will, moreover, be
depriving the human person of the proper reparations for the violations of those
rights.
While the existence of the crime of State keeps on being denied by the con-
temporary doctrine of international law, this latter will be depriving the State,
– hostage of a deformed structure of repression and impunity, – of its proper end,
the realization of the common good. While it keeps on denying the existence of
the crime of State, it will be depriving Law itself of its ultimate end, precisely
the realization of justice. While it keeps on intending to elude the question, the
treatment dispensed to the central chapter of the law on the international re-
sponsibility of the State will keep on being juridically unconvincing and concep-
tually incomplete. It will thereby be regrettably postponing the construction and
consolidation of a true rule of law, and, in the framework of this latter, of a true
right to the Law, that is, the right to a legal order which effectively safeguards the
fundamental rights of the human person.
The current acknowledgement of the universal need to prohibit and sanc-
tion grave violations of human rights and International Humanitarian Law has
brought about a revitalization of the principle of universal jurisdiction. This revi-
talization has disclosed the awareness of the international community as a whole
of that pressing need of prohibition and sanction to international crimes, given
their gravity.100 This awakening of conscience in a universal scale is occurring on
the basis of concepts of natural law, taking up the struggle against impunity well
beyond the confines of the classical principles of territoriality and nationality.
This is yet another development disclosing common and superior values shared
by the international community as a whole, and heralding the advent of a new jus
gentium, the International Law for humankind.
100 Cf., e.g., A. Oriolo, La Responsabilità Penale Internazionale degli Individui: tra
Sovranità Statale e Giurisdizione Universale, Napoli, Ed. Scient. Italiane, 2008, pp.
88-89 and 147.
Part VI
Humanization of International Law

Chapter XVI Basic Considerations of Humanity in
the Corpus Juris of International Law
I. Introduction: The Relevance of Basic Considerations of Humanity

Indications of the emergence of a new jus gentium at this beginning of the XXIst
century, the International Law for humankind, can be found not only in the con-
ceptual constructions previously reviewed,1 but also in the basic considerations
of humanity permeating distinct chapters of International Law, to which I shall
turn attention now. Such considerations of humanity, which begin to attract in-
creasing attention in our days, have perhaps not yet been given the weight they
deserve, and call for, by contemporary international legal doctrine. They grow in
importance in a historical moment like the one we live, of indiscriminate use of
force and profound crisis of International Law, which reflects a yet deeper crisis
of values.
Some of the most lucid thinkers who have purported to identify the lessons
to be extracted from the XXth century (B. Russell, K. Popper, I. Berlin, A. Toyn-
bee, among others) coincide in one capital point: never as in the XXth century
has there been so much progress in science and technology accompanied tragi-
cally by so much destruction and cruelty;2 never as in the last decades has there
occurred so much growth in prosperity accompanied in an equally tragic way by
so much increase – statistically proven – of socio-economic disparities and ex-
treme poverty. Our times have witnessed a panorama of unprecedented scientific
and technological progress accompanied by human sufferings hard to describe.3
1 Cf. chapters XII-XV, supra.

2 Cf. Bertrand Russell, “Knowledge and Wisdom”, Essays in Philosophy (ed. H. Peter-
son), N.Y., Pocket Library, 1960 (2nd. printing), pp. 498-499 and 502; K. Popper, The
Lesson of This Century, London, Routledge, 1997, pp. 53 and 59; I. Berlin, “Return of
the Volksgeist: Nationalism, Good and Bad”, in At Century’s End (ed. N.P. Gardels),
San Diego, Alti Publ., 1996, p. 94.
3 In a luminous essay published slightly over half a century ago, in the same year of
the adoption of the Universal Declaration of Human Rights, a learned historian,
questioning the very bases of what is understood by civilization, – that is, quite
modest advances at social and moral levels, – regretted that the command achieved
by man over non-human nature unfortunately did not extend itself to the spiritual
394 Chapter XVI
Along that century of tragic contradictions, of the divorce between wisdom

and specialized knowledge, of the antinomy between the domain of sciences and
the lack of control of human impulses, of the oscillations between advances and
steps backwards, the function of International Law gradually transformed itself,
as a corpus juris no longer of regulation but above all of liberation. As I had the
occasion to state at the turn of the century, just as
“it is certain that the XXth century was the stage, apart from the extraordinary sci-
entific and technological advances of our time, of cruelties perpetrated against the
human person in an unprecedented scale, it is also certain that this has generated a
reaction – likewise unprecedented – against those abuses, as a manifestation of the
awakening of the universal juridical conscience to the urgent needs of protection of
the human being”.4
It is thus not surprising, to find in the evolution of International Law increasingly

concerned with the fate of the human person and of humankind as a whole, the
constant presence of the expression of basic considerations of humanity. This
has, in turn, contributed to expand and enrich its corpus juris.
In fact, such basic considerations of humanity appear ineluctable and in-
dispensable in any domain of human knowledge and activity. International Law
is no exception to that. In a world such as ours, marked by intensified violence
in multiplied conflicts in different latitudes, of unscrupulous recourse to force,
of merciless concentration of income with increased social marginalization and
exclusion in distinct continents, it becomes imperative to rescue those basic con-
siderations of humanity, which – it should be kept in mind – have, for more than
half a century, marked their constant presence in international case-law, in the
more lucid doctrine, as well as in international practice (both of States and of
international organizations). More attention should be given to them nowadays
by those devoted to International Law, so as to draw the consequences ensuing
therefrom, to the benefit of humankind as a whole.
level; A.J. Toynbee, Civilization on Trial, Oxford, University Press, 1948, pp. 262
and 64. Another historian, E. Hobsbawn, nowadays portrays the XXth century as
a period of history marked above all by the crimes and madness of mankind; E.
Hobsbawm, Era dos Extremos – O Breve Século XX, São Paulo, Cia. das Letras, 1996,
p. 561. It is wholly unjustifiable that abuses and crimes have been committed in the
name of public power, especially if one keeps in mind that the State was originally
conceived as promoter and guarantee of the common good; J. Maritain, The Person
and the Common Good, Notre Dame, University of Notre Dame Press, 1966 (reprint
1985), pp. 11-105.
the XXIst Century”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacion-
al / Bancaja Euromediterranean Courses of International Law – Castellón/Spain
(1999) p. 213, and cf. p. 212.
Basic Considerations of Humanity in the Corpus Juris of International Law 395
II. The Omnipresence of Basic Considerations of Humanity
1. Illustrations of International Case-Law

Basic considerations of humanity are, in fact, omnipresent in the whole corpus
juris of contemporary International Law.5 Such considerations have met with
recognition in international case-law. Thus, it may be recalled that, in the Corfu
Channel case (1949), the International Court of Justice [ICJ] referred to obliga-
tions based not on a treaty,6 but rather on
“certain general and well-recognized principles, namely, elementary considerations

of humanity, even more exacting in peace than in war”.7
Two years later, in its Advisory Opinion on Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide (1951), the ICJ, referring to
the “special characteristics” of the Convention against Genocide, stated that
“the principles underlying the Convention are principles which are recognized (...)
as binding on States, even without any conventional obligation. (...) The Conven-
tion was manifestly adopted for a purely humanitarian and civilizing purpose. (...)
In such a Convention the contracting States do not have any interests of their own;
they merely have, one and all, a common interest, namely, the accomplishment of
those high purposes which are the raison d’être of the Convention. Consequently,
in a Convention of this type one cannot speak of individual advantages or disad-
vantages to States, or of the maintenance of a perfect contractual balance between
rights and duties”.8
Subsequently, in the Nicaragua versus United States case (1986), the ICJ again
evoked the “elementary considerations of humanity”,9 pondering that there are
obligations incumbent upon the States that derive not only from treaty law (e.g.,
the 1949 Geneva Conventions on International Humanitarian Law), but also
from the “general principles of humanitarian law” to which that treaty law gives
concrete expression. That treaty law is in some respect the expression, and in
others a development, of those general principles of humanitarian law.10
5 Chapters XVII-XXIII, infra.

6 In the cas d’espèce, not on the Hague Convention n. VIII, of 1907, applicable in time
of war.
7 ICJ, Corfu Channel case (United Kingdom versus Albania), ICJ Reports (1949) p. 22.
8 ICJ, Advisory Opinion on Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, ICJ Reports (1951) p. 23.
9 ICJ, Nicaragua versus United States case, ICJ Reports (1986) pp. 112-114, pars. 215 and
218.
10 Ibid., p. 114, par. 220, and p. 113, par. 218, respectively.
396 Chapter XVI
On its part, the International Tribunal for the Law of the Sea, in the M/V Saiga
case (1999), also evoked basic considerations of humanity. In considering, with-
in the framework of the applicable rules of international law, the force used by
Guinea in the arrest of the ship Saiga, it was of the view that although the 1982
U.N. Convention on the Law of the Sea did not contain express provisions on the
use of force in the arrest of ships,
“International Law, which is applicable by virtue of Article 293 of the Convention,

requires that the use of force must be avoided as far as possible and, where force is
unavoidable, it must not go beyond what is reasonable and necessary in the circum-
stances. Considerations of humanity must apply in the law of the sea, as they do in
other areas of International Law. These principles have been followed over the years
in law enforcement operations at sea. (...)”.11
The inter-State character of certain disputes (as illustrated, e.g., by the Corfu
Channel and the Nicaragua versus United States cases), has not hindered an in-
ternational tribunal such as the ICJ to evoke and take into account basic consid-
erations of humanity. These latter have been associated with general principles
of law (encompassing the principles of International Law), taken into account
to avoid the non liquet and to disclose the ethical foundations of International
Law.12 Likewise, the specialized nature of an international tribunal such as that
for the Law of the Sea has not hindered it from taking into account basic con-
siderations of humanity, applicable in that chapter as well as in other areas of
International Law.
Such considerations have, not surprisingly, been consistently kept in mind
by international human rights tribunals. Two recent and pioneering Advisory
Opinions issued by the Inter-American Court of Human Rights [IACtHR] can
in fact be properly regarded as two Opinions for humankind, namely, Advisory
Opinion n. 16 (of 01.10.1999), on The Right to Information on Consular Assistance
in the Ambit of the Guarantees of the Due Process of Law, and Advisory Opinion
n. 18 (of 17.09.2003), on the Juridical Condition and the Rights of Undocumented
Migrants. In the former, the IACtHR linked the right to information on consular
assistance (set forth in Article 36 of the 1963 Vienna Convention on Consular Re-
11 ITLS, M/V Saiga (n. 2) case (Saint Vincent and the Grenadines versus Guinea), Re-
ports of Judgments, Advisory Opinions and Orders (1999) pp. 61-62, pars. 155-156.
In the cas d’espèce, the Tribunal found that “Guinea used excessive force and en-
dangered human life before and after boarding the Saiga, and thereby violated the
rights of Saint Vincent and the Grenadines under International Law”; ibid., p. 63,
para. 159.
12 Here, inspiration has thus been found more in the opinio juris than in the prac-
tice of States; cf., to this effect, P.-M. Dupuy, “Les ‘considérations élémentaires de
l’humanité’ dans la jurisprudence de la Cour Internationale de Justice”, in Mélanges
en l’honneur de N. Valticos – Droit et justice (eds. R.J. Dupuy and L.A. Sicilianos),
Paris, Pédone, 1999, pp. 125-127 and 130.
lations) to the guarantees of the due process of law under Article 8 of the Ameri-
can Convention on Human Rights. The Court added that that subjective right
has crystallized throughout the years, being titulaire of it every human being
deprived of his liberty abroad. By virtue of that right, every person ought to be
immediately informed by the receiving State that it can count on the assistance
of the consul of the country of origin.13 The Opinion gave judicial recognition to
the indissoluble links between the right to information on consular assistance
and the guarantees of the due process of law, and, in cases of death penalty, to
the right to life itself.
Subsequently, in its Opinion n. 18, the IACtHR sustained that States have
the duty to respect and ensure respect for human rights in the light of the general
and basic principle of equality and non-discrimination, and that any discrimina-
tory treatment in relation to the protection and exercise of such rights (including
labour rights) generates the international responsibility of the States. In the un-
derstanding of the IACtHR, the fundamental principle referred to has enterred
into the domain of jus cogens, the States not being entitled to discriminate, or
to tolerate discriminatory situations, to the detriment of migrants, and being
under the duty to secure the due process of law to any person, irrespective of her
migratory status. States cannot subordinate or condition the observance of the
principle of equality before the law and non-discrimination to the objectives of
their migratory policies, among others.
Both Opinions (ns. 16 and 18) of the IACtHR pursue a dynamic or evolutive
interpretation of the International Law of Human Rights, the latter having been
erected upon the evolving concepts of jus cogens and erga omnes obligations of
protection, as indicated in my Concurring Opinions thereto. The historical tran-
scendence of both Opinions, which benefit numerous human beings, has been
properly acknowledged in contemporary international legal doctrine:14 they both
effectively pave the way for the continuing construction of a new jus gentium at
this beginning of the XXIst century, no longer State-centric, but turned rather
to the fulfilment of the needs of protection and aspirations of human beings and
13 Before making any declaration (incriminating himself) before the local police au-
thority. As to the detainees condemned to death, the Court added that, in case of
imposition and execution of death penalty, without the prior observance of the right
to information on consular assistance, this non-observance affects the guarantees
of the due process of law, and a fortiori it violates the right itself not to be deprived
of life arbitrarily (in the terms of Article 4 of the American Convention and Article
6 of the U.N. Covenant on Civil and Political).
14 Cf. chapter XXII, infra.
398 Chapter XVI
2. Illustrations of International Legal Doctrine

For many years the more lucid international legal doctrine (which unfortunately
by no means represents the views of the majority of international lawyers) has
been warning as to the need to bear in mind basic considerations of humanity
to ensure the evolution of International Law in such a way as to enable this latter
to fulfil effectively the needs and aspirations of the international community. In
1958, for example, C. Wilfred Jenks wrote that international law could no longer
be adequately or reasonably described as the law governing the mutual relations
of States in the light of their interests only; in the second half of the XXth cen-
tury, – he added, – it should be able to adjust conflicting interests so as to provide
organised support to “a universal community”, in the form of a true “common
law of mankind”.15
Likewise, in his lectures at the Hague Academy of International Law of
1965, A. Truyol y Serra endorsed the universalist conception of the law of nations
(diritto della umanità) bearing in mind the notion of social justice; to his mind,
“Le droit international ne peut plus se contenter de délimiter entre elles les com-
pétences étatiques; il doit aff ronter l’établissement d’un ordre communautaire (...),
dont l’objectif primordial et immédiat n’est autre qu’une promotion équilibrée et
harmonieuse du développement dans l’ensemble de l’humanité considérée comme
un tout”.16
He regarded the resolutions of the U.N. General Assembly on decolonization of

that time as reflecting “la conscience juridique de l’humanité contemporaine en
cette matière”.17
This substantial change of mentality and of outlook of International Law has
a historical explanation. Paul de Visscher, who conceived Law as incorporating
ethical values, pondered, in his general course of 1972 at the Hague Academy,
that the decolonization process and the “revolt of the consciences in face of the
horrors of the war”, contributed jointly to
“exiger que des barrières objectives, directement inspirées par les idées d’humanité,
de justice et de solidarité, soient dressées contre l’omnipotence de la raison d’État
sur le plan interne et contre l’omnipotence des volontés communes sur le plan in-
ternational”.18
15 C.W. Jenks, The Common Law of Mankind, London, Stevens, 1958, pp. 58 and 85.
16 A. Truyol y Serra, “L’expansion de la société internationale aux XIXe. et au XXe. siè-
cles”, 116 Recueil des Cours de l’Académie de Droit International de La Haye [RCA-
DI] (1965) pp. 169 and 151-152, and cf. pp. 170-171.
17 Ibid., p. 161.
18 P. de Visscher, “Cours général de Droit international public”, 136 RCADI (1972) pp.
103-104, and cf. p. 111.
One decade later, in a Colloquy organized by the Hague Academy (1983), R.-J.
Dupuy observed that as mankind made its entry into the domain of international
law, it came to be superimposed to the conception of international community,
which, on its turn, had made its constant appearance in International Law texts
by the end of the sixties. There was no redundancy, as this latter gathered togeth-
er contemporaries, while mankind has a temporal dimension and encompasses
“not only those who are present but also those who will come”. And he added:
“This new cultural system of superimposition can be analyzed out of the juridical
products it prompted, as the United Nations launched them under the impulsion of
the word ‘mankind’ without studying its content thoroughly. Th is is why this entry
of mankind in jus gentium is not coupled with coherent conducts and sees its sum-
mit value itself being challenged”.19
This is the task ahead of the new generations of international law scholars, name-
ly, the construction of what I see it fit to call the new jus gentium of our times, the
International Law for humankind. This may require clarifications as to the con-
tents and legal effects of newly-emerging concepts to that end,20 as I endeavoured
to indicate in the preceding four chapters. But this demands, above all, a new
mentality, conducive to a new awareness that International Law can no longer,
and does no longer, operate upon a strictly inter-State basis, – a new mentality
conducive to the international community assuming its responsibility for secur-
ing the survival as well as the welfare of humankind as a whole.
III. Concluding Observations

The cultivation of basic considerations of humanity, as an early step in the con-
struction of a new jus gentium restoring to human beings and humankind the
central position that is theirs, is bound gradually to equip International Law so
as to be able to respond to contemporary challenges that it is faced with. Interna-
tional Law has a role to play in seeking that science and technology together are
no longer used for destruction and cruelty. International Law has a role to play in
curbing arms trade, and extracting the juridical consequences of the illegality of
all weapons of mass destruction, including nuclear weapons. International Law
has a role to play in seeing to it that the growth of prosperity of some is no longer
followed tragically by the alarming growth of socio-economic disparities and ex-
treme and chronic poverty, within nations and among them. International Law
has a role to play in the regulation of a new international order, going beyond the
classic Westphalian model of a strictly inter-State dimension.
19 R.-J. Dupuy, “Conclusions du Colloque / Conclusions of the Workshop”, in L’avenir

du Droit international dans un monde multiculturel (Colloque de novembre 1983,
ed. R.-J. Dupuy), The Hague, Nijhoff/Académie de Droit International de La Haye/
Université des Nations Unies, 1984, pp. 480-481, and cf. p. 482.
20 Cf. chapters XII-XV, supra.
400 Chapter XVI
This is the task ahead, for the new generations of international law scholars,
like the ones gathered here, in this summer of 2005, at the Hague Academy of
International Law. It has been in moments of deep crisis, as the one we experi-
ence today, that qualitative advances have been achieved. The horrors of the II
world war did not impede the emergence and growth of the International Law
of Human Rights. The horrors of contemporary genocides have not hindered the
advances of International Criminal Law, and the establishment of a permanent
international criminal jurisdiction. The frequent and successive abuses against
human beings in different latitudes have not impeded the construction and ex-
pansion of the vast and significant case-law of the European and Inter-American
Courts of Human Rights, a case-law of the emancipation of human beings from
their own State. Despite the recurrence of atrocities in the last decades, human
conscience has reacted in fostering the current process of humanization of Inter-
national Law. Basic considerations of humanity, nowadays permeating the whole
of its corpus juris, constitute yet further indications of the path to follow.
Chapter XVII Basic Considerations of Humanity in
Relation to Disarmament
I. Introduction
It was in Hiroshima and Nagasaki that the limitless insanity of man heralded the
arrival of a new era, the nuclear one (with the detonation of the atomic bombs in
Hiroshima on 06.08.1945 and in Nagasaki on 09.08.1945), which, after six decades,
– having permeated the whole cold war period, – remains a stalemate which con-
tinues to threat the future of humankind. Ever since the outcry of humankind
began to echo around the world as to the pressing need for International Law
to outlaw all weapons of mass destruction, starting with nuclear weapons: this
is the task which still remains before us today. Endeavours towards general and
complete disarmament, in their distinct aspects (infra), have indeed been perme-
ated with basic considerations of humanity.
II. The Search for Peace: The Creation of Zones of Peace
1. The Attainment of Peace and Human Security: A Permanent Goal

In 1999, on the occasion of the celebration of the centennial of the I Hague Peace
Conference, the Hague Agenda for Peace and Justice for the XXIst Century,1
adopted on the occasion, included among its main topics those of disarmament
and human security, and of prevention of conflicts. The document recalled the
long quest of humankind for peace, and the recurring protest against the use of
nuclear weapons on the ground that
“their effects allegedly cannot be limited to legitimate military targets and that they
are thus by nature indiscriminate, and on the ground of excessive cruelty (heat and
radiation)”.2
1 U.N. document A/54/98/Annex, reproduced in op. cit. infra n. (2), pp. 419-454.
2 F. Kalshoven (ed.), The Centennial of the First International Peace Conference – Re-
ports and Conclusions, The Hague, Kluwer, 2000, p. 52 (remark by H. Blix).
402 Chapter XVII
The aforementioned Hague Agenda warned emphatically as to the dangers of all

weapons of mass destruction, and, as part of a universal effort to abolish them,
called upon all States to ratify the existing Conventions against Biological Weap-
ons and against Chemical Weapons (cf. infra) and to adopt national measures
of implementation. It further called upon all States to “negotiate and conclude
within five years” a Convention against Nuclear Weapons, which would prohibit
their production, use and threat, and would provide for “verification and enforce-
ment of their destruction”.3 The document well pondered that
“The continued existence of nuclear weapons and their threat or use by accident,
miscalculation or design threaten the survival of all humanity and life on earth”.4
Weapons of mass destruction continue to constitute a grave threat to the sur-

vival of humankind. Comparing with biological weapons and cheminal weap-
ons, the risks raised by nuclear weapons are further aggravated by the virtually
total lack of control over their effects (of radioactive fall-out, thermal radiation,
and ionizing radiation) in time. For ionizing radiation, in particular, the conse-
quences may extend for days, weeks or years, before the appearance of symptons
of ill-health; it may precipitate certain diseases (some terminal ones), and delay
the healing of other injuries.5
The same reasons which have led to the express prohibition of other weap-
ons of mass destruction, and weapons that cause unnecessary and cruel suffering
with indiscriminate effects, apply likewise – and even more forcefully – to nucle-
ar weapons, the most inhumane of all weapons.6 The damage caused by them has
a temporal dimension, which can extend for years and years, distinguishing them
from other weapons for their extreme cruelty, and causing a suffering which can
simply not be measured. This should be kept in mind by all international lawyers,
who have, in my view, a duty to sustain their utter illegality in contemporary
International Law, particularly if they bear in mind – as they ought to – not only
the States, but also – and above all – humankind as a whole.
In any case, any consideration of the matter cannot fail to start from the
general principle, enunciated in the Hague Conventions of 1899 and 1907,7 that
the choice, by belligerents, of means and methods of combat is not unlimited,
as well as from the principle – also set forth in those Conventions – of the pro-
hibition of any weapons and methods of combat that may cause unnecessary
3 Ibid., pp. 450 and 452 (items 48 and 44 of the Hague Agenda), and cf. pp. 426-427.
4 Ibid., p. 450 (item 44).
5 International Committee of the Red Cross [ICRC], Weapons that May Cause Un-
necessary Suffering or Have Indiscriminate Effects (Report on the Work of Experts),
Geneva, ICRC, 1973, pp. 20-21.
6 S. Glaser, L’arme nucléaire à la lumière du droit international, Paris, Pédone, 1964,
pp. 34, 36-37 and 51.
7 Article 22 of the II Hague Convention of 1899, and of the IV Hague Convention of
1907.
Basic Considerations of Humanity in Relation to Disarmament 403
suffering,8 with indiscriminate effects.9 The persistence of the arsenals of such

weapons nowadays, and the dangers of their proliferation, despite decades of en-
deavours towards general and complete disarmament frustrated to a large extent
by the oscillations of the politics of the great powers,10 have drawn attention in
our days to what has been termed human security.
Just as the logic of development has developed from the past framework of
inter-State relations into the new conception of human development, so has the
logic of security: conceived in the past to apply in inter-State relations (including
in the renewed scheme of collective security under the U.N. Charter), it nowadays
transcends that dimension to shift attention to human security. In one and the
other contexts, the central concern is no longer with States11 properly, but rather,
and more appropriately, with human beings, “within and across State borders”,
thus replacing the old State-centric approach of the matter by an anthropocen-
tric one.12 The concern is, ultimately, with humankind as a whole, pointing, once
again, to the new jus gentium of our days, the international law for humankind.
In order to develop a new approach to the whole subject of security, the
United Nations determined the creation, in the framework of the Millennium
Summit (2000), of its Commission on Human Security. In its Report of 2003,
the Commission reaffirmed the importance of multilateralism and categorically
rejected unilateral action for the peaceful settlement of disputes. Its approach
was based on rights and “humanitarian strategies”, on “human security”,13 thus
clearly avoiding to refer to the concept of security of the State. Moreover, it called
for the necessary control of weapons, in order to guarantee the “security of the
persons”.14
In a similar line of thinking, another international document, the Declara-
tion on Security in the Americas, adopted in Mexico City by the Special Confer-
ence on Security, of the Organization of American States [OAS], of October 2003,
singled out the “multidimensional character” of security, invoked the principles
8 Article 23(e) of the aforementioned Hague Conventions.

9 ICRC, Weapons that May Cause Unnecessary Suffering..., op. cit. supra n. (5), p. 11; S.
Glaser, L’arme nucléaire..., op. cit. supra n. (6), pp. 45-46.
10 Cf., e.g., M.-F. Furet, Le désarmement nucléaire, Paris, Pédone, 1973, p. 9.
11 An outlook of sad memory to those victimized by the invocation of “State security”
by the power-holders in order to try to “justify” abuses and human rights viola-
tions, in dictatorships and in authoritarian regimes, such as the ones in some South
American countries, mainly between the mid-sixties and early eighties.
12 Cf., e.g., S. Ogata and J. Cels, “Human Security – Protecting and Empowering the
People”, 9 Global Governance – A Review of Multilateralism and International Or-
ganizations (2003) n. 3, pp. 274-275.
13 Expressly referring to the three branches of the International Law of Human Rights,
of the International Law of Refugees and of International Humanitarian Law; U.N./
Commission on Human Security, Human Security Now – Protecting and Empower-
ing People, N.Y., U.N., 2003, pp. 12, 27 and 49.
14 Ibid., p. 134.
404 Chapter XVII
of the U.N. Charter and of the OAS Charter, emphasized the “human dimension”
of the issue, and affirmed its commitment with multilateralism.15 In sum, it can
thus be fairly concluded, on this particular point, that human security is nowa-
days conceived – mainly at U.N. level – not at all to allow for unwarranted “hu-
manitarian intervention” at inter-State level, nor for any manifestation of undue
unilateralism, but rather, quite on the contrary, to strengthen multilateralism, so
as to find common and generally accepted solutions to current needs of security
of human beings, and, ultimately, of humankind.
2. The Initiative of Zones of Peace

In order to avoid the proliferation of weapons of mass destruction, and to put an
end to the existing arsenals of those weapons, multilateral mechanisms of their
control and prohibition, as well as their destruction, have been conceived, and
created by international conventions, which ought to be applied and strength-
ened, towards world disarmament.16 In the same line of thinking, the initiative
was taken of establishing zones of peace in distinct continents, to give concrete
expression to the emerging right to peace. In the mid-eighties, the issue occu-
pied an important place in the international agenda, with the proposal to set up
zones of peace, like the one in the Indian Ocean, as well as in the Mediterranean
and in South-East Asia,17 and the one envisaged in 1990 for the whole of South
America.18 In fact, the concept of zones of peace (sometimes used interchange-
ably with that of nuclear-weapon-free zones) appears intermingled with that of
right to peace.19
The concepts of zones of peace (found, e.g., in the 1971 U.N. Declaration of
the Indian Ocean as a Zone of Peace, not to speak of the 1959 Antarctic Treaty
15 Preamble, and items II(2), I(1), II(4)(e), and II(4)(z), respectively.

16 It is not to pass unnoticed that the Latin American countries (and not the great pow-
ers) were the ones which constituted the first – and densily inhabited – region of the
world to declare itself a nuclear-weapon-free zone, by means of the adoption of the
Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean
(1967), which served as inspiration for other regions of the world, thus contributing
to the formation of a universal conscience as to the pressing need of world disar-
mament. Cf. OPANAL/UNIDIR, Las Zonas Libres de Armas Nucleares en el Siglo
XXI, N.Y., U.N., 1997, pp. 8-19 and 46-47; W. Epstein, “The Making of the Treaty of
Tlatelolco”, 3 Journal of the History of International Law / Revue d’histoire du Droit
international (2001) pp. 153-177.
17 S. Szurek, “Zones exemptes d’armes nucléaires et zones de paix dans le tiers-monde”,
88 Revue générale de Droit international public (1984) pp. 123-128 and 151-156.
18 Comisión Sudamericana de Paz (CSP), Proyecto de Tratado de Zona de Paz (Grupo
de Trabajo de Juristas), Santiago de Chile, CSP, 21.06.1990, pp. 1-9 (internal circula-
tion).
19 Cf. chapter XIV, supra.
itself20), as well as of nuclear-weapon-free zones (finding expression in such in-

struments as the treaties creating the current four nuclear-weapon-free zones –
infra), were advanced for curbing the geographical spread of the weapons race.21
When the U.N. General Assembly proclaimed in 1971 the Indian Ocean as a zone
of peace,22 and the States of the region took the initiative of assuming primary
collective responsibility for the preservation of peace therein, the concept of zone
of peace was devised as one which would free the region from great power ri-
valry or confrontation, would exclude the setting up of military bases therein,
and would furthermore lead to measures of arms control and disarmament and
of promotion of peace.23 It was, thus, a general concept.
Although invoked interchangeably, the concept of zones of peace (such as
those proclaimed by the United Nations in the Indian Ocean and in the South
Atlantic) is not exactly the same as that of nuclear-weapon-free zones. These lat-
ter are based on treaties, while the zones of peace, in turn, give expression to
an essentially political conception; although based on non-binding instruments,
they reflect a consensus, emerging out of debates at the U.N. General Assembly,
which cannot be overlooked or ignored, in the endeavours to secure the total
absence of all weapons of mass destruction, including nuclear weapons, in the
respective zones of peace.24
III. The Establishment of Nuclear-Weapon-Free Zones

The establishment, in the second half of the XXth century, of nuclear-weapon-
free zones, surely responded to the needs and aspirations of humankind, so as to
rid the world of the threat of nuclear weapons; furthermore, it gave expression to
the growing disapproval of nuclear weapons by the international community. The
20 For an account, cf., e.g., E. Fujita, The Prevention of Geographical Proliferation of

Nuclear Weapons: Nuclear-Weapon-Free Zones and Zones of Peace in the Southern
Hemisphere, N.Y., U.N./UNIDIR, 1989, pp. 1-40.
21 Reference could also be made to relevant resolutions of the U.N. General Assembly,
such as the 1988 Declaration on the Prevention and Removal of Disputes and Situa-
tions Which May Threaten International Peace and Security and on the Role of the
United Nations in this Field; to this latter one can add other resolutions of the U.N.
General Assembly, such as resolution 44/21, of 1989, on enhancing international
peace, security and international cooperation in all its aspects in accordance with
the U.N. Charter; B. Boutros-Ghali, An Agenda for Peace, 2nd. ed., N.Y., U.N., 1995,
p. 52.
22 U.N. General Assembly resolution 2832 (XXVI), of 16.12.1971.
23 International Peace Academy, Regional Colloquium on Disarmament and Arms
Control (New Delhi, 12-17.02.1978), New Delhi/Bombay/Calcutta, I.P.A., 1978, pp.
23-25 and 78-80.
24 J.C. Carasales, “El Cambiante Valor de las Zonas Libres de Armas Nucleares: La
Experiencia de Tlatelolco y Rarotonga”, in XVI Curso de Derecho Internacional Or-
ganizado por el Comité Jurídico Interamericano (1989), Washington D.C., Secretaría
General de la OEA, 1991, p. 89.
406 Chapter XVII
pioneering initiative in this domain was that of Latin America,25 which resulted
in the adoption of the 1967 Treaty for the Prohibition of Nuclear Weapons in Lat-
in America and the Caribbean and its two Additional Protocols. This initiative,
which was originally prompted by a reaction to the Cuban missiles crisis of 1962,
was followed by four others of the kind, in distinct regions of the world, condu-
cive to the adoption of the 1985 South Pacific (Rarotonga) Nuclear-Free Zone
Treaty, the 1995 Treaty on the Southeast Asia (Bangkok) Nuclear-Weapon-Free
Zone Treaty, the 1996 African (Pelindaba) Nuclear-Weapon-Free Zone Treaty,26
and, more recently, the 2006 Central Asia (Semipalatinsk) Nuclear-Weapon-Free
Zone Treaty (cf. infra).
Basic considerations of humanity have surely been taken into account for
the establishment of those nuclear-weapon-free zones. By the time of the cre-
ation of the first of them with the adoption in 1967 of the Treaty of Tlatelolco, it
was pointed out that it came as a response to humanity’s concern with its own
future (given the threat of nuclear weapons), and in particular with “the survival
of the humankind”.27 Its reach transcended Latin America (and the Caribbean),
as evidenced by its two Additional Protocols,28 and the obligations set forth in its
legal regime were wide in scope:
“Le régime consacré dans le Traité n’est pas simplement celui de non-prolifération:
c’est un régime d’absence totale d’armes nucléaires, ce qui veut dire que ces armes
seront interdites à perpétuité dans les territoires auxquels s’applique le Traité, quel
que soit l’État sous le contrôle duquel pourraient se trouver ces terribles instru-
ments de destruction massive”.29
In fact, besides the Treaty of Tlatelolco, also the Rarotonga, Bangkok, Pelindaba
and Semipalatinsk Treaties purport to extend the obligations enshrined therein,
by means of their respective Protocols, not only to the States of the regions at is-
sue, but also to nuclear States, as well as States which are internationally respon-
sible, de jure or de facto, for territories located in the respective regions. The veri-
25 On the initial moves in the U.N. to this effect, by Brazil (in 1962) and Mexico (taking
up the leading role from 1963 onwards), cf. Naciones Unidas, Las Zonas Libres de
Armas Nucleares..., op. cit. infra n. (26), pp. 116, 20 and 139.
26 Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, N.Y./Ge-
neva, U.N.-OPANAL/UNIDIR, 1997, pp. 9, 25, 39 and 153.
27 A. García Robles, “Mesures de désarmement dans des zones particulières: le Traité
visant l’interdiction des armes nucléaires en Amérique Latine”, 133 Recueil des
Cours de l’Académie de Droit International de La Haye [RCADI] (1971) p. 99, and cf.
p. 102.
28 The first one concerning the States internationally responsible for territories located
within the limits of the zone of application of the Treaty, and the second one per-
taining to the nuclear-weapon States.
29 A. García Robles, “Mesures de désarmement dans des zones particulières...”, op. cit.
supra n. (27), p. 103, and cf. p. 71.
fication of compliance with the obligations regularly engages the International

Atomic Energy Agency [IAEA]; the Treaty of Tlatelolco has in addition counted
on its own regional organism to that end, the Organism for the Prohibition of
Nuclear Weapons in Latin America [OPANAL]. Each of the five aforementioned
treaties (Tlatelolco, Rarotonga, Bangkok, Pelindaba and Semipalatinsk) creating
nuclear-weapon-free zones has distinctive features, as to the kinds and extent of
obligations and methods of verification,30 but they share the same ultimate goal
of preserving humankind from the threat of nuclear weapons.
The second nuclear-weapon-free zone, established by the Treaty of Raroton-
ga (1985), with its three Protocols, came as a response31 to long-sustained regional
aspirations, and increasing frustration of the populations of the countries of the
South Pacific with incursions of nuclear-weapons States in the region, “including
French testing at Moruroa, U.S. nuclear-armed ship visits, and threats of nuclear
waste-dumping”.32 The Rarotonga Treaty encouraged the negotiation of a simi-
lar zone, by the 1995 Bangkok Treaty, in the neighbouring region of Southeast
Asia, and confirmed the “continued relevance of zonal approaches” to the goal
of disarmament33 and the safeguard of humankind from the menace of nuclear
weapons.34
The third of those treaties, that of Bangkok, of 1995 (with its Protocol),
was prompted by the initiative of the Association of South-East Asian Nations
[ASEAN] to insulate the region from the policies and rivalries of the nuclear pow-
ers. The Bangkok Treaty, besides covering the land territories of all ten Southeast
Asian States, is the first treaty of the kind also to encompass their territorial sea,
200-mile exclusive economic zone and continental shelf.35 The fourth such treaty,
that of Pelindaba, of 1996, in its turn, was prompted by the continent’s reaction
to nuclear tests in the region (as from the French nuclear tests in the Sahara in
1961), and the desire to keep nuclear weapons out of the region.36 In fact, as early
30 Cf. J. Goldblat, “Zones exemptes d’armes nucléaires: une vue d’ensemble”, in Le droit
international des armes nucléaires (Journée d’études, ed. S. Sur), Paris, Pédone,
1998, pp. 35-55.
31 Upon the initiative of Australia.
32 M. Hamel-Green, “The South Pacific – The Treaty of Rarotonga”, in Nuclear Weap-
ons-Free Zones (ed. R. Thakur), London/N.Y., MacMillan/St. Martin’s Press, 1998, p.
59, and cf. p. 62.
33 As to this latter, the States Parties to the NPT decided in 1995 to extend its duration
indefinitely and to adopt the document on “Principles and Objectives for Nuclear
Non-Proliferation and Disarmament”.
34 M. Hamel-Green, op. cit. supra n. (32), pp. 77 and 71.
35 This extended territorial scope has generated resistance on the part of nuclear-
weapon States to accept its present form; A. Acharya and S. Ogunbanwo, “The Nu-
clear-Weapon-Free Zones in South-East Asia and Africa”, in Armaments, Disarma-
ment and International Security – SIPRI Yearbook (1998) pp. 444 and 448.
36 Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. supra
n. (26), pp. 60-61.
408 Chapter XVII
as in 1964 the former Organization of African Unity [OAU] (nowadays African

Union) had adopted the “Declaration on the Denuclearization of Africa”, – a goal
which was thus deeply-rooted in African thinking.37 The Pelindaba Treaty38 (with
its three Protocols), which has entered into force on 15 July 2009, appears to have
served the purpose to erradicate nuclear weapons from the African continent.39
The fifth such treaty, that of Semipalatinsk, of 2006, was motivated by Cen-
tral Asia’s determination to join the four other nuclear-weapon-free zones (Latin
America and the Caribbean, the South Pacific, South-East Asia, and Africa).
Shortly after the entry into force, on 21 March 2009, of the Semipalatinsk Treaty,
the U.N. Secretary-General (Ban Ki-moon), in welcoming such entry into force
of the new Treaty, further pointed out that this latter was “significant” also be-
cause it set up “the first nuclear-weapon-free zone requiring Parties to comply
fully with the Comprehensive Nuclear-Test-Ban Treaty (CTBT)”.40 This is not,
however, the end of the story, as debates continue, up to the present (September
2009), at the U.N. General Assembly, in the consideration of the creation of other
nuclear-weapon-free zones in the future.41
The five treaties at issue, though containing loopholes (e.g., with regard to
the transit of nuclear-weapons), have as common denominator the practical val-
ue of arrangements that transcend the non-proliferation of nuclear weapons.42
The establishment of the nuclear-weapon-free zones has fulfilled the needs and
aspirations of peoples living under the fear of nuclear-victimization.43 Their pur-
pose has been served, also in withholding or containing nuclear ambitions, to
the ultimate benefit of humankind as a whole. Nowadays, the first four aforemen-
tioned nuclear-weapon-free zones are firmly established in densely populated ar-
eas, covering most (almost all) of the landmass of the southern hemisphere land
37 Cf. J.O. Ihonvbere, “Africa – The Treaty of Pelindaba”, in Nuclear Weapons-Free

Zones, op. cit. supra n. (32), pp. 98-99 and 109.
38 As the outcome of the initiative from such African States as South Africa (having
dismantled its nuclear programme), Egypt and Nigeria; ibid., pp. 109 and 107, and cf.
p. 114.
39 On the legislative history of the Pelindaba Treaty, cf. O. Adeniji, The Treaty of
Pelindaba on the African Nuclear-Weapon-Free Zone, Geneva, UNIDIR, 2002, pp.
1-169.
40 Central Asia thereby became the fi rst nuclear-weapon-free zone of the northern
hemisphere. U.N., “[Press Conference:] Ban Welcomes Central Asia’s Decision to Re-
nounce Nuclear Weapons”, in U.N. News Service, N.Y., U.N., 20.03.2009, p. 1.
41 Cf., e.g., U.N./G.A., Establishment of a Nuclear-Weapon-Free Zone in the Region of
the Middle East – Report of the I Committee, U.N. doc. A/63/386, of 06.11.2008, pp.
1-5; and cf., on the same topic, G.A. resolution A/RES/63/38, of 02.12.2008, pp. 1-3.
42 J. Enkhsaikhan, “Nuclear-Weapon-Free Zones: Prospects and Problems”, 20 Disar-
mament – Periodic Review by the United Nations (1997) n. 1, p. 74.
43 Cf., e.g., H. Fujita, “The Changing Role of International Law in the Nuclear Age:
from Freedom of the High Seas to Nuclear-Free Zones”, in Humanitarian Law of
Armed Conflict: Challenges Ahead – Essays in Honour of F. Kalshoven (eds. A.J.M.
Delissen and G.J. Tanja), Dordrecht, Nijhoff, 1991, p. 350, and cf. pp. 327-349.
areas (while excluding most sea areas),44 and the fifth zone being located in the
northern hemisphere.
The adoption of the 1967 Tlatelolco Treaty, the 1985 Rarotonga Treaty, the
1995 Bangkok Treaty, the 1996 Pelindaba Treaty, and the 2006 Semipalatinsk
Treaty have disclosed the shortcomings and artificiality of the posture of the
so-called political “realists”,45 which insisted on the suicidal policy of nuclear
deterrence, in their characteristic subservience to power politics. The fact that
the international community counts today on five nuclear-weapon-free zones,
in relation to which States that possess nuclear weapons do have a particular
responsibility, reveals an undeniable advance of right reason, of the recta ratio in
the foundations of International Law.
Moreover, the idea of nuclear-weapon-free zones46 keeps on clearly gaining
ground. In recent years proposals have been examined for the setting up of new
denuclearized zones of the kind,47 as well as of the so-called single-State zone.48
Another proposal49 has been the expansion of the concept of nuclear-weapon-free
zones so as to encompass also other weapons (chemical and biological) of mass
destruction.50 The five treaties establishing nuclear-weapon-free zones foresee
cooperation schemes with the IAEA; furthermore, the great majority of States
Parties to those five treaties have also ratified the Comprehensive Nuclear-Test-
Ban Treaty [CTBT].51 All these developments reflect the increasing disapproval
by the international community of nuclear weapons, which, for their hugely de-
structive capability, represent an aff ront to right reason (recta ratio).
44 J. Prawitz, “Nuclear-Weapon-Free Zones: Their Added Value in a Strengthened In-

ternational Safeguards System”, in Tightening the Reins – Towards a Strengthened
International Nuclear Safeguards System (eds. E. Häckel and G. Stein), Berlin/Hei-
delberg, Springer-Verlag, 2000, p. 166.
45 Cf. Naciones Unidas, Las Zonas Libres de Armas Nucleares..., op. cit. supra n. (26),
pp. 27, 33-38 and 134.
46 For a general study, cf., e.g., M. Roscini, Le Zone Denuclearizzate, Torino, G. Giap-
pichelli Ed., 2003, pp. 1-420.
47 E.g., in Central and Eastern Europe, in the Middle East (cf. note (40), supra), in
North-East and South Asia, and in the whole of the southern hemisphere.
48 E.g., Mongolia; cf. A. Acharya and S. Ogunbanwo, op. cit. supra n. (35), p. 443; J.
Enkhsaikhan, op. cit. supra n. (41), pp. 79-80. – Mongolia in effect declared its terri-
tory as a nuclear-weapon-free zone (in 1992), and in February 2000 adopted national
legislation defining its status as a nuclear-weapon-free State.
49 Which has retained the attention in particular of the Middle East countries.
50 M. Shaker, “Zones exemptes d’armes nucléaires et zones exemptes d’armes de de-
struction massive”, in Le droit international des armes nucléaires (Journée d’études,
ed. S. Sur), Paris, Pédone, 1998, pp. 57-63.
51 E. Vargas Carreño, Una Conferencia Internacional de los Estados Partes de las Zonas
Libres de Armas Nucleares (ZLANs), Mexico City, OPANAL, doc. C/DT/55/Rev.1, of
03.10.2002, pp. 5-8.
410 Chapter XVII
IV. The Endeavours towards General and Complete Disarmament

At a time when only the nuclear-weapon-free zone established by the Treaty of
Tlatelolco existed and the possibility was considered of creation of other zones of
the kind (supra), the Conference of the Committee on Disarmament presented in
1975 a study on the matter, requested by the U.N. General Assembly in 1974 and
undertaken by an ad hoc Group of Experts. The study indicated that the creation
of future nuclear-weapon-free zones was to take place in conformity with Inter-
national Law, the principles of the U.N. Charter and the fundamental principles
of International Law that govern mutual relations among States; the effective
guarantees of security which nuclear States were to provide to the States which
were to create those zones ensued from the general principle of prohibition of the
threat or use of force.52
The study added that the establishment of such zones was not to be regarded
as an end in itself, but rather as a means to achieve the wider aims of “general and
complete disarmament” and international peace and security.53 In the prepara-
tion of the study it was recalled that other international instruments on disarma-
ment, with which those zones were to coexist in the search for greater protection
to the international community, were conceived to the benefit of humankind;54
it was argued that such zones had “a fundamentally humanitarian purpose”.55 In
fact, it would go almost without saying that the aforementioned nuclear-weapon-
free zones, herein envisaged under basic considerations of humanity in relation
to territory, are to be duly related to the long-standing endeavours of general and
complete disarmament (including non-proliferation of weapons of mass destruc-
tion).
Non-proliferation of weaponry is but one aspect of the whole matter; thus,
the 1968 Treaty on the Non-Proliferation of Nuclear Weapons [NPT] belongs
to the kind of treaties which aim to restrict the spread of weaponry, without
however proscribing or limiting the weapons capability of those States which
already possess the specified weapons.56 Furthermore, the techniques of verifica-
tion regarding disarmament have not proven wholly satisfactory to date, and it
has rightly been warned that they should be strengthened in the context of the
52 Naciones Unidas, Amplio Estudio de la Cuestión de las Zonas Libres de Armas Nu-
cleares en Todos Sus Aspectos – Informe Especial de la Conferencia del Comité de
Desarme, U.N. doc. A/10027/Add.1, N.Y., Naciones Unidas, 1976, p. 50.
53 Ibid., p. 50.
54 Ibid., pp. 18 and 34.
55 Ibid., p. 31. And, in this respect, a parallel was suggested with demilitarized zones
foreseen in humanitarian norms of the law of armed conflicts; ibid., p. 31.
56 A. Chayes and D. Shelton, “Commentary”, in Commitment and Compliance (ed.
D. Shelton), Oxford, University Press, 2000, pp. 522-523. – Although those treaties
have contributed to disarmament, but have not escaped the criticism of being dis-
criminatory, in pursuance of their goals.
faithful compliance with international treaties on the basis of the equilibrium of

rights and duties between States Parties.57
Other treaties, in turn, have gone further, in properly purporting to abol-
ish given categories of weaponry: it is the case, e.g., of the 1972 Convention on
the Prohibition of the Development, Production and Stockpiling of Bacteriologi-
cal (Biological) and Toxin Weapons and on Their Destruction, and of the 1993
Convention on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on Their Destruction.58 The preamble of the 1993
Convention, besides invoking the principles of International Law and of the U.N.
Charter, states that the complete banning of the use of chemical weapons is for
the sake and benefit of all humankind.
Two decades earlier, in the same line of thinking, the preamble of the 1972
Convention expressed likewise the determination to exclude completely the use
of bacteriological (biological) weapons, for the sake of all mankind, as their use
“would be repugnant to the conscience of mankind”.59 The preamble further as-
serted the determination of the States Parties to the 1972 Convention to achieve
general and complete disarmament, “including the prohibition and elimination
of all types of weapons of mass destruction” (among which the bacteriological
[biological] weapons).60 The fact that there have been advances in arms control
and reduction in recent years does not mean that disarmament has ceased to be
a priority goal.
The U.N. General Assembly adopted the CTBT on 10 September 1996.61 Ever
since its adoption, the U.N. General Assembly has been attentive to foster the
entry into force of the CTBT; a Conference convened to that end in November
2001 counted on the participation of more than one hundred States.62 Periodic
Conferences have been held, aiming at the entry into force of the CTBT, to be en-
57 S. Sur, “Vérification en matière de désarmement”, 273 RCADI (1998) pp. 96-102. On

the nature of disarmament treaties, cf., e.g., G. Lysén, “The Adequacy of the Law of
Treaties to Arms Control Agreements”, in Avoidance and Settlement of Arms Con-
trol Disputes – Arms Control and Disarmament Law (ed. J. Dahlitz), vol. II, N.Y./Ge-
neva, U.N., 1994, pp. 123-147.
58 On the legislative history and the operation of the mechanism of implementation
of the 1993 Convention, in force since 1997, cf., e.g., [Various Authors,] The Chemi-
cal Weapons Convention: Implementation, Challenges and Opportunities (eds. R.
Thakur and E. Haru), Tokyo, U.N. Univ. Press, 2006, pp. 1-184.
59 Last considerandum of the preamble.
60 First considerandum of the preamble.
61 Which is to enter into force 180 days after 44 States deposit their instruments of
ratification. Cf. Preparatory Commission for the CTBT Organization, Advancing
the Entry into Force of the Comprehensive Nuclear-Test-Ban Treaty, Vienna, CT-
BTO, 2001, pp. 1-14.
62 E. Vargas Carreño, “El Futuro de la No Proliferación Nuclear con Especial Énfa-
sis en América Latina”, in Seminario Regional sobre el Protocolo Adicional de Sal-
vaguardias Nucleares (Lima/Peru, 04-07.12.2001), Lima, [OPANAL], 2001, pp. 5-6
(restricted circulation).
412 Chapter XVII
dowed with a comprehensive verification (monitoring and inspections) system.

The CTBT is, moreover, meant to be a cornerstone of the over-all disarmament
regime,63 together with the NPT; this latter, on its part, has, in its application in
recent years, counted on Review Conferences (such as those of 1995, 2000 and
2005); as the results have not been entirely satisfactory to all, attention has been
turned also to the much-awaited entry into force of the CTBT.64
In the post-cold war period, the U.N. Conference on Disarmament65 has
endeavoured to redefine its role, still reckoning that complete disarmament re-
mains a continuing necessity of humankind. The Conference contributed de-
cisively to the successful conclusion of the 1993 Convention against Chemical
Weapons as well as of the CTBT in 1996. Yet, it has to endeavour to maintain its
relevance, as the risks to humankind entailed by weapons of mass destruction re-
main, the dangers of arms trade likewise persist, and the need to put a definitive
end to nuclear tests is still felt; the ultimate aim of the international community
cannot be other than the “total elimination” of all weapons of mass destruction,
including nuclear weapons.66
In the early nineties, at the beginning of the post-cold war period, the NPT
counted on the accession of 189 States, and in its Review Conference of 1995 its
duration was prorrogated indefinitely and unconditionally; on the whole, in the
domain of disarmament and arms limitation, there remained in force 11 multi-
lateral treaties at global level,67 14 multilateral agreements at regional level, and
16 bilateral agreements between the United States and the Russian Federation
(the former USSR).68 In addition to the indefinite extension of the NPT achieved
in 1995, the Review Conference of 2000 attained further commitments in the
63 For detailed accounts of its negotiating history, cf. J. Ramaker, J. Mackby, P.D. Mar-
shall and R. Geil, The Final Test – A History of the Comprehensive Nuclear-Test-Ban
Treaty Negotiations, Vienna, PrepCom CTBT Secr., 2003, pp. 1-265; K.A. Hansen,
The Comprehensive Nuclear-Test-Ban Treaty – An Insider’s Perspective, Stanford,
Univ. Press, 2006, pp. 1-86.
64 H. Blix, Why Nuclear Disarmament Matters, Cambridge/Mass., MIT Press, 2008,
pp. 5-7, 18, 46-47, 63-65 and 93; G. Perkovich and J.M. Acton, Abolishing Nuclear
Weapons, London, IISS (Adelphi Paper n. 396), 2008, pp. 8, 69, 109, 111 and 113.
65 Originally set up by the I Special Session on Disarmament in 1978 as the single mul-
tilateral forum of the international community for negotiating disarmament.
66 B. Boutros-Ghali, Nouvelles dimensions..., op. cit. infra n. (69), p. 14, and cf. pp. 3-4,
6, 8, 12-13 and 16-17.
67 Among which the 1971 Treaty on the Prohibition of the Emplacement of Nuclear
Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean
Floor and in the Subsoil Thereof, and the 1977 Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Techniques.
68 Among which the 1972 Treaty on the Limitation of the Systems of Anti-Ballistic
Missiles (the ABM Treaty), the Agreements reached pursuant to the Strategic Arms
Limitation Talks (SALT-I and II, 1972 and 1977, respectively); for an account of the
negotiation of these latter, cf., e.g., M.-F. Furet, op. cit. supra n. (10), pp. 203-226;
and cf. [Various Authors,] Regional Colloquium on Disarmament and Arms Control
implementation of the Treaty (Article VI). Yet, there remains a long way to go
in the present domain (e.g., the prevention of the acquisition of nuclear weapons
by private groups). In a report on the matter, a former U.N. Secretary-General,
calling for a “concerted effort” towards complete disarmament, rightly pondered
that
“Dans le monde d’aujourd’hui, les nations ne peuvent plus se permettre de résoudre

les problèmes par la force. (...) Le désarmement est l’un des moyens les plus impor-
tants de réduire la violence dans les relations entre États”.69
This still remains a difficult goal to be achieved. It remains a challenge to the

international community, affecting humankind as a whole. There is nowadays, at
least, a widespread conscientization of the pressing need to keep on struggling
to achieve complete disarmament. The arms race and the multiplication of the
arsenals of weapons of mass destruction were promptly denounced – it may be
recalled nowadays – by some of the great thinkers of the XXth century (such as
Karl Jaspers and Bertrand Russell, among others) as a formidable challenge to the
future of humankind as a whole and to its survival; their warnings70 remain as
valid, penetrating and cogent today as they were when formulated half a century
ago. After all,
“Le péril ne vient pas de l’environnement (...), mais de l’homme lui-même. (...) Il faut
que nous nous rendions compte que la haine, (...) la création d’engins de destruction,
la crainte du mal que nous pouvons nous faire mutuellement, le risque quotidien et
permanent de voir la fin de tout ce que l’homme a réalisé, sont le produit de la folie
humaine. (...) C’est dans nos coeurs que réside le mal, c’est de nos coeurs qu’il doit
être extirpé”.71
V. The Illegality of Nuclear Weapons

On the occasion of the centennial celebration (1999) of the I Hague Peace Confer-
ence, it was pondered that the threat or use of nuclear weapons
(New Delhi, February 1978), Bombay/Calcutta, International Peace Academy, 1978,

pp. 42-56.
69 B. Boutros-Ghali, Nouvelles dimensions de la réglementation des armements et
du désarmement dans la période de l’après-guerre froide – Rapport du Secrétaire
Général, N.Y., Nations Unies, 1993, pp. 21-22.
70 K. Jaspers, Die Atombombe und die Zukunft des Menschen, München, R. Piper & Co.
Verlag, 1958, pp. 17-501; B. Russell, L’homme survivra-t-il?, Paris, Éd. J. Didier, 1963,
pp. 7-189.
71 B. Russell, op. cit. supra n. (70), pp. 105 and 162-163.
414 Chapter XVII
“is protested both on the ground that their effects allegedly cannot be limited to
legitimate military targets and that they are thus by nature indiscriminate, and on
the ground of excessive cruelty (heat and radiation)”.72
The opinio juris communis as to the prohibition of nuclear weapons, and of all
weapons of mass destruction, has gradually been formed.73 Yet, despite the clar-
ity of the formidable threat that nuclear weapons represent, their formal and
express prohibition by conventional international law has most regrettably re-
mained permeated by ambiguities,74 due to resistances on the part of the so-
called “realists” of Realpolitik, always at the service of power rather than Law.
On two occasions attempts were made, by means of contentious cases, to ob-
tain a pronouncement of the International Court of Justice [ICJ], – in the Nuclear
Tests (1974 and 1995),75 – and on both occasions the ICJ assumed a rather evasive
posture, avoiding to pronounce clearly on the substance of a matter pertaining
to the very survival of humankind. One aspect of those contentious proceedings
may be here briefly singled out, given its significance in historical perspective.
It should not pass unnoticed that, in the first Nuclear Tests case (Australia and
New Zealand versus France), one of the applicant States contended, inter alia,
that the nuclear testing undertaken by the French government in the South Pa-
cific region violated not only the right of New Zealand that no radioactive mate-
rial enter its territory, air space and territorial waters and those of other Pacific
territories but also
72 F. Kalshoven, “Introduction”, in UNITAR, The Centennial of the First International

Peace Conference – Reports and Conclusions (ed. F. Kalshoven), The Hague, Kluwer,
2000, p. 52.
73 Cf., e.g., G.E. do Nascimento e Silva, “A Proliferação Nuclear e o Direito Internac-
ional”, in Pensamiento Jurídico y Sociedad Internacional – Libro-Homenaje al Prof.
A. Truyol y Serra, vol. II, Madrid, Universidad Complutense, 1986, pp. 877-886; C.A.
Dunshee de Abranches, Proscrição das Armas Nucleares, Rio de Janeiro, Livr. Frei-
tas Bastos, 1964, pp. 114-179.
74 For example, in preparing the Draft Code of Offences against the Peace and Security
of Mankind (first version), the U.N. International Law Commission considered, in
1954, the inclusion of nuclear weapons in the reformulation of a list of weapons to
be restricted or limited; the polemics generated rendered it impossible to the Com-
mission to determine whether the use of nuclear weapons constituted or not a crime
against the peace and security of mankind; in the end, the Commission, following
a minimalist approach, excluded from the relation of international crimes the use
of nuclear weapons. J.S. Morton, The International Law Commission of the United
Nations, Columbia/South Carolina, University of South Carolina Press, 2000, pp. 46
and 51.
75 Cf. ICJ Reports (1974) pp. 63-455, and criticisms in: P. Lellouche, “The Nuclear Tests
Cases: Judicial Silence versus Atomic Blasts”, 16 Harvard International Law Journal
(1975) pp. 614-637; and cf. ICJ Reports (1995) pp. 4-23, and the position of three dis-
senting Judges in ibid., pp. 317-421.
“the rights of all members of the international community, including New Zealand,
that no nuclear tests that give rise to radioactive fall-out be conducted”.76
Thus, over three decades ago, the perspective of the application by New Zea-
land (of 1973) went clearly – and correctly so – beyond the purely inter-State
dimension, as the problem at issue pertained to the international community as
a whole.
The outcome of the case, however, was quite disappointing: even though the
ICJ issued orders of interim measures of protection in the case in June 1973 (re-
quiring France to cease testing), subsequently, in its judgments of 1974,77 in view
of the announcement of France’s voluntary discontinuance of its atmospheric
tests, the ICJ found that the claims of Australia and New Zealand no longer had
“any object” and it was therefore not called upon to give a decision thereon.78 The
dissenting Judges in the case rightly pointed out that the legal dispute between
the parties, far from having ceased, still persisted, since what Australia and New
Zealand sought was a declaratory judgment of the ICJ stating that atmospheric
nuclear tests were contrary to International Law.79
The reticent position of the ICJ in that case was even more regrettable if one
recalls that the applicants, in referring to the “psychological injury” caused to
the peoples of the South Pacific region through their “anxiety as to the possible
effects of radio-active fall-out on the well-being of themselves and their descen-
dants”, as a result of the atmospheric nuclear tests, ironically invoked the notion
of erga omnes obligations as propounded by the ICJ itself in its landmark obiter
dicta in the Barcelona Traction case only four years earlier.80 As the ICJ reserved
itself the right, in certain circumstances, to reopen the 1974 case, it did so two de-
cades later, upon an application instituted by New Zealand versus France. But in
76 ICJ, Application Instituting Proceedings (of 09.05.1973), Nuclear Tests case (New
Zealand versus France), pp. 8 and 15-16, cf. pp. 4-16.
77 For a critical parallel between the 1973 orders and the 1974 judgments, cf. P. Lel-
louche, op. cit. supra n. (75), pp. 615-627 and 635.
78 ICJ Reports (1974) pp. 272 and 478, respectively.
79 ICJ, Nuclear Tests case, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jimén-
ez de Aréchaga and Waldock, ICJ Reports (1974) pp. 319-322, 367-369, 496, 500, 502-
504, 514 and 520-521; and cf. Dissenting Opinion of Judge De Castro, ibid., pp. 386-
390; and Dissenting Opinion of Judge Barwick, ibid., pp. 392-394, 404-405, 436-437
and 525-528. – It was further pointed out that the ICJ should thus have dwelt upon
the question of the existence of rules of customary international law prohibiting
States from causing, through atmospheric nuclear tests, the deposit of radio-active
fall-out on the territory of other States; ICJ, Nuclear Tests case, Separate Opinion of
Judge Petrén, ICJ Reports (1974) pp. 303-306 and 488-489. – It was the existence or
otherwise of such customary rules that had to be determined, – a question which
unfortunately was left largely unanswered by the Court in that case.
80 As recalled in the Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de
Aréchaga and Waldock, ICJ Reports (1974) pp. 362, 368-369 and 520-521; as well as in
the Dissenting Opinion of Judge Barwick, ibid., pp. 436-437.
416 Chapter XVII
its Order of 22.09.1995, the ICJ dismissed the complaint, as it did not fit into the
caveat of the 1974 Judgment, which concerned atmospheric nuclear tests; here,
the complaint was directed against the underground nuclear tests conducted by
France since 1974.81
Be that as it may, having lost the historical opportunities, in both conten-
tious cases, to clarify the key point at issue (nuclear tests), the Court was, more
recently, in the mid-nineties, seized, in the exercise of its advisory function, of a
directly related issue, that of nuclear weapons. The U.N. General Assembly and
the World Health Organization (WHO) opened those proceedings before the
Court, by means of requests for an Advisory Opinion: such requests no longer re-
ferred to nuclear tests (as in the aforementioned contentious cases), but rather to
the question of the threat or use of nuclear weapons in the light of international
law, for the determination of their illegality or otherwise.
The Court, in the Advisory Opinion of 08.07.199682 on the Legality of the
Threat or Use of Nuclear Weapons, affirmed that neither customary international
law nor conventional international law authorizes specifically the threat or use of
nuclear weapons; neither one, nor the other, contains a complete and universal
prohibition of the threat or use of nuclear weapons as such; it added that such
threat or use which is contrary to Article 2(4) of the U.N. Charter and does not
fulfil the requisites of its Article 51, is illicit; moreover, the conduct in armed con-
flicts should be compatible with the norms applicable in them, including those of
International Humanitarian Law; it also affirmed the obligation to undertake in
good will negotiations conducive to nuclear disarmament in all its aspects.83
In the most controversial part of its Opinion (resolutory point 2E), the
Hague Court stated that the threat or use of nuclear weapons “would be generally
contrary to the rules of International Law applicable in armed conflict”, mainly
those of Humanitarian Law; however, the Court added that at the present stage of
International Law “it cannot conclude definitively if the threat or use of nuclear
weapons would be licit or illicit in an extreme circumstance of self defence in
which the very survival of a State would be at stake”.84 With seven dissenting
opinions, this point was adopted with the casting vote of the President of the
81 Cf. ICJ Reports (1995) pp. 288-308; once again, there were Dissenting Opinions (cf.
ibid., pp. 317-421). – Furthermore, petitions against the French nuclear tests in the
atoll of Mururoa and in that of Fangataufa, in French Polinesia, were lodged with
the European Commission of Human Rights (EComHR); cf. EComHR, case N.N.
Tauira and 18 Others versus France (appl. n. 28204/95), decision of 04.12.1995, 83-A
Decisions and Reports (1995) p. 130.
82 In response only to one of the petitions, that of the U.N. General Assembly, as the
ICJ understood that the WHO was not competent to deal with the question at issue,
– despite the purposes of that U.N. specialized agency and the devastating effects of
nuclear weapons over human health and the environment...
83 ICJ Reports (1996) pp. 226-267.
84 Ibid., p. 266.
Court, who, in his Separate Opinion, pointed out that the Court limited itself to
record the existence of a legal uncertainty.85
In fact, it did not go further than that, and the Opinion was permeated with
evasive ambiguities, not avoiding the shadow of the non liquet, in relation to a
question which affects, more than each State individually, the whole of human-
kind. The Advisory Opinion made abstraction of the implications of the basic
distinction between the jus ad bellum and the jus in bello, and of the fact that
International Humanitarian Law applies likewise in case of self defence, safe-
guarding always the principle of proportionality (which nuclear weapons simply
ignore).86 The Opinion, on the one hand, recognized that nuclear weapons cause
indiscriminate and durable suffering, and have an enormous destructive effect,87
and that the principles of Humanitarian Law (encompassing customary law) are
“intransgressible”;88 nevertheless, these considerations did not appear sufficient
to the Court to discard the use of such weapons also in self defence, thus eluding
to tell what the Law is89 in all circumstances.
The Opinion minimized90 the resolutions of the United Nations General
Assembly which affirm the illegality of nuclear weapons91 and condemn their
use as a violation of the U.N. Charter and as a crime against humanity. Instead,
it took note of the “policy of deterrence”, which led it to find that the members
of the international community continued “profoundly divided” on the matter,
what rendered impossible to it to determine the existence of an opinio juris in
this respect.92 It was not incumbent upon the Court to resort to the “policy of
deterrence”, devoid of any legal value for the determination of the formation of
the rules of customary law prohibiting the use of nuclear weapons; as rightly
regretted, the Court did not help at all in the struggle for non-proliferation and
85 Cf. ibid., pp. 268-274, esp. p. 270.

86 L. Doswald-Beck, “International Humanitarian Law and the Advisory Opinion of
the International Court of Justice on the Legality of the Threat or Use of Nuclear
Weapons”, 316 International Review of the Red Cross (1997) pp. 35-55; H. Fujita, “The
Advisory Opinion of the International Court of Justice on the Legality of Nuclear
Weapons”, in ibid., pp. 56-64.
87 Paragraph 35.
88 Paragraph 79.
89 E. David, “The Opinion of the International Court of Justice on the Legality of the
Use of Nuclear Weapons”, 316 International Review of the Red Cross (1997) pp. 21-
34.
90 Paragraph 68.
91 Notably resolution 1653(XVI) of 24.11.1961.
92 Paragraph 67.
418 Chapter XVII
prohibition of nuclear weapons,93 and, in relying on “deterrence”94 – a division in

its view “profound” – between an extremely reduced group of nuclear powers on
the one hand, and the vast majority of the countries of the world on the other, it
ended up by favouring the former, by means of an inadmissible non liquet.95
The Court, thus, lost yet another opportunity to consolidate the opinio juris
communis in condemnation of nuclear weapons. It considered the survival of
a hypothetical State, rather than that of humankind formed by human beings
of flesh and bone (and those still to come). It erroneously minimized the whole
doctrinal construction on the right to life in the ambit of the International Law
of Human Rights, and seemed to have forgotten that the survival of a State can-
not have primacy over the right to survival of humankind as a whole.96 Without
humankind there is no State whatsoever; one cannot simply have in mind the
States, apparently forgetting humanity. The position of the Court leaves it quite
clear that a matter which concerns the whole of humankind, such as that of the
threat or use of nuclear weapons, can no longer be appropriately dealt with from
a purely inter-State outlook of international law, which is wholly surpassed in
our days.
The Court took note of the treaties which nowadays prohibit, e.g., chemical
and bacteriological (biological) weapons,97 and weapons which cause excessive
93 W.M. Reisman, “The Political Consequences of the General Assembly Advisory

Opinion”, in International Law, the International Court of Justice, and Nuclear
Weapons (eds. L. Boisson de Chazournes and Ph. Sands), Cambridge, University
Press, 1999, pp. 473-487. The Court did not solve the issue raised before it by the U.N.
General Assembly, leaving the “debate open”; S. Sur, “Les armes nucléaires au miroir
du Droit”, in Le droit international des armes nucléaires, op. cit. supra n. (30), pp.
9-25, esp. pp. 12, 16 and 24.
94 Paragraph 73.
95 L. Condorelli, “Nuclear Weapons: A Weighty Matter for the International Court of
Justice – Jura Novit Curia?”, 316 International Review of the Red Cross (1997) pp. 9-
20. The Opinion is not conclusive and provides no guidance; J.-P. Queneudec, “E.T.
à la C.I.J.: méditations d’un extra-terrestre sur deux avis consultatifs”, 100 Revue
générale de Droit international public (1996) 907-914, esp. p. 912. The language uti-
lized in the Opinion is ambiguous, lending itself to most distinct interpretations
(including that whereby in self defence military necessity could have primacy over
Humanitarian Law), dangerous for the prevalence of Law; M.-P. Lanfranchi and Th.
Christakis, La licéité de l’emploi d’armes nucléaires devant la Cour Internationale
de Justice, Aix-Marseille/Paris, Université d’Aix-Marseille III/Economica, 1997,
pp. 111, 121 and 123; S. Mahmoudi, “The International Court of Justice and Nuclear
Weapons”, 66 Nordic Journal of International Law (1997) pp. 77-100.
96 Cf. M. Mohr, “Advisory Opinion of the International Court of Justice on the Legal-
ity of the Use of Nuclear Weapons under International Law – A Few Thoughts on
Its Strengths and Weaknesses”, 316 International Review of the Red Cross (1997) pp.
92-102.
97 The Geneva Protocol of 1925, and the Conventions of 1972 and 1993 against Biologi-
cal and Chemical Weapons, respectively.
damages or have indiscriminate effects.98 But the fact that there does not yet
exist a similar general treaty, of specific prohibition of nuclear weapons, does
not mean that these latter are permissible (in certain circumstances, even in self
defence).99 In my understanding, it cannot be sustained, in a matter which con-
cerns the future of humankind, that what is not expressly prohibited is thereby
permitted (a classic postulate of positivism).
This posture would amount to the traditional – and surpassed – attitude of
the laisser-faire, laisser-passer, proper of an international legal order fragmented
by State voluntarist subjectivism, which in the history of Law has invariably fa-
voured the most powerful ones. Ubi societas, ibi jus... Nowadays, at this begin-
ning of the XXIst century, in an international legal order in which one seeks
to affirm common superior values, amidst considerations of international ordre
public, as in the domain of the International Law of Human Rights, it is precisely
the reverse logics which ought to prevail: that which is not permitted, is prohib-
ited.100
Even if there was a “gap” in relation to nuclear weapons, – which there is not
(cf. infra), – it would have been possible to fi ll it by resorting to a general principle
of law. The Court surprisingly resorted to that of self-defence of a hypothetical
individual State, instead of having developed the rationale of the Martens clause,
the purpose of which is precisely that of filling gaps101 in the light of the “laws of
humanity” and the “dictates of public conscience” (terms of the wise premoni-
tion of Friedrich von Martens,102 formulated in the I Hague Peace Conference of
1899).103 It cannot be denied that nuclear weapons are intrinsically indiscriminate,
incontrolable, that they cause severe and durable damage and in a wide scale, that
98 Paragraph 76; the 1980 Convention on Prohibitions or Restrictions on the Use of

Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious
or to Have Indiscriminate Effects.
99 The Roman-privatist influence – with its emphasis on the autonomy of the will –
had harmful consequences in traditional International Law; in the public domain,
quite on the contrary, conscience stands above the will, also in the determination of
competences.
Rio de Janeiro, Ed. Renovar, 2002, p. 1099.
101 J. Salmon, “Le problème des lacunes à la lumière de l’avis ‘Licéité de la menace ou
de l’emploi d’armes nucléaires’ rendu le 8 juillet 1996 par la Cour Internationale de
Justice”, in Mélanges en l’honneur de N. Valticos – Droit et justice (ed. R.-J. Dupuy),
Paris, Pédone, 1999, pp. 197-214, esp. pp. 208-209; R. Ticehurst, “The Martens Clause
and the Laws of Armed Conflict”, 317 International Review of the Red Cross (1997)
pp. 125-134, esp. pp. 133-134; A. Azar, Les opinions des juges dans l’avis consultatif sur
la licéité de la menace ou de l’emploi d’armes nucléaires, Bruxelles, Bruylant, 1998,
p. 61.
102 Which was intended to extend juridically the protection to the civilians and com-
batants in all situations, even if not contemplated by the conventional norms.
103 It is not merely casual that the States militarily powerful have constantly opposed
themselves to the influence of natural law in the norms applicable to armed conflict,
420 Chapter XVII
they are prohibited by International Humanitarian Law (Articles 35 and 48 of the

Additional Protocol I of 1977 to the 1949 Geneva Conventions on International
Humanitarian Law), and are inhuman as weapons of mass destruction.104
States are bound to respect, and ensure respect for International Humani-
tarian Law in any circumstances; “intransgressible” principles of Humanitarian
Law (encompassing customary law) belong to the domain of jus cogens, wherein
no derogation is permitted, in any circumstances.105 As to the aforementioned
Advisory Opinion of 1996 of the ICJ, the relevance of the Martens clause in the
present context was properly emphasized by two dissenting Judges,106 while an-
other dissenting Judge singled out the jus cogens character of International Hu-
manitarian Law in prohibition of nuclear weapons.107
The well-known resolution 1653 of 1961, of the U.N. General Assembly, con-
taining the Declaration of the Prohibition of the Use of Nuclear and Thermo-
nuclear Weapons, considered the use of such weapons not only in violation of
the U.N. Charter, of International Law and of the “laws of humanity”, but also
a “crime against humanity and civilization”. While various States endorsed the
resolution as a result of the “indiscriminate suffering” caused by such weapons,
others (mainly the nuclear powers) attempted to minimize their importance for
not having been adopted by an overwhelming majority:108 55 votes to 20, with 26
abstentions.109
even if they base themselves on natural law to judge war criminals (as in Nurem-
berg). R. Ticehurst, op. cit. supra n. (101), pp. 133-134.
104 J. Burroughs, The (Il)legality of Threat or Use of Nuclear Weapons, Münster, Lit
Verlag/International Association of Lawyers against Nuclear Weapons, 1997, p. 84.
– For the inference of the prohibition of nuclear weapons from the express prohi-
bition, by Article 35 of Additional Protocol I (of 1977) to the 1949 Geneva Conven-
tions on International Humanitarian Law, of weapons that cause “superfluous dam-
age” or “unnecessary suffering” (paragraph 2), and which cause or intend to cause
“extensive, durable and severe damage to the natural environment” (paragraph 3),
cf., e.g., J.A. Pastor Ridruejo, Curso de Derecho Internacional Público y Organiza-
ciones Internacionales, 6th. ed., Madrid, Tecnos, 1996, pp. 680 and 683-684; and cf.
comments in Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (eds. Y. Sandoz, C. Swinarski and B. Zimmermann),
Geneva, ICRC/Nijhoff, 1987, pp. 389-420 and 597-600.
105 V. Coussirat-Coustère, “La licéité des armes nucléaires en question”, in Le droit in-
ternational des armes nucléaires, op. cit. supra n. (30), p. 109.
106 Cf. the Dissenting Opinions of Judge Shahabuddeen (pp. 386-387, 406, 408, 410-411
and 425, and of Judge Weeramantry (pp. 477-478, 481, 483, 486-487, 490-491, 494,
508 and 553-554).
107 Dissenting Opinion of Judge Koroma, pp. 573-574 and 578.
108 A. Cassese, “The Prohibition of Indiscriminate Means of Warfare”, in Declarations
on Principles – A Quest for Universal Peace (eds. R.J. Akkerman et alii), Leyden,
Sijthoff, 1977, pp. 176-182.
109 With the negative votes coming from NATO member States and other allies of the
United States.
However, the several subsequent resolutions which reaffirmed the resolu-

tion 1653 referred to, were adopted by increasingly expressive majorities, such
as resolution 46/37D of 1991, which called upon the elaboration of a convention
prohibiting the use of nuclear weapons (by 122 votes to 16, with 22 abstentions).
The non-nuclear States, which form the overwhelming majority of members of
the international community, came to sustain that the series of resolutions in
condemnation of the use of nuclear weapons as illegal under general interna-
tional law, together with the fact the 1968 Treaty on Non-Proliferation of Nuclear
Weapons (NPT) is in force, and the establishment of regional nuclear-weapon-
free zones (cf. supra), among other developments, evidenced the emergence of a
prohibition of customary law of the use of such weapons.110
Still in the ambit of the United Nations, the Human Rights Committee (un-
der the Covenant on Civil and Political Rights) has affirmed that “the produc-
tion, the tests, the possession, the proliferation and the use of nuclear weapons”
constitute “crimes against humanity”.111 The Human Rights Committee, stressing
that the right to life is a fundamental right which does not admit any deroga-
tion not even in time of public emergency, related the current proliferation of
weapons of mass destruction to “the supreme duty of States to prevent wars”. The
Committee characterized that danger as one of the “greatest threats to the right
to life which confronts mankind today”, which created “a climate of suspicion
and fear between States, which is in itself antagonist to the promotion of uni-
versal respect for and observance of human rights” in accordance with the U.N.
Charter and the U.N. Covenants on Human Rights.112 The Committee, accord-
ingly, “in the interest of mankind”, called upon all States, whether Parties to the
Covenant or not, “to take urgent steps, unilaterally and by agreement, to rid the
world of this menace”.113
It may be recalled that, already in 1969, all weapons of mass destruction
were condemned by the Institut de Droit International. In the debates of its Ed-
inburg session on the matter, emphasis was placed on the need to respect the
principle of distinction (between military and non-military objectives), and the
terrifying effects of the use of nuclear weapons were pointed out, – the example
of the atomic bombing of Hiroshima and Nagasaki having been expressly re-
called.114 In its resolution of September 1969 on the matter, the Institut began by
110 J. Burroughs, The (Il)legality of Threat or Use of Nuclear Weapons, op. cit. supra n.
(104), p. 27.
111 ‘General Comment’ n. 14 (of 1984) of the Human Rights Committee, text in: United
Nations, Compilation of General Comments and General Recommendations Adopt-
ed by Human Rights Treaty Bodies, doc. HRI/GEN/1/Rev.3, of 15.08.1997, p. 19, par.
6.
112 U.N. Report of the Human Rights Committee, G.A.O.R. – 40th Session (1985), suppl.
n. 40 (A/40/40), p. 162.
113 Ibid., p. 162.
114 Cf. Annuaire de l’Institut de Droit International – Session d’Edimbourg (1969)-II,
pp. 49-50, 53, 55, 60, 62-63, 66, 88-90 and 99.
422 Chapter XVII
restating, in the preamble, the prohibition of recourse to force in International

Law, and the duty of protection of civilian populations in any armed conflict;
it further recalled the general principles of International Law, customary rules
and conventions, – supported by international case-law and practice, – which
“clearly restrict” the extent to which the parties engaged in a conflict may harm
the adversary, and warned against
“the consequences which the indiscriminate conduct of hostilities and particularly

the use of nuclear, chemical and bacteriological weapons, may involve for civilian
populations and for mankind as a whole”.115
In its operative part, the aforementioned resolution of the Institut stressed the
importance of the principle of distinction (between military and non-military
objectives) as a “fundamental principle of international law” and the pressing
need to protect civilian populations in armed conflicts,116 and added, in para-
graphs 4 and 7, that:
“Existing International Law prohibits all armed attacks on the civilian population as
such, as well as on non-military objects, notably dwellings or other buildings shel-
tering the civilian population, so long as these are not used for military purposes
(...). Existing International Law prohibits the use of all weapons which, by their na-
ture, affect indiscriminately both military objectives and non-military objects, or
both armed forces and civilian populations. In particular, it prohibits the use of
weapons the destructive effect of which is so great that it cannot be limited to spe-
cific military objectives or is otherwise uncontrollable (self-generating weapons), as
well as of ‘blind’ weapons”.117
The absence of conventional norms stating that nuclear weapons are prohib-
ited in all circumstances does not mean that they would be allowed in a given
circumstance. The Martens clause safeguards the integrity of Law (against the
permissiveness of a non liquet) by invoking the “laws of humanity” and the “dic-
tates of the public conscience”. Thus, that absence of a conventional norm is not
conclusive,118 and is by no means the end of the matter, – bearing in mind also
customary International Law. The evolution of International Law119 points, in our
days, in my understanding, towards the construction of the International Law for
115 Text in: Annuaire de l’Institut de Droit International – Session d’Edimbourg (1969)-
II, pp. 375-376.
116 Paragraphs 1-3, 5-6 and 8, in ibid., pp. 376-377.
117 Text in ibid., pp. 376-377.
118 S. Glaser, op. cit. supra n. (6), pp. 15, 24-25 and 41.
119 If, in other epochs, the ICJ had likewise limited itself to verify a situation of “legal
uncertainty” (which, anyway, does not apply in the present context), most likely it
would not have issued its célèbres Advisory Opinions on Reparations for Injuries
(1949), on Reservations to the Convention on the Prevention and Punishment of the
humankind and, within the framework of this latter, to the outlawing by general
International Law of all weapons of mass destruction.
If weapons less destructive than the nuclear ones have already been ex-
pressly prohibited by their names, it would be nonsensical to argue that, those
which have not, by positive conventional international law, and which, like nu-
clear weapons, have long-lasting devastating effects, threatening the existence of
the international community as a whole, would not be illicit in certain circum-
stances.120 A single use of nuclear weapons, irrespective of the circumstances,
may today ultimately mean the end of humankind itself.121 The criminalization
of the threat or use of such weapons is even more forceful than that – already es-
tablished by conventional International Law – of less destructive weapons. This
is what ineluctably ensues from an international legal order the ultimate source
of which is the universal juridical conscience.
From the outlook of the emerging International Law for humankind, the
conclusion could not be otherwise. Had the ICJ made decidedly recourse in great
depth to the Martens clause, it would not have lost itself in a sterile exercise,
proper of a legal positivism déjà vu, of a hopeless search of conventional norms,
frustrated by the finding of what it understood to be a lack of these latter as to
nuclear weapons specifically, for the purposes of its analysis. The existing arse-
nals of nuclear weapons, and of other weapons of mass destruction, are to be
characterized by what they really are: a scorn and the ultimate insult to human
reason, and an aff ront to the juridical conscience of humankind.
VI. Final Observations

In the course of the proceedings (written and oral phases) before the ICJ (1994-
1995) pertaining to the aforementioned requests for an Advisory Opinion (of
1996) on the question of the legality (or rather illegality) of nuclear weapons (su-
pra), Japan, the one country whose population has been victimized by the use
of those weapons, consistently argued that, because of “their immense power to
cause destruction”, the death of, and considerable injury to human beings,
“the use of nuclear weapons is clearly contrary to the spirit of humanity that gives
International Law its philosophical foundation”.122
Crime of Genocide (1951), and on Namibia (1971), which have so much contributed to
the evolution of International Law.
120 Ibid., pp. 53 and 21, and cf. p. 18.
121 Nagendra Singh, Nuclear Weapons and International Law, London, Stevens, 1959, p.
242.
122 Government of Japan, Written Statement of the Government of Japan [on the Request
for an Advisory Opinion to the ICJ by the World Health Organization], 10.06.1994,
p. 2 (internal circulation); Government of Japan, Written Statement of the Govern-
ment of Japan [on the Request for an Advisory Opinion to the ICJ by the United
Nations General Assembly], 14.06.1995, p. 1 (internal circulation); Government of
424 Chapter XVII
In its oral statement before the ICJ in the public sitting of 07.11.1995, Japan further
asserted that “with their devastating power, nuclear weapons can in an instant
take a tremendous toll in human life and deprive people of their local community
structures; they can also cause the victims who survive an attack itself indescrib-
able and lasting suffering due to atomic radiation and other lingering effects”.123
All this has been duly demonstrated in documents collected by the prefec-
tures of the cities of Hiroshima and Nagasaki,124 which coincide with the concerns
of the international community as a whole nowadays. In the aforementioned
pleadings (of 1995) before the ICJ, other States were as clear and uncompromising
as Japan in their arguments. To recall but a couple of examples, Australia invoked
the Martens clause, and argued that the principles of humanity and the dictates
of public conscience are not static, an permeate the whole of International Law
in its evolution, calling for the prohibition of nuclear weapons for all States. Aus-
tralia further recalled the final preambular paragraph of the Convention against
Biological Weapons, pondering that its warning that those weapons are “repug-
nant to the conscience of mankind” applies likewise to nuclear weapons, and that
the use of them all would be contrary to general principles of humanity.125
On its turn, New Zealand stated that the rationale of the 1968 Nuclear Non-
Proliferation Treaty is that “nuclear weapons are too dangerous for humanity
and must be eliminated”.126 And Egypt asserted that the threat or use of nuclear
weapons as weapons of mass destruction is prohibited by International Humani-
tarian Law; the Additional Protocol I of 1977 to the 1949 Geneva Conventions
establishes the prohibition of unnecessary suffering (Article 35) and imposes the
differentiation between civilian population and military personnel (Article 48).
Thus, by their effects, nuclear weapons, being weapons of indiscriminate mass
destruction, infringe International Humanitarian Law, which contain precepts
of jus cogens, as recalled by successive resolutions of the U.N. General Assembly;
those precepts are the opinio juris of the international community.127
Japan, The Oral Statement by the Delegation of Japan in the Public Sitting Held at
the Peace Palace, The Hague, 07.11.1995, p. 1 (internal circulation).
123 Government of Japan, The Oral Statement..., op. cit. supra n. (122), pp. 1-2 (internal
circulation).
124 Cf. accounts: Committee of Japanese Citizens, Days to Remember – An Account
of the Bombings of Hiroshima and Nagasaki, Hiroshima/Nagasaki, Hiroshima-Na-
gasaki Publishing Committee, 1981, pp. 1-37; Hiroshima Peace Memorial Museum
(HPMM), Atomic Bomb Tragedy – The Spirit of Hiroshima, Hiroshima, HPMM,
pp. 1-128; Kenzaburô Ôé, Notes de Hiroshima, Paris, Gallimard, 1996, pp. 17-230; T.
Ogura, Letters from the End of the World – A Firsthand Account of the Bombing of
Hiroshima, Tokyo, Kodansha International, 2001 [reed.], pp. 15-192; N. Shohno, The
Legacy of Hiroshima – Its Past, Our Future, Tokyo, Kösei Publ. Co., 1987 [reed.], pp.
13-136.
125 ICJ, loc. cit., pleadings of Australia (1995), pp. 45, 60 and 63, and cf. p. 68.
126 ICJ, loc. cit., pleadings of New Zealand (1995), p. 33.
127 ICJ, loc. cit., pleadings of Egypt (1995), pp. 37-41 and 44.
In historical perspective, the lack of common sense of still trying to approach

the challenges facing international law from an exclusively inter-State outlook is
today manifest, and has in the past led to some rather awkward situations, to say
the least. A pertinent illustration is afforded by the outcome of the case Shimoda
and Others versus Japan. On 07 December 1963, a Japanese domestic court, the
District Court of Tokyo, delivered a decision regarding claims against the Japa-
nese State advanced by five injured survivors of the atomic bombings of Hiro-
shima and Nagasaki. They claimed compensation from the Japanese government
for damages suffered as a result of the atomic blasts. Japan, and not the United
States, was the defendant, by virtue of Article 19(a) of the Treaty of Peace follow-
ing the II world war, whereby Japan waived the claims of its nationals against the
United States.128
The District Court’s decision contained discussion of those bombings in the
light of the laws of armed conflict and descriptions of the horrifying injuries
resulting from the blasts. The plaintiffs argued that the atomic bombing was an
illegal act contrary to international law (as it stood in 1945) aiming at a non-mili-
tary target and causing unnecessary pain, in violation of fundamental human
rights. Furthermore, the plaintiffs asserted the responsibility of the defendant
State for waiver of claims for damages against the United States (in municipal law
as well as in International Law)129.
In its decision, the District Court began by asserting that the atomic bomb-
ing on both cities was “an illegal act of hostility as the indiscriminate aerial bom-
bardment on undefended cities” and “contrary to the fundamental principle of
the laws of war that unnecessary pain must not be given”; thus, leaving aside the
Peace Treaty, Japan would theoretically have a claim for damages against the
United States in International Law.130 By exercising diplomatic protection of its
nationals, Japan would be asserting its own right; however, – the Court proceed-
ed, – in principle “individuals are not the subject of rights in International Law”,
and in the case the victims could not ask for redress either before the courts of
Japan, or those of the United States:131 their claims under the municipal laws of
Japan and of the United States had in fact been waived by Article 19 (a) of the
Peace Treaty.132
The defendant State, although conceding that the atomic bombing of Hi-
roshima and Nagasaki was “exceedingly enormous in destructive power” and a
128 The Japanese government thereby saw itself in the ironical situation of having to
argue as defendant in a case moved by Japanese nationals, victims of the atomic
bombings of Hiroshima and Nagasaki. Cf. 355 Hanrei Jibo (Decisions Bulletin) p. 17,
later translated into English and reported in: Toward a Theory of War Prevention
(Series The Strategy of World Order), vol. I (ed. R.A. Falk and S.H. Mendlovitz), N.Y.,
World Law Fund, 1966, pp. 314-354.
129 Shimoda and Others versus Japan case, in op. cit. supra n. (128), pp. 316-322.
130 Ibid., pp. 339-345.
131 Under the U.S. Federal Tort Claims Act after the war.
132 Shimoda and Others versus Japan case, in op. cit. supra n. (128), pp. 347-352.
426 Chapter XVII
“matter of deep regret”, the damage being the “heaviest in history”, found never-
theless that the plaintiff ’s claims were “not legal questions” but rather “abstract
questions”.133 The defendant State’s reasoning, as to the waiver of claims pursu-
ant to Article 19(a) of the Peace Treaty, was very much in the lines of an analogy
with the practice of diplomatic protection: the individuals concerned could not
pursue their claims directly against a foreign State at international level, as their
State had exercised its right to waive any such claims by agreement with the for-
eign State.134 The defendant State argued that domestic courts were to recognize
the conclusion of the Peace Treaty as a fait accompli.135 The District Court of
Tokyo concluded that, notwithstanding the atomic bombing of Hiroshima and
Nagasaki had been an illegal act in violation of international law, the plaintiffs’
claims in the cas d’espèce were “improper”, and they were therefore dismissed on
the merits.136 It was certainly not purely coincidental that District Court saw it fit
to deliver its decision on 07.12.1963, the anniversary of Pearl Harbour137...
Even in the days of the Lotus case (1927), the view endorsed by the old Per-
manent Court of International Justice [PCIJ], whereby under International Law
everything that was not expressly prohibited would thereby be permitted, was
object of severe criticisms not only of a compelling Dissenting Opinion in the
case itself138 but also on the part of expert writing of the time.139 Such concep-
tion could only have flourished in an epoch “politically secure” in global terms,140
certainly quite different from that of the last decades, in face of the recurrent
threat of nuclear weapons and other weapons of mass destruction, the growing
133 Ibid., pp. 323-330.

134 Ibid., pp. 330-331.
135 Cf. ibid., pp. 331-332; the defendant State added that although “deep sympathy” was
due to the victims of the atomic explosions in the war, the way of consolation for
them “must be balanced with the consolation for other war victims”.
136 The costs of litigation were to be borne by the plaintiffs; ibid., pp. 352 and 314. The
Court, nevertheless, expressed its “whole-hearted compassion” for the victims of
the atomic blasts; cf. ibid., p. 352.
137 It is somewhat surprising that the District Court should treat the plaintiffs on the
same footing as other war victims, as their claims were specifically directed against
an armed attack – the atomic bombings of undefended cities – which the same
Court had held to have been contrary to the laws of armed conflict.
138 Cf. Dissenting Opinion of Judge Loder, PCIJ, Lotus case (France versus Turkey), Se-
ries A, n. 10, Judgment of 07.09.1927, p. 34 (such conception was not in accordance
with the “spirit of International Law”).
139 Cf. J.L. Brierly, The Basis of Obligation in International Law and Other Papers,
Oxford, Clarendon Press, 1958, p. 144; H. Lauterpacht, The Function of Law in the
International Community, Oxford, Clarendon Press, 1933, pp. 409-412 and 94-96;
and cf., subsequently, e.g., G. Herczegh, “Sociology of International Relations and
International Law”, in Questions of International Law (ed. G. Haraszti), Budapest,
Progresprint, 1971, pp. 69-71 and 77.
140 Maarten Bos, “Dominant Interest in International Law”, 21 Revista Española de
Derecho Internacional (1968) p. 234.
vulnerability of the territorial State and indeed of the world population, and the
increasing complexity in the conduction of international relations. In our days, in
face of such terrifying threat, it is – as I sustained in a recent book – the logic op-
posite to that of the Lotus case which imposes itself: all that is not expressly per-
mitted is surely prohibited.141 All weapons of mass destruction, including nuclear
weapons, are illegal and prohibited under contemporary International Law.
Furthermore, in an essay published more than two decades ago, I allowed
myself to warn against the disastrous consequences – in times of peace and of
war – of not recognizing the position of individuals as subjects of International
Law, and of insisting to build this latter on an exclusively inter-State basis. The
widespread bombings of largely undefended cities (either with weapons of mass
destruction, or with conventional weapons in large scale), with thousands and
thousands of helpless, innocent and silent victims in the civilian population (e.g.,
Hiroshima, Nagasaki, Tokyo, Coventry, Dresden, Hamburg, Guernica, to name
a few, among so many others also bombarded), has been – like the issue of arms
trade – simply overlooked in international legal doctrine, and has passed with
impunity in International Law to date. The case of Shimoda and Others stands
as a dreadful illustration of the veracity of the maxim summum jus, summa in-
juria, when one proceeds on the basis of an allegedly absolute submission of the
human person to a degenerated international legal order built on an exclusively
inter-State basis.
May I thus here reiterate what I wrote in 1981, regarding the Shimoda and
Others case, namely,
“(...) The whole arguments in the case reflect the insufficiencies of an international
legal order being conceived and erected on the basis of an exclusive inter- State sys-
tem, leaving individual human beings impotent in the absence of express treaty pro-
visions granting them procedural status at international level. Even in such a matter
directly affecting fundamental human rights, the arguments were conducted in the
case in the classical lines of the conceptual apparatus of the so-called law on diplo-
matic protection, in a further illustration of international legal reasoning still being
haunted by the old Vattelian fiction”.142
In conclusion, the initiatives I have mentioned in the present chapter, of the con-
ception of zones of peace, of the formulation of the right to peace (within the
conceptual universe of the International Law of Human Rights143), and of the es-
tablishment of nuclear-weapon-free zones, added to the successive and constant

op. cit. supra n. (100), p. 1099.
Assessment, 59 Revue de droit international de sciences diplomatiques et politiques
– Geneva (1981) p. 214.
143 For a projection into the future, cf. A.A. Cançado Trindade, “The Future of the In-
ternational Protection of Human Rights”, in B. Boutros-Ghali Amicorum Discipulo-
428 Chapter XVII
endeavours towards general and complete disarmament, disclose the existence

nowadays of an opinio juris communis as to the illegality of all weapons of mass
destruction, including nuclear weapons, under contemporary international law.
There is no “gap” concerning nuclear weapons; given the indiscriminate, last-
ing and indescribable suffering they inflict, they are outlawed, as much as other
weapons of mass destruction (chemical and bacteriological [biological] weapons)
are.
The positivist outlook purporting to challenge this prohibition of contem-
porary general International Law has long been surpassed. Nor can this matter
be approached from a strictly inter-State outlook, without taking into account
the condition of human beings as subjects of international law. All weapons of
mass destruction are illegal under contemporary international law. The threat
or use of such weapons is condemned in any circumstances by the universal ju-
ridical conscience, which in my view constitutes the ultimate material source of
International Law, as of all Law.144
This is in keeping with the conception of the formation and evolution of
International Law which I have been sustaining for many years, also in my Opin-
ions within the Inter-American Court of Human Rights.145 And this is also in
keeping with the similar conception upheld, in his Opinions within the ICJ four
decades ago, by the distinguished Japanese Judge Kotaro Tanaka: that is, an In-
ternational Law transcending the limitations of legal positivism,146 and thus ca-
pable of responding effectively to the needs and aspirations of the international
community as a whole, and, ultimately, of all humankind.
rumque Liber – Paix, Développement, Démocratie, vol. II, Bruxelles, Bruylant, 1998,
pp. 961-986.
de Minas Gerais – Belo Horizonte/Brazil (2001) pp. 11-23; A.A. Cançado Trindade,
“Reflexiones sobre el Desarraigo como Problema de Derechos Humanos Frente a la
Conciencia Jurídica Universal”, in La Nueva Dimensión de las Necesidades de Pro-
tección del Ser Humano en el Inicio del Siglo XXI (eds. A.A. Cançado Trindade and
J. Ruiz de Santiago), 3rd. ed., San José of Costa Rica, UNHCR, 2004, pp. 19-78.
146 Cf. K. Tanaka, “The Character of World Law in the International Court of Justice”
[translated from Japanese into English by S. Murase], 15 Japanese Annual of Inter-
national Law (1971) pp. 1-22; and cf. V. Gowlland-Debbas, “Judicial Insights into
Fundamental Values and Interests of the International Community”, in The Inter-
national Court of Justice: Its Future Role after Fifty Years (eds. A.S. Muller et alii),
The Hague, Kluwer, 1997, pp. 344-346; and cf. Y. Saito, “Judge Tanaka, Natural Law
and the Principle of Equality”, in The Living Law of Nations – Essays in Memory of A.
Grahl-Madsen (eds. G. Alfredsson and P. Macalister-Smith), Kehl/Strasbourg, N.P.
Engel Publ., 1996, pp. 401-402 and 405-408.
Chapter XVIII Basic Considerations of Humanity in
Relation to the Law of Treaties
I. Introduction
It is hardly surprising that basic considerations of humanity surround lately-
emerged domains of International Law, such as, e.g., those of human rights pro-
tection and of environmental protection. But the incidence of those considera-
tions upon more traditional areas of International Law, which were in the past
approached, almost invariably, from the angle of the “will” of States, is indicative
of the new times, and a new mentality centred rather on the ultimate addressees
of international norms, the human beings. The law of treaties affords a pertinent
illustration, disclosing that it is no longer entirely conditioned by the “will” of
States and that it, too, acknowledges certain superior common values that the
international community as a whole deems should be preserved. Pertinent exam-
ples can be found in such areas of the law of treaties pertaining to interpretation
of treaties, reservations to treaties, denunciation of treaties, and termination and
suspension of the operation of treaties.
II. Considerations on the Interpretation of Treaties
1. General Remarks
When one comes to the interpretation of treaties, one is inclined to resort at first
to the general provisions enshrined in Articles 31-33 of the two Vienna Conven-
tions on the Law of Treaties (of 1969 and 1986, respectively), and in particular to
the combination under Article 31 of the elements of the ordinary meaning of the
terms, the context, and the object and purpose of the treaties at issue.1 One then
promptly finds that, in practice, while in traditional International Law there has
1 Cf. Maarten Bos, “Theory and Practice of Treaty Interpretation”, 27 Nether-

lands International Law Review (1980) pp. 3-38 and 135-170; W. Lang, “Les règles
d’interprétation codifiées par la Convention de Vienne sur le Droit des Traités et les
divers types de traités”, 24 Österreichische Zeitschrift für öffentliches Recht (1973) pp.
113-173; C.H. Schreuer, “The Interpretation of Treaties by International Courts”, 45
British Year Book of International Law [BYBIL] (1971) pp. 255-301; Ch. de Visscher,
430 Chapter XVIII
been a marked tendency to pursue a rather restrictive interpretation which gives

as much precision as possible to the obligations of States Parties, in the Inter-
national Law of Human Rights, somewhat distinctly, there has been a clear and
special emphasis on the element of the object and purpose of the treaty, so as to
ensure an effective protection (effet utile)2 of the guaranteed rights.
Whilst in general International Law the elements for the interpretation of
treaties evolved primarily as guidelines for the process of interpretation by States
Parties themselves, human rights treaties, in their turn, have called for an inter-
pretation of their provisions bearing in mind the essentially objective character
of the obligations entered into by States Parties: such obligations aim at the pro-
tection of human rights and not at the establishment of subjective and reciprocal
rights for the States Parties. Hence the special emphasis on the element of the
object and purpose of human rights treaties, of which the case-law of the two
regional – the European [ECtHR] and the Inter-American [IACtHR] – Courts of
Human Rights gives eloquent testimony.
The interpretation and application of human rights treaties have been guided
by considerations of a superior general interest or ordre public which transcend
the individual interests of Contracting Parties. As indicated by the jurisprudence
constante of the two aforementioned international human rights tribunals, those
treaties are distinct from treaties of the classic type which incorporate restric-
tively reciprocal concessions and compromises; human rights treaties, in turn,
prescribe obligations of an essentially objective character, implemented collec-
tively, and are endowed with mechanisms of supervision of their own.3 The rich
case-law on methods of interpretation of human rights treaties has enhanced the
protection of the human person at international level and has enriched Interna-
tional Law under the impact of the International Law of Human Rights.
The converging case-law to this effect has generated the common under-
standing, in the regional (European and inter-American) systems of human
rights protection, that human rights treaties, moreover, are endowed with a spe-
cial nature (as distinguished from multilateral treaties of the traditional type);
that human rights treaties have a normative character and that their terms are
to be autonomously interpreted; that in their application one ought to ensure an
Problèmes d’interprétation judiciaire en Droit international public, Paris, Pédone,

1963, pp. 9-264.
2 M.K. Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur le
Droit des Traités”, 151 Recueil des Cours de l’Académie de Droit International de
La Haye [RCADI] (1976) p. 74; J.B. Acosta Estévez and A. Espaliat Larson, La In-
terpretación en el Derecho Internacional Público y Derecho Comunitario Europeo,
Barcelona, PPU, 1990, p. 105, and cf. pp. 105-107.
3 A.A. Cançado Trindade, “The Interpretation of the International Law of Human
Rights by the Two Regional Human Rights Courts, in Contemporary Internation-
al Law Issues: Conflicts and Convergence (Proceedings of the III Joint Conference
ASIL/Asser Instituut, The Hague, July 1995), The Hague, Asser Instituut, 1996, pp.
157-162 and 166-167.
Basic Considerations of Humanity in Relation to the Law of Treaties 431
effective protection (effet utile) of the guaranteed rights; and that permissible
restrictions (limitations and derogations) to the exercise of guaranteed rights
are to be restrictively interpreted. The work of the ECtHR and the IACtHR has
indeed contributed to the creation of an international ordre public based upon
the respect for human rights in all circumstances.4 As I have pondered in my
Separate Opinion in the Blake versus Guatemala case (reparations, 1999) before
the IACtHR,
“These elements [of interpretation] converge in sustaining the integrity of human

rights treaties, in seeking the fulfi llment of their object and purpose, and, accord-
ingly, in establishing limits to State voluntarism. From all this one can detect a
new vision of the relations between public power and the human being, which is
summed up, ultimately, in the recognition that the State exists for the human being,
and not vice-versa”.5
The ECtHR endorsed the doctrine of autonomous interpretation in its judgments,

for example, in the Ringeisen (1971), König (1978) and Le Compte (1981 and 1983)
cases. The IACtHR, in its turn, in its sixth Advisory Opinion, on The Word “Laws”
in Article 30 of the American Convention on Human Rights (1986), clarified that
the word “laws” in Article 30 of the American Convention, to be examined in ac-
cordance not only with the principle of legality but also with that of legitimacy,
means a juridical norm of a general character, turned to the “general welfare”,
emanated from the legislative organs constitutionally foreseen and democrati-
cally elected, and elaborated according to the procedure for law-making estab-
lished by the Constitutions of States Parties. The autonomous meaning of the
terms of human rights treaties (as distinct from their meaning, e.g., in domestic
law) has been stressed also, e.g., by the Human Rights Committee [HRC] (under
the U.N. Covenant on Civil and Political Rights) in the adoption of its views in
the Van Duzen versus Canada case (in 1982).
Moreover, the dynamic or evolutive interpretation of the respective hu-
man rights Conventions (the temporal dimension) has been followed by both the
ECtHR6 and the IACtHR,7 so as to fulfil the evolving needs of protection of the
4 A.A. Cançado Trindade, “Le développement du Droit international des droits de

l’homme à travers l’activité et la jurisprudence des Cours Européenne et Inter-
américaine des Droits de l’Homme” (Discours du Président de la Cour Interaméric-
aine des Droits de l’Homme), in CourEDH, Cour Européenne des Droits de l’Homme
– Rapport annuel 2003, Strasbourg, CourEDH, 2004, pp. 41-50.
5 IACtHR, Blake versus Guatemala case (Reparations), Judgment of 22.01.1999, Series
C, n. 48, Separate Opinion of Judge A.A. Cançado Trindade, pp. 52-53, par. 33, and
cf. pars. 32-34.
6 E.g., cases Tyrer versus United Kingdom (1978), Airey versus Ireland (1979), Marckx
versus Belgium (1979), Dudgeon versus United Kingdom (1981), among others.
7 Cf., in this sense, the obiter dicta in: IACtHR, Advisory Opinion OC-10/89, on the
Interpretation of the American Declaration on the Rights and Duties of Man in the
432 Chapter XVIII
human being; in its 16th and pioneering Advisory Opinion, on The Right to In-
formation on Consular Assistance in the Framework of the Guarantees of the Due
Process of Law (1999), which has inspired the international case-law in statu na-
scendi on the matter, the IACtHR clarified that, in its interpretation of the norms
of the American Convention, it should extend protection in new situations (such
as that concerning the observance of the right to information on consular assis-
tance) on the basis of preexisting rights. The same vision has been propounded
by the IACtHR in its subsequent and forward-looking 18th Advisory Opinion, on
the Juridical Condition and Rights of Undocumented Migrants (2003).
The ECtHR has likewise reiteratedly pronounced to that effect;8 in the Loi-
zidou versus Turkey case (1995), for example, the ECtHR expressly discarded un-
due restrictions which would not only “seriously weaken” its role in the discharge
of its functions but “would also diminish the effectiveness of the Convention
as a constitutional instrument of European public order (ordre public)”.9 There
is, thus, a converging case-law of the two regional Human Rights Courts – and
indeed of other human rights international supervisory organs – on the fun-
damental issue of the proper interpretation of human rights treaties naturally
ensuing from the overriding identity of the object and purpose of those treaties.10
General International Law itself bears witness of the principle (subsumed under
the general rule of interpretation of Article 31 of the two Vienna Conventions on
the Law of Treaties) whereby the interpretation is to enable a treaty to have ap-
propriate effects.
Framework of Article 64 of the American Convention on Human Rights, of 14.07.1989,

pars. 37-38; IACtHR, Advisory Opinion OC-16/99, on The Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of Law,
of 01.10.1999, pars. 114-115, and Concurring Opinion of Judge A.A. Cançado Trin-
dade, pars. 9-11; IACtHR, case of the “Street Children” (Villagrán Morales and Oth-
ers versus Guatemala), Judgment (on the merits) of 19.11.1999, pars. 193-194; IAC-
tHR, case Cantoral Benavides versus Peru, Judgment (on the merits) of 18.08.2000,
pars. 99 and 102-103; IACtHR, case Bámaca Velásquez versus Guatemala, Judgment
(on the merits) of 25.11.2000, Separate Opinion of Judge A.A. Cançado Trindade,
pars. 34-38; IACtHR, case of the Community Mayagna (Sumo) Awas Tingni versus
Nicaragua, Judgment (on the merits and reparations) of 31.08.2001, pars. 148-149;
IACtHR, case Bámaca Velásquez versus Guatemala, Judgment (on reparations) of
22.02.2002, Individual Opinion of Judge A.A. Cançado Trindade, par. 3.
8 For example, in its judgments in the Wemhoff (1968), Belgian Linguistics (1968),
Golder (1975), Ireland versus United Kingdom (1978) and Soering (1989) cases, among
others.
9 ECtHR, Loizidou versus Turkey case (preliminary objections, Judgment of 23.03.1995,
par. 75.
10 For a general study, cf. A.A. Cançado Trindade, “Approximations and Convergences
in the Case-Law of the European and Inter-American Courts of Human Rights”, in
Le rayonnement international de la jurisprudence de la Cour européene des droits
de l’homme (eds. G. Cohen-Jonathan and J.-F. Flauss), Bruxelles, Bruylant/Nemesis,
2005, pp. 101-138.
An aspect which in this respect should not pass unnoticed is that derogation
measures and limitations must not be inconsistent with the other obligations
under International Law incumbent upon the State Party concerned: thus, nei-
ther derogation clauses, nor limitation provisions, of a given human rights treaty,
are to be interpreted to restrict the exercise of any human rights protected to a
greater extent by other human rights treaties to which the State Party concerned
is also a Party. Such understanding finds support in the precept of Internation-
al Law whereby the interpretation and application of a treaty cannot restrict a
State’s obligations ensuing from other treaties on the subject – in the present
case, human rights protection – to which the State at issue is also a Party. In the
present domain, International Law has been made use of in order to improve and
strengthen – and never to weaken or undermine – the protection of recognized
human rights.11
The specificity of the International Law of Human Rights finds expression
not only in the interpretation of human rights treaties in general but also in the
interpretation of specific provisions of those treaties. Pertinent illustrations can
be found in, e.g., provisions which contain references to general international
law. Such is the case, for example, of the requirement of prior exhaustion of local
remedies as a condition of admissibility of complaints or communications under
human rights treaties; the local remedies rule bears witness of the interaction be-
tween International Law and domestic law in the present domain of protection,
which is fundamentally victim-oriented, concerned with the rights of individual
human beings rather than of States.12
2. Procedural Issues
Both the ECtHR and the IACtHR have rightly set limits to State voluntarism,
have safeguarded the integrity of the respective human rights Conventions and
the primacy of considerations of ordre public over the “will” of individual States,
have set higher standards of State behaviour and established some degree of con-
trol over the interposition of undue restrictions by States, and have reassuringly
enhanced the position of individuals as subjects of the International Law of Hu-
man Rights, with full procedural capacity. In so far as the basis of their juris-
11 Cf. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms of

International Protection of Human Rights (At Global and Regional Levels)”, 202
RCADI (1987) p. 401.
12 Generally recognized principles or rules of International Law – which the formula-
tion of the local remedies rule in human rights treaties refers to, – besides following
an evolution of their own in the distinct contexts in which they apply, necessar-
ily suffer, when inserted in human rights treaties, a certain degree of adjustment
or adaptation, dictated by the special character of the object and purpose of those
treaties and by the widely recognized specificity of the International Law of Human
Rights. Cf. A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Lo-
cal Remedies in International Law, Cambridge, Cambridge University Press, 1983,
pp. 1-443.
434 Chapter XVIII
diction in contentious matters is concerned, eloquent illustrations of their firm

stand in support of the integrity of the mechanisms of protection of the two Con-
ventions are afforded, for example, by the decisions of the ECtHR in the Belilos
versus Switzerland case (1988), in the Loizidou versus Turkey case (Preliminary
Objections, 1995), and in the I. Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa
versus Moldovia and the Russian Federation case (2001), as well as by the deci-
sions of the IACtHR in the Constitutional Tribunal and Ivtcher Bronstein versus
Peru cases (Jurisdiction, 1999), and in the Hilaire, Constantine and Benjamin and
Others versus Trinidad and Tobago cases (Preliminary Objection, 2001).
The two international human rights Tribunals, by correctly resolving basic
procedural issues raised in the aforementioned cases, have aptly made use of the
techniques of Public International Law in order to strengthen their respective ju-
risdictions of protection of the human person. They have decisively safeguarded
the integrity of the mechanisms of protection of the American and European
Conventions on Human Rights, whereby the juridical emancipation of the hu-
man person vis-à-vis her own State is achieved. They have, furthermore, achieved
a remarkable jurisprudential construction on the right of access to justice (and of
obtaining reparation) at international level.
In its historical Judgment in the case of the massacre of Barrios Altos (2001),
concerning Peru, e.g., the IACtHR warned that provisions of amnesty, of pre-
scription and of factors excluding responsibility, intended to impede the investi-
gation and punishment of those responsible for grave violations of human rights
(such as torture, summary, extra-legal or arbitrary executions, and forced disap-
pearances) are inadmissible; they violate non-derogable rights recognized by the
International Law of Human Rights. This case-law has been reiterated by the
IACtHR (with regard to prescription) in its decision in the Bulacio versus Argen-
tina case (2003).
3. Substantive Law
As to substantive law, the contribution of the two international human rights
Courts to this effect is illustrated by numerous examples of their respective case-
law pertaining to the rights protected under the two regional Conventions. The
ECtHR has a vast and remarkable case-law, for example, on the right to the pro-
tection of liberty and security of person (Article 5 of the European Convention),
and the right to a fair trial (Article 6). The IACtHR has a significant case-law on
the fundamental right to life, comprising also the conditions of living, as from
its decision in the paradigmatic case of the so-called “Street Children” (Villagrán
Morales and Others versus Guatemala, Merits, 1999); it has also a rich case-law
on distinct forms of reparations.
Yet another example can be recalled. The definition of the crime of torture
found today in two of the three co-existing Conventions against Torture (the
U.N. Convention of 1984, Article 1, and the Inter-American Convention of 1985,
Article 2) owes its contents to international human rights case-law, rather than
to the tipification of the crime of torture at domestic law level. In fact, the con-
stitutive elements of torture in the definition found in the two aforementioned

Conventions13 ensue from the jurisprudential construction of the old European
Commission of Human Rights in the Greek case (1967-1970), further discussed by
the Commission and the European Court in the Ireland versus United Kingdom
case (1971-1978); in this particular instance, international case-law influenced in-
ternational legislation in the field of human rights protection. And, nowadays,
the absolute prohibition of torture is acknowledged as belonging to the domain
of jus cogens. The extensive case-law of the ECtHR covers virtually the totality of
the rights protected under the European Convention and some of its Protocols.
The growing case-law of the IACtHR, in its turn, appears innovative and forward-
looking with regard to the right to life, reparations in its multiple forms, and pro-
visional measures of protection,14 these latter sometimes benefitting members of
entire human collectivities.15
III. Considerations on the Reservations to Treaties

International supervisory organs in the domain of human rights protection have
in recent years disclosed their preparedness – and, on some occasions, their de-
termination – to the effect of preserving the integrity of human rights treaties.
It may be recalled that, inspired in the criterion sustained by the International
Court of Justice [ICJ] in its Advisory Opinion of 1951 on the Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide,16 the
present system of reservations set forth in the two Vienna Conventions of the
Law of Treaties (of 1969 and 1986, Articles 19-23),17 in joining the formulation of
reservations to the acquiescence or the objetions thereto for the determination
of their compatibility with the object and purpose of the treaties, is of a markedly
voluntarist and contractualist character.
13 Namely, severe physical or mental suffering, intentionally inflicted, to obtain in-

formation or a confession, with the consent or acquiescence of authorities or other
persons acting in an official capacity.
15 Particularly in the present situation of armed conflict in Colombia.
16 In which, – it may be recalled, – the Hague Court endorsed the so-called Pan-Amer-
ican practice relating to reservations to treaties, given its flexibility, and in search of
a certain balance between the integrity of the text of the treaty and the universality
of participation in it; hence the criterion of the compatibility of the reservations
with the object and purpose of the treaties. Cf. ICJ Reports (1951) pp. 15-30; and cf., a
contrario sensu, the Joint Dissenting Opinion of Judges Guerrero, McNair, Read and
Hsu Mo (pp. 31-48), as well as the Dissenting Opinion of Judge Álvarez (pp. 49-55),
for the difficulties generated by this criterion.
17 That is, the Vienna Convention on the Law of Treaties of 1969, and the Vienna Con-
vention on the Law of Treaties between States and International Organizations or
between International Organizations of 1986, – to which one may add, in the same
sense, the Vienna Convention on Succession of States in the Matter of Treaties of
1978 (Article 20).
436 Chapter XVIII
Such a system leads to a fragmentation (in the bilateral relations) of the

conventional obligations of the States Parties to multilateral treaties, appearing
inadequate to human rights treaties, which are inspired in superior common val-
ues and are applied in conformity with the notion of collective guarantee. That
system of reservations18 suffers from notorious insufficiencies when transposed
from the law of treaties in general into the domain of the International Law of
Human Rights. To start with, it does not distinguish between human rights trea-
ties and classic treaties, making abstraction of the jurisprudence constante of the
organs of international supervision of human rights, converging in pointing out
that distinction.
It allows reservations (not objected) of a wide scope which threaten the very
integrity of human rights treaties; it allows reservations (not objected) to provi-
sions of these treaties which incorporate universal minimum standards (under-
mining, e.g., the basic judicial guarantees of inviolable rights). If certain funda-
mental rights – starting with the right to life – are non-derogable (in the terms
of the human rights treaties themselves), thereby not admitting any derogations
which, by definition, are of an essentially temporal or transitory character, – with
greater reason, it would seem to me, a fortiori they do not admit any reservations,
perpetuated in time until and unless withdrawn by the State at issue; such res-
ervations would be, in my understanding, without any caveat, incompatible with
the object and purpose of those treaties.
Although the two Vienna Conventions on the Law of Treaties prohibit the
acceptance of reservations incompatible with the object and purpose of the treaty
at issue, they leave, however, various questions unanswered. The criterion of the
compatibility is applied in the relations with the States which effectively objected
to the reservations, although such objections are often motivated by factors – in-
cluding political – other than a sincere and genuine concern on the part of the
objecting States with the prevalence of the object and purpose of the treaty at
issue. For the same reason, from the silence or acquiescence of the States Parties
in relation to certain reservations one cannot infer a belief on their part that the
reservations are compatible with the object and purpose of the treaty at issue.
Such silence or acquiescence, moreover, appears to undermine the applica-
tion of the criterion of the compatibility of a reservation with the object and
purpose of the treaty. And the two Vienna Conventions referred to are not clear
either, as to the legal effects of a non-permissible reservation, or of an objec-
tion to a reservation considered incompatible with the object and purpose of the
treaty at issue. They do not clarify, either, who ultimately ought to determine the
permissibility or otherwise of a reservation, or to pronounce on its compatibility
or otherwise with the object and purpose of the treaty at issue.
The present system of reservations permits even reservations (not objected
to) which hinder the possibilities of action of the international supervisory or-
gans (created by human rights treaties), rendering difficult the realization of their
18 Endorsed, e.g., by the American Convention on Human Rights (cross-reference of

Article 75).
object and purpose. The aforementioned Vienna Conventions not only fail to
establish a mechanism to determine the compatibility or otherwise of a reserva-
tion with the object and purpose of a given treaty,19 but – even more gravely – do
not impede either that certain reservations or restrictions formulated (in the ac-
ceptance of the jurisdiction of the organs of international protection)20 come to
hinder the operation of the mechanisms of international supervision created by
the human rights treaties in the exercise of the collective guarantee.
The present system of reservations, reminiscent of the old Pan-American
practice, rescued by the ICJ21 and the two Vienna Conventions on the Law of
Treaties, for having crystallized itself in the relations between States, not surpris-
ingly appears entirely inadequate to the treaties whose ultimate beneficiaires are
the human beings and not the Contracting Parties themselves. Human rights
treaties, turned to the relations between States and human beings under their
jurisdiction, definitively do not bear a system of reservations which approaches
them as from an essentially contractual and voluntarist perspective, undermin-
ing their integrity, allowing their fragmentation, leaving to the discretion of the
Parties themselves the final determination of the extent of their conventional
obligations.
As the two Vienna Conventions of 1969 and 1986 do not provide any indica-
tion for an objective application of the criterion of the compatibility or otherwise
of a reservation with the object and purpose of a treaty, they leave it, on the
contrary, to be applied individually and subjectively by the Contracting Parties
19 As neither the aforementioned Vienna Conventions, nor – prior to them – the afore-
mentioned Advisory Opinion of the ICJ on Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, define what constitutes the
compatibility or otherwise (of a reservation) with the object and purpose of a treaty,
the determination is left to the interpretation of this latter, without it having been
defined either on whom falls that determination, in what way and when it should
be made. At the time of the adoption of that Advisory Opinion (1951), neither the
majority of the Hague Court, nor the dissenting Judges on the occasion, foresaw the
development of the international supervision of human rights by the conventional
organs of protection; hence the insufficiencies of the solution then advanced, and
endorsed years later by the two Vienna Conventions on the Law of Treaties referred
to.
20 There is a distinction between a reservation stricto sensu and a restriction in the
instrument of acceptance of the jurisdiction of an international supervisory organ,
even though their legal effects are similar.
21 The Advisory Opinion of the ICJ on the Reservations to the Convention on the Pre-
vention and Punishment of the Crime of Genocide (1951) marked the gradual pas-
sage, in the matter of reservations to treaties, from the rule of unanimity (of its
approval by the States Parties), to the criterion of its compatibility with the object
and purpose of the treaty. In a general way, the Vienna Convention incorporated the
flexible Pan-American doctrine on reservations, in accordance with a tendency to
this effect of the international practice already formed in the epoch; I.M. Sinclair,
“Vienna Conference on the Law of Treaties”, 19 International and Comparative Law
Quarterly (1970) pp. 47-69; and cf. Articles 19-20 of the Vienna Convention.
438 Chapter XVIII
themselves, in such a way that, at the end, only the reserving State knows for
sure the extent of the implications of its reservation. Despite the efforts in expert
writing to the effect of systematizing the practice of States on the matter,22 it is
difficult to avoid the impression that such practice has been surrounded by un-
certainties and ambiguities, and has remained inconclusive to date. This indefi-
nition is not at all reassuring for human rights treaties, endowed as they are with
mechanisms of international supervision of their own. Th is general picture of
indefinition has thus, not surprisingly, led the U.N. International Law Commis-
sion [ILC] to engage itself, as from 1998, in the preparation of a Draft Practical
Guide on Reservations to Treaties23 (cf. infra).
It draws one’s attention, for example, to find an extensive list of reserva-
tions, numerous and often incongruous, of States Parties to the U.N. Covenant
on Civil and Political Rights;24 and the practical problems generated by many of
the reservations (also numerous and not always consistent) of the States Par-
ties to the U.N. Convention on the Elimination of All Forms of Discrimination
against Women are well-known, – to what one may add the reservations to the
U.N. Convention against Torture and the Convention on the Elimination of All
Forms of Racial Discrimination.25 With the persistence of the inadequacy and
the insufficiencies of the present system of reservations, it is not at all surpris-
ing to find, firstly, multiple expressions of dissatisfaction in this respect in con-
temporary legal doctrine (both in general studies on the matter26 and in respect
22 Cf., e.g., J.M. Ruda, “Reservations to Treaties”, 146 RCADI (1975) pp. 95-218; D.W.
Bowett, “Reservations to Non-Restricted Multilateral Treaties”, 48 BYBIL (1976-1977)
pp. 67-92; P.-H. Imbert, Les réserves aux traités multilatéraux, Paris, Pédone, 1979,
pp. 9-464; K. Holloway, Les réserves dans les traités internationaux, Paris, LGDJ,
1958, pp. 1-358; K. Zemanek, “Some Unresolved Questions Concerning Reservations
in the Vienna Convention on the Law of Treaties”, in Essays in International Law
in Honour of Judge M. Lachs (ed. J. Makarczyk), The Hague, Nijhoff, 1984, pp. 323-
336; Ch. Tomuschat, “Admissibility and Legal Effects of Reservations to Multilateral
Treaties”, 27 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1967)
pp. 463-482; F. Horn, Reservations and Interpretative Declarations to Multilateral
Treaties, Uppsala, Swedish Institute of International Law, 1988, pp. 184-222.
23 Cf. U.N., Report of the International Law Commission on the Work of Its 50th Session
(1998), General Assembly Official Records – Supplement n. 10(A/53/10), pp. 195-214
(“Reservations to Treaties: Guide to Practice”).
24 Compiled by the Secretary-General of the United Nations and collected in the doc-
ument: U.N., CCPR/C/2/Rev.4, of 24.08.1994, pp. 1-139 (English version), and pp. 1-
160 (Spanish version).
25 For a study of the problems created by the reservations to these four human rights
treaties of the United Nations, cf. L. Lijnzaad, Reservations to U.N. Human Rights
Treaties – Ratify and Ruin?, Dordrecht, Nijhoff, 1995, pp. 131-424.
26 Cf. D. Shelton, “State Practice on Reservations to Human Rights Treaties”, 1 Cana-
dian Human Rights Yearbook/Annuaire canadien des droits de la personne (1983)
pp. 205-234; C. Redgwell, “Universality or Integrity? Some Reflections on Reserva-
tions to General Multilateral Treaties”, 64 BYBIL (1993) pp. 245-282; L. Lijnzaad,
of specific human rights treaties27); and secondly, the preparedness of human

rights international supervisory organs to assert their competence to apply by
themselves the criterion of the compatibility (supra) and to contribute thereby to
secure the integrity of the respective human rights treaties.
At regional level, in its well-known judgment in the Belilos versus Switzer-
land case (1988),28 locus classicus on the issue, the ECtHR considered the dec-
laration amounting to a reservation (of a general character) of Switzerland to
the European Convention on Human Rights incompatible with the object and
purpose of this latter (in the light of its Article 64). On its turn, the IACtHR, in
its 2nd and 3rd Advisory Opinions (1982-1983),29 pointed out the difficulties of
a pure and simple transposition from the system of reservations of the Vienna
Convention on the Law of Treaties of 1969 into the domain of the international
protection of human rights.
At global level, in the I. Gueye et alii versus France case (1989), e.g., the HRC,
in spite of a reservation ratione temporis of the respondent State,30 understood
that the question at issue31 was justiciable under the U.N. Covenant on Civil and
Political Rights,32 and concluded that there was a violation of Article 26 of the
Covenant.33 The same HRC, in its general comment n. 24(52), of November 1994,
op. cit. supra n. (25), pp. 3-424; M. Coccia, “Reservations to Multilateral Treaties on
Human Rights”, 15 California Western International Law Journal (1985) pp. 1-49; L.
Sucharipa-Behrmann, “The Legal Effects of Reservations to Multilateral Treaties”, 1
Austrian Review of International and European Law (1996) pp. 67-88.
27 Cf. B. Clark, “The Vienna Convention Reservations Regime and the Convention on
Discrimination against Women”, 85 American Journal of International Law (1991)
pp. 281-321; W.A. Schabas, “Reservations to the Convention on the Rights of the
Child”, 18 Human Rights Quarterly (1996) pp. 472-491; A. Sanchez Legido, “Algunas
Consideraciones sobre la Validez de las Reservas al Convenio Europeo de Derechos
Humanos”, 20 Revista Jurídica de Castilla-La Mancha (1994) pp. 207-230; C. Pil-
loud, “Reservations to the Geneva Conventions of 1949”, International Review of the
Red Cross (March/April 1976) pp. 3-44.
28 Followed by the Weber case (1990).
29 In its third Advisory Opinion on Restrictions to the Death Penalty (1983) the IAC-
tHR warned that the question of reciprocity as related to reservations did not fully
apply vis-à-vis human rights treaties (paragraphs 62-63 and 65). Earlier, in its second
Advisory Opinion on the Effect of Reservations on the Entry into Force of the Ameri-
can Convention (1982), the IACtHR dismissed the postponement of the entry into
force of the American Convention by application of Article 20(4) of the 1969 Vienna
Convention (paragraph 34).
30 To Article 1 of the [first] Optional Protocol to the Covenant on Civil and Political
Rights.
31 Pertaining to pension benefits of more than 700 retired Senegalese members of the
French army.
32 As the effects of the French legislation on the matter lasted until then.
33 Communication n. 196/1985, decision of 03.04.1989 (and previous decision of admis-
sibility of 05.11.1987).
440 Chapter XVIII
warned that the provisions of the two Vienna Conventions and the classic rules on
reservations (based upon reciprocity) were not appropriate to the human rights
treaties; given the special character of the Covenant as a human rights treaty, the
question of the compatibility of a reservation with its object and purpose, instead
of being left at the discretion of the manifestations of the States Parties inter se,
should be objectively determined, on the basis of juridical principles, by the Hu-
man Rights Committee itself.34
Given the specificity of the International Law of Human Rights, there ap-
pears a strong case for leaving the determination of the compatibility or other-
wise of reservations with the object and purpose of human rights treaties with
the international supervisory organs established by them, rather than with the
States Parties themselves; it would be more in keeping with the special character
of human rights treaties. To the two international human rights tribunals in op-
eration (the ECtHR and the IACtHR), the individualistic system of reservations
does not seem to be in keeping with the notion of collective control machin-
ery proper to human rights treaties. The obiter dicta of the two regional Human
Rights Courts have been rendered despite the fact that the European Convention
(Article 64)35 and the American Convention (Article 75) on Human Rights do
not expressly confer this function upon them; the American Convention, in fact,
limits itself to referring to the pertinent provisions of the 1969 Vienna Conven-
tion on the Law of Treaties.
Given the uncertainties, ambiguities and lacunae in the present system of
reservations to treaties of the two Vienna Conventions of 1969 and 1986 (supra),
proposals have been advanced in contemporary doctrine36 tending at least to
reduce the tension as to the proper application of human rights treaties in the
matter of reservations, namely: first, the inclusion of an express indication in hu-
man rights treaties of the provisions which do not admit any reservations (such
as those pertaining to the fundamental non-derogable rights), as an irreducible
minimum to participate in such treaties; second, as soon as the States Parties have
proceeded to the harmonization of their domestic legal order with the norms of
those treaties (as required by these latter), the withdrawal of their reservations
to them;37 third, the modification or rectification, by the State Party, of a reserva-
tion considered non-permissible or incompatible with the object and purpose of
the treaty,38 whereby a reservation would thus be seen no longer as a formal and
final element of the manifestation of State consent, but rather as an essentially
temporal measure, to be modified or removed as soon as possible; fourth, the
34 Paragraphs 17 and 20; text in: U.N./Human Rights Committee, document CCPR/
C/21/Rev.1/Add.6, of 02.11.1994, pp. 6-7.
35 Prior to Protocol n. 11, in the Loizidou case, supra.
36 Cf., e.g., references in ns. (26) and (27), supra.
37 Cf., in this line of reasoning, the Vienna Declaration and Programme of Action
(1993), the main document adopted by the II World Conference on Human Rights,
part II, par. 5, and cf. part I, par. 26.
38 Cf. note (25), supra.
adoption of a possible “collegial system” for the acceptance of reservations,39 so as

to safeguard the normative character of human rights treaties, bearing in mind,
in this respect, the rare example of the Convention on the Elimination of All
Forms of Racial Discrimination;40 fifth, the elaboration of guidelines (although
not binding) on the existing rules (of the two Vienna Conventions of 1969 and
1986) in the matter of reservations, so as to clarify them in practice;41 and sixth,
the attribution to the depositaries of human rights treaties of the faculty to re-
quest periodic information from the reserving States on the reasons why they
have not yet withdrawn their reservations to such treaties.
The recent work (as from 1993) of the ILC on the topic of the Law and Prac-
tice Concerning Reservations to Treaties tends to identify the essence of the ques-
tion in the need to determine the powers of the human rights international su-
pervisory organs in the matter, in the light of the general rules of the law of
treaties.42 This posture makes abstraction of the specificity of the International
Law of Human Rights, attaching itself to the existing postulates of the law of
treaties. The debates of 1997 of the ILC focused effectively on the question of the
applicability of the system of reservations of the Vienna Conventions in relation
to human rights treaties; although the point of view prevailed that the pertinent
provisions of those Conventions should not be modified,43 it was acknowledged
that that system of reservations should be improved, given its lacunae, above all
in relation to non-permissible reservations.44
In the debates of the Commission, it was even admitted that the conven-
tional organs of protection of judicial character (the ECtHR and the IACtHR)
pronounce on the permissibility of reservations when necessary to the exercise
of their functions;45 such considerations were reflected in the “Preliminary Con-
clusions on Reservations to Multilateral Normative Treaties Including Human
39 Possibility that came to be considered at the Vienna Conference which adopted the
Convention of 1969.
40 System of the two-thirds of the States Parties, set forth in Article 20(2) of that Con-
vention.
41 Such as drawn up in 1998 by the ILC; cf. note (23), supra.
42 Cf. A. Pellet (special rapporteur of the ILC), Second Report on the Law and Practice
Relating to Reservations to Treaties (1997), paragraphs 164, 204, 206, 209, 227, 229
and 252.
43 U.N., Report of the International Law Commission on the Work of Its 49th Session
(1997), General Assembly Official Records – Supplement n. 10(A/52/10), p. 94, par.
47.
44 Ibid., p. 112, par. 107. In this respect, it was warned that States often and consciously
formulate reservations incompatible with the object and purpose of human rights
treaties for knowing that they will not be challenged, and that the lack of sanctions
for such reservations thus leads States to become Parties to such treaties without
truly committing themselves; ibid., pp. 117-118, pars. 129-130.
45 Ibid., pp. 106-107, 119 and 121-122, pars. 82, 84, 134, 138 and 143, respectively.
442 Chapter XVIII
Rights Treaties”, adopted by the ILC in 1997 (paragraphs 4-7).46 In my under-

standing, there are compelling reasons to go further, and the relevant labour of
the ILC on the matter could lead to solutions satisfactory to human rights inter-
national supervisory organs to the extent that it started from the recognition of
the special character of human rights treaties and gave precision to the juridical
consequences – for the treatment of the question of reservations – which ensue
from that recognition.
It seems unlikely, however, that it is prepared to pursue that approach. In
its more recent version of its Draft Guidelines on Reservations to Treaties (2003),
provisionally adopted by the ILC, it urged States and international organizations
to “undertake a periodic review” of their reservations to treaties, and to “consider
withdrawing those which no longer serve their purpose”,47 – though it did not
pursue the aforementioned approach. Such review, – added the ILC, – “should
devote special attention to the aim of preserving the integrity of multilateral
treaties”.48 Thus, draft guideline 2.5.3 reflects the concerns of monitoring bodies
(“particularly but not exclusively in the field of human rights”), to call often upon
States to reconsider their reservations and if possible to withdraw them.49 The
ILC has conceded that
“The reference to the integrity of multilateral treaties is an allusion to the drawbacks

of reservations, that may undermine the unity of the treaty regime”.50
It may be pointed out that human rights treaties have in a way been singled out
when one comes to denunciation, and termination and suspension of the op-
eration of treaties (cf. infra); I see, thus, no epistemological or juridical reason
why the same could not be done also in relation to reservations. In my view, the
conferment of the power of determination of the compatibility or otherwise of
reservations with the object and purpose of human rights treaties on the inter-
national supervisory organs themselves created by such treaties, would be much
more in conformity with the special nature of these latter and with the objective
character of the conventional obligations of protection.51
There is a whole logic and common sense in attributing such power to those
organs, guardians as they are of the integrity of human rights treaties, instead
of abandoning such determination to the interested States Parties themselves,
as if they were, or could be, the final arbiters of the scope of their conventional
46 Text in ibid., pp. 126-127.

47 Cf. U.N./ILC, Report of the International Law Commission (55th Session, May-June
and July-August 2003), G.A.O.R. – Suppl. n. 10 (doc. A/58/10), of 2003, p. 184.
48 Ibid., p. 184.
49 Ibid., p. 207.
50 Ibid., p. 208, and cf. pp. 216, 244 and 251 (on the “limitation” of the scope of previous
reservations, conducive to their withdrawal).
obligations.52 Such system of objective determination would foster the process of

progressive institutionalization of the international protection of human rights,53
as well as the creation of a true international public order (ordre public) based
on the full respect to, and observance of, human rights. It is about time for the
current process of humanization of International Law 54 to encompass likewise
the domain of the law of treaties, traditionally so vulnerable to manifestations of
State voluntarism.
It is my understanding that, from the perspective of a minimally institu-
tionalized international community, the system of reservations to treaties, such
as it still prevails in our days, is rudimentary and rather primitive. There is press-
ing need to develop a system of objective determination of the compatibility or
otherwise of reservations with the object and purpose of human rights treaties,
although for that it may be considered necessary an express provision in future
human rights treaties, or the adoption to that effect of protocols to the existing
instruments.55
Only with such a system of objective determination we will succeed in
guarding coherence with the special character of human rights treaties, which,
as already pointed out, set forth obligations of an objective character and are
applied by means of the exercise of the collective guarantee. Only thus we will
succeed to establish, in the ambit of the law of treaties, standards of behaviour
which contribute to the creation of a true international ordre public based on
the respect and observance of human rights, with the corresponding obligations
erga omnes of protection. We stand in need of the renovation and humanization
of the law of treaties as a whole, comprising also the forms of manifestation of
State consent.
I do not see how not to take into account the experience of international su-
pervision accumulated by the conventional organs of protection of human rights
in the last decades. Any serious evaluation of the present system of reservations
to treaties cannot fail to take into account the practice, on the matter, of such
organs of protection. It cannot pass unnoticed that the ICJ, in its already men-
tioned Advisory Opinion of 1951, effectively recognized, in a pioneering way, the
– Castellón/Spain (1999) pp. 155-215, esp. pp. 178-186.
53 For the conception of human rights as an “autonomous juridical imperative”, cf. D.
Evrigenis, “Institutionnalisation des droits de l’homme et droit universel”, in Inter-
nationales Colloquium über Menschenrechte (Berlin, Oktober 1966), Berlin, Deut-
sche Gesellschaft für die Vereinten Nationen, 1966, p. 32.
de Minas Gerais – Belo Horizonte/Brazil (2001) pp. 11-23.
55 As suggested in the aforementioned “Preliminary Conclusions” of 1997 (paragraph
7) of the ILC; cf. U.N., Report of the International Law Commission... (1997), op. cit.
supra n. (43), pp. 126-127.
444 Chapter XVIII
special character of the Convention for the Prevention and Punishment of the
Crime of Genocide of 1948, but without having extracted from its acknowledge-
ment all the juridical consequences for the regime of reservations to treaties. Al-
most half a century having lapsed, this is a task which, in my view, is incumbent
upon international legal doctrine. The words pronounced by the Hague Court in
1951 remain topical nowadays, in pointing out that, in a Convention such as that
of 1948, adopted for a “purely humanitarian” purpose,
“(...) the Contracting States do not have any interests of their own; they merely have,
one and all, a common interest, namely, the accomplishment of those high purposes
which are the raison d’être of the Convention. Consequently, in a Convention of this
type one cannot speak of individual advantages and disadvantages to States, of the
maintenance of a perfect contractual balance between rights and duties. The high
ideals which inspired the Convention provide, by virtue of the common will of the
Parties, the foundation and measure of all its provisions”.56
I see no sense in trying to escape from the acknowledgement of the specificity

of the International Law of Human Rights as a whole, the recognition of which,
in my understanding, in no way threatens the unity of Public International Law;
quite on the contrary, it contributes to develop the aptitude of this latter to se-
cure, in the present domain, compliance with the conventional obligations of
protection of the States vis-à-vis all human beings under their jurisdictions.
With the evolution of the International Law of Human Rights, it is Public In-
ternational Law itself which is justified and legitimized, in affirming juridical
principles, concepts and categories proper to the present domain of protection,
based on premises fundamentally distinct from those which have guided the ap-
plication of its postulates at the level of purely inter-State relations.57
One is not, therefore, here proposing that the development of the International
Law of Human Rights be brought about to the detriment of the law of treaties: my
understanding, entirely distinct, is in the sense that the norms of the law of treaties
(such as those set forth in the two aforementioned Vienna Conventions, anyway of
a residual character) can greatly enrich with the impact of the International Law
of Human Rights, and develop their aptitude to regulate adequately legal relations
at inter-State as well as intra-State levels, under the respective treaties of protec-
tion. In sustaining the development of a system of objective determination – which
seems to me wholly necessary – of the compatibility or otherwise of reservations
with the object and purpose of human rights treaties in particular, in which the or-
56 ICJ, Advisory Opinion of 28.05.1951, ICJ Reports (1951) p. 23; and, for a study on the
matter, cf. A.A. Cançado Trindade, “La jurisprudence de la Cour Internationale de
Justice sur les droits intangibles / The Case-Law of the International Court of Justice
on Non-Derogable Rights”, Droits intangibles et états d’exception / Non-Derogable
Rights and States of Emergency (ed. D. Prémont), Brussels, Bruylant, 1996, pp. 53-89.
57 Cf. A.A. Cançado Trindade, “The International Law of Human Rights at the Dawn
of the XXIst Century”, op. cit. supra n. (52), pp. 178-186.
gans of international protection created by such treaties would exert an important

role, I do not see in that any threat to the “unity” of the law of treaties.
Quite on the contrary, there could hardly be something more fragmenting
and underdeveloped than the present system of reservations of the two Vienna
Conventions, for which reason it would be entirely illusory to assume that, to
continue applying it as until now, one would thereby be fostering the “unity” of
the law of treaties. The true unity of the law of treaties, in the framework of Public
International Law, would be better served by the search for improvement in this
area, overcoming the ambiguities, uncertainties and lacunae of the present sys-
tem of reservations, through the development of a system of objective determi-
nation (supra), in conformity with the special nature of human rights treaties and
the objective character of the conventional obligations of protection. The unity of
Public International Law itself is measured rather by its aptitude to regulate legal
relations in distinct contexts with equal adequacy and effectiveness.
IV. Considerations on the Denunciation of Treaties

The two Vienna Conventions on the Law of Treaties (1969 and 1986) determine
that a treaty which contains no provision on denunciation is not subject to de-
nunciation, unless it can be established that the parties intended to admit the
possibility of denunciation or that this latter “may be implied by the nature of the
treaty” (Article 56(1)). The two Vienna Conventions thus open the way to the tak-
ing into account of the nature or specificity of certain treaties. As already seen,
the special nature of treaties of a humanitarian character (such as human rights
treaties) has indeed been taken into account, and has been widely acknowledged.
Accordingly, certain limits have been established with regard to the denuncia-
tion of such treaties.
In fact, basic considerations of humanity have permeated also the clauses of
denunciation of certain treaties. This is aptly illustrated, e.g., by the provisions
on denunciation of the four Geneva Conventions on International Humanitar-
ian Law of 1949. According to those provisions (common Article 63/62/142/158),
the denunciation, which will take effect one year after its notification, shall not,
however, while the denouncing power is engaged in a conflict, take any effect
“until peace has been concluded”, and until the “operations connected with the
release and repatriation of the persons protected” by the Geneva Conventions
“have been terminated”. In this way, the obligations of the Parties as to the safe-
guard of the persons protected under those Conventions subsist, in whatever
circumstances, vis-à-vis the denouncing power, while the conflict lasts and the
release and repatriation of the persons protected are not concluded.58
58 Traditional considerations of reciprocity are also discarded when it comes to apply,

e.g., the provisions of the 1949 Geneva Conventions on International Humanitarian
Law, such as those of common Article 3, pertaining to conventional obligations of
the State vis-à-vis persons under its jurisdiction; reciprocity here yields of consid-
erations of protection of a superior order.
446 Chapter XVIII
Furthermore, the denunciation provisions of the aforementioned four

Geneva Conventions (common Article 63/62/142/158) expressly preserves the
obligations based on “the principles of the law of nations” as they result from
“the laws of humanity” and “the dictates of the public conscience” (the Martens
clause). Such obligations, as aptly remarked by B.V.A. Röling, continue govern-
ing human conduct even when treaties are no longer binding,59 – contrary to, I
would add, what positivists would mechanically argue. The law of protection of
the human person does not exhaust itself in the norms and rules of positive law,
it encompasses likewise the principles (which inform and conform those norms
and rules), without which there is no legal system at all.60
Half a decade after the adoption of the 1969 Vienna Convention on the Law
of Treaties, H.W. Briggs pertinently pointed out that the consideration of that
Convention in international case-law
“has been helpful in furthering the consolidation of the law against unilateral de-
nunciation of international agreements without accountability therefor”.61
The 1984 U.N. Convention against Torture, in this line of concern, provides (Ar-
ticle 31(2)) that a denunciation of it shall not have the effect of releasing the de-
nouncing Party from its obligations under the Convention with regard to “any act
or omission which occurs prior to the date at which the denunciation becomes
effective”, nor shall the denunciation prejudice in any way the “continued con-
sideration” of any matter already under scrutiny by the U.N. Committee against
Torture “prior to the date at which the denunciation becomes effective”.
At regional level, the European Convention on Human Rights, as amended
by Protocol n. 11, provides (Article 58) likewise that a denunciation of it shall not
have the effect of releasing the denouncing Party from its obligations under the
Convention in respect of “any act which, being capable of constituting a violation
of such obligations, may have been performed by it before the date at which the
denunciation became effective”. On its turn, in a similar line of thinking, the 1999
Inter-American Convention on the Elimination of All Forms of Discrimination
against Persons with Disabilities determines (Article XIII) that a denunciation of
it “shall not exempt” the State Party from the obligations imposed upon it under
the Convention in respect of “any action or omission prior to the date on which
the denunciation takes effect”.

1960, pp. 37-38.
60 IACtHR, Advisory Opinion n. 18 on the Juridical Condition and Rights of Undoc-
umented Migrants (2003), Concurring Opinion of Judge A.A. Cançado Trindade,
paragraphs 44-58.
61 H.W. Briggs, “Unilateral Denunciation of Treaties: The Vienna Convention and the
International Court of Justice”, 68 American Journal of International Law (1974) p.
68.
And the American Convention on Human Rights (Article 78) only admits
denunciation “at the expiration of a five-year period from the date of its entry
into force”, and by means of “notice given one year in advance”. Moreover, such
a denunciation shall not have the effect of releasing the denouncing State Party
from the obligations contained in the Convention with respect to “any act that
may constitute a violation of those obligations” and that “has been taken by that
State prior to the effective date of denunciation”. The issue of the effects of de-
nunciation, within such limits, became a central one in recent cases concerning
Trinidad and Tobago under the American Convention on Human Rights.
Trinidad and Tobago became a Party to the American Convention on Hu-
man Rights on 28.05.1991, and accepted the IACtHR’s jurisdiction in contentious
matters on that same date. Later on, on 26.05.1998, it denounced the American
Convention; pursuant to Article 78 of the Convention, such denunciation be-
gan to have effects one year later, on 26.05.1999. One day before this date the
Inter-American Commission on Human Rights [IAComHR] filed before the
IACtHR the Hilaire case; subsequently, after that date, it lodged with the Court
the Constantine et allii case (on 22.02.2000) and the Benjamin et allii case (on
05.10.2000), – the three of them concerning Trinidad and Tobago.
As they pertained to acts performed by that State prior to the date of its
denunciation, the Court retained jurisdiction and took cognizance of the cas-
es (pursuant to Article 78(2) of the Convention), and rendered its Judgments on
preliminary objections in the three cases on 01.09.2001, dismissing an undue re-
striction formulated by the State in its instrument of acceptance of the IACtHR’s
compulsory jurisdiction (reiterated in the three cases in the form of a preliminary
objection). That restriction would have limited the Court’s jurisdiction to the ex-
tent that its exercise would be consistent with the national Constitution, what the
IACtHR considered incompatible with the object and purpose of the Convention,
and an attempt to subordinate this latter to the national Constitution, what would
be inadmissible.62 The IACtHR then ordered the joinder of the three cases and
their respective proceedings (on 30.11.2001), and delivered its Judgment on the
merits (on 21.06.2002), finding violations of the American Convention.
Parallel to that, also after the denunciation by Trinidad and Tobago became
effective (on 26.05.1999), the IACtHR ordered successive Provisional Measures of
Protection, from 27.05.1999 to 02.12.2003, in the case James et allii versus Trini-
dad and Tobago (as they also pertained to acts taken by the State prior to the date
of its denunciation of the Convention). All these decisions of the IACtHR remain
binding upon the respondent State; its denunciation of the Convention does not
have the sweeping effect that one might prima facie tend to assume, as the de-
nunciation clause under the American Convention (supra) was surrounded by
temporal limitations so as not to allow it to undermine the protection of human
rights thereunder. Thus, not even the institution of denunciation of treaties is so
62 IACtHR, pars. 93 and 98-99 of the IACtHR’s Judgment in the Hilaire case; and pars.
84 and 89-90 of the IACtHR’s Judgments in the Benjamin et alii and the Constantine
et alii cases.
448 Chapter XVIII
absolute in effects as one might prima facie tend to assume. Despite its openness
to manifestations of State voluntarism, denunciation has, notwithstanding, been
permeated with basic considerations of humanity as well, insofar as treaties of
a humanitarian character are concerned. Ultimately, one is here faced with the
fundamental, overriding and inescapable principle of good faith (bona fides), and
one ought to act accordingly.
V. Considerations on the Termination and Suspension of the

Operation of Treaties
The interpretation and application of human rights treaties bear witness of the
twilight of reciprocity and of the prominence of considerations of ordre public in
the present domain. In fact, the prohibition of the invocation of reciprocity as a
subterfuge for non-compliance with humanitarian conventional obligations, is
corroborated in unequivocal terms by the 1969 Vienna Convention on the Law of
Treaties, which, in providing for the conditions in which a breach of treaty may
bring about its termination or suspension of its operation, excepts expressly and
specifically the “provisions relating to the protection of the human person con-
tained in treaties of a humanitarian character” (Article 60(5)).
The provision of Article 60(5) of the two Vienna Conventions on the Law of
Treaties (1969 and 1986), acknowledging the special nature of “treaties of a hu-
manitarian character” and setting forth one of the juridical consequences ensu-
ing therefrom, constitutes a safeguard clause in defence of the human person. In
this sense I saw it fit to point out, in a study on the matter 19 years ago, that
“the law of treaties itself of our days, as confi rmed by Article 60(5) of the Vienna
Convention [on the Law of Treaties], discards the precept of reciprocity in the im-
plementation of the treaties of international protection of human rights and of In-
ternational Humanitarian Law, by virtue precisely of the humanitarian character
of those instruments. Piercing the veil in a domain of International Law – such as
the one concerning treaties – so strongly infi ltrated by the voluntarism of States,
the aforementioned provision of Article 60(5) of the Vienna Convention de Viena
constitutes a clause of safeguard in defence of the human being”.63
In the account of one of the participants in the 1968-1969 Vienna Conference

from which the first Vienna Convention on the Law of Treaties (1969) resulted,
the provision at issue resulted from a Swiss amendment, promptly supported by
several Delegations, to the effect that the grounds for termination or suspension
of the operation of treaties should not apply to treaties of a humanitarian char-
acter, embodying provisions of protection of the human person.64 Article 60(5)
63 A.A. Cançado Trindade, A Proteção Internacional dos Direitos Humanos – Funda-

mentos Jurídicos e Instrumentos Básicos, São Paulo, Ed. Saraiva, 1991, pp. 11-12.
64 G.E. do Nascimento e Silva, Conferência de Viena sobre o Direito dos Tratados, Rio
de Janeiro, MRE/Imprensa Nacional, 1971, p. 81.
was maintained in the second Vienna Convention on the Law of Treaties (1986).
Another participant in the Vienna Conference of 1968-1969 pondered that there
are certain obligations – of protection of the human person – endowed with an
“absolute character”, which cannot be allowed to reduce, as
“l’idée d’une régression définitive de la conscience humaine est difficile à accepter.

En revanche il serait souhaitable que la pratique internationale se moralise dans
tous les domaines et acquière ainsi, par la reconnaissance des États, un niveau cr-
oissant de valeur: il pourrait et il devrait y avoir normalement de nouvelles règles
progressives. Sans qu’il soit nécessaire d’insister sur ce point, les racines profondes
d’une telle conception rejoignent la tradition du droit naturel, rajeunie de nos jours
par la conception du droit naturel à contenu progressif. En ce sens aussi, on pourrait
soutenir que les règles impératives ont dépassé le stade coutumier pour atteindre
un niveau plus stable qui est celui des principes généraux du droit international
public”.65
Thus, the contemporary law of treaties itself, as attested by Article 60(5) of the
1969 and the 1986 Vienna Conventions, overcoming the precept of reciprocity
in the implementation of treaties of a humanitarian character, reckons that the
obligations enshrined therein are of ordre public, and may generate effects erga
omnes. The overcoming of reciprocity in human rights protection has taken place
amidst the constant search for an expansion of the ambit of protection (for the
safeguard of an increasingly wider circle of individuals, in any circumstances),
for achieving a higher degree of the protection due, and for the gradual strength-
ening of the mechanisms of supervision, in the defense of common superior val-
ues.
VI. Concluding Observations

Last but not least, attention should also be drawn to the interaction of human
rights treaties in the process of interpretation. Given the multiplicity of those
treaties, it comes as little or no surprise that the interpretation and application
of certain provisions of a given human rights treaty have at times been resorted
to as orientation for the interpretation of corresponding provisions of another,
– usually newer, – human rights treaty. The practice of international supervi-
sory organs – including under the two regional, European and Inter-American,
systems of protection, – affords several examples of such interpretative inter-
action.66 Moreover, given the possible concurrent interpretation of equivalent
provisions of two or more human rights treaties, there is room for the search of
the most favourable norm to the alleged victim. This test – primacy of the most
favourable norm to the individual, – gathers express support in certain provi-
65 P. Reuter, Introduction au droit des traités, 2nd. ed., Paris, PUF, 1985, p. 120.
66 Cf. A.A. Cançado Trindade, “Co-existence and Co-ordination of Mechanisms...”, op.
cit. supra n. (11), pp. 91-112, esp. pp. 101-103.
450 Chapter XVIII
sions of such human rights treaties as the European Convention (new Article 53)
and the American Convention (Article 29(b)) on Human Rights and has found
application in practice.
The essential motivation underlying the interpretation of human rights
treaties has been, rather than to ensure the uniformity of International Law in
general and in all circumstances whatsoever, to respond effectively to the needs
and imperatives of the international protection of human beings. In proceeding
in this way, international supervisory organs – such as the two regional Human
Rights Courts, the ECtHR and the IACtHR, – have constructed a converging ju-
risprudence as to the special nature of human rights treaties and the implications
and consequences ensuing therefrom. This has been largely due to the overriding
identity of the object and purpose of those treaties. The reassuring result has
been a uniform interpretation of the International Law of Human Rights. This,
in turn, has contributed significantly to the development of International Law in
the present domain of protection.
Thus, a chapter of International Law usually approached in the past from
the outlook of State voluntarism, comes nowadays to be seen in a different light,
under the influence of basic considerations of humanity. Although this chapter
of International Law, – the law of treaties, – has maintained itself open to mani-
festations of the individual “will” of States, – as from the issue of the treating-
making power itself, – the fact cannot keep on being overlooked that basic con-
siderations of humanity have marked their presence also in the law of treaties. As
demonstration of this evolution, developments pertaining to the interpretation
of treaties, reservations to treaties, denunciation of treaties, and termination and
suspension of the operation of treaties have disclosed a certain preparedness to
elaborate freely on areas such as those, so as to search for responses to the con-
temporary needs of the international community.
Like International Law in general, the law of treaties in particular is under-
going a historical process of humanization as well. It cannot pass unnoticed, as
timely recalled by Egon Schwelb three decades ago,67 that the preambles them-
selves of the two Vienna Conventions on the Law of Treaties (of 1969 and 1986)
contain an assertion of the principle of universal respect for, and observance of,
human rights.68 The treaty-making power is no longer an exclusive prerrogative
of States, as it used to be in the past; the 1986 [second] Vienna Convention on the
67 In respect of the 1969 Vienna Convention on the Law of Treaties; cf. E. Schwelb,
“The Law of Treaties and Human Rights”, in Toward World Order and Human Dig-
nity – Essays in Honor of M.S. McDougal (eds. W.M. Reisman and B.H. Weston),
N.Y./London, Free Press, 1976, p. 265.
68 Sixth preambular paragraph in fine, texts reproduced respectively in: U.N., United
Nations Conference on the Law of Treaties – Official Records, Documents of the
Conference (Vienna, 1968-1969), vol. III, N.Y., U.N., 1971, p. 289; and in: U.N., United
Nations Conference on the Law of Treaties between States and International Organi-
zations or between International Organizations – Official Records, Documents of the
Conference (Vienna, 1986), vol. II, N.Y., U.N., 1995, p. 95.
Law of Treaties came to address the treaty-making power of international orga-

nizations, some of which devoted to causes of direct interest to human beings
and humankind as a whole.
The interpretation of treaties has been considerably enriched by the meth-
odology pursued by international supervisory organs of human rights treaties.
Such interpretation has adjusted itself to the specificity of human rights trea-
ties.69 It has, moreover, favoured a harmonization of the standards of implemen-
tation of the protected rights in the domestic legal order of the States Parties to
those treaties.70 The two international human rights Tribunals in operation for
a long time (the ECtHR and the IACtHR) have been engaged in a converging
jurisprudential construction in respect of reservations to treaties to the effect of
avoiding to deprive human rights treaties of their effet utile, thus preserving the
mechanisms of protection of the human person established by them. And basic
considerations of humanity have nowadays permeated also the denunciation of
treaties, as well as the termination and suspension of the operation of treaties.
Last by not least, it may further be recalled that the concept of jus cogens made
its initial appearance in the law of treaties,71 but nowadays, in my view, it goes
well beyond the law of treaties, encompassing other domains of International
Law, such as, e.g., the law on the international responsibility of the State.72 It thus
deserves to be dealt with on its own, in its evolving and wide dimension,73 and no
longer under the law of treaties only.
69 R. Bernhardt, “Thoughts on the Interpretation of Human Rights Treaties”, in Pro-

tecting Human Rights: The European Dimension -Studies in Honour of G.J. Wiarda
(eds. F. Matscher and H. Petzold), Köln, C. Heymanns, 1988, pp. 66-67 and 70-71.
And cf. Erik Suy, “Droit des traités et droits de l’homme”, (eds. R. Bernhardt et alii),
Berlin, Springer-Verlag, 1983, pp. 935-947; E. Schwelb, “The Law of Treaties and Hu-
man Rights”, op. cit. supra n. (67), pp. 262-283; G.E. do Nascimento e Silva, Confer-
ência de Viena... , op. cit. supra n. (64), pp. 80-81; E. de la Guardia and M. Delpech,
El Derecho de los Tratados y la Convención de Viena, Buenos Aires, La Ley, 1970, pp.
458 and 454; F. Capotorti, “Il Diritto dei Trattati Secondo la Convenzione di Vienna”,
in Convenzione di Vienna sul Diritto dei Trattati, Padova, Cedam, 1984, p. 61.
70 F. Matscher, “Methods of Interpretation of the Convention”, in The European System
for the Protection of Human Rights (eds. R.St.J. MacDonald, F. Matscher and H. Pet-
zold), Dordrecht, Nijhoff, 1993, pp. 66 and 73.
71 Articles 53 and 64 of the two Vienna Conventions on the Law of Treaties.
72 As I have sustained, inter alia, in my Concurring Opinion (pars. 44-89) in the Advi-
sory Opinion n. 18 of the IACtHR on the Juridical Condition and Rights of Undocu-
mented Migrants (2003), and in my Separate Opinion (pars. 37-44) in the case of the
Brothers Gómez Paquiyauri versus Peru (2004).
73 Cf. chapter XII, supra.
Chapter XIX Basic Considerations of Humanity in
Relation to State Responsibility
I. State Responsibility and the General Interests of the

The international responsibility of the State has always appeared as a complex,
truly central and fundamental chapter of Public International Law as a whole.
The degree of consensus that is attained, or not, in relation to its multiple as-
pects, – starting with the very bases of the configuration of such responsibility,
– is bound to reflect ultimately the degree of evolution and cohesion of the in-
ternational community itself as a whole. Half a century of concerted endeavours
to systematize this crucial chapter of International Law give reason, on the one
hand, for satisfaction as to some advances achieved, and, on the other hand and
at the same time, for concern as to the inconclusive – and at times unsatisfactory
– results attained to date on some aspects of relevance to the international com-
munity as a whole.
The prolonged work of the U.N. International Law Commission [ILC] on
State responsibility (1956-2001) disclosed, in fact, at least two significant features:
the recognition of “the greater or lesser importance to the international commu-
nity of the rules giving rise to the obligations violated, and the greater or lesser
seriousness of the violation itself”.1 The admission, by the ILC, that besides the
directly injured States, also indirectly affected States may have a general inter-
est to react to internationally wrongful acts, appeared to attempt to transcend
the traditional paradigm in acknowledging the existence of general interests of
concern to all States, to the international community as a whole.2 In the same
line of thinking, the ILC endeavours to regulate claims arising from the breach
of obligations erga omnes (in cases of protection of human rights, or of collec-
1 S. Rosenne, “The Codification of the Law of State Responsibility (1924-1990)”, in

The International Law Commission’s Draft Articles on State Responsibility (ed. S.
Rosenne), Dordrecht, Nijhoff, 1991, p. 26.
2 Cf. B. Simma, “Bilateralism and Community Interest in the Law of State Responsi-
bility”, in International Law at a Time of Perplexity – Essays in Honour of S. Rosenne
(ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, p. 840, and cf. pp. 842 and 830-831, and cf.
pp. 827, 829 and 844.
454 Chapter XIX
tive interests, under treaties) are likewise a step forward.3 An examination of the
ILC’s prolonged work on State responsibility leads to the identification of basic
considerations of humanity also in this domain of International Law (infra).
It may be recalled, to this effect, e.g., that when the ILC, as from the mid-sev-
enties to the early eighties, engaged on the task, at a certain stage of its work on
the subject, of listing grave violations to international peace and security (such as
aggression), to the self-determination of peoples, to the safeguard of the human
being (such as slavery, genocide, apartheid), to the protection of the environment
(such as massive pollution of the atmosphere or of the oceans), – it followed the
same method which it had previously adopted for the determination of peremp-
tory norms of International Law in the ambit of its earlier work on the law of
treaties, namely: to provide, for the determination of the obligations at issue, only
a basic criterion, sufficiently clear so as to allow the crystallization around itself
of international practice and case-law, and sufficiently flexible so as not to hinder
“the development of the juridical conscience of the States”.4
As it proceeded in its work (part II, rapporteur W. Riphagen) on the interna-
tional responsibility of the States, the ILC clarified that it followed a “normative”
approach and that it moved away from the old voluntarist conception of inter-
national law.5 This latter appeared incapable to solve the problem of the funda-
mentals and of the validity of international law, which could only find a response
in human conscience itself; it was reckoned that it was “impossible to eliminate
from the law” the idea of an objective justice, “superior to the facts”, and which
disengaged itself from the very observation of the facts.6
On the other hand, the ILC prolonged work which led to the adoption of its
Articles on State Responsibility (2001) also disclosed in some aspects a certain re-
sistance to the aforementioned construction of a new paradigm. An illustration
is provided by the space occupied, in those Articles, by so-called “countermea-
sures” (Articles 22 and 49-54), in comparison with the much more succint space
devoted to serious breaches of obligations under peremptory norms of general
International Law (Articles 40-41). Ubi societas, ibi jus. It should not pass unno-
3 K. Zemanek, “The Legal Foundations of the International System – General Course

on Public International Law”, 266 Recueil des Cours de l’Académie de Droit Interna-
tional de La Haye [RCADI] (1997) p. 266. By admitting that other States Parties may
be regarded as “injured” (in those circumstances), the ILC moved into the gradual
construction of a new paradigm.
4 U.N., Yearbook of the International Law Commission [YILC] (1976)-II, part II, p. 119,
par. 61.
5 Cf. W. Riphagen, “Second Report on the Content, Forms and Degrees of Interna-
tional Responsibility”, Yearbook of the International Law Commission (1981)-II, part
I, p. 85, pars. 53-54.
6 H. Accioly, Tratado de Direito Internacional Público, 2nd. ed., vol. I, Rio de Janeiro,
[MRE], 1956, pp. 18, 24, 26 and 30.
Basic Considerations of Humanity in Relation to State Responsibility 455
ticed that countermeasures – that is, “legal” countermeasures7 – has now been
taken to the centre of the domain of State responsibility without originally and
intrinsically belonging to it. Countermeasures are reminiscent of the old prac-
tice of retaliation, and, – whether one wishes to admit it or not, – they rely upon
force rather than conscience. Recourse to them discloses the insufficient degree
of development of the treatment of State responsibility.
In this respect, there have at least been some rather rare warnings as to
resort to countermeasures: as the international legal order is based upon justice
rather than force, to confer a high standing to countermeasures in the domain
of State responsibility is “to elevate to a position of high dignity one of [interna-
tional] society’s least dignified and least sociable aspects”, thus condemning that
society “to be what it is”.8 Although the apparently ellegant term “countermea-
sures” seems to have entered, rather smoothly and uncritically, into the lexicon of
contemporary International Law, appearing to be en vogue nowadays, the essence
of its practice should not be overlooked.
It could hardly be denied that the practice of “countermeasures” ensues
mainly from the domain of “the reciprocity of State interests” rather than princi-
ples, disclosing clear risks, including that of an escalation of retaliations launched
by the application of a given countermeasure.9 There has been support, not sur-
prisingly, for judicial control of countermeasures; one decade ago, in his seventh
Report (of 1995), rapporteur G. Arangio-Ruiz attempted to subject these latter to
a prior dispute settlement procedure (stressing the need of an institutionalized
and controlled reaction – within the ambit of the United Nations – of the “or-
ganized international community”),10 and today the idea of a neutral control of
countermeasures remains alive.11 Yet, the much larger space occupied by “coun-
termeasures” than by other truly fundamental aspects of State responsibility in
the 2001 ILC Articles on the subject discloses an apparent lack of confidence in
the role of law for attaining justice; the greater emphasis is therein shifted to
coercive means – envisaged as “legal” ones – rather than on conscience and the
prevalence of opinio juris communis.
Yet, in a domain of International Law endowed with a specificity of its own,
such as the International Law of Human Rights, the overall picture is rather dif-
ferent. This is a domain which has rendered possible a re-encounter with the very
7 Cf., e.g., O.Y. Elagab, The Legality of Non-Forcible Counter-Measures in Internation-

al Law, Oxford, Clarendon Press, 1988, pp. 1-221.
8 Ph. Allott, “State Responsibility and the Unmaking of International Law”, 29 Har-
vard International Law Journal (1988) pp. 23-24.
9 M. Virally, “Panorama du Droit international contemporain – Cours général de
Droit international public”, 183 RCADI (1983) pp. 217-218.
10 G. Arangio-Ruiz, “Séptimo Informe sobre la Responsabilidad de los Estados”, U.N.
doc. A/CN.4/469, of 09.05.1995, pp. 30-37, 42-43, 46, 49 and 52.
11 Cf., e.g., M.E. O’Connell, “Controlling Countermeasures”, in International Respon-
sibility Today – Essays in Memory of O. Schachter (ed. M. Ragazzi), Leiden, Nijhoff,
2005, pp. 49-62.
456 Chapter XIX
foundations of the international responsibility of States. Herein attention is cor-

rectly focused on Law rather than force, on conscience rather than “will”, to the
greater effectiveness of Public International Law itself.12 It cannot pass unnoticed
that the expansion of the international legal personality in International Law13
was, in fact, related to the issue of the attribution of international responsibility
to the State in the course of the ILC work on part I (rapporteur, R. Ago), on the
origin of the responsibility of the State. In his substantial fourth Report (of 1972)
sobre “The Internationally Wrongful Act of the State, Source of International
Responsibility”, rapporteur Roberto Ago14 pondered that
“It would be useless to object, as writers have often done, that only States are sub-
jects of International Law and that therefore only they can violate the obligations
imposed by that law. Apart from the fact that such an objection would be begging
the question, the cases referred to here are not cases of so-called international re-
sponsibility of individuals, but cases of international responsibility of the State.
Since the action of the private individual would be attributed to the State, it would
be the State, acting through the individual, which would breach an international
obligation”.15
And he added, in further clarification of his thinking, that
“The action of an individual would be the basis of the internationally wrongful con-
duct of the State, and the State would violate an international obligation through the
action of an individual in which certain organs were merely accomplices. (...) The
internationally wrongful act with which the State is charged is the violation of an
international obligation perpetrated through the action of the individual concerned
(...)”.16
II. The Birth of the International Responsibility of States

It is nowadays generally acknowledged that the international responsibility of the
State can be generated by acts or omissions on the part of any of its powers or
organs, irrespective of their hierarchy, attributable to it under International Law,
which constitute a breach of an international obligation binding it. The birth of
the international responsibility of the State thus occurs as from the moment of
12 A.A. Cançado Trindade, “Memorial por um Novo Jus Gentium, o Direito Internac-
ional da Humanidade”, 45 Revista da Faculdade de Direito da Universidade Federal
de Minas Gerais – Belo Horizonte/Brazil (2004) pp. 17-36.
13 Cf. chapters VII-XI, supra.
14 Roberto Ago (rapporteur of the theme in the ILC in 1963-1979) was preceeded by F.V.
García Amador (1955-1961), and followed by (W. Riphagen, 1979-1986), G. Arangio-
Ruiz (1987-1996) and J. Crawford (1997-2001).
15 U.N., YILC (1972)-II, p. 96, par. 63.
16 Ibid., pp. 96-97, par. 64.
the occurrence of such international wrong imputable to it.17 Such an acknowl-

edgement crystallized in “an era of conscious consolidation of International
Law”,18 as States gave up attempting to obstruct international law by means of
the adoption of laws or administrative acts at variance with it. Here, once again,
it was conscience that moved Law forward in the right direction. It gradually be-
came clear that the international obligations of the State were not limited to the
executive ones, but comprised likewise legislative and judicial obligations.19
International case-law was soon to sustain likewise that the origin of the
international responsibility of the State can lie in any act or omission of any of
the powers or agents of the State (be it of the Executive, or of the Legislative, or
of the Judiciary),20 as indicated by the locus classicus on the matter, the Judgment
on the case concerning Certain German Interests in Polish Upper Silesia (Ger-
many versus Poland, 1926), and in the Advisory Opinion on German Settlers in
Poland (1923), both of the old Permanent Court de International Justice [PCIJ].21
This has become jurisprudence constante in the domain of the International Law
of Human Rights (European and Inter-American Courts of Human Rights);22 the
pronouncements, on the matter, on the part of distinct organs of international
17 The distinction adopted in the work of the ILC on the Responsibility of the State
(in particular of its part I) between primary rules (those which impose specific ob-
ligations to the States) and secondary rules (those which determine the juridical
consequences of the non-compliance by the States of the obligations established by
the primary rules) of International Law, contributes to clarify that the responsibil-
ity of the State is engaged as from the moment of the international wrongful act
(or omission), there arising therefrom a subsidiary obligation to put an end to the
consequences of the violation (what may mean, in the circumstances of a concrete
case, e.g., to modify a national law) and to provide reparation for the damages.
18 H. Lauterpacht, “Règles générales du droit de la paix”, 62 RCADI (1937) pp. 145-146.
19 Cf., in this respect, e.g., H. Accioly, Tratado..., op. cit. supra n. (6), pp. 280-310; H.
Dipla, La responsabilité de l’État pour violation des droits de l’homme – Problèmes
d’imputation, Paris, Pédone, 1994, pp. 17-32; C. Sepúlveda, Derecho Internacional,
13th. ed., Mexico, Ed. Porrúa, 1983, pp. 237-238.
20 Cf., e.g., the digest of case-law in U.N., YILC (1969)-II, pp. 105-106.
21 In the exercise of its contentious as well as advisory jurisdiction, the PCIJ pro-
nounced clearly on the matter: in the aforementioned Judgment, it asserted that
national laws are facts which express the will and constitute the activities of the
States, in the same way as the judicial decisions or the administrative measures, and
concluded that the Polish legislation at issue was contrary to the German-Polish
Convention which protected the German interests in question; and in the Advisory
Opinion referred to, it sustained that the Polish legislative measures at issue were
not in conformity with the international obligations of Poland. Cit. in U.N., YILC
(1964)-II, p. 138.
22 Cf., e.g., the Judgments of the European Court of Human Rights in the cases Klass
and Others (1978), Marckx (1979), Johnston and Others (1986), Dudgeon (1981), Silver
and Others (1983), De Jong, Baljet and van den Brink (1984), Malone (1984), Norris
(1988), among others; and the Judgments of the Inter-American Court of Human
Rights in the cases “The Last Temptation of Christ” (Olmedo Bustos and Others,
458 Chapter XIX
supervision of human rights, at universal and regional levels, likewise affirm the
existence of executive, legislative, and judicial obligations of the States Parties to
the respetive human rights treaties, the breach of which promptly engages their
international responsibility.23
In a study published in 1968, E. Jiménez de Aréchaga recalled that the un-
sucessful Hague Conference on the Codification of International Law (1930), at
least contributed with the “general recognition” of the responsibility of States
for judicial decisions clearly incompatible with the international obligations con-
tracted by the respective States.24 Thus, 75 years ago, there were no longer traces
of the surpassed doctrinal attempts, of the XIXth and beginning of the XXth
centuries, that sought in vain to avoid the extension to the Judicial Power of the
principle of the international responsibility of the State for acts or omissions of
all its powers and organs. In this respect, Roberto Ago, as special rapporteur of
the ILC on the theme of the Responsibility of the State, categorically pondered, in
his substantial third Report (of 1971) on the topic of the internationally wrongful
act of the State as “source” of international responsibility, that
“(...) No-one now supports the old theories which purported to establish an excep-
tion in the case of legislative organs on the basis of the ‘sovereign’ character of Par-
liament, or in the case of jurisdictional organs by virtue of the principle of inde-
pendence of the courts or the res judicata authority of their decisions. (...) Today,
the belief that the respective positions of the different powers of the State have sig-
nificance only for constitutional law and none for International Law (...) is firmly
rooted in international jurisprudence, the practice of States and the doctrine of In-
ternational Law”.25
In R. Ago’s correct understanding, expressed as from his second Report (of 1970),
on “The Origin of International Responsibility”, any conduct of a State classified
2001), Suárez Rosero (1997-1999), Loayza Tamayo (1997-1998), Castillo Petruzzi and
Others (1998-1999), among others.
23 Cf., on the practice of the Human Rights Committee (under the U.N. Covenant on
Civil and Political Rights), the cases Aumeeruddy-Cziff ra and Others (1981), and of
the Handicapped Italians (1984), as well as its Views (of 31.03.1993) in the case J. Bal-
lantyne, E. Davidson and G. McIntyre versus Canada, and its Views (of 31.03.1994)
in the case N. Toonen versus Australia. And, at regional level, cf., e.g., the cases (ns.
60/91 and 87/93) of the Constitutional Rights Project (1994), concerning Nigeria, un-
der the African Charter on Human and Peoples’ Rights, in Decisions of the African
Commission on Human and Peoples’ Rights (1986-1997), Series A, vol. 1, Banjul, 1997,
pp. 55-59 and 101-104.
24 E. Jiménez de Aréchaga, “International Responsibility”, in Manual of Public Inter-
national Law (ed. M. Sorensen), London/N.Y., MacMillan/St. Martin’s Press, 1968,
p. 551.
25 Roberto Ago (special rapporteur), “Third Report on State Responsibility: The In-
ternationally Wrongful Act of the State, Source of International Responsibility”, in
U.N., Yearbook ILC (1971)-II, part I, pp. 246-247, pars. 144 and 146.
by International Law as internationally wrongful entails the responsibility of that

State in International Law; thus, any internationally wrongful act (or omission)
constitutes “a source of international responsibility”.26 Moreover, the independ-
ence of the characterization of a given act (or omission) as wrongful in Interna-
tional Law from the characterization – similar or otherwise – of such act by the
domestic law of the State, constitutes a general principle of the law on the inter-
national responsibility.27 The fact that a given State conduct conforms itself with
the provisions of domestic law, or even is required by this latter, does not mean
that its internationally wrongful character can be denied, whenever it constitutes
a violation of an international obligation.28
In fact, the question of the distribution of competences, and the basic prin-
ciple of the separation of powers, are of the greatest relevance in the ambit of
constitutional law, but in that of International Law they are nothing but facts,
which have no incidence in the configuration of the international responsibility
of the State.29 The State, as an indivisible whole, remains a centre of imputation,
bound to answer for the internationally wrongful acts or omissions, of any of its
powers, or of its agents, irrespective of hierarchy. As very well pointed out by the
Swiss jurist Max Huber, in his well-known arbitral award of 1925 in the case of
the Island of Palmas (The Netherlands versus United States), the competences
26 As an illustration, Ago mentioned the failure of a State to abide by the international

obligation to adopt certain legislative measures required by the treaty at issue, to
which it is a Party; R. Ago (special rapporteur), “Second Report on State Responsi-
bility: The Origin of International Responsibility”, in U.N, Yearbook ILC (1970)-II,
pp. 179, 187 and 194, pars. 12, 31 and 50. In his view, the damage can be taken into
account, for the purpose of the determination of the reparations, “but is not a pre-
requisite for the determination that an internationally wrongful act has been com-
mitted”; R. Ago, “Third Report on State Responsibility...”, op. cit. supra n. (25), p. 223,
par. 74.
27 Ibid., pp. 226, 232 and 238, pars. 86, 88, 103-104 and 120.
28 As pointed out by the well-known obiter dictum of the old PCIJ in the case of Cer-
tain German Interests in Polish Upper Silesia (Merits, 1926), from the standpoint of
International Law, the norms of domestic law are nothing more than simple facts.
Ibid., pp. 227, 237 and 246, pars. 92, 117 and 145. – Likewise, it is jurisprudence con-
stante of the International Court of Justice [ICJ] the principle whereby a State can-
not invoke difficulties of domestic law in order to evade the observance of its inter-
national obligations, – a principle which is set forth in the two Vienna Conventions
on the Law of Treaties (of 1969 and 1986, Article 27), and which was also singled out,
in his work of codification, in 1957 and 1961, by the previous special rapporteur on
the matter of the ILC, F.V. García Amador, duly recalled by R. Ago (ibid., pp. 228 and
231, pars. 94 and 100). – Thus, as pointed out by R. Ago, it is not the task of Interna-
tional Law to occupy itself with the “organization” of the State; in ibid., p. 236, par.
113.
29 The frustrated attempts, in an already distant past, to place the legislative and judi-
cial powers of the State out of international contacts (under the influence, to some
extent, of some of the earlier manifestations of legal positivism), would have no
sense in our days. They belong to a world which no longer exists.
460 Chapter XIX
(territorial and jurisdictional) exercised by the States have as a counterpart the

duties incumbent upon them, emanated from International Law, in their rela-
tions with other States,30 – and, I would allow myself to add, also, under the im-
pact of the International Law of Human Rights in the last decades, in relation to
all human beings under their respective jurisdictions.
The distinction, originally found in part I of the aforementioned project of
the ILC, between the obligations of behaviour or conduct and those of result,
despite all the doctrinal debate it has aroused in the last three decades,31 has, at
least, exercised the role of demonstrating the necessity to promote a better artic-
ulation between the domestic and international legal orders.32 Such articulation
appears of particular importance for the future of the international safeguard
of human rights, with special emphasis on the positive obligations of protection
on the part of the State, on the basis of its objective international responsibility
engaged as from the violation of its international obligations.33
The harmonization of the norms of domestic law with the provisions of hu-
man rights treaties can in fact be considered an obligation of result. But this
does not mean that compliance with it can be postponed indefinitely. The whole
doctrinal and jurisprudential construction of the last decades about the positive
obligations of the States Parties to human rights treaties represents a reaction
against the inertia, or the slowness, or the omissions of the public power in the
present domain of protection. Such construction contributes to explain, and to
set the foundations of, the legislative and other obligations of the States Parties
to human rights treaties.
Once the international responsibility of a State Party to a human rights
treaty is established, such State has the duty to reestablish the situation that se-
30 U.N., Reports of International Arbitral Awards / Recueil des sentences arbitrales, vol.
II, pp. 838-839.
31 Cf. generally, e.g., A. Marchesi, Obblighi di Condotta e Obblighi di Risultato – Con-
tributo allo Studio degli Obblighi Internazionali, Milano, Giuff rè, 2003, pp. 1-171.
32 P.-M. Dupuy, “Le fait générateur de la responsabilité internationale des États”, 188
RCADI (1984) pp. 50 and 25.
33 Cf., on the matter, e.g., Jules Basdevant, “Règles générales du droit de la paix”, 58
RCADI (1936) pp. 670-674; E. Jiménez de Aréchaga, El Derecho Internacional Con-
temporáneo, Madrid, Ed. Tecnos, 1980, pp. 319-325, and cf. pp. 328-329; I. Brownlie,
System of the Law of Nations – State Responsibility – Part I, Oxford, Clarendon Press,
1983, p. 43; P. Guggenheim, Traité de Droit International Public, vol. II, Genève,
Georg, 1954, pp. 52 and 54; P. Reuter, “Principes de Droit international public”, 103
RCADI (1961) pp. 592-594 and 598-603; C.W. Jenks, “Liability for Ultra Hazardous
Activities in International Law”, 117 RCADI (1966) pp. 105-110 and 176-196; K. Ze-
manek, “La responsabilité des États pour faits internationalement illicites, ainsi que
pour faits internationalement licites”, in Responsabilité internationale (org. Prosper
Weil), Paris, Pédone, 1987, pp. 36-38 and 44-46; B. Conforti, Diritto Internazionale,
5th. ed., Napoli, Ed. Scientifica, 1997, pp. 360-363; J.A. Pastor Ridruejo, Curso de
Derecho Internacional Público y Organizaciones Internacionales, 6th. ed., Madrid,
Tecnos, 1996, pp. 571-573.
cures to the victims the enjoyment of their violated right (restitutio in integrum,
whenever possible), putting an end to the situation in breach of that right, as well
as, in the light of the case, to provide adequate reparation for the consequences
of such violation. In its Judgment of 05.02.2001 concerning the prohibition in
Chile, by application of prior censorship (on the basis of a constitutional provi-
sion), of the public exhibition of the movie “The Last Temptation of Christ”, the
Inter-American Court of Human Rights [IACtHR] established the objective in-
ternational responsibility of the respondent State, originated in the promulgation
of the 1980 Chilean Constitution containing Article 19(12) (on prior censorship
of movie production). The Court determined inter alia that the respondent State
should, within a reasonable time, modify its domestic legal order so as to put an
end to prior censorship and allow the public exhibition of the aforementioned
movie.
On 14.11.2001 the State informed the Court of the publication in the Official
Journal of the constitutional reform putting an end to the previous censorship
regime. Shortly afterwards, the State further informed the IACtHR (reports of
20.08.2002 and of 19.03.2003) of the conclusion of the legislative measures, es-
tablishing a new system of qualification of movie production, allowing the public
exhibition (as from 11.03.2003) of the movie at issue.34 At last, in a resolution of
28.11.2003, the IACtHR declared that the Chilean State had fully complied with
its Judgment of 05.02.2001 on the case of the “The Last Temptation of Christ”.
This was a remarkable outcome: for the first time in the history of the IACtHR, a
respondent State modified its own Constitution to comply fully with a Judgment
of an international tribunal of human rights, setting up a positive precedent for
other States Parties to the American Convention. The historical episode reveals
that, in the present domain of protection, the primacy of International Law over
domestic law comes to constitute, more than an academic construction, an
achievement of Law in our days, moved this latter by human conscience.35
34 The Court was further informed, by both the petitioners (on 21.10.2003) and the
Inter-American Commission on Human Rights [IAComHR] (on 27.10.2003), that
they considered that the respondent State had effectively complied with the Court’s
Judgment of 05.02.2001.
35 In my Concurring Opinion in the Court’s Judgment of 05.02.2001, I held, in sum,
that the international responsibility of a State Party to a human rights treaty arises
at the moment of the occurrence of an international wrongful act – or omission
– (tempus commisi delicti), imputable to that State, in violation of the treaty at is-
sue Any act or omission of the State, on the part of any of the Powers – Executive,
Legislative or Judicial – or agents of the State, irrespective of their hierarchy, in
breach of a human rights treaty, engages the international responsibility of the State
Party at issue. The distribution of competences between the powers and organs of
the State, and the principle of the separation of powers, although of the greatest
relevance in the ambit of constitutional law, do not condition the determination of
the international responsibility of a State Party to a human rights treaty. Thus, any
norm of domestic law, irrespective of its rank (constitutional or infraconstitutional),
can, by its own existence and applicability, per se engage the responsibility of a State
462 Chapter XIX
There are further considerations of humanity, still under the issue of the
origin or birth of State responsibility, that cannot pass here unnoticed. In ad-
dressing circumstances precluding wrongfulness, e.g., the 2001 ILC’s Articles on
Responsibility of States asserted that the circumstance of necessity may not be
invoked, unless the act at issue “does not seriously impair” an essential interest
of the State(s) towards which the obligation exists, or of “the international com-
munity as a whole” (Article 25(1)(b)). And they added significantly that nothing
in chapter V of Part I of the aforementioned Articles precluded the wrongfulness
of any act of a State “which is not in conformity with an obligation arising under
a peremptory norm of general international law” (Article 26). Jus cogens was thus
brought explicitly into the realm of State responsibility, well beyond the law of
treaties.36 The ILC’s Articles on State Responsibility further purported, in Part II,
as to the content of the international responsibility of the State, to identify the
wide scope of international obligations set out therein. Thus, Article 33(1) stated
that the obligations of the responsible State set out in Part II may be owed to an-
other State, to several States, or to the international community as a whole.37
III. The Implementation of the International Responsibility of States

As to the distinct moment of the implementation of State responsibility, there
are aspects in respect of which basic considerations of humanity have marked
their presence as well. Article 42, for example, admitted that a State is entitled,
“as an injured State”, to invoke the responsibility of another State, if the obliga-
tion breached is owed not only to that State individually, but also to a group of
States including that State, or “the international community as a whole”. And
Article 48(1)(b) added that “any State other than an injured State” is entitled to
invoke the responsibility of another State38 if the obligation breached “is owed to
the international community as a whole”.
Although the system of countermeasures, as at last adopted in 2001, in part
III of the ILC’s Articles on State Responsibility, appears rather unsatisfactory
from the standpoint of a truly organized international community (cf. supra), it
appeared at least not wholly devoid of basic considerations of humanity. Thus,
Article 50(1) determined significantly that countermeasures shall not affect:
“(a) the obligation to refrain from the threat or use of force as embodied in the
Charter of the United Nations;
Party to a human rights treaty. I added that a norm of domestic law which, by being
in force, per se creates a legal situation which affects the rights protected by a human
rights treaty, constitutes, in the context of a concrete case, a continuing violation of
such treaty (par. 40 of the Opinion).
37 Depending in particular on the “character and content” of the international obliga-
tion and on the circumstances of the breach.
38 In accordance with the provision of paragraph 2 of the same Article 48.
(b) obligations for the protection of fundamental human rights;

(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law”.
Still as to the implementation of the international responsibility of the State, the

ILC’s Articles restated, as to the admissibility of claims, the preconditions of the
nationality of claims (Article 44(a)) and of the prior exhaustion of local remedies
(Article 44(b)). This latter is one of the preconditions of admissibility most often
raised in international practice, and it in recent years has been the object of a vast
case-law, in particular of international human rights supervisory organs.
In the domain of the international protection of human rights, – funda-
mentally distinct from that of discretionary diplomatic protection at inter-State
level,39 – the rule of exhaustion of local remedies is endowed with a procedural
rather than substantive nature. It thus conditions the implementation (mise-en-
oeuvre) of the responsibility of the State (as a requisite of admissibility of an in-
ternational petition or complaint), but not the birth of such responsibility. This
is the thesis which I have been constantly sustaining for almost three decades,40
maintaining that the birth and the implementation of the international respon-
sibility of the State correspond to two distinct moments; in the present context
of the international protection of human rights, the requisite of prior exhaustion
of remedies of domestic law conditions the implementation, but not the birth, of
that responsibility, which is conformed as from the occurrence of an internation-
ally wrongful act (or omission) (which may have its source, e.g., in a legal provi-
sion of domestic law, or in an administrative act, or else in a judicial decision).
The contributions of human rights international supervisory organs on the
application of preconditions for the implementation of the international respon-
sibility of States have paved the way for consistently developing the proper ap-
plication of the local remedies rule (as a condition of admissibility of petitions)
with special attention to the needs of protection and the particularities of the
present context of international implementation of human rights. The incidence
of the local remedies rule in human rights protection is certainly distinct from
its application in the practice of diplomatic protection of nationals abroad (in
customary international law), and the rule at issue is far from having the dimen-
sions of an immutable or sacrosanct principle of international law. Moreover, the
two contexts – human rights protection and diplomatic protection – are also
distinct, and there is nothing to impede the application of that rule with greater
or lesser rigour in such distinct situations.
39 The basic differences of context require that the local remedies rule, in the ambit of
the international safeguard of human rights, be applied with special attention to the
needs of protection of the human being.
40 Cf. A.A. Cançado Trindade, “The Birth of State Responsibility and the Nature of the
Local Remedies Rule”, 56 Revue de Droit international de sciences diplomatiques et
politiques – Sottile (1978) pp. 157-188.
464 Chapter XIX
In rightly attempting to avoid the simple and prompt rejection of complaints

for non-exhaustion of local remedies, and trying to obtain further information
on the matter at the admissibility stage, international human rights supervisory
organs have facilitated and gradually strengthened the access of the alleged vic-
tims to the international mechanism of protection. The indications are that the
criterion of the effectiveness of local remedies, and certain procedural techniques
(such as the shifting of the burden of proof as to exhaustion) and presumptions
will continue to be applied in favour of the alleged victims (the ostensibly weaker
party) in order to secure the faithful realization of the object and purpose of hu-
man rights treaties and instruments.
As I have been firmly sustaining for the last three decades, local remedies
form an integral part of the very system of international human rights protec-
tion, the emphasis falling on the element of redress rather than on the process
of exhaustion (of those remedies). The local remedies rule bears witness of the
interaction between International Law and domestic law in the present context
of protection. We are here before a droit de protection, with a specificity of its
own, fundamentally victim-oriented, concerned with the rights of individual hu-
man beings rather than of States. Generally recognized rules of international law
(which the formulation of the local remedies rule in human rights treaties refers
to), besides following an evolution of their own in the distinct contexts in which
they apply, necessarily suffer, when inserted in human rights treaties, a certain
degree of adjustment or adaptation, dictated by the special character of the ob-
ject and purpose of those treaties and by the widely recognized specificity of the
international protection of human rights.41
IV. Serious Breaches of Obligations under Peremptory Norms of

International Law
Writing in 1963, the Cuban jurist F.V. García Amador, former rapporteur of the
ILC (1956-1961) on State responsibility, asserted that the gravity of the interna-
tional wrong (act or omission) should be taken into account, and particularly so
for the purpose of reparations.42 The following rapporteur on the matter, Roberto
Ago, introduced in his substantial work in part I on the origin or birth of State
41 A.A. Cançado Trindade, The Application of the Rule of Exhaustion of Local Rem-
edies in International Law, Cambridge, Cambridge University Press, 1983, pp. 1-443,
esp. pp. 6-56, 279-287, 290-322 and 410-412. Th is is the abridged version of the origi-
nal research on the subject, deposited in Cambridge University Library since 1977:
A.A. Cançado Trindade, Developments in the Rule of Exhaustion of Local Remedies
in International Law, with Particular Reference to Experiments on the International
Protection of Individual Rights, University of Cambridge, vol. I, pp. 1-818, and vol. II,
pp. 819-1728. And cf., more recently, R.P. Mazzeschi, Esaurimento dei Ricorsi Interni
e Diritti Umani, Torino, Giappichelli, 2004, pp. 1-243.
42 F.V. García Amador, Principios de Derecho Internacional que Rigen la Responsabili-
dad – Análisis Crítico de la Concepción Tradicional, Madrid, Escuela de Funcion-
arios Internacionales, 1963, 409.
responsibility, in the framework of the theory of objective international respon-

sibility, the distinction between international “crimes” and “delicts” (former Ar-
ticle 19). The ILC itself related that distinction, in the present domain of State
responsibility, to the former acknowledgment of jus cogens, originally in the law
of treaties.43
The distinction was at the time regarded as a conceptual advance, in rec-
ognizing that particularly serious breaches of International Law, affecting the
general interests of the international community, would amount to international
“crimes”, and other breaches to international “delicts”. The criterion followed by
the ILC, to retain that distinction, was similar to the one that it had adopted,
years earlier, for the determination of peremptory norms of international law,
namely, to provide a sufficient flexible criterion so as not to hinder “the develop-
ment of the juridical conscience of the States”,44 and so as to allow international
practice and case-law gradually to crystallize the material content of the matter.
It was up to the international community itself to assess whether the obligation
breached was essential to the protection of its general interests.45
In his thoughtful fifth Report on State responsibility (1993), rapporteur G.
Arangio-Ruiz, taking into account the work of his predecessors R. Ago and W.
Riphagen, recalled draft Article 19 (on crimes of State) as pertaining to grave
breaches of obligations essential to the safeguard of the fundamental interests
of the international community,46 entailing punitive damages47. In such circum-
stances (of crimes of State), G. Arangio-Ruiz favoured the application of “sanc-
tions” by the “competent” U.N. organs on behalf of the “organized international
community”.48 Such reaction of the “organized international community” would,
in his view, be proportional to the gravity of the crime [of State], in particular
that of aggression, amounting to a threat to international peace.49
The concepts of jus cogens and crime of State are more approapriately dealt
with in separate chapters;50 suffice it here to point out that the aforementioned
outlook then prevailing in the ILC assumed the existence of an international
community endowed with a certain degree of cohesion, and having attained a
certain level of conscience. By the end of the eighties, in a Seminar held in Flor-
ence, R. Ago warned as to “the most utter anarchy” of varied States’ responses
to international wrongful acts, and expressed his hope of a more institutional-
ized international legal order, which he regarded as “extremely important” for
43 Cf. U.N., YILC (1976)-II, part II, p. 122, par. 73.

44 U.N., YILC (1976)-II, part II, p. 119, par. 61.
45 Ibid., p. 119, par. 59.
46 U.N. doc. A/CN.4/453/Add.2, of 08.06.1993, p. 6, par. 5 (text in Spanish).
47 Ibid., p. 10, par. 13, and cf. pp. 15-16 and 21-22, pars. 23, 25 and 32-33.
48 Ibid., pp. 25-26, par. 39(iv).
49 Ibid., pp. 35 and 38, pars. 55 and 58.
50 Cf. chapters XII (on jus cogens) and XV (on crime of State), supra.
466 Chapter XIX
progress to be achieved in the present domain.51 In the discussions on the occa-

sion the view was expressed that “the existence of imperative norms reflects the
worldly conscience”.52
Both R. Ago and his immediate successors, rapporteurs W. Riphagen and G.
Arangio-Ruiz, appeared to opt for reactions to international crimes on the part
of a more institutionalized international community, rather than on States taken
individually.53 However, as the ILC retook its work on the subject in 2000, the
lack of consensus led to the deletion of the concept of international crime of State
from the text. Yet, the new rapporteur (J. Crawford) attained the ILC approval
of chapter III of part II of the new text (Articles 40-41), on “serious breaches of
obligations under peremptory norms of general international law”. Jus cogens was
thus transposed into the heart of the domain of State responsibility. Article 40 of
the text adopted in 2001 read that
“1. This chapter applies to the international responsibility which is entailed by a

serious breach by a State of an obligation arising under a peremptory norm of
general international law.
2. A breach of such an obligation is serious if it involves a gross or systematic
failure by the responsible State to fulfi l the obligation”.
And Article 41 of the 2001 ILC’s Articles, in addressing the particular conse-
quences of such “a serious breach of an obligation” under peremptory norms of
general international law, added that
“1. States shall cooperate to bring to an end through lawful means any serious
breach within the meaning of Article 40.
2. No State shall recognize as lawful a situation created by a serious breach with-
in the meaning of Article 40, nor render aid or assistance in maintaining that
situation.
3. This Article is without prejudice to the other consequences referred to in this
Part and to such further consequences that a breach to which this chapter ap-
plies may entail under international law”.
In his commentaries, J. Crawford pointed out that the obligations referred to

in Article 40 arise from “substantive rules of conduct” that prohibit what has
come to be deemed as “intolerable because of the threat it presents to the sur-
51 Cf. J.H.H. Weiler, A. Cassese and M. Spinedi (eds.), International Crimes of State – A
Critical Analysis of the ILC’s Draft Article 19 on State Responsibility, Berlin, W. de
Gruyter, 1989, pp. 238-239.
52 Ibid., p. 239 (views of M. Bennouna and H. Bokor-Szego).
53 And rapporteur G. Arangio Ruiz was further attentive to the need to determine the
legal consequences of those crimes.
vival of States and their peoples and the most basic human values.54 As to the
consequences of the breach of such obligations, he indicated that Article 41(3)
allowed for further consequences, other than the specified ones, thus reflect-
ing the conviction that “the legal regime of serious breaches is itself in a state of
development”, and may well evolve in the future into a “more elaborate regime of
consequences entailed by such breaches”.55
It ensues from the previous considerations that the ILC’s Articles on State Re-
sponsibility (2001) are far from being the last word on the subject, as they reck-
on by themselves that in some respects the law on the subject in still in a stage
of development, not ripe yet for codification. After half a century of constant
endeavours, the fundamental and central chapter of State responsibility keeps
on defying attempts of codification. Yet, endeavours to this effect undertaken
in recent years have taken into account basic considerations of humanity. The
current process of humanization of International Law has encompassed also
the present chapter on State responsibility. Had the international community
of States (rather than the international community properly speaking, that is,
the one encompassing all subjects of International Law) attained a higher degree
of conscientization, the regime of consequences of breaches of obligations, and
particularly serious breaches, would have been far more satisfactory.
Had the international community achieved a greater level of institutional-
ization and cohesion, as much required in our days, solutions other than “coun-
termeasures” would have already been devised and adopted. Such “countermea-
sures”, which do not strictly belong to this domain of International Law, suggest
that States still wish to retain much discretion for their action, even outside the
framework of a regime of peaceful settlement of international disputes to regu-
late the matter. Each instrument is product of its time, an so are the Articles
adopted in 2001 by the ILC.
As already indicated, State responsibility occupies a central place in the cor-
pus juris of International Law, and irradiates itself to distinct areas or chapters of
this latter.56 Awareness of its utmost relevance is fortunately more accute in our
days (the same applying to responsibility of other subjects of International Law57),
54 J. Crawford, The International Law Commission’s Articles on State Responsibility –

Introduction, Text and Commentaries, Cambridge, University Press, 2002, p. 246.
55 Ibid., p. 253.
56 One may refer, as an illustration, inter alia, to the arguments purporting to relate
State responsibility to State continuity and State succession, in the case of the Bal-
tic States; cf. I. Ziemele, “State Continuity, Succession and Responsibility: Repara-
tions to the Baltic States and Their Peoples?”, 3 Baltic Yearbook of International Law
(2003) pp. 171 and 180.
57 As to recent developments in relation to, e.g., the international responsibility of in-
ternational organizations, cf. also chapter VIII, supra.
468 Chapter XIX
as the concept of the prevalence of the rule of law at both national and interna-
tional levels gains increasing space in the international agenda of this first decade
of the XXIst century, particularly in that of the U.N. General Assembly.58
State responsibility itself has kept its place in the agenda of the General As-
sembly, even after the adoption of the Articles of the ILC in 2001, disclosing a
sustained prise de conscience of the relevant matter at issue: as a clear indication
that the subject remains in a stage of development, the General Assembly has,
in the last half-decade (2004-2009), been requesting the U.N. Secretary-General
to invite Governments to submit, and keep on forwarding, their written com-
ments, and any further information on their practice (besides recent case-law, to
be compiled and updated by the Secretary-General), so as to decide in due course
on “any future action regarding the Articles”.59 Despite their shortcomings (su-
pra), the ILC Articles of 2001 on State responsibility have at least retained the
concept of jus cogens in the domain of State responsibility, and have taken into
due account basic considerations of humanity (cf. supra) in some of its aspects;
yet, there still remains a long way to go in order to fulfi l the needs and aspirations
of the international community as a whole.

59 Cf. U.N., G.A. resolution 59/35, of 02.12.2004, pars. 2-3; U.N., G.A. resolution 62/61,
of 06.12.2007, pars. 2-3.
Chapter XX Basic Considerations of Humanity in
Relation to State Succession
I. Distinct Moments and Contexts of State Succession

The numerous conflicts erupted in the post-cold war period (1989 onwards) – re-
sponsible for so many victims – have generated new needs of protection of the
human being, which, in turn, have been taken into account by the evolving Inter-
national Law, in facing the transformations in the world scenario.1 Every legal in-
strument is product of its time, and the two Vienna Conventions, respectively on
Succession of States in Respect of Treaties, of 1978,2 and on Succession of States
in Respect of Property, Archives and Debts, of 1983,3 were adopted in the post-
decolonization period, under the strong influence of that historical phenomenon
(reflected, e.g., in the acknowledgement – by the Convention of 1978 – of the
principle of the clean slate or tabula rasa).
In historical perspective, the clean slate principle appeared as the most rea-
sonable solution for the newly-emerged independent States within the specific
context of decolonization (mainly in the sixties), but State succession has oc-
curred also in other contexts.4 Hence the complexities which have surrounded

2 Which waited 19 years to enter into force.
3 Which until the present has not entered into force. For a study, cf. Ph. Kirsch, “La
Conférence de 1983 sur la succession d’États et le processus de codification: accident
de parcours ou reflet d’une tendance”, in Selected Papers in International Law –
Contribution of the Canadian Council on International Law (eds. Y. Le Bouthillier,
D.M. McRae and D. Pharand), The Hague, Kluwer, 1999, pp. 49-58.
4 Cf., e.g., Ph. Cahier, “Quelques aspects de la Convention de 1978 sur la succession
d’États en matière de traités”, in Mélanges Georges Perrin, Lausanne, Payot, 1984, pp.
63-76; E.G. Bello, “International Equity with Particular Reference to Treaty Law and
State Succession”, 58 Revue de droit international de sciences diplomatiques et poli-
tiques (1980) pp. 153-185; S. Oeter, “State Succession and the Struggle over Equity:
Some Observations on the Laws of State Succession with Respect to State Property
and Debts in Cases of Separation and Dissolution of States”, 38 German Yearbook of
International Law / Jahrbuch für internationales Recht (1995) pp. 73-102, esp. pp. 88
and 91.
470 Chapter XX
the matter in varying contexts and in distinct historical moments.5 In fact, in the
post-cold war period, with the unification of Germany and the dissolution of the
former Soviet Union (USSR) and the former Yugoslavia, the situations of State
succession appeared in a context distinct from that which motivated the adop-
tion of the Conventions of 1978 and 1983 on the matter. This does not amount to
denying the value of these latter, which at least served the purpose of identifying
what was considered to constitute the rules of International Law on the matter;
but the subject was to be retaken lately, as has been done by the Institut de Droit
International (at the Vancouver session, of 2001),6 in the light of the transforma-
tions of the international scenario.
These transformations have presented new legal problems, with an inci-
dence in the international protection of human rights, among which those gen-
erated, inter alia, by the dismemberments of the former Soviet Union and the
former Yugoslavia. Although the 1978 Vienna Convention on Succession of States
in Matter of Treaties does not contain an express mention of the treatment to be
dispensed to human rights treaties in particular, in the domain of State succes-
sion there is space for equity: for example, when it comes to human rights treaties,
there are cogent reasons, which have in fact found expression in contemporary
international practice on the matter, and in the evolution itself of contemporary
International Law, in favour of the continuity of the conventional protection of
human rights, without interruptions.
In a Legal Opinion that I prepared in 1995 for the Council of Europe, I ob-
served that the States which emerged from the dissolution of the former Soviet
Union have given signs of their concern as to their continued obligations in re-
lation to the safeguard of human rights,7 and several of them are in fact nowa-
days Parties to the European Convention on Human Rights, as well as to the
5 E.g., the cases of the Baltic States, and of other Republics of the former Soviet Union;
cf., e.g., R. Müllerson, “Law and Politics in Succession of States: International Law
on Succession of States”, in Dissolution, Continuation and Succession in Eastern
Europe (ed. B. Stern), The Hague, M. Nijhoff, 1998, pp. 5-32.
6 Although the resolution of the Institut (of 26.08.2001) covers State succession in
matters of property and debts (rapporteur, G. Ress) rather than treaties, the resolu-
tion does acknowledge the need “to clarify and improve the situation of individuals”
(Article 5(2)), and affirms, in the preamble, that “all situations leading to a succession
of States should take place in full conformity with public international law, and in
particular with humanitarian law and human rights”. Cf. 69 Annuaire de l’Institut
de Droit International – Session de Vancouver (2000-2001) pp. 715 and 717.
7 A.A. Cançado Trindade, “Analysis of the Legal Implications for States that Intend to
Ratify Both the European Convention on Human Rights and Its Protocols and the
Convention on Human Rights of the Commonwealth of Independent States (CIS) /
Analyse des conséquences juridiques qu’impliquent, pour les États, les ratifications
tant de la Convention Européenne des Droits de l’Homme avec ses Protocoles, que
de la Convention des Droits de l’Homme de la Communauté des États Indépendants”
(also in Russian), Strasbourg, Council of Europe/Conseil de l’Europe, 1995, docu-
ment SG/INF(95)17, of 20.12.1995, pp. 1-38, text reproduced in: 17 Human Rights Law
Basic Considerations of Humanity in Relation to State Succession 471
U.N. Covenant on Civil and Political Rights. As to former Yugoslavia, – to recall

another example, – Croatia, the Federal Republic of Yugoslavia (Serbia-Monte-
negro), and Bosnia- Herzegovina promptly considered themselves bound by the
human rights treaties even before the formal manifestation of such position of
theirs (to the depositary of those treaties).8
II. State Succession and the General Interests of the

In the travaux préparatoires of the 1978 Vienna Convention on Succession of
States in Matter of Treaties, the proposal was raised, though not retained, of
excluding from the tabula rasa principle multilateral treaties of a “normative
character” – mainly the international humanitarian law Conventions – as well
as treaties of codification and progressive development of international law of
general interest to the international community as a whole. Although such pro-
posal did not materialize in the insertion of a clause to that effect into the 1978
Vienna Convention,9 it was nevertheless significant that already at that time the
idea found its supporters.
In recent years, an opinio juris communis seems to have been formed on the
matter, in support of the prevalence of superior common interests consubstanti-
ated in the protection of the rights of the human person. This is due, in my un-
derstanding, to a great extent, to the reassuring impact upon International Law
of the corpus juris of the International Law of Human Rights.10 There are also
reasons, of a jusphilosophical order, which militate in favour of this evolution,
starting with the special character and specificity of human rights treaties; as
such treaties protect human rights, inherent to every human being, succession of
States, and territorial mutations in general, ought not and cannot affect them.11
This understanding applies to human rights treaties stricto sensu, as well as to
Journal (1996) pp. 164-180; and also in: 107/112 Boletim da Sociedade Brasileira de
Direito Internacional (1997) pp. 237-273 and 285-324.
8 Cf. I. Poupart, “Succession aux traités et droits de l’homme: vers la reconnaissance
d’une protection ininterrompue des individus”, in La succession d’États: codifica-
tion à l’épreuve des faits / State Succession: Codification Tested against the Facts
(eds. P.M. Eisemann and M. Koskenniemi), The Hague, Nijhoff/Académie de Droit
International de La Haye, 2000, pp. 484 and 473, and cf. pp. 470 and 476.
9 Cf. P. Pazartzis, La succession d’États aux traités multilatéraux à la lumière des mu-
tations territoriales récentes, Paris, Pédone, 2002, pp. 27-29, and cf. pp. 150 and 152.
In the case of the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Bosnia raised the issue of State succession (1993), but the
International Court of Justice avoid dwelling upon it; ibid., pp. 42-43, and cf. p. 177.
vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, p. 286, and cf. pp. 283-290.
11 Cf., in this sense, I. Poupart, “Succession aux traités...”, op. cit. supra n. (8), p. 467,
and cf. pp. 471 and 474.
472 Chapter XX
treaties on International Refugee Law and International Humanitarian Law,12

– even more forcefully for incorporaring norms of customary international law.
In the course of the last two decades, in so far as economic and social rights
are concerned, for example, the International Labour Organization [ILO] has
endeavoured to promote the continuity of obligations ensuing from its Conven-
tions, and there have been some cases in which new States have accepted ILO
Conventions binding their predecessors, though it is not a unanimous practice.13
Automatic succession has occurred in relation to the 1949 Geneva Conventions
on International Humanitarian Law (e.g., States successors of the Former Yugo-
slavia, and of the Former Czechoslovaquia); the same has occurred in relation
to human rights treaties; in fact, herein, specifically in case of these latter, there
appears clearly to exist nowadays an opinio juris in favour of succession.14
III. State Succession and Continuity of Conventional Obligations

Concerning Human Rights
The practice of the Human Rights Committee, under the U.N. Covenant on Civil
and Political Rights, for example, affords a pertinent illustration to that effect. In
its ‘final observations’ (of 1996) on the report submittted by the United Kingdom,
under that Covenant, in respect of Hong Kong, shortly before the devolution of
this latter to continental China, the Human Rights Committee significantly ex-
pressed the understanding of its practice in the sense that “human rights trea-
ties devolve with territory”, and “States continue to be bound by the obligations
under the Covenant entered into by the predecessor State. Once the people living
in a territory enjoy the protection of the rights under the International Covenant
on Civil and Political Rights, such protection cannot be denied to them merely
by virtue of dismemberment of that territory or its coming under the sovereignty
of another State or of more than one State”.15
12 For a study of these latter, cf. B. Zimmermann, “La succession d’États et les Conven-
tions de Genève”, in Études et essais sur le Droit international humanitaire et sur les
principes de la Croix-Rouge en l’honneur de Jean Pictet (ed. C. Swinarski), Genève/
La Haye, CICR/Nijhoff, 1984, pp. 113-123.
13 Cf. P. Pazartzis, op. cit. supra n. (9), p. 105.
14 Cf. ibid., pp. 116-117 and 170, and cf. pp. 175-176, 213 and 219-220.
15 U.N./Human Rights Committee, Consideration of the Report Submitted by the
United Kingdom of Great Britain and Northern Ireland (Hong Kong) under Article
40 of the Covenant – Concluding Observations, document CCPR/C/79/Add.69, of
08.11.1996, p. 2, par. 4. Moreover, The Human Rights Committee recalled the Joint
Declaration (of 1984) of the People’s Republic of China and of the United Kingdom,
in the sense of the continued application, in relation to Hong Kong, of the two U.N.
Covenant on Human Rights, even subsequently to 01.07.1997 (cf. ibid., pars. 5-6).
– Cf., on this Joint Declaration, A. Byrnes and J. Chan (eds.), Public Law and Human
Rights – A Hong Kong Sourcebook, Hong Kong/Singapore/Malaysia, Butterworths,
1993, pp. 243-244, and cf. pp. 45-63.
The practice of the Human Rights Committee has effectively oriented itself
in the sense that, once the inhabitants of a territorial unit come to enjoy the
internationally protected rights, they keep on benefitting from the international
guarantee of such rights independently of changes in sovereignty over the re-
spective territorial unit. This posture has been supported by the contemporary
legal doctrine on this specific question.16 And, significantly, the contemporary
practice of the Human Rights Committee in the matter of succession of States,
giving primacy to the imperatives of protection of human rights, has not been
challenged or questioned by the States at issue.17
The Yugoslav precedent, in its initial stage in 1992, – occurred shortly be-
fore the II World Conference on Human Rights in Vienna, – was of consider-
able importance, given the massive violations of human rights which generated
numerous victims, in the course of the disintegration of former Yugoslavia. In
the debates on that case in the plenary session of October 1992 of the Human
Rights Committee, the view was expressed that the inhabitants of the territory
of the former Yugoslavia could not be deprived of the protection of the interna-
tional instruments of human rights by virtue of the dismemberment of the State;
those instruments attributed rights directly to the individuals, who could not be
deprived of them as a result of State succession. The concern with human suffer-
ing was to prevail over legal technicalities; one came to link the domain of State
succession in the present context with “the acquired rights of the population of
the State” which had ratified the Covenant on Civil and Political Rights, which
subsisted despite the disintegration of the State.18
Subsequently, in its ‘general comment’ n. 26(61), of 1997, the Human Rights
Committee summarized its practice on the issue, in an unequivocal way, in the
following terms:
“The rights enshrined in the Covenant [on Civil and Political Rights] belong to the
people living in the territory of the State Party. The Human Rights Committee has
consistently taken the view, as evidenced by its long-standing practice, that once
the people are accorded the protection of the rights under the Covenant, such pro-
tection devolves with territory and continues to belong to them, notwithstanding
change in government of the State Party, including dismemberment in more than
16 Cf. A. Byrnes, Hong Kong and the Continuation of International Obligations Relat-
ing to Human Rights after 1997, Hong Kong, University of Hong Kong, 1996, pp. 1-13
(mimeographed, restricted circulation); N. Jayawickrama, “Human Rights in Hong
Kong: The Continued Applicability of the International Covenants”, 25 Hong Kong
Law Journal (1995) pp. 171-179.
17 I. Poupart, op. cit. supra n. (8), p. 485.
18 J. Chan, “State Succession to Human Rights Treaties: Hong Kong and the Interna-
tional Covenant on Civil and Political Rights”, 45 International and Comparative
Law Quarterly (1996) p. 930.
474 Chapter XX
one State or State succession or any subsequent action of the State Party designed to
divest them of the rights guaranteed by the Covenant”.19
This understanding has been advanced not only by the Human Rights Commit-
tee, but likewise by other international supervisory organs in the present domain
of protection. Thus, in the same line of reasoning, in the V Meeting of Chairper-
sons of U.N. International Supervisory Organs (September 1994), the thesis was
advanced that “successor States were automatically bound by obligations under
international human rights instruments from the respective date of independ-
ence”.20 U.N. conventional organs of protection, – like the Committee on the
Elimination of Racial Discrimination (CERD, of supervision of the U.N. Conven-
tion on the matter), – as well as organs of inter-governmental composition, – like
the U.N. Commission on Human Rights, – have given particular attention to the
need of prevalence of human rights in the contemporary cases of State succes-
sion; it may, thus, at last, in our days, safely be asserted that there already exists,
at least, a presumption of continuity of the conventional obligations pertaining to
human rights, in the cases of territorial changes and succession of States.21
Over a decade ago, a report22 circulated (in April 1993) in the course of the
work of the Preparatory Committee to the II World Conference on Human
Rights (Vienna, June 1993), argued that the provisions of human rights treaties,
– given the special nature of these latter, – should be treated “as applying, on a
continuing basis, to the people within the territories of the new States”; an addi-
tional reason for that was the “universal application” which those treaties aimed
at.23 Thus,
“once the people living on a territory fi nd themselves under the protection of an

international instrument, such protection cannot be denied to them by virtue of the
mere dismembering of that territory and its coming within the jurisdiction of more
than one State”.24
On this understanding, in October 1992 the Human Rights Committee request-

ed Bosnia-Herzegovina, Croatia and the Federal Republic of Yugoslavia (Serbia-
Montenegro) to submit reports on specific issues under the Covenant on Civil
and Political Rights, even before any declaration on their part confi rming their
condition of successor States to the former Yugoslavia. The requested States
19 U.N./Human Rights Committee, General Comment n. 26: Continuity of Obligations,

doc. CCPR/C/21/Rev.1/Add.8/Rev.1, of 08.12.1997, p. 1, paragraph 4.
20 U.N., doc. E/CN.4/1995/80, par. 10.
21 Cf., in this sense, e.g., J. Chan, “State Succession to Human Rights Treaties...”, op. cit.
supra n. (18), pp. 934-935 and 937.
22 Rapporteur, F. Pocar.
23 U.N., document A/CONF.157/PC/60/Add.4, of 08.04.1993, p. 19, par. 37.
24 Ibid., p. 19, par. 37.
promptly submitted their reports, without questioning the authority of the Com-
mittee to consider them. In the light of the preceding considerations, the view
has been propounded that
“human rights treaties devolve with territory and all appropriate measures should
be taken to prevent populations living in dismembered States from being deprived
of the protection resulting from treaties concluded by the predecessor State”.25
This view has met with judicial recognition, with regard to obligations ensuing
from human rights and humanitarian law treaties. Thus, in its Judgment of 20
February 2001 in the Celebici case, the Ad Hoc International Criminal Tribunal
for the Former Yugoslavia (Appeals Chamber) held that the generally accepted
date of Bosnia-Herzegovina’s independence (06.03.1992) may be considered the
date as from which it became a Party to the 1949 Geneva Conventions on Inter-
national Humanitarian Law (par. 110). It further held that
“irrespective of any findings as to formal succession, Bosnia and Herzegovina would

in any event have succeeded to the Geneva Conventions under customary law, as
this type of Convention entails automatic succession, i.e., without the need for any
formal confirmation of adherence by the successor State. It may be now considered
in international law that there is automatic State succession to multilateral humani-
tarian treaties in the broad sense, i.e., treaties of universal character which express
fundamental human rights. It is noteworthy that Bosnia and Herzegovina itself rec-
ognized this principle before the ICJ” 26 (par. 111).
The Tribunal’s Appeals Chamber added that the Geneva Conventions, enjoying
nearly universal participation, fell within the category of universal multilater-
al treaties which reflected “rules accepted and recognized by the international
community as a whole”. In the light of the object and purpose of the Geneva
Conventions – the guarantee of protection of “certain fundamental values com-
mon to mankind in times of armed conflict” – and of the “customary nature”
of their provisions, the Appeals Chamber of the Tribunal concluded that “State
25 Ibid., p. 19, par. 38, and cf. p. 21, par. 44. – Conventional obligations subsist, being
also of customary law, of a jus cogens character, emanating from the “conscience
of the international community”; F. Pocar, “Patto Internazionale sui Diritti Civili e
Politici ed Estradizione”, in Diritti dell’Uomo, Estradizione ed Espulsione (Atti del
Convegno di Ferrara di 1999 per Salutare G. Battaglini, ed. F. Salerno), Padova/Mi-
lano, Cedam, 2003, pp. 89-90.
26 In the case of the Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Preliminary Objections, 1996), the ICJ noted that Bosnia-
Herzegovina had contended that the Convention against Genocide “falls within the
category of instruments for the protection of human rights, and that consequently,
the rule of ‘automatic succession’ necessarily applies”; ICJ Reports (1996) p. 611, par.
21.
476 Chapter XX
succession has no impact on obligations arising out from these fundamental hu-
manitarian Conventions”.27

The aforementioned understanding, of the incidence of the prevalence of human
rights in State succession, has been espoused, as indicated, on reiterated occa-
sions in recent years, in particular in the last decade of the XXth century. Thus,
at this beginning of the XXIst century, it is reassuring to verify that, among the
well-known constitutive elements of the State – population, territory, and a nor-
mative system of its own, – due attention has at last been given to the first one of
them, to the population.28 It was about time. And, to that end, the impact of the
International Law of Human Rights has contributed decisively.
Although the international practice on the matter throughout the nineties
does not appear always uniform or wholly conclusive, it does contain, however,
significant elements in support of the continuity of conventional obligations per-
taining to human rights and humanitarian law, in the context of State succession.
There are examples of clear and orderly succession, as in the case, e.g., of the
Czech Republic and Slovakia, which appeared listed as Parties to the European
Convention on Human Rights (and its Protocols) as from 01.01.1993, the date
when the predecessor State, Czechoslovakia, ceased to exist.29
But even with regard to human rights treaties, there has been a co-existence
of cases of succession and cases of accession30 (e.g., as regards the U.N. Covenant
on Civil and Political Rights). In addition to that, in relation to some successor
States (Armenia, Azerbaijan, Georgia, Kyrgyzstan, Moldova, Uzbekistan, Turk-
menistan) the Human Rights Committee, for example, has been of the opinion
that the entry into force of the Covenant on Civil and Political Rights goes back
to the respective dates when those States became independent; and, in the case of
Kazakhstan, although a declaration of succession was not received, it was under-
stood that the people within the territory of the State (which constituted part of
a predecessor State Party to the Covenant) continued to be entitled to the guar-
27 Case n. IT-96-21-A, Judgment of 20.02.2001, pars. 112-113. The Appeals Chamber

found further support for this position in the decision on jurisdiction in the Tadic
case (1997, pars. 79-85).
29 A. Rasulov, “Revisiting State Succession to Humanitarian Treaties: Is There a Case
for Automaticity?”, 14 European Journal of International Law (2003) pp. 141-170, esp.
pp. 162 and 165.
30 Because of this diversity of State options (succession and accession), in its fi nal re-
port on succession of States in matter of treaties, of 2002, the Committee on As-
pects of the Law of State Succession, of the International Law Association, did not
go as far as identifying in this non-homogeneous practice a customary law in statu
nascendi on the matter at issue (part IV.4, p. 28), identifying a “selective”, rather than
an “automatic”, succession (p. 41).
antees set forth in the Covenant, in accordance with the Committee’s constant
practice on the matter.31 Examples of the kind, added to others (cf. supra), seem to
disclose a tendency in favour of the continuity of human rights and humanitar-
ian conventional obligations, pursuant to a process of humanization of the law
on State succession.
This historical process responds to the legitimate aspirations of the inter-
national community, as well as to its need to assert and promote human dignity,
well above the “will” of individual States. It has been asserted that, nowadays,
when State succession occurs, the proper safeguard of human dignity comes to
constitute “one of the constitutional principles of current International Law”.32 It
could hardly be denied that nowadays a presumption has arisen in favour of the
subsistence of conventional obligations pertaining to the protection of the rights
of the human person. This presumption, in turn, discloses the fundamental val-
ues shared by the contemporary international community, overriding the “will”
of individual (predecessor and successor) States. Recent developments to this
effect, in the present domain of International Law, confirm the understanding
always advanced by the most lucid doctrine that the State exists for the human
beings, and not vice-versa. Moreover, those developments constitute a further
evidence of the advent of the new jus gentium of our times, the International Law
for humankind.
31 Cf. U.N., Report of the Human Rights Committee – G.A.O.R. (54th Session, suppl. n.
40 (A/54/40)), vol. I, 1999, Annex I, pp. 100-109.
32 F. Ruiz Ruiz, “The Succession of States in Universal Treaties on the Protection of
Human Rights and Humanitarian Law”, 7 International Journal of Human Rights
(2003) p. 65, and cf. pp. 43, 63 and 67-69.
Chapter XXI Basic Considerations of Humanity in
Relation to Territory
I. Prerequisites of Statehood Revisited

Traditional International Law devoted much attention to the concept of terri-
tory, to which it ascribed a central and key position among the prerequisites of
statehood. The territorial State was, in fact, regarded as the cornerstone of the
juridical construction of the international order which emerged from the peace
of Wesphalia in the XVIIth century, and evolved ever since. It is thus not surpris-
ing that the chapter pertaining to territory was one of the most overworked in
the past. Of the prerequisites of the State as an international juridical person, it
was certainly the one which was more extensively dwelt upon in the past. But as
time went on, it became apparent that such an outlook was bound to become not
fully satisfactory to the demands of contemporary international life, with a shift
of emphasis onto the conditions of living of the population everywhere.
In any case, no one would question that respect for State territory and its
frontiers is and remains crucial for the maintenance of international peace. State
territory, once established or consolidated, came to be regarded as standing erga
omnes, thus giving foreseeability and stability to the conduction of international
relations. But nor would one question, in a distinct line of thinking, that control
by means of the territorial jurisdiction of the State has been much reduced by
the impact of scientific and technological developments, and nowadays issues
susceptible of strictly territorial solutions have tended to diminish.1
The current revitalization of the foundations of International Law, with the
emergence of new concepts (such as that of universal jurisdiction, among others),
seems to make abstraction of classic spacial (territorial) solutions, shifting the
emphasis to the pursuance of common, universal goals (such as the realization
of justice), to the benefit of human beings everywhere. This in no way erodes
the norm of general international law whereby each State member of the inter-
national community is under the duty to respect the territorial integrity of the
other States.
1 L. Dembinski, “Le territoire et le développement du droit international”, 31 Annuaire

suisse de droit international (1975) pp. 121-152.
480 Chapter XXI
This duty counts on judicial recognition,2 and, as correctly recalled by J. Bar-

beris, the norm it ensues from “does not derive from the legal nature of the ter-
ritory of the State”, being rather a general norm of the law of nations itself.3 But
while in traditional doctrine considerable attention was devoted to such aspects
as acquisition and loss of territory, the fate of the populations living therein did
not received equal treatment or care. Only in the XXth century, with the creation
of the minorities and mandates systems (in the League of Nations era), and of
the trusteeship system (at the beginning of the United Nations era), attention
was gradually drawn also to the condition of the populations inhabiting those
territories.4
In the light of such new developments, – e.g., under chapter XI of the U.N.
Charter, – in the mid-XXth century Charles de Visscher referred to “les fins hu-
maines du territoire”, in pursuance of human interests and aims. In identifying
the “fins d’humanité” of the territories placed temporarily (until independence)
under the trusteeship system, he thus referred to the passage from the colonial
past to the new ideas of emancipation, of the XXth century:
“Non seulement le territoire n’est ici susceptible d’aucune appropriation étatique,

mais il est inséparable de la mission qui justifie l’autorité tutélaire (...). Le mandat
(...) a été créé dans l’intérêt des habitants du Territoire et de l’humanité en général,
comme une institution internationale à laquelle était assigné un but international:
une mission sacrée de civilisation”.5
Attention was gradually being turned not only to State territory, but also to the
population, living not only within States but also in territorial entities other than
States. It gradually became clear that the State was not a permanent entity in in-
ternational intercourse, as there were other forms of international or internal or-
ganization that the international order took cognizance of.6 The aforementioned
minorities and mandates systems much contributed to shifting attention to the
rights of persons and peoples emanating from the law of nations.7
2 Cf., e.g., Corfu Channel case, ICJ Reports (1949) p. 35.

3 J.A. Barberis, El Territorio del Estado y la Soberanía Territorial, Buenos Aires, Ed.
Ábaco de Depalma, 2003, p. 47, and cf. p. 50.
4 Besides exemplifying the principle of non-annexation.
5 Ch. de Visscher, Théories et réalités en Droit international public, 4th. rev. ed., Paris,
Pédone, 1970, pp. 229-230.
6 Cf., generally, e.g., J. Verhoeven, “L’État et l’ordre juridique international – re-
marques”, 82 Revue générale de Droit international public (1978) pp. 749-774.
7 Cf., e.g., A.A. Cançado Trindade, “Exhaustion of Local Remedies in International
Law Experiments Granting Procedural Status to Individuals in the First Half of the
Twentieth Century”, 24 Netherlands International Law Review (1977) pp. 373-392,
and sources referred to therein.
Basic Considerations of Humanity in Relation to Territory 481
The acknowledgement of the principle of self-determination of peoples,8

within the framework of the United Nations Charter, gave further impetus to the
shifting of emphasis to another prerequisite – in my view the most important
one – of the State (including that in statu nascendi) as an international juridi-
cal person: the population, its human component. Thus, in the United Nations
era, even non-self-governing territories, – in the sense of Chapter XI of the U.N.
Charter, – were conceived as being endowed with an international legal status,
generating obligations erga omnes (of respect of the right of self-determination of
their peoples, of safeguard of the human rights of their inhabitants, and of non-
exploration of their natural resources),9 opposable not only vis-à-vis the State
which administers the territory concerned but also vis-à-vis all the other States:
they are obligations due to the international community as a whole. Basic consid-
erations of humanity were herein present as well.
Reference may here be made to the obiter dicta of the International Court
of Justice [ICJ] in its Advisory Opinion on the Western Sahara (1975), to the ef-
fect of recognizing the right of self-determination through “the free and genuine
expression of the will of the peoples of the Territory”.10 In this respect, in his
Separate Opinion Judge Dillard pondered, in a fortunate an lucid way, that
“It is for the people to determine the destiny of the territory and not the territory the
destiny of the people”.11
By that time, there was also a doctrinal trend which purported to ascribe great-
er weight to the State’s legal system rather than to its population or territory.
The argument, developed by Krystyna Marek, started with an ascertainment of
the juridical identity of the States as encompassing all their rights and obliga-
tions under customary and conventional International Law, laying emphasis on
their legal order or their normative system. After all, changes in territory or in
government did not affect the identity and continuity of States; their rights and
obligations survived such changes, to the benefit of stability and security of in-
ternational relations. Hence the importance of the legal order, at national and
international levels.12

9 Cf., e.g., Ian Brownlie, “The Rights of Peoples in Modern International Law”,
The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon Press, 1988, pp. 1-16; J.
Castañeda, Legal Effects of United Nations Resolutions, N.Y., Columbia University
Press, 1969, pp. 174-176; A.J. Lleonart y Amselem, Derecho de los Estados a Disponer
Libremente de Sus Recursos Naturales, Madrid, CSIC/Instituto Francisco de Vitoria,
1976, pp. 15-478.
10 ICJ Reports (1975) p. 68, par. 162.
11 Ibid., p. 122.
12 Cf. K. Marek, Identity and Continuity of States in Public International Law, 2nd. ed.,
Geneva, Droz, 1968, pp. 3-126.
482 Chapter XXI
Only the primacy of International Law could explain the identity and conti-
nuity of States, as changes in the domestic legal order did not affect the interna-
tional obligations incumbent upon States. Independence, as a factual precondi-
tion of statehood in International Law, provided the criterion of the identity and
continuity of States in the international legal order. Independence conferred a
special importance on the legal order of the State, which, – in K. Marek’s view,
– had priority over the territory and the population, changes in which did not
affect statehood in International Law.13
It so happens, however, that, like population and territory, the legal order
of the State also undergoes constant changes, without affecting the State’s iden-
tity and continuity in International Law. The current process of humanization of
International Law shifts the emphasis onto the human component of the popu-
lation. It was necessary to wait for decades for this to become more and more
apparent. But in the past there were those who foresaw the advent of this new
outlook. Over half a century ago, M. Bourquin, for example, propounded a vision
of International Law which “se penche sur les souffrances de l’humanité et fait
écho à ses espoirs”; to him, abstract constructions of the past, however logical
they might appear, seemed to have made abstraction of the social reality.14
Almost two decades earlier, the basic criteria for statehood set forth in the
célèbre 1933 Montevideo Convention on the Rights and Duties of States listed,
first of all, the population (Article 1(a)). In our days, the problems which directly
affect the population have invaded and overtaken the international scenario, and
have indeed overwhelmed it, to such an extent that it is no longer possible not
to give pride of place to human beings, to the human component of the State. It
is not by mere chance that the conditions of living of the population formed the
common denominator of the recent cycle of World Conferences of the United
Nations.15 Those World Conferences, besides forming the international agenda of
the early XXIst century, gave recognition to the legitimate concern of the inter-
national community with the conditions of living of people everywhere. After all,
the State exists for the human beings, and not vice versa.
II. Non-Self-Governing Territories

The international regimes both of territories under the mandates system in the
League of Nations era, and of territories under the trusteeship system as well as
non-self-governing territories in the United Nations era,16 were created in the
major interest of the inhabitants of the respective territories, and ultimately of
13 Cf. ibid., pp. 127-190.

14 M. Bourquin, “L’humanisation du droit des gens”, La technique et les principes du
Droit public – Études en l’honneur de Georges Scelle, vol. I, Paris, LGDJ, 1950, pp. 24,
29 and 38.
16 Charter of the United Nations, chapters XII (international truteeship system) and
XI (non-self-governing territories).
the humankind as a whole, as regimes with an international aim: the sacred trust
of civilization, a dynamic concept turned to the well-being of the populations at
issue, not limited by any agreements of contractual relations to the contrary. This
was duly pointed out by the ICJ, in its Advisory Opinion of 1950 on the Interna-
tional Status of South West Africa.17 The Court singled out the component prin-
ciples of the sacred trust of civilization, namely, the principles of non-annexation
and of the well-being and development of the populations in non-self-governing
territories.
The crystallized right to self-determination of peoples is inherent to popu-
lations living in non-self-governing territories (in the sense of the international
regime of chapter XI of the U.N. Charter) or in other circumstances, finding
solid support in contemporary international law. The basic features of this in-
ternational regime are the principle of non-annexation (what surely excludes
from the application to those territories of the classic rules on acquisition and
loss of territory in traditional International Law), the international supervision
of non-self governing territories (on behalf of the international community), and
the primacy of the superior interest in the well-being and development of their
populations, titulaires of the right of self-determination. Already in the fifties
the element of international supervision was raised onto the international level,18
without margin for restrictions.19
The law of the United Nations saw it fit to reject the old objections of an
alleged lack of political, social or educational preparedness or of economic inad-
equacy of those territories. In fact, the 1960 Declaration on the Granting of Inde-
pendence to Colonial Countries and Peoples warned that “inadequacy of politi-
cal, economic, social or educational preparedness should never serve as a pretext
for delaying independence” (par. 3),20 and added that the subjugation of peoples
to foreign domination constituted “a denial of fundamental human rights” con-
trary to the U.N. Charter (par. 1). The exercise of the right of self-determination
of peoples flourished precisely in the experiences of plebiscites and consultations
to the inhabitants of territories under the mandates system (and in the minorities
system under the League of Nations), and under the trusteeship system as well
17 ICJ, Advisory Opinion on the International Status of South-West Africa, ICJ Reports
(1950) pp. 128-219.
18 Cf. ICJ, Advisory Opinion on Voting Procedure on Questions Relating to Reports and
Petitions Concerning the Territory of South-West Africa, ICJ Reports (1955) pp. 67-123;
and cf. J. Beauté, Le droit de pétition dans les territoires sous tutelle, Paris, LGDJ,
1962, pp. 2-256.
19 ICJ, Advisory Opinion on Admissibility of Hearings of Petitioners by the Committee
on South West Africa, ICJ Reports (1956) pp. 23-71.
20 Cf., for more recent reassessments, R.S. Clark, “Some International Law Aspects of
the East Timor Affair”, 5 Leiden Journal of International Law (1992) pp. 267-268; F.
Rigaux, “East Timor and Western Sahara: A Comparative View”, in International
Law and the Question of East Timor, London, CIIR/IPJET, 1995, p. 173.
484 Chapter XXI
as non-self-governing territories,21 – which, in turn, fostered the development of

political and educational preparedness. The alleged economic inadequacy also
appeared as a colonialist pretext of the maintenance of the status quo.
The U.N. General Assembly, through its resolution 35/118, of 11.12.1980, ad-
opted a Plan of Action for the Full Implementation of the Declaration on the
Granting of Independence to Colonial Countries and Peoples. The General As-
sembly stated that, two decades having lapsed since the adoption of the afore-
mentioned Declaration, the persisting manifestations of colonialism were in-
compatible with the U.N. Charter, the principles of International Law and the
Declaration itself. It urged member States to continue to wage a campaign against
practices which were “detrimental to the interests of the population of the Terri-
tories” and to adopt legislative, administrative and other measures to bring about
the discontinuance of such practices (par. 6).
III. Non-Militarization and Peaceful Uses of Antarctica

The Antarctic Treaty22 was originally conceived in order to “freeze” (somewhat
literally) territorial claims by some States over the zone covered by it, as well
as to foster scientific research and international cooperation, and to secure the
peaceful utilization of the zone. Its preamble recognizes, already in the first con-
siderandum, that
“it is in the interest of all mankind that Antarctica shall continue forever to be used
exclusively for peaceful purposes and shall not become the scene or object of inter-
national discord”.
The fourth considerandum further expresses the belief that a treaty ensuring
“the use of Antarctica for peaceful purposes only and the continuance of interna-
tional harmony in Antarctica” will further the purposes and principles embodied
in the U.N. Charter. The preamble adds that the regime of international coopera-
tion established in the Antarctica accords with “the interests of science and the
progress of all mankind” (third considerandum). Article 1 of the Treaty prohibits
militarization in Antarctica, which “shall be used for peaceful purposes only”,
while Article 10 clarifies that such prohibition of non-peaceful activities in the
Antarctica is not limited to States Parties only.
In this way, the 1959 Antarctic Treaty, although not creating an interna-
tional organization of a universal character, has nevertheless established a re-
gime of concertation of States Parties which can be characterized as an objective
regime, with effects – such as those pertaining to non-militarization – also vis-
21 Cf. A. Rigo Sureda, The Evolution of the Right of Self-Determination – A Study of

United Nations Practice, Leiden, Sijthoff, 1973, pp. 17-372; S. Calogeropoulos-Stratis,
Le droit des peuples à disposer d’eux-mêmes, Bruylant, Bruxelles, 1973, pp. 15-348.
22 Which in four year’s time will be completing half a century, nowadays binds 44
States, with 3/4 of the world population.
à-vis third parties. The Antarctica Treaty has been significantly instrumental in
securing the non-militarization and non-nuclearization of the area.23
Underlying this conception of the Antartic Treaty are the common interests
of the international community as a whole.24 The example of these aspects of the
1959 Treaty indicates that, even in a chapter of International Law such as that
of territory, traditionally approached from an essentially inter-State perspective,
basic considerations of humanity have been duly taken into account. The zone
covered by the Antarctica Treaty is reserved solely to peaceful activities. The
original 1959 Treaty, together with other subsequent international instruments
related thereto,25 conform nowadays what is commonly regarded as the system of
the Antarctic Treaty.
One of the most important of such instruments is the 1991 Protocol to
the Antarctica Treaty on the Protection of the Environment (in force as from
14.01.1998). The Madrid Protocol has added a new dimension to the Antarctica
Treaty system, which, besides securing non-militarization of the area, and fos-
tering freedom of scientific research and international cooperation, nowadays
also purports to avoid or reduce harmful consequences to the environment (as a
result of human presence and activity in the region).
The States Parties, and, among these, the Consultative Parties of the Ant-
arctica Treaty in particular, acting by consensus, have played a key role in the de-
velopment of the system. What is agreed upon, in pursuance of what is regarded
as aiming at common good, is meant to have effects erga omnes, to the extent that
it requires the observance by other States as well.26 On its part, the 1991 Madrid
Protocol conceives its own regime of environmental protection in Antarctica as
being “in the interest of mankind as a whole” (preamble, 7th. considerandum).27
Article 2 of the Protocol designates Antarctica as “a natural reserve, devoted
to peace and science”. The Antarctica Treaty system discloses sui generis features
(such as the distinct positions of States Parties, Consultative Parties and third
States), yet it is “anchored in the wider international community”.28 Moreover,
23 In spaces located south of the 60th degree of latitude South.

24 P. Reuter, “Principes de Droit international public”, 103 Recueil des Cours de
l’Académie de Droit International de La Haye [RCADI] (1961) p. 451.
25 E.g., the 1980 Canberra Convention on the Conservation of Antarctic Marine Liv-
ing Resources, and the 1988 Wellington Convention on the Regulation of Antarctic
Mineral Resources Activities.
26 P. Daillier and A. Pellet, Droit international public, 7th. ed., Paris, LGDJ, 2002, pp.
250-251.
27 The Protocol expressly refers to the principles and purposes of the Antarctica Treaty
(supra), and categorically asserts that Antarctica “shall not become the scene or
object of international discord” (2nd. and 3rd. consideranda).
28 D. Vidas, “The Antarctic Treaty System in the International Community: An Over-
view”, in Governing the Antarctic – The Effectiveness and Legitimacy of the Antarctic
Treaty System (eds. O.S. Stokke and D. Vidas), Cambridge, University Press, 1996, p.
35.
486 Chapter XXI
along the years, what was originally perceived by some as an exclusive club of
States has experienced some change, with the wider participation and growing
transparency in the consultative process.29 Underlying the principles and pur-
poses of the aforementioned system is the determination to secure the general
welfare of all concerned, to the ultimate benefit of humankind. Here, once again,
we are faced with basic considerations of humanity.
IV. Territory and Zonal Initiatives for Peace

Basic considerations of humanity have come to permeate the chapter of Interna-
tional Law concerning territory in distinct ways. In the past, this chapter of in-
ternational law was studied almost invariably from the angle of State sovereignty
only, but it is nowadays also considered in pursuance of the safety of human-
kind against the threat of nuclear weapons, and other weapons of mass destruc-
tion. The conceptual constructions of zones of peace and of nuclear-weapons-
free zones 30 bears witness of this reassuring development. The proclamations of
zones of peace (such as the one in the Indian Ocean), and the establishment of
five nuclear-weapon-free zones (by the Treaties of Tlatelolco, Rarotonga, Bang-
kok, Pelindaba and Semipalatinsk), in the second half of the XXth century and
the first decade of the XXIst century, have surely responded to the needs and as-
pirations of humankind, so as to rid the world of the threat of nuclear weapons.
At this stage, suffice it here to point out that the strictly territorial con-
siderations of the past, normally developed from the exclusive outlook of State
sovereignty, have here yielded to denuclearization by means of the creation of
nuclear-weapon-free zones in distinct continents. They have also found space for
disarmament in general, by means of zones of peace, to the ultimate benefit of all
humankind. Although there remains a long way to go in these initiatives, what
has so far been achieved has been made possible with emphasis on the principle
of the duty of international cooperation, going beyond a strictly inter-State out-
look of International Law.
V. Transitional Administration of Territory on Behalf of the

A recent development in the domain of territory in International Law pertains
to the transitional administration of territorial units by the United Nations, on
behalf of the international community. The phenomenon is not wholly unknown
to international law: the historical precedents of the Saar Territory 31 and the Free
City of Danzig,32 in the League of Nations era, may be recalled in this connec-
29 Cf., e.g., ibid., pp. 57-60.

30 The two concepts having distinctive features; cf. chapter XVII, supra.
31 Administered by the League of Nations (1920-1935).
32 Which had as “guarantor” the League of Nations.
tion.33 In our days, other precedents, which took place subsequently, in the Unit-
ed Nations era34 (e.g., the former U.N. Council for Namibia, set up in 1967),35 are
studied in considerable detail, given the growing attention currently turned, in
particular, to the cases of direct territorial administration of Kosovo and of East
Timor.
These two cases have special characteristics of their own, which should not
pass unnoticed, and can here be briefly referred to. Member States of the United
Nations have not challenged these new experiments of transitional administra-
tion of territory, seeing to it that they are undertaken in conformity with Interna-
tional Law.36 To start with, the U.N. Security Council based its resolutions (infra)
on chapter VII of the U.N. Charter, after ascertaining a threat to peace in the
internal – rather than inter-State – conflicts in both cases, coming thus to assist
those particularly weakened territorial units. Those two internal situations, pre-
senting a transitional problem of governance were thereby internationalized37 by
the resolutions of the Security Council.
1. The Case of Kosovo

By means of its resolution 1244 (1999), of 10.06.1999,38 the U.N. Security Council
authorized the U.N. Secretary-General to establish an international civil pres-
ence called the United Nations Interim Administration in Kosovo (UNMIK).
Resolution 1244 was a turning-point in a succession of dramatic events in the
region which had already been lasting for several years.39 UNMIK was created
to administer Kosovo transitionally until the determination of the future status
33 On those and other historical precedents, cf. C. Stahn, “The United Nations Transi-
tional Administrations in Kosovo and East Timor: A First Analysis”, 5 Max Planck
Yearbook of United Nations Law (2001) pp. 122-133; R. Wilde, “Representing Inter-
national Territorial Administration: A Critique of Some Approaches”, 15 European
34 Cf., e.g., C. Stahn, The Law and Practice of International Territorial Administration,
Cambridge, University Press, 2008, pp. 147-158 and 266-347.
35 Cf., e.g., B. Knoll, The Legal Status of Territories Subject to Administration by In-
ternational Organisations, Cambridge, University Press, 2008, pp. 102-110 and 171-
180.
36 I. Ingravallo, Il Consiglio di Sicurezza e l’Amministrazione Diretta di Territori, Na-
poli, Edit. Scientifica, 2008, pp. 9-10.
37 For a general study, cf. Y. Daudet, “L’action des Nations Unies en matière
d’administration territoriale”, 6 Cursos Euromediterráneos Bancaja de Derecho In-
ternacional (2002) pp. 465-540.
38 Which endorsed the Peace Plan of 03.06.1999 between the Federal Republic of Yu-
goslavia and the Republic of Serbia, as well as the Agreement of 09.06.1999 between
the Kosovo Protection Force (KFOR), the Federal Republic of Yugoslavia and the
Republic of Serbia.
39 For an account, cf., e.g., D. Leurdijk and D. Zandee, Kosovo: from Crisis to Crisis,
Aldershot, Ashgate Publ., 2001, pp. 3-161; cf. also, e.g., R. Bermejo García and C. Gu-
488 Chapter XXI
of the Territory was reached. Like in the case of UNTAET (infra), the scope of
action reserved to UNMIK was particularly wide, and far-reaching at normative
and operational levels,40 going well beyond that of peacekeeping missions of the
past.41
The experiment added “a new dimension in conflict management”, bear-
ing in mind the needs of the population at issue.42 In historical perspective,
the U.N. experiments in Kosovo, as well as East Timor, came to be regarded as
ground-breaking, given the profound involvement of the United Nations, and its
far-reaching administrative control.43 In fact, UNMIK was especially engaged in
building a workable public administration for civil matters, and undertook suc-
cessive legislative and administrative activities.44
Resolution 1244 of the Security Council, much discussed in our days,45 pro-
vided that UNMIK was to be guided, in all its activities, by “internationally rec-
ognized standards of human rights” (par. 42). Such standards were to include, in
relation to Kosovo, those which were found, inter alia, in the European Conven-
tion on Human Rights. It has been argued that all entities (such as UNMIK) that
take up public authority over a given territory so as to provide protection to its
inhabitants are bound to observe the corpus juris of human rights and Humani-
tarian Law (despite the change in the administration of that territory).46 This
applies even more forcefully when the transitional administration is undertaken
on behalf of the international community.47
tiérrez Espada, La Disolución de Yugoslavia, Pamplona, Ed. Univ. de Navarra, 2007,

pp. 175-211 and 242-262.
40 R. Wilde, op. cit. supra n. (33), p. 95.
41 T. Garcia, “La Mission d’administration intérimaire des Nations Unies des Nations
Unies au Kosovo (MINUK)”, 104 Revue générale de Droit international public (2000)
p. 62; cf. also D. Leurdijk and D. Zandee, op. cit. supra n. (39), p. 105.
42 M. Bothe and T. Marauhn, “U.N. Administration of Kosovo and East Timor: Con-
cept, Legality and Limitations of Security Council-Mandated Trusteeship Admin-
istration”, in Kosovo and the International Community – A Legal Assessment (ed. C.
Tomuschat), The Hague, Kluwer, 2002, pp. 242 and 218.
43 R. Wilde, “From Danzig to East Timor and Beyond: The Role of International Ter-
ritorial Administration”, 95 American Journal of International Law (2001) pp. 585
and 600.
44 T.H. Irmscher, “The Legal Framework for the Activities of the United Nations In-
terim Administration Mission in Kosovo: The Charter, Human Rights, and the Law
of Occupation”, 44 German Yearbook of International Law (2001) pp. 359 and 362.
45 It is regarded, in expert writing, as a substantial diplomatic achievement, in its en-
deavours to balance the territorial integrity of the then Federal Republic of Yugo-
slavia, and the substantial autonomy and self-administration for self-government in
Kosovo, and to point towards a new beginning, after a prolonged conflict.
46 Cf. ibid., pp. 367 and 371, and cf. p. 360.
47 For a discussion of more recent developments, cf., e.g., P. Hilpold, “The Kosovo Case
and International Law: Looking for Applicable Theories”, 8 Chinese Journal of Inter-
national Law (2009) pp. 47-61.
A ‘Constitutional Framework for Provisional Self-Government’ of Kosovo

was adopted on 15 May 2001, when signed by the Special Representative of the
U.N. Secretary-General.48 The ‘Provisional Institutions of Self-Government As-
sembly’ of Kosovo adopted the declaration of independence of Kosovo on 17
February 2008. Later on, following an initiative of Serbia, the U.N. General As-
sembly decided, by means of its resolution A/RES/63/3, adopted on 08.10.2008,
to request the ICJ to render an advisory opinion on the question whether that
declaration of independence by the ‘Provisional Institutions of Self-Government
of Kosovo’ was or not in accordance with International Law. The matter is now
pending before the ICJ.
2. The Case of East Timor

Through its resolution 1272 (1999), of 25.10.1999, the U.N. Security Council estab-
lished the United Nations Transitional Administration in East Timor (UNTA-
ET).49 In a referendum held on 30.08.1999, the great majority of the East Timorese
people voted for independence,50 rather than simple autonomy. UNTAET admin-
istered East Timor for an interim period (ended in May 2002), and promptly en-
gaged itself into humanitarian assistance in general (and in emergency food relief
in particular51) till achieving stabilization (in February 2000). It then shifted its
emphasis from emergency relief to transitional governance, focusing on State-
building activities (such as civic education and public administration).52
In consultation with the National Consultative Council, a transitional mech-
anism towards self-government that it had set up in December 1999, UNTAET
promulgated the (transitional) legal system of East Timor and trained and ap-
pointed some public officials (such as prosecutors and judges). The next step was
the establishment, by U.N. Security Council resolution 1410 (2002), of 17.05.2002,
of the United Nations Support Mission in East Timor (UNMISET); the idea was
to facilitate, by means of the operation of UNMISET, the transition from the
period of UNTAET’s mission into a new period of traditional U.N. development
48 B. Bing Jia, “The Independence of Kosovo: A Unique Case of Secession?”, 8 Chinese

Journal of International Law (2009) p. 30. The author expresses the view that “what
distinguishes the case of Kosovo from the case of East Timor is the fact that the il-
legality of the occupation of the latter, which renders eventual independence a clear
choice, is not copied in the former”; ibid., p. 31.
49 Replacing the former United Nations Mission in East Timor (UNAMET).
50 Cf. A.A. Cançado Trindade, “O Caso do Timor-Leste (1999): O Direito de Autode-
terminação do Povo Timorense”, 1 Revista de Derecho de la Universidad Católica
del Uruguay (2000) pp. 63-83, and in 6/7 Revista da Faculdade de Direito da Univer-
sidade do Estado do Rio de Janeiro (1998-1999) pp. 127-145.
51 And also in shelter emergency and basic health care.
52 Cf. J. Federer, The U.N. in East Timor: Building Timor Leste, a Fragile State, Darwin/
Australia, Ch. Darwing University Press, 2005, pp. 97-103.
490 Chapter XXI
assistance.53 UNTAET’s mission was formally terminated on 19.05.2002, and

Timor Leste, after a prolonged history of endeavours to master its own destiny,54
became formally an independent country the following day, on 20 May 2002.
Both UNTAET and UNMIK have exercised a wide range of functions, in-
cluding judicial ones, in the two respective territories for the administration of
which they had become responsible. While UNMIK has faced difficult aspects in
administering justice, UNTAET was engaged from the start in the building and
management of the domestic judicial system, and the appointment of the first
Timorese legal officers was endowed with undeniable symbolic relevance.55 In
any case, the high priority attributed to the operation of the local judicial system
in such experiments of transitional administration of territory indicates that the
prevalence of the rule of law therein fulfi ls an aspiration of the contemporary
international community itself.56
3. The Centrality of Protection of the Populations

The wide scope and depth of the mandates of UNMIK and UNTAET, endowed
with executive, legislative and judicial functions, seems to open a new chapter in
the history of the operation of the United Nations in social milieux torn by inter-
nal conflicts. Although their activities may not always have wholly fulfi lled the
expectations (particularly in the case of UNMIK),57 the role they have played is of
53 Ibid., pp. 106-107.

54 For a historical account, cf., e.g., J. Ramos Horta, Funu – The Unfinished Saga of East
Timor, Trenton/New Jersey, Red Sea Press, 1987, pp. 1-207. Along the years, the case
of East Timor was never withdrawn from the U.N. agenda in one particular aspect,
namely, that pertaining to the safeguard of the human rights of its inhabitants; L.
Hannikainen, “The Case of East Timor from the Perspective of Jus Cogens”, in In-
ternational Law and the Question of East Timor, London, CIIR/IPJET, 1995, pp. 108-
111. – Even in the light of classic canons of International Law, States can no longer
invoke “sovereignty” to do whatever it occurs to them to their populations, as States
are bound to the respect due to human rights; J. Crawford, The Creation of States in
International Law, 2nd. ed., Oxford, Clarendon Press, 2007, pp. 149, 155 and 718; as
for peoples’ rights, in general, cf., e.g., Ian Brownlie, “The Rights of Peoples in Mod-
ern International Law”, The Rights of Peoples (ed. J. Crawford), Oxford, Clarendon
Press, 1988, pp. 1-16.
55 S. Chesterman, “Justice under International Administration: Kosovo, East Timor
and Afghanistan”, 12 Finnish Yearbook of International Law (2001) pp. 144, 150, 152-
153 and 161.
56 Ibid., pp. 163-164.
57 For example, it has been pointed out that on occasions UNMIK has carried out
preventive detentions (invoking public safety and order) hardly compatible with the
standards of the European Convention on Human Rights (for lack of sufficient judi-
cial control) (pp. 164-165), while in this domain UNTAET seemed more respectful
of the human rights standards of the U.N. Covenant on Civil and Political Rights; cf.
C. Stahn, op. cit. supra n. (33), pp. 164-169.
undeniable importance and is a landmark in the initiatives of the United Nations

within the framework of the chapter VII of its Charter. It has been suggested that
their role was of a “dual nature”, as both UNMIK and UNTAET were “not only
acting as organs of the U.N.”, but were at the same time “also acting as organs of
the Territories concerned”.58
The entities established by resolutions 1244 (1999) and 1272 (1999), – and
the respective Special Representatives, named by the U.N. Secretary General
to implement those resolutions, – were engaged in a regulatory activity which
strenghtened their legal status as transitional international administrations of
Kosovo and East Timor.59 The successive resolutions they issued covered a wide
range of areas of public administration. They exerted executive, legislative and
judicial functions. Significantly, their mandates did not derive from a de facto do-
mestic power, but from the aforementioned U.N. Security Council resolutions,60
that is, from International Law, from the law of nations (the droit des gens) it-
self.61
UNMIK and UNTAET, operating on behalf of the international commu-
nity, were conceived to the ultimate benefit of the populations concerned, those
of Kosovo and of East Timor. They kept in mind the imperatives of protection of
the individuals, groups and peoples inhabiting those territories, and of assistance
to them to manage their own affairs and master their own destiny. They kept in
mind humanitarian concerns. They pledged their adherence to international hu-
man rights standards, in distinct aspects of day-to-day international administra-
tion. Thus, e.g., special attention was given to “the establishment of human rights
guarantees facilitating the return and care of refugees and displaced persons and
to the revocation of discriminatory legislation”.62
58 M. Bothe and T. Marauhn, “U.N. Administration of Kosovo and East Timor...”, op.
cit. supra n. (42), p. 229.
59 Ibid., pp. 143 and 180.
60 M. Ruffert, “The Administration of Kosovo and East Timor by the International
Community”, 50 International and Comparative Law Quarterly (2001) p. 627, and
cf. pp. 613 and 622.
61 Of which the law of the United Nations is part. It was, by the way, the intention of
the “founding fathers” of the U.N. to ensure that all States (including non-members
– Article 2(6)) were to act in accordance with the principles set forth in the U.N.
Charter (so far as may be necessary for the maintenance of international peace and
security); cf. J.A. Frowein, “Reactions by Not Directly Affected States to Breaches
of Public International Law”, 248 RCADI (1994) pp. 357-358; C. Tomuschat, “Ob-
ligations Arising for States Without or Against Their Will”, 241 RCADI (1993) pp.
252-257. – It may be added that the action of the U.N. Security Council has lately
transcended the classic dimension of purely inter-State relations, with many of its
resolutions being addressed in recent years to groups of individuals and populations;
cf. B. Simma, “From Bilateralism to Community Interest in International Law”, 250
RCADI (1994) p. 266.
62 C. Stahn, “The United Nations Transitional Administrations...”, op. cit. supra n. (33),
pp. 144-145.
492 Chapter XXI
The experiments of UNMIK and UNTAET, also engaged in democratisa-

tion, have thus “penetrated the domestic sphere of societies” in Kosovo and East
Timor, a sphere which in the past was outside the scope of traditional Interna-
tional Law; in this respect, it has been pondered that
“The practice of international territorial administration is difficult to explain on the

basis of an exclusively State-centred vision of sovereignty. The experiments in this
field have made it clear that international law is at least partially a framework for the
organisation of peoples’ rights and individual rights”.63
East Timor has achieved independent statehood. UNTAET has accomplished its
goals. The experiments of UNTAET and UNMIK have contributed to shift the
attention to the central role of the protection of the population,64 and satisfaction
of its basic needs and aspirations. And they have shown that it is the people who
determine the fate of their territory, and the international community can step
in, in support of the legitimate aspirations of the people concerned. They serve, at
last, as examples of the operation of International Law to the ultimate benefit of
individuals and peoples, – a manifestation of the present-day outlook of the new
jus gentium, the International Law for humankind.
63 C. Stahn, The Law and Practice..., op. cit. supra n. (34), p. 755, and cf. pp. 751 and
753.
64 Such attention was already present in the historical case of the administration of
Namibia, prior to its independence; cf. ibid., pp. 718-719 and 755-756; B. Knoll, The
Legal Status of Territories..., op. cit. supra n. (35), pp. 108-110.
Chapter XXII Basic Considerations of
Humanity in Relation to Diplomatic
and Consular Law
I. Introduction: Diplomatic and Consular Law beyond the

Inter-State Outlook
The adoption of the 1961 Vienna Convention on Diplomatic Relations and the 1963
Vienna Convention on Consular Relations, followed by their wide acceptance by
the member States of the international community, was soon to be reckoned as
a landmark in the codification of modern International Law. Their success was
attributed to their pertaining to a classic domain of International Law,1 which
already counted, prior to their adoption, on a considerable State practice on the
matter. It was also attributed to their pertaining to State conduct, rather than to
“the substance of inter-State relations”.2 The aforementioned Conventions were
regarded as generally “declaratory” of customary law on the matter, which was
significant if one was to keep
“all hope of a possible future reconstruction of that minimum of international ho-

mogeneity (...). The desired homogeneity is not in any way equivalent to any philo-
sophical, religious, moral or political uniformity. (...) What is postulated therefore
is not any kind of uniformization, but a synthesis, in the spirit of full tolerance, of
the wealth and diversity of structures, beliefs and ideologies with a minimum of
cultural fundamentals in common”.3
It can hardly be doubted that, by the time the Vienna Conventions on Diplomatic
and Consular Relations were adopted and entered into force, their implementa-
1 E. Suy, “Développement progressif et codification du Droit international: le rôle de

l’Assemblée Générale revisité”, in Proceedings of the United Nations Congress on
Public International Law – International Law as a Language for International Rela-
tions (New York, 1995), The Hague, Kluwer, 1996, p. 221.
2 K. Zemanek, “Does Codification Lead to Wider Acceptance?”, in ibid., p. 226.
3 K. Marek, “Thoughts on Codification”, 31 Zeitschrift für ausländisches öffentliches
Recht und Völkerrecht (1971) p. 520, and cf. p. 507.
494 Chapter XXII
tion was envisaged from the outlook of strictly inter-State relations.4 Yet, less
than two decades later, those Conventions, or at least some of their provisions,
could be read in a distinct light, ineluctably linking them to the fundamental
rights inherent to the human person. The case of the Hostages (United States
Diplomatic and Consular Staff in Tehran, 1979-1980), filed by the United States
against Iran before the International Court of Justice [ICJ], can be recalled in this
connection.
In the course of the proceedings (written phase) before the ICJ, the United
States, in its memorial, after pointing out that, in the circumstances of the cas
d’espèce, the U.S. nationals had been held incommunicado “in the grossest viola-
tion of consular norms and accepted standards of human rights”, added emphati-
cally that Article 36 of the 1963 Vienna Convention on Consular Relations “estab-
lishes rights not only for the consular officer but, perhaps even more importantly,
for the nationals of the sending State who are assured access to consular officers
and through them to others”.5 Again in the oral arguments before the ICJ, the
complainant State further contended that the treatment dispensed by the Ira-
nian government to the U.S. civil servants captured and kept as hostages in Teh-
ran fell “far below the minimum standard of treatment which is due to all aliens,
particularly as viewed in the light of fundamental standards of human rights. (...)
The right to be free from arbitrary arrest and detention and interrogation, and
the right to be treated in a humane and dignified fashion, are surely rights guar-
anteed to these individuals by fundamental concepts of international law. Indeed,
nothing less is required by the Universal Declaration of Human Rights”.6
In its Judgment of 24 May 1980 on the Hostages (U.S. Diplomatic and Con-
sular Staff in Tehran) case (United States versus Iran), the ICJ, referring to the
International Law governing diplomatic and consular relations (Vienna Conven-
tions of 1961 and 1963), felt obliged to draw “the attention of the entire interna-
tional community” to
“the irreparable harm that may be caused by events of the kind now before the
Court. Such events cannot fail to undermine the edifice of law carefully constructed
by mankind over a period of centuries, the maintenance of which is vital for the se-
curity and well-being of the complex international community of the present day, to
which it is more essential than ever that the rules developed to ensure the ordered
4 Cf., e.g., G.E. do Nascimento e Silva, Diplomacy in International Law, Leiden, Si-
jthoff, 1972, pp. 29-48; J. Monnier, “Observations sur la codification et le développe-
ment progressif du Droit international”, in Mélanges Georges Perrin (eds. B. Dutoit
and E. Grisel), Lausanne, Payot, 1984, pp. 241-242.
5 ICJ, Hostages (U.S. Diplomatic and Consular Staff ) in Tehran case, ICJ Reports
(1979); Pleadings, Oral Arguments, Documents; p. 174 (emphasis added). The U.S.
memorial added that “the right of consular officers in peacetime to communicate
freely with co-nationals has been described as implicit in the consular office, even in
the absence of treaties”; ibid., p. 174.
6 Cit. in ibid., argument of the agent for the United States (Mr. Owen), pp. 302-303.
Basic Considerations of Humanity in Relation to Diplomatic and Consular Law 495
progress of relations between its members should be constantly and scrupulously

respected”.7
In the same judgment on the Hostages case, the ICJ warned that the obligations
at issue of the respondent State were “not merely contractual obligations estab-
lished by the Vienna Conventions of 1961 and 1963, but also obligations under
general international law”.8 The ICJ further pondered that the principle of the
inviolability of the persons of diplomatic agents and the premises of diplomatic
missions had a “fundamental character”, and was
“one of the very foundations of this long established régime [of diplomatic law], to
the evolution of which the traditions of Islam made a substantial contribution”.9
The ICJ stated that “wrongfully to deprive human beings of their freedom and to
subject them to physical constraint in conditions of hardship is in itself mani-
festly 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”.10 In its reasoning throughout the judgment, the ICJ stressed
the importance of the relevant principles of International Law as well as of the
International Law of Human Rights. The corpus juris of diplomatic law was thus
approached in the light of basic considerations of humanity.
II. Diplomatic and Consular Law and Universal International Law

In the same decision of 1980, the ICJ saw it fit to draw attention to the universal-
ity of codified diplomatic and consular law, the faithful observance of which was
to the ultimate benefit to humankind as a whole. In the words of the Court,
“The Vienna Conventions [of 1961 and 1963], which codify the law of diplomatic
and consular relations, state principles and rules essential for the maintenance of
peaceful relations between States and accepted throughout the world by nations
of all creeds, cultures and political complexions. (...) (...) The Court considers it to
be its duty to draw the attention of the entire international community, of which
Iran itself has been a member since time immemorial, to the irreparable harm that
may be caused by events of the kind now before the Court. Such events cannot fail
to undermine the edifice of law carefully constructed by mankind over a period of
centuries, the maintenance of which is vital for the security and well- being of the
complex international community of the present day, to which it is more essential
7 ICJ Reports (1980) p. 43, par. 92.

8 ICJ, case concerning United States Diplomatic and Consular Staff in Tehran (United
States versus Iran), ICJ Reports (1980) p. 31, par. 62.
9 Ibid., p. 40, par. 86.
10 Ibid., p. 42, par. 91.
496 Chapter XXII
than ever that the rules develop to ensure the ordered progress of relations between
its members should be constantly and scrupulously respected”.11
It can hardly be doubted that the work of codification and progressive develop-
ment, in the course of the XXth century, has endowed International Law with an
objective basis.12 Furthermore, and most significantly, it has served the impera-
tives of international justice, and contributed to secure the unity and universality
of International Law.13 It is not surprising that it has flourished amidst a human-
ist philosophy and a considerable importance attributed to the general princi-
ples of International Law.14 It acknowledges, moreover, that its normative content
flows from the conscience of the members of the international community (and
not from their simple acts of will), to respond to their common needs and aspira-
tions, in a manifestation of the opinio juris communis.15
It cannot pass unnoticed that a domain of International Law which, some
decades ago, was conceived upon a strictly inter-State basis, such as diplomatic
and consular law,16 is nowadays ineluctably permeated with basic considerations
of humanity. There could hardly be a more eloquent illustration, as I perceive it,
of the current historical process of humanization of International Law, setting
the ground for the construction of a new jus gentium of the XXIst century, the
International Law for humankind. The aforementioned Hostages case before the
ICJ is not an isolated example in this connection.
11 Ibid., pp. 24 and 43, pars. 45 and 92, respectively.

12 Such was the testimony of a protagonist of successive Vienna Conferences of codi-
fication of International Law; cf. G.E. do Nascimento e Silva, “A Codificação do Di-
reito Internacional”, 28-30 Boletim da Sociedade Brasileira de Direito Internacional
(1972-1974) ns. 55/60, p. 100.
13 J.G. Guerrero, La codification du Droit international, Paris, Pédone, 1930, pp. 9-10,
13, 24, 27 and 150.
14 A. Mahiou, “Rapport général: Les objectifs de la codification”, in Société Française
pour le Droit International, La codification du Droit international (Colloque d’Aix-
en-Provence), Paris, Pédone, 1999, pp. 22 and 45.
15 As admitted by another distinguished protagonist of codification of international
law in the XXth century; cf. Roberto Ago, “Nouvelles réflexions sur la codification
du Droit international”, in International Law at a Time of Perplexity – Essays in
Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989, pp. 2 and 22.
16 To the aforementioned 1961 and 1963 Vienna Conventions, two others can be added,
namely, the 1969 Convention on Special Missions, and the 1975 Convention on the
Representation of States in Their Relations with International Organizations of a
Universal Character. – Moreover, as to case-law, in its recent Judgment (on Prelimi-
nary Objections, of 24.05.2007) in the case of A. Sadio Diallo (Guinea versus D.R.
Congo), the ICJ pointed out that diplomatic protection has also been influenced by
the “substantive development” of International Law in the international protection
of individual rights (par. 39). On this development, cf., e.g., S. Touzé, La protection
des droits des nationaux à l’étranger – Recherches sur la protection diplomatique,
Paris, Pédone, 2007, pp. 1-463.
III. The Right to Information on Consular Assistance in the Framework of

the Guarantees of the Due Process of Law
More recently, the Inter-American Court of Human Rights [IACtHR] had the oc-
casion to dwell upon the matter, upon a request by Mexico, in respect of a provi-
sion of the 1963 Vienna Convention on Consular Relations (Article 36(1)(b)) – in
combination with the American Convention on Human Rights, – in an Advisory
Opinion of 01 October 1999. In the course of the advisory proceedings,17 one of
the eight intervening States before the IACtHR, – the United States, – argued
inter alia that the 1963 Vienna Convention was not a human rights treaty nor
a treaty “concerning” the protection of human rights, but rather “a multilateral
treaty of the traditional type concluded to accomplish reciprocal exchange of
rights for the benefit of the Contracting States”.18 In so doing, the United States
assumed a position which was diametrically opposed to the one it had upheld
years earlier in the Hostages case (cf. supra).
The IACtHR dismissed that argument, recalling that under the 1963 Vienna
Convention “the consular officer and the national of the sending State both have
the right to communicate with each other, at any time, in order that the for-
mer may properly discharge his functions”; the consular communication serves
a dual purpose, namely,
“that of recognizing a State’s right to assist its nationals through the consular of-
ficer’s actions and, correspondingly, that of recognizing the correlative right of the
national of the sending State to contact the consular officer to obtain that assist-
ance”.19
The IACtHR further recalled that Article 36(1)(b) and (c) of the 1963 Vienna Con-
vention pertained to consular assistance in a given situation, namely, that of dep-
rivation of freedom. The rights mentioned therein had as a characteristic the fact
that their titulaire is the individual. In effect, that provision
“is unequivocal in stating that rights to consular information and notification are
‘accorded’ to the interested person. In this respect, Article 36 is a notable exception
to what are essentially States’ rights and obligations accorded elsewhere in the Vi-
enna Convention on Consular Relations. As interpreted by this Court in the present
Advisory Opinion, Article 36 is a notable advance over International Law’s tradi-
tional conceptions of this subject”.20
17 Cf. pleadings in Advisory Opinion OC-16/99, cit. infra n. (18), Series B (Pleadings,
Oral Arguments and Documents), n. 16, pp. 3-217.
18 IACtHR, Advisory Opinion OC-16/99, of 01.10.1999, on The Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of Law,
Series A, n. 16, p. 179, par. 26.
19 Ibid., pp. 238-239, pars. 79-80.
20 Ibid., pp. 239-241, pars. 81-82.
498 Chapter XXII
It ensues from that provision that the exercise of that right is limited only by the
choice of the individual himself, who may “expressly” oppose any intervention by
the consular officer on his behalf; this, – added the IACtHR, – “confirms the fact
that the rights accorded under Article 36 of the Vienna Convention on Consular
Relations are rights of individuals”.21 The Court therefore concluded that
“Article 36 of the Vienna Convention on Consular Relations endows a detained

foreign national with individual rights that are the counterpart to the host State’s
correlative duties. This interpretation is supported by the Article’s legislative his-
tory. There, although in principle some States believed that it was inappropriate to
include clauses regarding the rights of nationals of the sending State, in the end the
view was that there was no reason why that instrument should not confer rights
upon individuals. (...) Therefore, the consular communication to which Article 36
of the Vienna Convention on Consular Relations refers, does indeed concern the
protection of the rights of the national of the sending State and may be of benefit to
him. This is the proper interpretation of the functions of ‘protecting the interests’
of that national and the possibility of his receiving ‘help and assistance’, particularly
with arranging appropriate ‘representation before the tribunals’. (...)”.22
In its Advisory Opinion of 01.10.1999, the IACtHR, in sum, held that Article 36
of the 1963 Vienna Convention on Consular Relations recognizes to the foreigner
under detention individual rights, – among which the right to information on
consular assistance, – to which correspond duties incumbent upon the receiv-
ing State (irrespective of its federal or unitary structure).23 The Court pointed
out that the evolutive interpretation and application of the corpus juris of the
International Law of Human Rights, have had “a positive impact on International
Law in affirming and developing the aptitude of this latter to regulate the rela-
tions between States and human beings under their respective jurisdictions”; the
Court thus adopted the “proper approach” in considering the matter submitted
to it in the framework of “the evolution of the fundamental rights of the human
person in contemporary International Law”.24
The Court expressed the view that, for the due process of law to be pre-
served, “a defendant must be able to exercise his rights and defend his interests
effectively and in full procedural equality with other defendants”.25 Thus, the in-
dividual right to information under Article 36(1)(b) of the Vienna Convention on
21 Ibid., p. 241, par. 83.

22 Ibid., pp. 241-242, pars. 84 and 87.
23 Paragraphs 84 and 140.
25 Paragraph 117. In order to attain its objectives, “the judicial process ought to recog-
nize and correct the factors of real inequality” of those taken to justice; thus, the no-
tification, to persons deprived of their liberty abroad, of their right to communicate
with their consul, contributes to safeguard their defence and the respect for their
procedural rights. Paragraphs 119 and 121-122.
Consular Relations renders effective the right to the due process of law. The non-
observance or obstruction of the exercise of this right affects the judicial guaran-
tees.26 The Court in this way linked the right at issue to the evolving guarantees
of due process of law, and added that its non-observance in cases of imposition
and execution of death penalty amounts to an arbitrary deprivation of the right
to life itself (in the terms of Article 4 of the American Convention on Human
Rights and Article 6 of the International Covenant on Civil and Political Rights),
with all the juridical consequences inherent to a violation of the kind, that is,
those pertaining to the international responsibility of the State and to the duty
of reparation.27
This Advisory Opinion n. 16 of the IACtHR, truly pioneering, has served
as inspiration for the emerging international case-law, in statu nascendi, on the
matter,28 and is having a sensible impact on the practice of the States (infra) of
the region on the issue.29 The Advisory Opinion achieved a considerable mobi-
lization in the advisory proceedings (with eight intervening States, besides sev-
eral non-governmental organizations and individuals), one of the greatest in the
whole history of the Court to date,30 surpassed only by that in the subsequent

27 Paragraph 137; and cf. Concurring Opinion of Judge A.A. Cançado Trindade. –
For the pleadings and oral arguments before the Court, cf. IACtHR, OC-16/99, of
01.10.1999, Series B, n. 16 (2000), pp. 3-217.
28 As promptly acknowledged by expert writing, singling out the advanced and evolu-
tive approach it propounded; cf. notes (48), (49) and (50), infra. It has been pointed
out, e.g., that “la Cour Interaméricaine avait examiné dans quelle mesure la violation
du droit d’être informé de l’assistance consulaire pouvait être considérée comme une
violation de la règle fondamentale du procès équitable et si, par voie de conséquence,
une telle irrégularité de procédure dans le cas d’une condamnation à mort constit-
uait aussi une atteinte illicite à la vie humaine protégée par l’article 6 du Pacte relatif
aux droits civils et politiques. (...) La CIJ ne s’est pas prononcée sur ces questions qui
ont trait à l’application de deux principes du droit international (la règle du procès
équitable et le droit à la vie)”. Ph. Weckel, M.S.E. Helali and M. Sastre, op. cit. infra
n. (48), p. 770. Cf. also, in further acknowledgement of the pioneering contribution
of the 16th Advisory Opinion of the Inter-American Court: M. Mennecke, “Towards
the Humanization...”, op. cit. infra n. (50), pp. 430-432, 453-455, 459-460 and 467-468;
M. Mennecke and C.J. Tams, “The LaGrand Case”, op. cit. infra n. (50), pp. 454-455.
29 For a recent overview, cf. A.A. Cançado Trindade, “The Humanization of Consular
Law: The Impact of Advisory Opinion n. 16 (1999) of the Inter-American Court of
Human Rights on International Case-Law and Practice”, in 6 Chinese Journal of
International Law (2007) n. 1, p. 1-16.
30 In the public hearings (on this 16th Advisory Opinion) before the Court, apart from
the eight intervening States, several individuals took the floor, namely: seven indi-
viduals representatives of four national and international non-governmental organ-
izations (active in the field of human rights), two individuals of a non-governmental
organization working for the abolition of the death penalty, two representatives of a
(national) entity of lawyers, four University Professors in their individual capacity,
and three individuals in representation of a person condemned to death.
500 Chapter XXII
Advisory Opinion n. 18 of the IACtHR on the Juridical Condition and Rights of

Undocumented Migrants (2003).31
It may be observed, in passim, that the historical Advisory Opinion n. 16
reveals the impact of the International Law of Human Rights in the evolution of
Public International Law itself, specifically for having the IACtHR been the first
international tribunal to warn that non-compliance with Article 36(1)(b) of the
Vienna Convention on Consular Relations of 1963 took place to the detriment
not only of a State Party but also of the human beings at issue,32 as well as to af-
firm the existence of an individual right to information on consular assistance in
the framework of the guarantees of the due process of law.33
In fact, it may be recalled that, throughout the contentious proceedings in
the subsequent LaGrand case (Germany versus United States) before the ICJ,
the advisory proceedings conducive to the aforementioned Advisory Opinion n.
16, as well as this Opinion itself, of the IACtHR (of 01.10.1999), were constantly
brought to the attention of the ICJ, in both the written and oral phases. Thus,
in the written phase of the proceedings in the LaGrand case, Germany, in its
memorial (of 16.09.1999), expressly referred to the request by Mexico for an Ad-
visory Opinion pending before the IACtRH.34 Likewise, in its counter-memorial
(of 27.03.2000), the United States expressly referred to the Advisory Opinion n.
16 recently issued by the IACtHR.35 This latter was extensively referred to, also in
the oral arguments before the ICJ.36 Subsequently, in its Judgment of 27.06.2001
in the LaGrand case, the ICJ found that the United States breached its obliga-
tions to Germany and to the LaGrand brothers under Article 36(1) and (2) of the
1963 Vienna Convention on Consular Relations.37
31 For the pleadings and oral arguments before the Court, cf. IACtHR, OC-18/03, of
17.09.2003, Series B, n. 18 (2005), pp. 3-231.
32 As the ICJ has subsequently also admitted, in the aforementioned case LaGrand.
33 Cf. IACtHR, Advisory Opinion n. 16 (OC-16/99), cit. supra n. 18, pp. 3-123, pars. 1-141
[Spanish text].
34 ICJ, Memorial of the Federal Republic of Germany (LaGrand case), vol. I, 16.09.1999,
p. 69.
35 ICJ, Counter-Memorial Submitted by the United States of America (LaGrand case),
27.03.2000, pp. 85-86, n. 110.
36 Cf., in particular, the pleadings of the co-agent and counsel for Germany (B. Sim-
ma), in: ICJ, public sitting of 13.11.2000, doc. 2000/26, pp. 60/62; and doc. 2000/27,
pp. 9-11, 32 and 36.
37 ICJ Reports (2001) pp. 515-516 (resolutory points 3 and 4). On the “diffident” attitude
of the ICJ, which “failed to mention” the judicial precedent of the Advisory Opin-
ion n. 16 of the IACtHR holding that Article 36 of the 1963 Vienna Convention on
Consular Relations was among the minimum guarantees essential for a fair trial of
foreign nationals, cf. J. Fitzpatrick, “Consular Rights and the Death Penalty after La-
Grand”, in American Society of International Law, Proceedings of the 96th Annual
Meeting (2002) p. 309.
Subsequent to the LaGrand case, once again, in the case of Avena and Other
Mexican Nationals (Mexico versus United States), the complainant State be-
fore the ICJ, this time Mexico, in its memorial (of 20.06.2003), throughout its
argumentation referred extensively to the aforementioned and leading Adviso-
ry Opinion n. 16 (of 1999) of the IACtHR, quoting excerpts of it repeatedly.38 It
further referred expressly to other decisions of the IACtHR, also in contentious
cases,39 relevant to the matter at issue before the ICJ, in sum, to the relevant ju-
risprudence constante of the IACtHR on the subject. At a stage of its memorial,
Mexico argued, inter alia, in support of its position, that
“The increasing support of OC-[Advisory Opinion n.] 16 [of the IACtHR] by foreign
governments in death penalty cases involving foreign nationals strongly suggests
the existence of an emerging consensus in the practice of nations”.40
In its Judgment of 31.03.2004 in the case of Avena and Other Mexican Nationals,
the ICJ found in favour of Mexico.41
IV. The Humanization of Consular Law in Contemporary

International Practice
Shortly after its adoption, Advisory Opinion n. 16, of the IACtHR, on The Right
to Information on Consular Assistance in the Framework of the Due Process of
Law (of 01.10.1999), was promptly and expressly referred to by the General As-
sembly of the United Nations, in its resolutions 54/166, of 17.12.1999,42 and 55/92,
of 04.12.2000,43 both on protection of migrants. Advisory Opinion n. 16 of the
IACtHR was likewise expressly referred to by the General Assembly of the Or-
ganisation of American States (OAS), in two of its resolutions, adopted in 2000
and 2001, respectively.44 Furthermore, the aforementioned Advisory Opinion n.
16 was likewise expressly quoted in decision 2001/52 of the former U.N. Commis-
sion on Human Rights.45
38 I.C.J., Case concerning Avena and Other Mexican Nationals (Mexico versus United
States), Memorial of Mexico, 20.06.2003, pp. 80-81, 136-137, 140-141 and 144, and cf.
p. 65.
39 Ibid., pp. 119-121, 151, 153 and 155-157, and cf. p. 55.
40 Ibid., p. 141.
41 ICJ Reports (2004) pp. 70-73. – Once again, like in the LaGrand case, in the Avena
case the ICJ, in approaching “consular assistance rights”, reasoned in the line of in-
ter-State relations (diplomatic protection) rather than individual human rights; cf.
ibid., pp. 60-61, pars. 124-127, on the reticent position of the ICJ.
42 Tenth preambular paragraph.
43 Fifteenth preambular paragraph.
44 OAS, resolutions AG/RES.1717(XXX-0/00), of 05.06.2000 (fi fth considerandum),
and AG/RES.1775(XXXI-0/01), of 05.06.2001 (sixth considerandum).
45 Fourteenth preambular paragraph.
502 Chapter XXII
On its part, the U.N. Subcommission on the Promotion and Protection of

Human Rights, in a statement issued on 08.08.2002, urged the United States to
stay execution of a Mexican national (J.S. Medina), on the basis of the Advi-
sory Opinion n. 16 of the IACtHR (of 01.10.1999) and the subsequent Judgment
of the ICJ in the LaGrand case (of 27.06.2001).46 Again shortly after the Advisory
Opinion n. 16 of the IACtHR, the rapporteur of the OAS Inter-American Com-
mission on Human Rights on the question of Migrant Workers and Members of
their Families reproduced the views expressed by Peru that the receiving State is
under the duty to facilitate consular assistance to foreigners, and by Bolivia and
Panama to the effect that migrants have the right to resort to consular authori-
ties of the State of origin.47
Advisory Opinion n. 16 of the IACtHR was truly pioneering, and has served
as inspiration for the emerging international case-law, in statu nascendi, on the
matter. This has been promptly acknowledged by expert writing, for example,
in referring to the subsequent decision of the ICJ (of 27.06.2001) in the LaGrand
case, rendered “à la lumière notamment de l’avis de la Cour Interaméricaine des
Droits de l’Homme du 1er octobre 1999”.48 It has further been pointed out that the
IACtHR’s Advisory Opinion of 1999 contrasts with “la position restrictive prise
par la Cour de La Haye” in its decision of 2001 in the LaGrand case:49
46 Statement reproduced in a press release of the U.N. High Commissioner for Human
Rights, of the same date, p. 1.
47 2nd. progress report, reproduced in OAS, Informe Anual de la Comisión Interameri-
cana de Derechos Humanos 2000 – vol. II, pp. 1562 (Peru), 1560 (Bolivia) and 1561
(Panama).
48 G. Cohen-Jonathan, “Cour Européenne des Droits de l’Homme et droit interna-
tional général (2000)”, 46 Annuaire français de Droit international (2000) p. 642.
– It has also been pointed out, as to the Inter-American Court’s Advisory Opinion
n. 16, “le soin mis par la Cour à démontrer que son approche est conforme au droit
international”. Moreover, “pour la juridiction régionale il n’est donc pas question de
reconnaître à la Cour de la Haye une prééminence fondée sur la nécessité de main-
tenir l’unité du droit au sein du système international. Autonome, la juridiction est
également unique. (...) La Cour Interaméricaine des Droits de l’Homme rejette fer-
mement toute idée d’autolimitation de sa compétence en faveur de la Cour mondiale
fondamentalement parce que cette dernière ne serait pas en mesure de remplir la
fonction qui est la sienne”. Ph. Weckel, M.S.E. Helali and M. Sastre, “Chronique
de jurisprudence internationale”, 104 Revue générale de Droit international public
(2000) pp. 794 and 791.
49 In effect, “la juridiction régionale avait exprimé son opinion dans l’exercice de sa
compétence consultative. Or, statuant sur un différend entre États, la juridiction
universelle ne disposait pas de la même liberté, parce qu’elle devait faire prévaloir
les restrictions imposées à sa juridiction para le défendeur”. Ph. Weckel, “Chronique
de jurisprudence internationale”, 105 Revue générale de Droit international public
(2001) pp. 764-765.
– “La Cour Interaméricaine avait examiné dans quelle mesure la violation du droit
d’être informé de l’assistance consulaire pouvait être considérée comme une viola-
tion de la règle fondamentale du procès équitable et si, par voie de conséquence, une
telle irrégularité de procédure dans le cas d’une condamnation à mort constituait
aussi une atteinte illicite à la vie humaine protégée par l’article 6 du Pacte relatif aux
droits civils et politiques. (...) La CIJ ne s’est pas prononcée sur ces questions qui
ont trait à l’application de deux principes du droit international (la règle du procès
équitable et le droit à la vie)”.50
Turning to the contemporary international practice on the matter, it may be

pointed out that two weeks after the adoption of Advisory Opinion n. 16 by the
IACtHR, the Ministry of External Relations of Mexico issued a circular note to all
its diplomatic and consular posts stressing the importance of that Advisory Opin-
ion and of due compliance with it.51 The matter dealt with in the Advisory Opinion
was already occupying a special place, in recent years, in Mexico’s diplomatic and
consular practice.52 In an intervention at the 56th U.N. General Assembly (2001)
on the report of the ICJ, the Legal Adviser to its Foreign Office stated that Mexico
supported the conclusion of the Judgment in the LaGrand case to the effect that
individual rights ensued from Article 36(1) of the 1963 of the Vienna Convention
on Consular Relations, but would have preferred if the ICJ had established in an
“unequivocal manner”, like the IACtHR had already done in its Advisory Opinion
n. 16, that those rights had the character of human rights; a pronouncement of the
ICJ in this sense “would have resulted of great relevance”.53
As from the end of the year 2000 onwards, Mexico began to resort to diplomatic
channels as a complementary strategy for the defence of their nationals con-
demned to death penalty in the United States. Thus, in the case of M.A. Flores,
letters of the Ambassadors of Argentina (01.11.2000), Honduras (08.11.2000), Po-
50 Ibid., p. 770. – Cf. also, in further acknowledgement of the pioneering contribution

of the Advisory Opinion n. 16 of the IACtHR: M. Mennecke, “Towards the Humani-
zation of the Vienna Convention of Consular Rights – The LaGrand Case before
the International Court of Justice”, 44 German Yearbook of International Law/Jahr-
buch für internationales Recht (2001) pp. 430-432, 453-455, 459-460 and 467-468; M.
Mennecke and C.J. Tams, “The LaGrand Case”, 51 International and Comparative
Law Quarterly (2002) pp. 454-455.
51 SRE/Mexico, Notice Circular, 14.10.1999, pp. 1-6.
52 Three years before the Advisory Opinion n. 16 of the IACtHR, Mexico and the
United States concluded a Memorandum of Understanding on Consular Protection
(1996) of their nationals, stressing the need of compliance with Article 36(1) of the
1963 Vienna Convention on Consular Relations, and to allow and facilitate consular
officials to be present at all times at the trials or judicial proceedings concerning
their respective nationals.
53 SRE/Mexico, Intervención del Consultor Jurídico de la Secretaría de Relaciones Ex-
teriores de México (J.M. Gómez Robledo) en el Marco del Tema 13 del Programa de
Trabajo de la 56a. Asamblea General de las Naciones Unidas ‘Informe de la CIJ’,
30.10.2001, p. 2.
504 Chapter XXII
land (31.10.2000), Spain (02.11.2000), and Uruguay (08.11.2000) requested clem-

ency to the Governor of Texas. In those letters, they all requested a reconsidera-
tion of the death sentence in view of the Advisory Opinion n. 16 of the IACtHR,
in particular its finding therein that the execution of a foreign national deprived
of his “Article 36 rights” would constitute an “arbitrary deprivation of life”, in
violation of Article 6 of the U.N. Covenant on Civil and Political Rights.
Again in the case of G. Valdez Maltos, letters to the same effect, and with
the same argument on the basis of the aforementioned Advisory Opinion of
the IACtHR, were sent by the Ambassadors of Argentina (12.07.2001), Brazil
(16.07.2001), Chile (13.07.2001), Costa Rica (16.07.2001), El Salvador (10.07.2001),
Iceland (13.07.2001), Poland (16.07.2001) and Uruguay (12.07.2001) to the Gov-
ernor of Oklahoma, requesting clemency. The same happened in the case of J.
Suárez Medina, when letters of the Ambassadors of Costa Rica (12.08.2002),
Guatemala (06.08.2002) and Uruguay (01.08.2002) likewise requested clemency
to the Governor and local authorities of Texas, on the basis of the IACtHR’s find-
ing in its Advisory Opinion n. 16.
Moreover, in the case of G. Valdez Maltos, the Governments of Argentina,
Bolivia, Brazil, Colombia, Ecuador, El Salvador, Guatemala, Panama, Poland,
Uruguay and Venezuela consented to join Mexico in fi ling an amicus curiae
brief before the U.S. Supreme Court. In that amicus curiae, of August 2001, they
expressly supported “the seminal Opinion of the Inter-American Court in OC-
16/99”; in particular, they referred to the Opinion’s sustaining that the lack of
consular notification was prejudicial to the minimum guarantees of due process
to secure a fair trial, that a State may not impose the death penalty dpriving
individuals of rights under Article 36 of the Vienna Convention on Consular
Relations, and that the execution of foreign nationals under such circumstances
would constitute an “arbitrary deprivation of life” in violation of Article 6 of the
U.N. Covenant on Civil and Political Rights”.54
Likewise, in the case of J. Suárez Medina, the Governments of Argentina,
Brazil, Chile, Colombia, El Salvador, Guatemala, Honduras, Panama, Poland,
Spain, Uruguay and Venezuela also consented to join Mexico in fi ling an amicus
curiae (of August 2002), wherein once again the “seminal” Advisory Opinion n.
16 of the IACtHR was expressly supported in the same line of reasoning.55 Still in
the J. Suárez Medina case, the Government of Mexico, in a note (of 17.07.2002)
to the U.S. Department of State, expressly invoked the Advisory Opinion n. 16
of the IACtHR to argue the “illegality under international law” of the execution
of its national, in breach of Article 6 of the U.N. Covenant on Civil and Political
Rights, “to which the United States is a Party”.56
Other recent examples of international practice on the matter may be sin-
gled out. In the framework of the contribution of Advisory Opinion n. 16 of the
54 Pages 7-8 and 20 of the amicus curiae.

55 Pages 7 and 18 of the amicus curiae.
56 SRE/Mexican Embassy in Washington D.C., Note of 17.07.2002, p. 3.
IACtHR (supra), three States of Central America – El Salvador, Guatemala and

Nicaragua – established, on 30 November 2000, a “Mechanism of Trinational
Consular Protection”. By means of this initiative, they agreed to render consular
protection, by the consuls of each of the three States, to nationals of the other
two States, whenever these latter did not have consulates in the receiving State,
and there was a situation of proven emergency or necessity.57
Subsequently, the VII Regional Conference on Migration, held in Antigua,
Guatemala, on 30-31 May 2002,58 in its final Joint Communiqué acknowledged
“the importance of the mechanisms of consular protection in condition of de-
tention” – under the Vienna Convention on Consular Relations or other interna-
tional agreements – established in the framework of “full respect of the human
rights of the migrants”.59 Parallel to that, the I Iberian Meeting of the Commu-
nity of Brazilians Abroad,60 held in Lisbon, on 09-11.05.2002, contemplated, it
its final document, the establishment of a scheme of juridical assistance abroad
to Brazilian migrants, in order to secure them “their condition of titulaires of
fundamental rights”.61
Shortly after the IACtHR’s Advisory Opinion n. 16, Venezuela’s newly-ad-
opted national Constitution (of 17.11.1999) provided for the duty to observe “con-
sular notification, set forth in international treaties on the matter”, in respect of
detention of foreigners.62 For some years the Venezuelan Ministry of External
Relations had in fact been attentive to the question of consular assistance to Ven-
ezuelans detained abroad.63 On its turn, the Ministry of External Relations of
Chile issued in 2001 its new Manual of Procedure for the Due Exercise of Consul-
ar Assistance and Protection and of Diplomatic Protection, which, in the light of
Article 36(1) of the Vienna Convention on Consular Relations, acknowledges the
duty of the receiving State to inform Chilean consuls of the detention of Chilean
nationals, and the right of these latter to seek consular assistance and protection,
considered in the light of the fundamental rights of the human person.64
On its part, the Ministry of External Relations of Brazil issued in 2000 the
new version of its Manual of Consular and Juridical Service, which, after sin-
57 Consideranda 2-3, and operative paragraphs 1-2; the Mechanism became effective
on 01 January 2001 (par. 3).
58 With the participation of Belize, Canada, Costa Rica, the Dominican Republic,
El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and the United
States.
59 Paragraph 3 of the Joint Communiqué. It further approved the establishment of
“mechanisms of cooperation”, on the basis of national legislations, on the matter at
issue (par. 6(a)).
60 Promoted by Brazil’s Ministère Public.
61 Item XIII-Conclusion, of the final “Document of Lisbon”, p. 10.
62 Article 44(2) in fine.
63 As exemplified by MRE/Venezuela, circular letter n. DGSRC-a-18, of 04.07.1986, pp.
1-2.
64 Sections 2.1 and 2.3 of the aforementioned Manual, pp. 2 and 6.
506 Chapter XXII
gling out Article 36 of the Vienna Convention on Consular Relations, provided

for the organization of “Councils of Citizens” (abroad), to foster communication
between nationals living abroad and consular authorities of the country of ori-
gin, as well as of “Itinerant Consular Missions”, to render more agile the consular
assistance normally rendered in consular offices.65 Still in South America, the
Ministry of External Relations of Peru saw it fit to consult the National Police on
the compliance with the right of information on consular assistance; this latter
reported to the Peruvian Foreign Ministry, on 31.12.2001, that the provision of
Article 36 of the Vienna Convention on Consular Relations on “the right of for-
eigners to receive assistance” from consular authorities of the countries of origin
was being complied with in the country.66
In Central America, the Ministry of External Relations of El Salvador sent a
circular message, on 08.12.1999, to all its diplomatic and consular posts, summa-
rizing the contents of the Advisory Opinion n. 16 of the IACtHR, and instructing
them to comply, in the light of this latter, with the “duty” of the Salvadorean State
“to protect its nationals abroad” and to secure, in this connection, the strict ob-
servance of the application of Article 36 of the Vienna Convention on Consular
Relations.67 Earlier on, in another circular message of the kind, of 16.07.1998, the
Foreign Ministry of El Salvador instructed its diplomatic and consular missions
to secure compliance with the provision of Article 36 of the 1963 Vienna Conven-
tion pertaining to the duty of the receiving State to inform the foreigner under
detention of his rights thereunder.68
More recently, on 01.06.2004, the Vice-Ministry of External Relations for
Salvadoreans Abroad was created, and has been very active ever since.69 In the
same line of concern, the Ombudsman (Defensor de los Habitantes) of Costa Rica,
concerned with alleged “policies of deportation” of “many Costa Rican citizens”
in Panama, issued a communiqué, on 02.11.2001, recommending to national au-
thorities the prompt exercise of “consular protection”, in the light of the Advisory
Opinion n. 16 of the IACtHR.70
Before the issuing of this latter, the Paraguayan Minister of Justice and La-
bour sent a complaint (with annexes) to the U.S. Secretary of State, in March
1998, to the effect that, in the Breard case (Paraguay versus United States), the
right to information for consular assistance had been breached by the United
States when the Paraguayan national A.F. Breard was arrested in 1992, and that
Paraguay was only notified of that arrest after his national had been tried and
65 Items 3.1.23, 3.2.1, and 3.3.2, of the aforementioned Manual (version of 02.06.2000).
66 Peru/National Police, report n. 436-DIRSEG-JESE-DEX-IE, of 31.12.2001, p. 2. – And
cf., earlier on, [Various Authors,] Comunidades Peruanas en el Exterior: Situación y
Perspectivas, Lima, Academia Diplomática del Perú, 1999, pp. 7-78.
67 MRE/El Salvador, Annex to doc. DUAJ/AEJ/1840-01, pp. 1-3.
68 MRE/El Salvador, doc. DGSE/SAC/1042/98, p. 1.
69 Documents provided by the Salvadorean Ministry of External Relations, on fi le with
the Author.
70 DHR/Costa Rica, doc. 08445-2001-DHR, of 02.11.2001, pp. 3-4.
sentenced to death. Paraguay was thus deprived of rendering consular assistance,

in contrast with its own constant compliance with the relevant provisions of the
1963 Vienna Convention on Consular Relations vis-à-vis U.S. nationals in Para-
guay.
The Breard case was then, as ultima ratio, lodged by Paraguay with the ICJ,
which issued a provisional measure of protection, on 09.04.1998, indicating that
the United States should not execute A.F. Breard pending the Court’s final deci-
sion on the case.71 Notwithstanding, five days later, on 14.04.1998, A.F. Breard was
executed in Virginia, in breach of the ICJ Order. On 03.11.1998 the U.S. Govern-
ment issued a statement fully recognizing the violation by the United States of
the 1963 Vienna Convention in the Breard case, and conveying its apologies to
“the Government and people of Paraguay”. The U.S. statement added that
“Consular notification is no less important to Paraguayan and other foreign nation-

als in the United States than to U.S. nationals outside the United States. We fully
appreciate that the United States must see to it that foreign nationals in the United
States receive the same treatment that we expect for our citizens overseas. We can-
not have a double standard”.
On its part, the Paraguayan Ministry of External Relations, in an official com-

muniqué of 04.11.1998, took note of the “full recognition” on the part of the U.S.
Government of its breach of the 1963 Vienna Convention, announced that it de-
cided to withdraw its application from the ICJ, and expressed the hope that what
occurred to A.F. Breard did not happen again.72 The issue, however, became a
recurrent one, as the subsequent LaGrand and Avena cases before the ICJ, both
against the United States, were to show. We are thus here before, rather than a
“persistent objector”, a persistent violator of the relevant provisions of the 1963
Vienna Convention on Consultar Relations, which seems to attempt to make one
believe that a simple apology provides sufficient redress for the irreparable dam-
age caused to the individuals at issue.
The aforementioned examples of the contemporary international practice on the
issue converge in disclosing an opinio juris in the line of the views upheld by the
IACtHR in Advisory Opinion n. 16. Even before this latter, there already was an
incipient practice in the region under Article 36(1) of the Vienna Convention
on Consular Relations. Such international practice was confi rmed and enhanced
by that Advisory Opinion, which has decisively contributed to the formation of
an opinio juris communis as to the individual rights crystallized under Article
36(1) of the 1963 Vienna Convention. This development, on its part, reflects the
71 ICJ Reports (1998) p. 258 (resolutory point n. 1).

72 Documents provided by the Paraguayan Ministry of External Relations, on fi le with
the Author.
508 Chapter XXII
ongoing process of humanization of International Law, encompassing relevant

aspects of consular relations.
Contemporary expert writing has acknowledged the decisive contribution
of Advisory Opinion n. 16 of the IACtHR to the gradual jurisdictionalization of
consular protection, bringing it closer to the binding obligations of the Interna-
tional Human Rights Law. While diplomatic protection remains largely discre-
tionary, in the traditional ambit of inter-State relations, consular protection is
brought into the wider framework of human rights protection, in particular in
closer contact with the guarantees of the due process of law.73
In fact, subsequent to its Advisory Opinion n. 16, the IACtHR delivered, on
17 September 2003, its 18th Advisory Opinion, on the Juridical Condition and
Rights of Undocumented Migrants, in which it held that States ought to respect
and ensure respect for human rights, in the light of the general and basic prin-
ciple of equality and non-discrimination, and that any discriminatory treatment
with regard to the protection and exercise of human rights generates the inter-
national responsibility of the States. In the view of the Court, the fundamental
principle of equality and non-discrimination has entered into the domain of jus
cogens.74
The IACtHR sustained that States cannot discriminate or tolerate discrimi-
natory situations to the detriment of migrants, and ought to guarantee the due
process of law to any person, irrespective of her migratory status. This latter can-
not be a justification for depriving a person of the enjoyment and exercise of her
human rights, including labour rights. Undocumented migrant workers have the
same labour rights as the other workers of the State of employment, and this lat-
ter ought to ensure respect for those rights in practice. States cannot subordinate
or condition the observance of the principle of equality before the law and non-
discrimination to the aims of their migratory or other policies.
The IACtHR has thus lately considered the subject at issue into an yet larger
framework, of concern to the international community as a whole.75 At univer-
sal level, likewise, the Declaration and Programme of Action adopted in Dur-
73 Cf., to this effect, E. Decaux, “La protection consulaire et les droits de l’homme”,
in Société française pour le Droit international (SFDI), La protection consulaire
(Journée d’études de Lyon de 2005), Paris, Pédone, 2006, pp. 56-57, 62, 64, 66 and
69-72. – It has also been argued that it is now possible to draw a new distinction
between, on the one hand, direct action and action in representation, and, on the
other hand, diplomatic protection; C. Santulli, “Entre protection diplomatique et
action directe: la représentation – Eléments épars du statut international des sujets
internes”, in SFDI, Le sujet en Droit international (Colloque de Mans, 2004), Paris,
Pédone, 2005, pp. 93-95.
75 On the historical importance of this Advisory Opinion n. 18 (of 2003) of the IAC-
tHR, cf., e.g., L. Ortiz Ahlf, Derecho Internacional Público, 3rd. ed., Mexico, OUP,
2004, pp. 555-557; L. Ortiz Ahlf, De los Migrantes – Los Derechos Humanos de los Re-
fugiados, Asilados, Desplazados e Inmigrantes Irregulares, Mexico, Ed. Porrúa/Uni-
versidad Iberoamericana, 2004, pp. 1-69; S.H. Cleveland, “Legal Status and Rights of
ban, South Africa, in 2001, by the U.N. World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance, were not indifferent to the
protection of migrants. On the contrary, paragraphs 80-81 of the Programme of
Action, e.g., saw it fit expressly to urge States
“to seek full respect for, and compliance with, the Vienna Convention on Consular
Relations of 1963, especially as it relates to the right of foreign nationals, regardless
of their legal and immigration status, to communicate with a consular officer of
their own State in the case of arrest or detention”; and “to prohibit discriminatory
treatment based on race, colour, descent or national or ethnic origin against for-
eigners and migrant workers, inter alia, where appropriate, concerning the granting
of work visas and work permits, housing, health care and access to justice”.
The matter at issue is thus nowadays acknowledged as one of concern to hu-

mankind as a whole, having assumed an increasing relevance in the new jus gen-
tium.
Undocumented Workers – Advisory Opinion OC-18/03 [of the IACtHR]”, 99 Ameri-

can Journal of International Law (2005) pp. 460-465.
Chapter XXIII Basic Considerations of Humanity
in Relation to the Convergences of
Regimes of Protection of the
Human Person
I. The Consolidated Convergences between the Regimes of Protection of

the Human Person
A critical review of classic doctrine concerning the regimes of protection of the
human person reveals that it used to endorse a rather compartmentalized out-
look, – distinguishing the International Law of Human Rights, International
Refugee Law and International Humanitarian Law, – due in great part to an ex-
agerated emphasis in the distinct historical origins of the three regimes of pro-
tection. Perhaps the most notorious distinction lies in the personal domain of
application – the legitimatio ad causam, – as the International Law of Human
Rights has recognized the right of individual petition (of which individuals are
titulaires), which does not find parallels in International Humanitarian Law nor
in International Refugee Law. But this does not exclude the possibility, already
materialized in practice, of the simultaneous application of norms of the three
regimes of protection, or of two of them, precisely because they are essentially
complementary to each other.
Furthermore, they are guided by a basic identity of purpose: the protection
of the human person in all and any circumstances. This is the view which I have
been propounding for years; in fact, international practice provides numerous
examples of simultaneous or concomitant operation of supervisory organs be-
longing to the three regimes of protection of the human person.1 The aforemen-
tioned identity of purpose has led to approximations or convergences in the three
aforemetioned regimes of protection of human beings,2 manifested at normative,
1 A.A. Cançado Trindade, “Derecho Internacional de los Derechos Humanos, Dere-

cho Internacional de los Refugiados y Derecho Internacional Humanitario: Aproxi-
maciones y Convergencias”, in ACNUR, in Diez Años de la Declaración de Cartage-
na sobre Refugiados – Memoria del Coloquio Internacional (San José of Costa Rica,
05-07.12.1994), San José of Costa Rica, UNHCR/IIDH, 1995, pp. 79-80 (hereinafter
referred to as “A.A.C.T., Aproximaciones y Convergencias”).
2 Cf. A.A. Cançado Trindade, “Aproximaciones o Convergencias entre el Derecho In-
ternacional Humanitario y la Protección Internacional de los Derechos Humanos”,
in Seminario Interamericano sobre la Protección de la Persona en Situaciones de
512 Chapter XXIII
hermeneutic and operative levels, which have expanded and strengthened the
means of protection. In this way, the compartmentalized view of the past has
been overcome, and one has evolved towards the interaction between norms and
institutions of the three regimes, to the benefit of the protected human beings.3
It is undeniable that basic considerations of humanity underlie International
Humanitarian Law as well as International Human Rights Law and International
Refugee Law. Successive resolutions adopted by the International Conferences of
the Red Cross, from the end of the sixties (1969) onwards, came expressly to link
the application of the norms of humanitarian law to the respect for human rights.
It is, moreover, widely reckoned the influence of the norms of the international
protection of human rights on the elaboration of the two Additional Protocols
(of 1977) to the Geneva Conventions on International Humanitarian Law of 1949,
of which are eloquent expression the fundamental guarantees set forth in Article
75 of Protocol I and in Articles 4-5 of Protocol II, common to the two regimes at
issue of protection of the rights of the human person.
As from the beginning of the eighties (1981 onwards) until now, the Execu-
tive Committee of the UNHCR Programme, in successive conclusions adopted,
has, in its turn, expressly recognized the direct relationship between the move-
ments and problems of refugees and the norms of human rights, and has widened
its approach so as to encompass not only the intermediate stage of protection
(refuge) but also the “previous” and “subsequent” stages, respectively, of preven-
ción, and of “durable solution” (voluntary repatriation, local integration, resettle-
ment). One has thereby gradually evolved, – as I pointed out over a decade ago
(on the occasion of the tenth anniversary of the Cartagena Declaration on Refu-
gees), – from the application of
“a subjective criterion of qualification of the individuals, according to the reasons

which would have led them to abandon their homes, to an objective criterion centred
rather on the needs of protection”.4
Greater attention has thus come to be devoted to the preventive dimension of the
protection of the human person, which already counted on judicial recognition
in international case-law.5 In Latin America, e.g., the 1984 Declaration of Carta-
gena on Refugees placed the matter in the conceptual universe of human rights:
Emergencia – Memoria (Santa Cruz de la Sierra, Bolivia, June 1995), San José of
Costa Rica, ICRC/UNHCR, 1996, pp. 33-88; C. Swinarski, Principales Nociones e
Institutos del Derecho Internacional Humanitario como Sistema Internacional de
Protección de la Persona Humana, San José of Costa Rica, IIDH, 1990, pp. 83-88; C.
Sepúlveda, Derecho Internacional y Derechos Humanos, México, Comisión Nacional
de Derechos Humanos, 1991, pp. 105-107 and 101-102.
3 Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 80-84.
4 Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 85-90, and cf.
pp. 91-93.
5 Cf. ibid., pp. 93-97.
Basic Considerations of Humanity in Relation to the Convergences of Regimes of Protection of the Human Person 513
the “massive violations” of human rights it referred to came to appear among the
elements constituting the expanded definition of refugees.6 One decade later, the
Declaration of San José [of Costa Rica] on Refugees and Displaced Persons (1994)
emphasized central questions of the epoch which were not so elaborated in the
previous Declaration of Cartagena,7 and, significantly, expressly recognized the
convergences between the regimes of protection of the human person set forth in
the International Law of Refugees, the International Law of Human Rights, and
the International Humanitarian Law, given their complementary character.8
In the same line of thinking, the aforementioned convergences between In-
ternational Refugee Law, the International Law of Human Rights and Interna-
tional Humanitarian Law, also ensue from the document of the International
Conference on Central American Refugees (CIREFCA) titled “Principles and
Criteria for the Protection and Assistance to Central American Refugees, Re-
turnees and Displaced Persons in Latin America” (1989), and, even more clearly,
in the document of evaluation of the application of the provisions of the docu-
ment “Principles and Criteria”, of 1994.
The 1993 Vienna Declaration and Programme of Action, adopted by the II
World Conference on Human Rights, besides acknowledging the evolving con-
tribution of the UNHCR, recognized that massive violations of human rights
(also in armed conflicts) were among the multiple and complex factors that led to
the forced displacement of persons.9 Likewise, in its participation in the same II
World Conference on Human Rights (Vienna, 1993) and in its preparatory work,
the International Committee of the Red Cross (ICRC) pointed out the comple-
mentarity and convergences between Humanitarian Law and human rights.10
At operative level, in the last decades one has witnessed the concomitant
operation, in successive conflicts, of organs of international supervision of hu-
man rights, of the UNHCR and of the ICRC (such as, e.g., in the cases of Haiti
and the former Yugoslavia),11 among others, – on some occasions not without
6 Third conclusion (an expansion in respect of the 1951 Convention on the Status of
Refugees and its 1967 Protocol).
7 Such as, e.g., those of forced displacement; of economic, social and cultural rights;
of sustainable human development; of indigenous populations; of the rights of the
child; of gender; of the right of asylum in its wide dimension.
8 Preamble and third and sixteenth (a) conclusions. Cf. A.A.C.T., Aproximaciones y
Convergencias, op. cit. supra n. (1), pp. 97-98.
10 Ibid., pp. 160-165; and cf. also, e.g., C. Sommaruga, “Os Desafios do Direito Interna-
cional Humanitário na Nova Era”, 79/80 Boletim da Sociedade Brasileira de Direito
Internacional (1992) pp. 7-11.
11 Cf., e.g., A.A. Cançado Trindade, G. Peytrignet and J. Ruiz de Santiago, Las Tres
Vertientes de la Protección Internacional de los Derechos de la Persona Humana,
México, Ed. Porrúa/Univ. Iberoamericana, 2003, pp. 1-169; Y. Daudet and R. Mehdi
(eds.), Les Nations Unies et l’Ex-Yougoslavie (Colloque d’Aix-en-Provence of 1997),
Paris, Pédone, 1998, pp. 165-200.
514 Chapter XXIII
difficulties (such as, e.g., in the cases of Cambodia and Bosnia).12 In the case of
Kosovo (1998-1999), the UNHCR and the ICRC operated with some degree of co-
ordination, amidst much difficulty,13 and bearing also in mind the relevant norms
of human rights. On its turn, the U.N. High Commissioner for Human Rights
has taken into account human rights norms as well as those of Refugee Law and
of Humanitarian Law, in the presences in loco which it has established as from
1996 (in the cases of Colombia, Abjasia-Georgia and the Democratic Republic of
the Congo, among others).14
The Institut de Droit International, in examining, in its Berlin session of
1999, the theme “The Application of International Humanitarian Law and of
Fundamental Human Rights in Armed Conflicts in which Non-State Entities
Take Part”, adopted a resolution in which are taken into account, jointly and in
a converging way, International Humanitarian Law and the International Law of
Human Rights. Both its preamble and Articles II, III, VI, VII, X, XI and XII refer,
expressly and jointly, to human rights and Humanitarian Law.15 The resolution
refers, in its preamble, to the question dealt with as a problem which affects the
interests of the international community as a whole.
II. The Intensified Convergences between the Regimes of Protection of

the Human Person
Expert writing nowadays widely acknowledges the intensification of the conver-
gences between, e.g., International Humanitarian Law and the International Law
of Human Rights in the case-law of the ad hoc International Criminal Tribunals
for the Former Yugoslavia and for Rwanda.16 The intensification of such interac-
tion is particularly illustrated by the recent case-law of the Inter-American and
European Courts of Human Rights, which have taken into account the norms
12 Cf., e.g., U. Palwankar (ed.), Symposium on Humanitarian Action and Peace-keeping

Operations (Geneva, 1994), Geneva, ICRC, [1994], pp. 18-98.
13 Cf. Independent International Commission on Kosovo, The Kosovo Report – Con-
flict, International Response, Lessons Learned, Oxford, University Press, 2000, pp.
77, 142, 201 and 208-209.
14 Cf., e.g., J.L. Gómez del Prado, Operaciones de Mantenimiento de la Paz – Presen-
cias en el Terreno del Alto Comisionado de las Naciones Unidas para los Derechos
Humanos, Bilbao, Universidad de Deusto, 1998, pp. 28-88.
15 Institut de Droit International, L’application du Droit international humanitaire et
des droits fondamentaux de l’homme dans les conflits armés auxquels prennent part
des entités non étatiques (Résolution de Berlin du 25.08.1999), Paris, Pédone, 2003,
pp. 7-12.
16 Cf. S. Zappalà, “Le Droit international humanitaire devant les tribunaux interna-
tionaux des Nations Unies pour l’Ex-Yougoslavie et le Rwanda”, in Les nouvelles
frontières du Droit international humanitaire (ed. J.-F. Flauss), Bruxelles, Bruylant,
2003, p. 91.
of International Humanitarian Law in the interpretation and application of the

American and European Conventions of Human Rights, respectively.17
In the European continent, in face of the fear of an erosion of the right of
asylum,18 one has sought new forms of protection against inhuman or degrading
treatments inflicted on uprooted persons.19 Thus, a case-law has lately developed
under Article 3 of the European Convention of Human Rights extending a pro-
tection against the refoulement which is wider in scope than that provided by
the 1951 Convention on the Status of Refugees.20 In a Colloquy cosponsored by
the UNCHR and the Council of Europe, and held on 02-03 October 1995, it was
pointed out precisely that Article 3 of the European Convention (prohibition of
torture and inhuman or degrading treatment) has been widely utilized by the pe-
titioners to impede the refoulement; likewise, Article 13 of the Convention (right
to an effective remedy) has been invoked by refugees and asylum-seekers. Thus,
as a representative of the UNHCR admitted in the aforementioned event, the
protection of refugees has been transformed into “a scheme” of human rights.21
The norms of International Humanitarian Law and of the International Law
of Human Rights apply simultaneously and concomitantly, and the international
practice in the last decades contains several examples in this sense. Various hu-
manitarian entities have, over the last three years, with regard to the conditions
of detention in the prisons of Guantánamo and Abu Ghraib, protested against
the line of disaggregating argument advanced by the United States (attempting
to dissociate the application of norms of International Human Rights Law and
International Humanitarian Law), and against the abuses that it paves the way
17 Cf. J.-F. Flauss, “Le Droit international humanitaire devant les instances de con-
trôle des Conventions européenne et interaméricaine des droits de l’homme”, in Les
nouvelles frontières du Droit international humanitaire (ed. J.-F. Flauss), Bruxelles,
Bruylant, 2003, pp. 117-133.
18 F. Crépeau, Droit d’asile – De l’hospitalité aux contrôles migratoires, Bruxelles, Bru-
ylant, 1995, pp. 17-353.
19 For a general study, cf. A.A. Cançado Trindade and J. Ruiz de Santiago, La Nueva
Dimensión de las Necesidades de Protección del Ser Humano en el Inicio del Siglo
XXI, 3rd. ed., San José of Costa Rica, UNHCR, 2004, pp. 27-127.
20 H. Lambert, “Protection against Refoulement from Europe: Human Rights Law
Comes to the Rescue”, 48 International and Comparative Law Quarterly (1999) pp.
515-516, and cf. pp. 520, 536 and 538. It has been pointed out, in this respect, that that
case-law has interpreted Article 3 of the European Convention in an unconditional
way, extending a wide protection to those under the threat of expulsion, deportatión
or extradition, and raising the non-refoulement not only to a basic principle of the
International Law of Refugees but also to a peremptory norm of the International
Law of Human Rights; ibid., pp. 516-518 and 544.
21 UNHCR/Council of Europe, The European Convention on Human Rights and the
Protection of Refugees, Asylum-Seekers and Displaced Persons (1995 Strasbourg Col-
loquy), Strasbourg, UNHCR (Regional Bureau for Europe), [1996], pp. 3-5 (interven-
tion by D. McNamara).
516 Chapter XXIII
to.22 This prompt reaction places the matter in the right perspective, revealing
the awareness that nowadays prevails as to the concomitant application of the
relevant norms of International Humanitarian Law and of the International Law
of Human Rights.
In the American continent, the 1984 Declarations of Cartagena on Refugees,
the 1994 San José Declaration on Refugees and Displaced Persons, and the 2004
Mexico Declaration and Plan of Action to Strengthen the International Protec-
tion of Refugees in Latin America, are, each of them, product of a given historical
moment. The first one, the Declaration of Cartagena, was motivated by urgent
needs generated by a concrete crisis (internal displacement) of great proportions;
to the extent that this crisis was being overcome, due in part to that Declaration,
its legacy began to project itself to other regions and subregions of the American
continent.
The second Declaration was adopted amidst a distinct crisis, a more dif-
fuse one, marked by the deterioration of the socio-economic conditions of wide
segments of the population in distinct regions. In sum, Cartagena and San José
were product of their time. The aggiornamento of the Colloquy of San José gave
likewise a special emphasis on the identification of the needs of protection of the
human being in any circumstances.23 There remained no place for the vacatio
legis.24 The 1994 Declaration of San José gave a special emphasis not only on the
whole problem of internal displacement, but also, more widely, on the challenges
presented by the new situations of human uprootedness in Latin America and
the Caribbean, including the forced migratory movements originated by causes
differents from those foreseen in the Declaration of Cartagena.
The 1994 Declaration recognized that the violation of human rights is one
of the causes of forced displacements and that therefore the protection of those
rights and the strengthening of the democratic system constitute the best mea-
sure for the search of durable solutions, as well as for the prevention of conflicts,
the exoduses of refugees and the grave humanitarian crises.25 Recently, at the end
of consultations, with a wide public participation, undertaken at the initiative
22 Cf., e.g., Amnesty International, Memorandum to the United States Government on

the Rights of People in U.S. Custody in Afghanistan and Guantánamo Bay, of April
2002, pp. 1-59; Human Rights Watch, Background Paper on Geneva Conventions
and Persons Held by U.S. Forces, of 29.01.2002, pp. 1-6; International Committee of
the Red Cross, International Humanitarian Law and the Challenges of Contempo-
rary Armed Conflicts – Report (28th International Conference of the Red Cross and
Red Crescent, 02-06.12.2003), Geneva, ICRC, 2003, pp. 3-70.
23 Instead of subjective categorizations of persons (in accordance with the reasons
which led them to abandon their homes), proper of the past, nowadays the objective
criterion of the needs of protection came to be adopted, encompassing thereby a
considerably greater number of persons (including the internally displaced persons)
so vulnerable as the refugees, or even more than these latter.
24 Ibid., pp. 14-15.
25 Ibid., pp. 431-432.
of the UNHCR, the 2004 Mexico Declaration and Plan of Action to Strengthen
the International Protection of Refugees in Latin America was adopted,26 on the
occasion of the twentieth anniversary of the Cartagena Declaration (supra). For
the first time in the present process, a document of the kind was accompanied by
a Plan of Action. This can be explained by the aggravation of the humanitarian
crisis in the region, particularly in the Andean subregion.
As the rapporteur of the Committee of Legal Experts of the UNHCR ob-
served in his presentation of the final report to the Mexico Colloquy, at its first
plenary session, on 15 November 2004, although the moments of the 1984 Carta-
gena Declaration and the 1994 San José Declaration are distinct, their achieve-
ments “cumulate, and constitute today a juridical patrimony” of all the peoples
of the region, disclosing the new trends of the development of the international
safeguard of the rights of the human person in the light of the needs of protec-
tion, and projecting themselves into the future.27 Thus,
“the Declaration of Cartagena faced the great human drama of the armed conflicts
in Central America, but furthermore foresaw the aggravation of the problem of in-
ternally displaced persons. The Declaration of San José, in turn, dwelt deeper upon
the issue of protection of, besides refugees, also of internally displaced persons,
but moreover foresaw the aggravation of the problem of forced migratory fluxes.
Ever since, anachronical compartmentalizations were overcome, proper of a way
of thinking of a past which no longer exists, and one came to recognize the conver-
gences between the three regimes of protection of the rights of the human person,
namely, the International Law of Refugees, International Humanitarian Law and
the International Law of Human Rights. Such convergences – at normative, herme-
neutic and operative levels – were reaffi rmed in all preparatory meetings of the
present Commemorative Colloquy of Mexico City, and have repercussion nowadays
in other parts of the world, in conformity with the more more lucid international
legal doctrine on the matter”.28
Those convergences29 were, not surprisingly, further reflected in the 2004 Mexi-
co Declaration and Plan of Action to Strengthen the International Protection of
26 Cf. text reproduced in: UNHCR, Memoria del Vigésimo Aniversario de la De-
claración de Cartagena sobre los Refugiados (1984-2004), Mexico City/San José of
Costa Rica, UNHCR, 2005, pp. 385-398.
27 Cf. “Presentación por el Dr. A.A. Cançado Trindade del Comité de Consultores Ju-
rídicos del ACNUR” (Mexico City, 15.11.2004), in UNHCR, Memoria del Vigésimo
Aniversario de la Declaración de Cartagena..., op. cit. supra n. (26), pp. 368-369.
28 Ibid., p. 369.
29 Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 77-168; A.A.
Cançado Trindade, “Aproximaciones y Convergencias Revisitadas: Diez Años de
Interacción entre el Derecho Internacional de los Derechos Humanos, el Derecho
Internacional de los Refugiados, y el Derecho Internacional Humanitario (De Carta-
gena/1984 a San José/1994 y México/2004)”, in Memoria del Vigésimo Aniversario de
518 Chapter XXIII
Refugees in Latin America itself. Thus, as the rapporteur of the Committee of

Legal Experts of the UNHCR at last warned at the Mexico Colloquy of November
2004,
“there is no place for the vacatio legis, there is no legal vacuum, and all (...) persons
are under the protection of the Law, in all and any circumstances (also in face of
security measures)”.30
III. The Contemporary Phenomenon of Uprootedness as a Problem

Pertaining to the Rights of the Human Person
Despite the persistence of the problem of internal displacement along mainly the
last two decades, only in the first quarter of 1998 did the former U.N. Commission
on Human Rights succeed at last in adopting, in Vienna, the Guiding Principles
on Internal Displacement,31 aiming at reinforcing and strengthening the already
existing means of protection.32 Those Principles consider altogether the relevant
norms of the International Law of Human Rights, International Humanitarian
Law and International Refugee Law, so as to apply and extend protection to all
persons which stand in need of it, in whatever circumstances, including armed
conflicts and internal disturbances or tensions.33
The basic principle of non-discrimination occupies a central position in the
aforementioned Guiding Principles of 1998,34 which cares to list the same rights,
of internally displaced persons, which other persons in their country enjoy.35
Furthermore, the 1998 Basic Principles determine that displacement cannot take
place in a way that violates the rights to life, to dignity, to freedom and security
of the affected persons;36 they also assert other rights, such as the right to respect
for family life, the right to an adequate standard of living, the right to equality
la Declaración de Cartagena sobre Refugiados (1984-2004), San José of Costa Rica,

UNHCR, 2005, pp. 139-191.
30 Cf. op. cit. supra n. (27), p. 369.
31 Resulting from the Reports by F. Deng; on the emphasis given by those Reports on
the relevance of prevention, cf. F.M. Deng, Internally Displaced Persons (Interim
Report), N.Y., RPG/DHA, 1994, p. 21.
32 To this effect, the proposed new principles apply both to governments and insurgent
groups, at all stages of the displacement.
33 Cf. W. Kalin, Guiding Principles on Internal Displacement – Annotations, Washing-
ton D.C., ASIL/Brookings Institution, [1999], pp. 1-74, and cf. pp. 79-276; and cf. also
C. Ramón Chornet, “Los Refugiados del Nuevo Siglo”, in Los Retos Humanitarios
del Siglo XXI (ed. C. Ramón Chornet), Valencia, PUV/Univ. de Valencia, 2004, pp.
193-195.
34 Principles 1(1), 4(1), 22, 24(1).
35 It affirms, moreover, the prohibition of the “arbitrary displacement” (Principle 6).
36 Principles 8 and following.
before the law, the right to education.37 The basic idea underlying the whole docu-
ment of 1998 is to the effect that the internally displaced persons do not lose their
inherent rights, as a result of displacement, and can invoke the pertinent inter-
national norms of protection to safeguard their rights. In sum, the recognition of
the objective character of the obligations of protection has fostered the converg-
ing interpretation of international instruments of International Humanitarian
Law, International Refugee Law, and the International Law of Human Rights.38
In the Advisory Opinion n. 16 (1999) of the Inter-American Court of Human
Rights, I concluded my Concurring Opinion observing that,
“at this end of century, we have the privilege to witness the process of humaniza-
tion of international law, which today encompasses also this aspect of consular rela-
tions. In the confluence of these latter with human rights, the subjective individual
right39 to information on consular assistance, of which are titulaires all human
beings who are in the need to exercise it, has crystallized: such individual right,
inserted into the conceptual universe of human rights, is nowadays supported by
conventional international law as well as by customary international law” (par. 35).
And, in the Inter-American Court’s Advisory Opinion n. 18 (2003), in my Con-

curring Opinion, I concluded that the Advisory Opinion n. 18, in rescuing “the
universalist vision which marked the origins of the best doctrine of International
Law”, contributes to
“the construction of the new jus gentium of the XXIst century, oriented by the gen-
eral principles of law (among which the fundamental principle of equality and non-
discrimination), characterized by the intangibility of the due process of law in its
wide scope, crystallized in the recognition of jus cogens and instrumentalized by the
37 Principles 17, 18, 20 and 23, respectively.

38 Cf. A.A.C.T., Aproximaciones y Convergencias, op. cit. supra n. (1), pp. 125-128. Cf.,
to the same effect, e.g., R. Cohen and F. Deng, Masses in Flight: The Global Crisis of
Internal Displacement, Washington D.C., Brookings Institution, 1998, ch. III, pp. 75
and 78-85; C. Ramón Chornet, “Los Refugiados del Nuevo Siglo”, in Los Retos Hu-
manitarios del Siglo XXI (ed. C. Ramón Chornet), Valencia, PUV/Univ. de Valencia,
2004, pp. 193-195. – As to the prevention of uprootedness, the antecedent may be
recalled, at the United Nations level, of the system of “early warning”, which ensued
from a proposal, in the early eighties, of the special rapporteur on the question of
human rights and mass exoduses. Subsequently, this theme was related to the ques-
tion of the internally displaced persons; cf. U.N. document E/CN.4/1995/CRP.1, of
30.01.1995, pp. 1-119. All this reveals, ultimately, the importance of the prevalence of
the right to development as a human right, as well as the preventive dimension of
the interrelations of development with human rights; cf., e.g., UNDP, Informe sobre
Desarrollo Humano 2000, Madrid, Ed. Mundi-Prensa, 2000, pp. 1-290.
39 Already by the middle of the century one warned as to the impossibility of evolution
of Law without the subjective individual right, expression of a true “human right”. J.
Dabin, El Derecho Subjetivo, Madrid, Ed. Rev. de Derecho Privado, 1955, p. 64.
520 Chapter XXIII
consequent obligations erga omnes of protection, and erected, ultimately, on the full
respect for, and guarantee of, the rights inherent to the human person” (paragraph
89).
IV. The Character of Jus Cogens of the Principle of Non-Refoulement

Along the last decades, basic principles common to International Refugee Law,
International Humanitarian Law and the Internacional Law of Human Rights
have effectively crystallized, such as, e.g., the principle of equality and non-dis-
crimination, the principle of the inviolability of the human person, the principle
of the inalienability and non-renounceability of the rights of the human person,
the principle of non-refoulement, the principle of the security of the human per-
son. Underlying the consolidation of the principles are the basic considerations
of humanity (emanated from human conscience), of which is eloquent expres-
sion, e.g., the Martens clause.
The relevance and prevalence of the basic principles are clearly illustrated,
e.g., by the universal recognition of the principle of non-refoulement. The first
references to non-refoulement occurred in international practice in the inter-war
period, mainly as from the mid-thirties;40 but it was in the period subsequent to
the II world war that the non-refoulement appeared as a basic principle of Inter-
national Refugee Law, set forth in Article 3 of the 1951 Convention Relating to the
Status of Refugees, and, years later, also in Article II(3) of the 1969 OAU Conven-
tion Governing the Specific Aspects of Refugee Problems in Africa.41
The normative content of the principle of non-refoulement also found ex-
pression in human rights treaties, such as the 1950 European Convention of Hu-
man Rights (Article 3), the 1969 American Convention on Human Rights (Article
22(8)), and, subsequently, and in a categorical way, in the 1984 U.N. Convention
against Torture (Article 3).42 Thus, despite its relatively recent historical develop-
ment, it can be said that already in the years following the end of the Vietnam war
(end of the seventies and beginning of the eighties) the non-refoulement came to
be considered as a principle of customary International Law itself,43 well beyond
the application of treaties of refugee law and of human rights.
The following step was taken by the 1984 Declaration of Cartagena on Refu-
gees, which came to refer the principle of non-refoulement to the domain of jus
40 Cf., e.g., Article 3 of the 1933 Convention Relating to the International Status of
Refugees, which, however, only attained ratifications of eight States.
41 Cf. G.S. Goodwin-Gill, The Refugee in International Law, 2nd. ed., Oxford, Claren-
don Press, 1996, pp. 117-124, and cf. pp. 135 and 167.
42 On its turn, the 1981 African Charter of Human and Peoples’ prefers to focus rather
on the institute of asylum (Article 12(3)).
43 For a recent reiteration of this thesis, on the occasion of the fi ftieth anniversary of
the 1951 Convention Relating to the Status of Refugees, cf. International Institute of
Humanitarian Law, San Remo Declaration on the Principle of Non-Refoulement, San
Remo, IIHL, 2001, pp. 1-2.
cogens itself.44 This characterization has found support also in the contemporary
doctrine on the matter, – which, however, stands in need of greater conceptual
development in this respect (cf. infra). In any case, it is beyond doubt that the
principle of non-refoulement stands as a true cornerstone of the international
protection of refugees as a whole, not admitting any provision to the contrary,
and thus integrating the domain of jus cogens.45
Perhaps it may, further on, be necessary, to recall in our days, the impera-
tive character of non-refoulement, in relation to the norms of both International
Refugee Law and the International Law of Human Rights, – as timely pointed
out by the 1994 Declaration of San José on Refugees and Displaced Persons.46 The
aforementioned 1984 U.N. Convention against Torture sets forth the principle of
non-refoulement essentially to prevent torture, in a context markedly of human
rights. And, in relation to the provision of Article 22(8) of the American Conven-
tion on Human Rights, in my Concurring Opinion in the already mentioned case
of the Haitians and Dominicans of Haitian Origin in the Dominican Republic
(2000) before the Inter-American Court of Human Rights, I sustained that the
fundamental principle of non-refoulement had entered into customary interna-
tional law and also into the domain of jus cogens (par. 7 n. 5).
The aforementioned convergences between International Refugee Law and
the International Law of Human Rights (cf. supra) have had the effect of widen-
ing the normative content of the principle of non-refoulement.47 Identified, in
the framework of the former, as the prohibition of rejection at the frontier, the
principle of non-refoulement came to be also associated, in the framework of the
latter, with the absolute prohibition of torture and cruel, inhuman or degrading
treatment, as evidenced by its setting forth in Article 3 of the 1984 U.N. Conven-
tion against Torture.48
The principle of non-refoulement discloses a preventive dimension, seeking
to avoid the simple risk to be subjected to torture or to cruel, inhuman or degrad-
ing treatment (resulting from an extradition, deportation or expulsion). This is
44 Fifth conclusion.
45 J. Ruiz de Santiago, “El Derecho Internacional de los Refugiados en su Relación con
los Derechos Humanos y en su Evolución Histórica”, in Derecho Internacional de los
Refugiados (ed. J. Irigoin), Santiago de Chile, Universidad de Chile, 1993, p. 67.
46 Sixteenth conclusion, letter (a).
47 On its turn, the 1969 OAU Convention Governing the Specific Aspects of Refugee
Problems in Africa dedicates particular attention, e.g., to the conditions of volun-
tary repatriation (Article 5, pars. 1-5), and is categorical in affi rming that “no refugee
shall be repatriated against his will” (par. 1). In the provision on the right of asylum
(Article 2), it likewise prohibits the rejection at the frontier, the return or the expul-
sion (par. 3).
48 W. Suntinger, “The Principle of Non-Refoulement: Looking Rather to Geneva than
to Strasbourg?”, 49 Austrian Journal of Public and International Law (1995) pp. 203-
208; G.S. Goodwin-Gill, “The International Protection of Refugees: What Future?”,
12 International Journal of Refugee Law (2000) pp. 2-3.
522 Chapter XXIII
what ensues from recent international case-law, at both regional and global levels.
This is illustrated, e.g., in so far as extradition in concerned, by the Judgment of
the European Court of Human Rights in the Soering versus United Kingdom case
(1989), in which the non-refoulement is inferred under Article 3 of the European
Convention of Human Rights.49 The same principle enunciated by the European
Court in the Soering case, in opposition to extradition on the basis of Article 3 of
the European Convention, was reaffirmed by the same Court in the Vilvarajah
versus United Kingdom case (1991), in which it sustained that the prohibition of ill
treatment under Article 3 of the European Convention is absolute and is equally
applied in cases of expulsion.50 The inference of the non-refoulement referred to
occurs, thus, in the matter of extradition, as well as deportation, and of expul-
sion, under Article 3 of the European Convention (cf. supra).
One can proceed likewise under provisions on other protected rights, such
as, e.g., the right to private and family life under Article 8 of the European Con-
vention. Issues raised in some recent cases under the European Convention
disclose that Article 8 can effectively be invoked to protect migrants of second
generation, for example, against deportation or expulsion, on the basis of their
family and social links and on their fi rmly established roots in the country of
residence.51
The preventive dimension of the principle of non-refoulement, in matter of
expulsion is also exemplified, e.g., by the already mentioned Mutombo versus
Switzerland case (1994): the U.N. Committee against Torture52 concluded that
the expulsion, (or forced return) of the petitioner by Switzerland to Zaire would
constitute a violation of Article 3 of the U.N. Convention against Torture, as
there was in that country a “consistent pattern” of grave and massive violations
of human rights.53 In the same line of reasoning, the Human Rights Committee
(under the U.N. Covenant on Civil and Political Rights) has likewise considered
successive cases of the possibility of threat of extradition in the light of the preva-
49 Also the Human Rights Committee, under the U.N. Covenant on Civil and Politi-
cal Rights, besides having affi rmed the principle of non-refoulement in its “general
comments” n. 7/16 (1982) and 20/44 (1992), has, in its practice, dwelt upon the matter
in cases pertaining to extradition (of persons running the risk of the death penalty);
cit. in W. Suntinger, op. cit. supra n. (48), pp. 205, 208 and 214.
50 Cf. N. Mole, Problems Raised by Certain Aspects of the Present Situation of Refu-
gees from the Standpoint of the European Convention on Human Rights, Strasbourg,
Council of Europe (Human Rights Files n. 9 rev.), 1997, pp. 10, 16 and 18.
51 Cf., e.g., the cases Moustaquim versus Belgium (1991), Beldjoudi versus France (1992),
Djeroud versus France (1991), and Lamguindaz versus United Kingdom (1992-1993),
cit. in: R. Cholewinski, “Strasbourg’s ‘Hidden Agenda’?: The Protection of Second-
Generation Migrants from Expulsion under Article 8 of the European Convention
on Human Rights”, 3 Netherlands Quarterly of Human Rights (1994) pp. 287-288,
292-294 and 297-299.
52 Under the aforementioned 1984 U.N. Convention against Torture.
53 Cit. in W. Suntinger, op. cit. supra n. (48), pp. 210, 217 and 221-222.
lence of the protected human rights, in the undestanding that the prohibition of
ill-treatment and torture (even if probable or potential, in the requesting State) is
endowed with the character of jus cogens.54
Certain basic principles, such as that of non-refoulement, form, thus, an irre-
ducible minimum of the protection of the rights of the human person, and have,
also, a projection in the domestic law of the States.55 In fact, the ambit of applica-
tion of the principle of non-refoulement has expanded, both ratione personae and
ratione materiae, mainly as from the eighties, under human rights treaties, to the
benefit of, besides the refugees, the foreigners in general, and, ultimately, of every
and any individual, in cases of extradition, expulsion, deportation or devolution,
towards a State in which he may be at risk of being submitted to torture or cruel,
inhuman or degrading treatment (the preventive dimension).56
Considering that a true international regime of absolute prohibition of tor-
ture, forced disappearances of persons, and summary, extra-legal and arbitrary
executions has already been conformed in our days,57 and that the principle of
non-refoulement, with the contribution which has been given to it by the Inter-
national Law of Human Rights, purports precisely to avoid the simple risk of
subjecting someone to torture (and to cruel, inhuman or degrading treatment),
the prohibition of which is absolute, – it is, in my view, beyond doubt that the
principle of non-refoulement falls under the domain of jus cogens.
The character of jus cogens of non-refoulement places this latter above politi-
cal considerations both of States and of political organs of international organi-
zations;58 in this way, it also calls the attention to the importance of the access
of the individuals to justice at international level.59 The acknowledgement of this
fundamental principle of International Refugee Law, that of non-refoulement,
confirmed and expanded by the International Law of Human Rights, as being
54 F. Pocar, “Patto Internazionale sui Diritti Civili e Politici ed Estradizione”, in Diritti

dell’Uomo, Estradizione ed Espulsione – Atti del Convegno di Ferrara per Salutare
G. Battaglini (ed. F. Salerno), Padova/Milano, CEDAM, 2003, pp. 79-95.
55 In Switzerland, e.g., the “peremptory character of the prohibition of the refoulement”
(as from an initiative of the Swiss Federal Council of 1994) is nowadays recognized;
the 1999 revised Swiss Federal Constitution clarifies that no constitutional amend-
ment can enter into conflict with norms of jus cogens; E. de Wet, “The Prohibition
of Torture as an International Norm of Jus Cogens and Its Implications for National
and Customary Law”, 15 European Journal of International Law (2004) pp. 101-102.
56 H. Fourteau, L’application de l’article 3 de la Convention européenne des droits de
l’homme dans le droit interne des États membres, Paris, LGDJ, 1996, pp. 211-212, 214,
219-220 and 227.
58 J. Allain, “The Jus Cogens Nature of Non-Refoulement”, 13 International Journal of
Refugee Law (2002) n. 4, pp. 538-558.
59 Cf., on this point, A.A. Cançado Trindade, El Acceso Directo del Individuo a los
Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de Deusto,
2001, pp. 9-104.
524 Chapter XXIII
of jus cogens, brings about, undoubtedly, a limitation to State sovereignty (in the
matter of extradition, deportation, and expulsion), in favour of the integrity and
the well-being of the human person. It corresponds, moreover, in my understand-
ing, to an unequivocal manifestation of the increasingly anthropocentric outlook
of contemporary International Law.
In addition, as I saw it fit to observe, in my Separate Opinion in the Las
Palmeras case (Preliminary Objections, 2000), concerning Colombia, before the
Inter-American Court of Human Rights, –
“(...) the International Law of Human Rights nowadays provides us with the ele-
ments for the consolidation of the opposability of obligations of protection to all the
States Parties to human rights treaties (obligations erga omnes partes). Thus, several
treaties, of human rights60 as well as of International Humanitarian Law,61 provide
for the general obligation of the States Parties to guarantee the exercise of the rights
set forth therein and their observance. As correctly pointed out by the Institut de
Droit International, in a resolution adopted at the session of Santiago of Compostela
of 1989, such obligation is applicable erga omnes, as each State has a legal interest in
the safeguard of human rights (Article 1).62 Thus, parallel to the obligation of all the
States Parties to the American Convention [on Human Rights] to protect the rights
enshrined therein and to guarantee their free and full exercise to all the individuals
under their respective jurisdictions, there exists the obligation of the States Parties
inter se to secure the integrity and effectiveness of the Convention: this general duty
of protection (the collective guarantee) is of direct interest of each State Party, and
of all of them jointly (obligation erga omnes partes). And this is valid in times of
peace63 as well as of armed conflict” 64 (pars. 11-12).
60 Cf., e.g., American Convention on Human Rights, Article 1(1); United Nations Cov-
enant on Civil and Political Righs, Article 2(1); United Nations Convention on the
Rights of the Child, Article 2(1).
61 Article 1 common to the four Geneva Conventions on International Humanitarian
Law of 1949, and Article 1 of the Additional Protocol I of 1977 to the Geneva Conven-
tions of 1949.
62 Cf. I.D.I., 63 Annuaire de l’Institut de Droit International (1989)-II, pp. 286 and 288-
289.
63 As to the general duty of guarantee of the exercise of the protected human rights, cf.
the arguments of Ireland before the European Court of Human Rights (ECtHR), in
the Ireland versus United Kingdom case, in: ECtHR, Ireland versus United Kingdom
case (1976-1978), Pleadings, Oral Arguments and Documents, Strasbourg, 1981, vol.
23-II, pp. 21-23 and 27, and vol. 23-III, pp. 17-19 and 21-26.
64 Thus, a State Party to the Geneva Conventions of 1949 and its Additional Protocol
I of 1977, even if it is not involved in a given armed conflict, is entitled to demand
from the other States Parties – which are so involved – compliance with the con-
ventional obligations of a humanitarian character; L. Condorelli and L. Boisson de
Chazournes, “Quelques remarques à propos de l’obligation des États de ‘respect-
er et faire respecter’ le droit international humanitaire ‘en toutes circonstances’”,
in Études et essais sur le droit international humanitaire et sur les principes de la
Recent developments in the international protection of the human person, in
times both of peace and of armed conflict, stress the general obligation of due
dilligence on the part of the State, constituted by its legal duties to take positive
measures to prevent, investigate and punish violations of human rights, what
in turn stresses and brings to the fore the debate on the protection erga omnes
of certain rights and the question of the Drittwirkung, of their applicability in
relation to third parties. The new dimension of the law of protection of the hu-
man being, endowed recognizedly with a specificity of its own, is being erected
jurisprudentially on the twofold duties to ‘respect’ and to ‘ensure respect’, in all
circumstances, for treaties of International Humanitarian Law and the Interna-
tional Law of Human Rights.
In the present domain of the law of protection, International Law has been
made use of in order to improve and strengthen, never to restrict or weaken, the
degree of protection of the recognized human rights, at normative as well as
procedural levels. The recognition, also judicial, of the wide extent and dimen-
sion of conventional obligations of international protection of the human person
secures the continuity of the process of expansion of the law of protection. As I
asserted over a decade ago,
“The approximations or convergences between the complementary regimes of pro-

tection, between International Humanitarian Law, International Refugee Law, and
the International Law of Human Rights, dictated by the necessities themselves of
protection and manifested at normative, hermeneutic and operative levels, contrib-
ute to the search for effective solutions to current problems in this domain, and to
the improvement and strengthening of the international protection of the human
person in any situations or circumstances. It is necessary to keep on advancing de-
cidedly in this direction”.65
Along the last decade, one has fortunately and effectively advanced in this direc-
tion, and it is necessary to keep on so advancing in the years to come. The current
challenges to the protection of the rights of the human person disclose the press-
ing need to take into account, simultaneous by or concomitantly, the norms of the
International Law of Human Rights, of International Humanitarian Law and of
International Refugee Law, so as to fulfi l effectively the new needs of protection.66
The Global Consultations on International Protection, undertaken by the UN-
HCR, in the form of a Regional Meeting of Experts which took place in San José
of Costa Rica in 2001, at the headquarters of the Inter-American Court of Human
Croix-Rouge en l’honneur de Jean Pictet (ed. C. Swinarski), Genève/La Haye, CICR/

Nijhoff, 1984, pp. 29 and 32-33.
66 Cf., e.g., H. Fischer and J. Oraá, Derecho Internacional y Ayuda Humanitaria, Bil-
bao, Universidad de Deusto, 2000, pp. 28-29, 41-55, 61-65 and 81-83.
526 Chapter XXIII
Rights, during my Presidency of that international Tribunal, concluded inter alia

that, in order to face certain rectrictive tendencies to asylum, “the converging ap-
plication of the three International Law regimes for the protection of the persons,
namely, the International Law of Human Rights, International Humanitarian Law
and International Refugee Law” was required (recommendation 2(XVI)).
At universal level, on has nowadays a wide series of resolutions of the U.N.
General Assembly which deal with problems pertaining to human rights and the
rights of refugees from an essentially converging outlook.67 The beneficial effects
of the interactions between the International Law of Human Rights, Internation-
al Refugee Law and International Humanitarian Law for the effective protection
of the rights of the human person should be properly stressed. Thus, e.g., the con-
solidation of a true international legal regime of absolute prohibition of torture
in the domain of the International Law of Human Rights results nowadays ben-
eficial also for refugees, as the protection against torture and cruel, inhuman or
degrading treatment which is extended to them by certain human rights treaties
is particularly wide, thus achieving in this respect a safeguard of greater scope
that would be possible in the framework of International Refugee Law.68
The practice of the international supervisory organs of human rights is par-
ticularly illustrative, in reinforcing the prohibition of devolution. One may recall,
in this respect, besides the aforementioned examples, for instance, the practice
of the U.N. Committee against Torture, in application of Article 3 of the 1984
U.N. Convention against Torture, about precisely the scope of the principle of
non-refoulement.69 This development is illustrative of the intensification of the
converging interrelations between the regimes of protection of the rights of the
human person, maximizing the protection at normative, hermeneutic and opera-
tive levels.
By the time of the twentieth anniversary of the adoption of the Declaration
of Cartagena, the advances in the work of protection have been accompanied
by the worsening of the situation of vulnerability which today affects those who
integrate the great forced migratory fluxes of our times. There arise, thus, new
67 Cf. the following resolutions of the U.N. General Assembly: resolutions 34/60, of
29.11.1979; 36/148, of 16.12.1981; 37/186, of 17.12.1982; 38/103, of 16.12.1983; 39/117, of
14.12.1984; 40/149, of 13.12.1985; 41/148, of 04.12.1986; 42/144, of 07.12.1987; 43/117,
of 08.12.1988; 43/154, of 1988; 44/137, of 15.12.1989; 44/164, of 15.12.1989; 45/140, of
14.12.1990; 45/153, of 18.12.1990; 46/106, of 16.12.1991; 46/127, of 17.12.1991; 47/105, of
16.12.1992; 48/116, of 20.12.1993; 48/135, of 20.12.1993; 48/139, of 20.12.1993; 49/169,
of 23.12.1994; 50/152, of 21.12.1995; 50/182, of 22.12.1995; 51/70, of 12.12.1996; 51/71, of
12.12.1996; 51/75, of 12.12.1996; 52/103, of 12.12.1997; 52/132, of 12.12.1997; 53/123, of
09.12.1998; 53/125, of 09.12.1998; 54/147, of 17.12.1999; 54/180, of 17.12.1999; 55/77, of
04.12.2000; 56/13, of 19.12.2001; 56/166, of 19.12.2001; and 57/206, of 18.12.2002.
68 J.-F. Flauss, “Les droits de l’homme et la Convention de Genève du 28 juillet 1951
relative au Statut des Réfugiés”, in La Convention de Genève du 28 juillet 1951 relative
au Statut des Réfugiés 50 ans après: bilan et perspectives (ed. V. Chetail), Bruxelles,
Bruylant, 2001, p. 117.
69 Ibid., pp. 118 and 123.
demands of protection of the human being.70 Regrettably, economic progress and

the “liberalization” of labour have never succeeded to put an end to new contem-
porary forms of exploitation of man by man; nowadays, undocumented migrants
run the risk of finding themselves in extremely adverse conditions of labour and
living. The current closing of frontiers in many countries can, unfortunately, per-
petuate and aggravate the contemporary forms of labour exploitation; nor has
the scientific-technological progress succeeded to liberate human beings from
ill-treating each other. Those victimized count only on a defense against this
form of exploitation of the human being: that of the Law.
International Refugee Law was built, as from the mid-XXth century, in the
light of an outlook of a world divided into sovereign and self-sufficient territorial
States. Three decades later, the phenomenon of displacement came to challenge
that outlook, which became anachronistic. Internal conflict, in different latitudes,
began to require a reassessment and updating of the corpus juris of International
Refugee Law, centered no longer on frontier restrictions by States, but rather on
an objective situation of the vulnerability of the human beings, irrespective of
their being in conformity or not with the frontier restrictions by States.
More recently, in the nineties, the phenomenon of even greater dimensions,
of human uprootedness, victimizing millions of human beings all over the world,
has stressed even more this tendency, centering an increasingly greater attention
on the needs of protection, independently of the frontiers of States. There can
be no steps backwards herein. The standards set forth in international instru-
ments of protection can only, and ought to, be raised, – as I sustained in a legal
opinion which I prepared for the Council of Europe in 1995 with regard to the
co-existence of the European Convention of Human Rights and the Minsk Con-
vention of Human Rights of the Community of Independent States (CIS, 1995).71
Any steps backwards or the simple stagnation of the international standards of
protection would be, in my view, unjustifiable and inadmissible.
At last, it is significant that, throughout the whole preparatory process of
consultations72 which led to the adoption, by the UNHCR Mexico Colloquy of
November 2004, of the Mexico Declaration and Plan of Action to Strengthen
70 Cf. A. Roberts, “El Papel de las Cuestiones Humanitarias en la Política Internac-

ional en los Años Noventa”, in Los Desafíos de la Acción Humanitaria – Un Balance,
Barcelona, Icaria/Antrazyt, 1999, pp. 31-70; J. Abrisketa, “El Derecho a la Asistencia
Humanitaria: Fundamentación y Límites”, in ibid., pp. 71-100; X. Etzeberría, “Marco
Ético de la Acción Humanitaria”, in ibid., pp. 101-127.
71 Cf. A.A. Cançado Trindade, “Analysis of the Legal Implications for States that In-
tend to Ratify both the European Convention on Human Rights and Its Protocols
and the Convention on Human Rights of the Commonwealth of Independent States
(CIS)”, 17 Human Rights Law Journal (1996) pp. 164-180 (also available in French,
Spanish, German and Russian).
72 The preparatory process was composed of three subregional meetings, namely,
those of San José of Costa Rica (12-13.08.2004), of Brasília (26-27.08.2004) and of
Cartagena of Indias (16-17.09.2004), preceeded by the meeting of legal advisers of
the UNHCR (held in Brasilia, on 27-28.03.2004); I had the occasion to participate
528 Chapter XXIII
the International Protection of Refugees in Latin America, some achievements

of the human conscience in the domain of the present law of protection of the
human person were reiterated. Along that preparatory process and in that Col-
loquy itself there was a reassuring recognition of three points which appear of
fundamental importance in our days, namely: first, the convergences between
the three regimes of international protection of the rights of the human person
(the International Law of Human Rights, International Refugee Law, and Inter-
national Humanitarian Law); second, the central role and the high relevance of
the general principles of law; and third, the character of jus cogens of the basic
principle of non-refoulement as a true pillar of International Refugee Law as a
whole.
This means that, despite the new challenges and some worrisome steps
backwards in our days (as, e.g., forced migrations and uprootedness, restrictive
and abusive migratory policies, the closing of frontiers and xenophobia), human
conscience keeps on moving Law ahead, as its ultimate material source. Thus,
despite the incongruities of the practice of States in our times, the opinio juris
communis keeps on enlightening the path to follow, which cannot be other than
that of the prevalence of the fundamental rights of the human person in all and
any circumstances and of the consolidation of the obligations erga omnes of pro-
tection. This implies, ultimately, the primacy of the raison d’humanité over the
old raison d’État.
in all those meetings, and to preside the fi rst two subregional preparatory meetings
(those of San José of Costa Rica and of Brasília, of August 2004).
Part VII
Settlement of Disputes
Chapter XXIV Peaceful Settlement of
International Disputes:
Current State and Perspectives
I. Introduction: The Basic Problem of Compulsory Jurisdiction

The fundamental problem underlying the whole chapter of International Law
concerning peaceful settlement of international disputes remains the vexata
quaestio of compulsory jurisdiction, largely unresolved from the days of the two
Hague Peace Conferences (1899 and 1907) to date. For if, on the one hand, the
U.N. Charter provides for the general principle of the duty of member States of
peaceful settlement of disputes which may put at risk international peace,1 on
the other hand, that duty coexists with the prerrogative of the choice left to the
contending parties (members or not of the United Nations) of adoption of one of
the methods of peaceful settlement of disputes (within and outside the United
Nations).2
Such ineluctable and persistent ambivalence has had a repercussion in the
application of international instruments. Traditional international legal doctrine
has been, somewhat surprisingly, generally conniving with permissiveness (as
to choice of methods). Dispute settlement has thus remained particularly vul-
nerable to manifestations of State voluntarism, thereby resisting attempts of
codification or systematization.3 Yet, multiple instruments of dispute settlement
1 A general principle which is incorporated in mandatory terms in the U.N. Charter

– Article 2(3) – and restated in resolution 2625 (XXV) of 1970 of the U.N. General
Assembly on Principles of International Law Governing Friendly Relations and Co-
operation among States; cf. David Davies Memorial Institute of International Stud-
ies, International Disputes: the Legal Aspects (Report of a Study Group), London,
Europa Publs., 1972, pp. 8-14.
2 F.S. Northedge and M.D. Donelan, International Disputes: the Political Aspects,
London, Europa Publs., 1971, p. 241.
3 Thus, it has on occasions been relegated to jurisdictional clauses appearing in Op-
tional Protocols, rather than in the codification Conventions themselves. For a criti-
cism, cf. H.W. Briggs, “The Optional Protocols of Geneva (1958) and Vienna (1961,
1963) Concerning the Compulsory Settlement of Disputes”, Recueil d’études de Droit
international en hommage à P. Guggenheim, Genève, IUHEI, 1968, pp. 628-641; and
cf. S. Rosenne, “The Settlement of Treaty Disputes under the Vienna Convention of
1969”, 31 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1971) pp.
532 Chapter XXIV
have been devised and applied in the last decades amidst an apparently growing
awareness of the need to give greater weight to the general principle of the duty of
peaceful settlement, so as to make it prevail over the prerrogative (of free choice
of means) left to the contending parties.
In the years following the two Hague Peace Conferences (of 1899 and 1907),
and along the XXth century, there were successive endeavours to render widely
obligatory the peaceful settlement of international disputes (cf. infra). In the ab-
sence, in most cases, of a strict obligation of submitting pending disputes specifi-
cally to compulsory jurisdiction, the option left to the parties to choose among
distinct and at times indecisive (political) methods of settlement, resulted, “in a
substantial proportion of cases, in a stalemate rather than a settlement”.4 How-
ever, keeping in mind this caveat as to the absence of a guarantee of compulsory
settlement, it does not ensue therefrom that the way would be entirely open to
State voluntarism in the present domain of International Law.
It is certain that the procedures of the U.N. Security Council5 are supple-
mentary to the traditional methods of peaceful settlement of disputes (men-
tioned in Article 33(1) of the U.N. Charter),6 but it does not result therefrom that
the question at issue would be wholly under the control of the “will” of the States:
in fact, the consent of the contending parties is not necessary for a dispute to be
taken before the Security Council or the General Assembly, nor for the Security
Council to exert its investigatory powers;7 the Council can act on its own initia-
tive, upon request of any member State of the U.N., or as a result of the initiative
of the Secretary General.8 And even if one of the parties refuses to appear before
the Council, this latter can examine the situation at the request of a member
State, of the General Assembly or the Secretary General.
Closely linked to the basic issue of compulsory jurisdiction is the question
of the efficacy of the specific methods of peaceful settlement of international dis-
1-62; R.J. Dupuy, “Codification et règlement des différends – Les débats de Vienne
sur les procédures de règlement”, 15 Annuaire français de droit international [AFDI]
(1969) pp. 70-90.
4 C.W. Jenks, The World beyond the Charter, London, Allen & Unwin, 1969, p. 165,
and cf. p. 166. – Likewise, Witenberg used to warn that “seuls sont justiciables les
États qui auront accepté de l’être. L’État ne sera justiciable que dans la mesure où il
aura accepté de l’être”; J.C. Witenberg, L’organisation judiciaire, la procédure et la
sentence internationales – traité pratique, Paris, Pédone, 1937, p. 3.
5 Chapter VI of the U.N. Charter.
6 D.W. Bowett, “The United Nations and Peaceful Settlement”, in International Dis-
putes: the Legal Aspects, London, Europa Publs., 1972, pp. 179-180, and cf. pp. 180 and
183-196.
7 Under Article 34; D. Davies Memorial Institute, International Disputes: the Legal
Aspects, op. cit. supra n. (1), pp. 8-14.
8 Articles 34, 35 and 99, respectively. J. Stone, Legal Controls of International Conflict,
N.Y., Rinehart & Co. Publ., 1954, pp. 187 and 193-194.
Peaceful Settlement of International Disputes: Current State and Perspectives 533
putes.9 There remain difficulties to extract generalized or definitive conclusions

as to such efficacy. For example, international practice of direct negotiation, al-
though vast, has not always been conducive to clearly concluding results, and
does not seem to allow for generalizations. In Latin America, for example, while
direct negotiations proved successful, for example, between Argentina and Uru-
guay over the river Plate and its maritime front, and between Brazil and Argen-
tina over the use of waters of the river Paraná, and between the United States and
Panamá over the regime of the Canal, – there have also been also cases in which
negotiations, extended for many years, have not produced entirely satisfactory
results, such as, e.g., the frontier dispute between Venezuela and Guyana, and the
controversies between Venezuela and Colombia as to maritime delimitation.10
II. Interaction or Complementarity of Means of Peaceful Settlement

A more fertile ground for research seems to be provided by the interaction or
complementarity of means of peaceful settlement, as often illustrated, along the
years, by, e.g., inter alia, at regional level, the dispute between Chile and Argen-
tina concerning the Beagle Channel (which was object, since 1977, of an arbi-
tral award, of attempts of negociation and mediation), and the territorial dispute
between Algeria and Morocco (shortly after the independence of the former, in
1962), when Syria and Ethiopia offered mediation, until an arbitral commission
of the OAU intervened.11 Or else, at U.N. level, by the case of Cyprus, wherein the
U.N. not only exerted the function of peace-keeping but also acted as initiator
of diplomatic exchanges.12 Article 33(1) of the U.N. Charter, whereby the con-
tending parties ought to seek a solution by the traditional methods (inter alia,
negociation, conciliation, good offices, mediation), does not appear to have been
9 For an assessment, cf., e.g., M.D. Donelan and M.J. Grieve, International Disputes:
Case Histories 1945-1970, London, Europa Publs., 1973, pp. 13-279; C.G. Teng and
K.L. Hancock, Synopses of United Nations Cases in the Field of Peace and Security
1946-1965, N.Y., Carnegie Endowment for International Peace, 1966, pp. 1-76; L.B.
Sohn, Cases on United Nations Law, 2nd. rev. ed., Brooklyn, Foundation Press, 1967,
ch. VI, pp. 291-862.
10 On the negotiations in the aforementioned cases, cf., e.g., H. Gros Espiell, “Le traité
relatif au ‘Rio de la Plata’ et sa façade maritime”, 21 AFDI (1975) pp. 241-249; Pr.R.Y.
Chuang, “The Process and Politics of the Ratification of the Panama Canal Treaties
in the United States”, 56 Revue de droit international de sciences diplomatiques et
politiques (1978) pp. 95-113; J. Dutheil de la Rochère, “L’affaire du Canal de Beagle”,
23 AFDI (1977) pp. 408-435; P. Gilhodes, “Le confl it entre la Colombie et le Ven-
ezuela: quelques arpents d’eau salée?”, 21 Revue française de science politique (1971)
pp. 1272-1289.
11 M.D. Donelan and M.J. Grieve, op. cit. supra n. (9), pp. 145-146.
12 Cf. V. Pechota, Complementary Structures of Third-Party Settlement of Internation-
al Disputes, N.Y., UNITAR, 1971, p. 10.
534 Chapter XXIV
interpreted as requiring that all methods referred to therein ought necessarily to

be exhausted before resorting to the Security Council.13
The complementarity of methods of peaceful settlement of disputes has met
with judicial recognition. Thus, in the Nicaragua versus United States case (Ju-
risdiction and Admissibility, 1984), the International Court of Justice [ICJ] pon-
dered that
“even the existence of active negotiations in which both parties might be involved
should not prevent both the Security Council and the Court from exercising their
separate functions under the Charter and the Statute of the Court (...). In the light
of the foregoing, the Court is unable to accept either that there is any requirement
of prior exhaustion of regional negotiating processes as a precondition to seising
the Court; or that the existence of the Contadora process constitutes in this case an
obstacle to the examination by the Court of the Nicaraguan application and judicial
determination in due course of the submissions of the Parties in the case. The Court
is therefore unable to declare the application inadmissible, as requested by the Unit-
ed States, on any of the grounds it has advanced as requiring such a finding”.14
The ICJ further recalled its dictum in the Aegean Sea Continental Shelf case
(1978), to the effect that its own jurisprudence “provides various examples of cas-
es in which negotiations and recourse to judicial settlement have been pursued
pari passu”.15 Subsequently, in the case of the Land and Maritime Boundary be-
tween Cameroon and Nigeria (Preliminary Objections, 1998), the ICJ reiterated
its understanding to the effect that
“Neither in the [U.N.] Charter nor otherwise in International Law is any general rule
to be found to the effect that the exhaustion of diplomatic negotiations constitutes
a precondition for a matter to be referred to the Court. No such precondition was
embodied in the Statute of the Permanent Court of International Justice (...)”.16
Still at global level, it is significant that the 1982 U.N. Convention on the Law
of the Sea foresees the operation of distinct methods of settlement of disputes
in matters of the Law of the Sea, such as conciliation and judicial and arbitral
settlement (cf. infra). And, at regional level, in the African continent, it is like-
wise significant that to the Charter of the [then] Organization of African Unity
[OAU] was annexed a Protocol creating a Permanent Commission on Mediation,
13 D. Davies Memorial Institute, International Disputes: the Legal Aspects, op. cit.
supra n. (1), p. 14; on referral of conflicts to other organs, cf., e.g., E. Jiménez de
Aréchaga, “La coordination des systèmes de l’ONU et de l’OEA pour le règlement
pacifique des différends et la sécurité collective”, 111 Recueil des Cours de l’Académie
de Droit International de La Haye [RCADI] (1964) pp. 426-452.
14 ICJ Reports (1984) pp. 440-441, pars. 106 and 108.
15 Cit. in ibid., p. 440, par. 106.
16 ICJ Reports (1998) p. 303, par. 56.
Conciliation and Arbitration (three methods of peaceful settlement)17, which was

to coexist with ad hoc committees subsidiary to the main organs of the former
OAU (nowadays African Union), for peaceful settlement (diplomatic means) of
international disputes in Africa.18
In international practice on dispute settlement, the methods of fact-finding
and conciliation have not seldom been combined, in several treaties providing for
the appointment of “commissions of fact-finding and conciliation”; likewise, sev-
eral international agreements have stipulated that only after a recourse in vain to
a commission of conciliation will a case be submitted to an arbitral tribunal, thus
establishing a “close link” between those two procedures.19 In sum, such methods
of dispute settlement, instead of mutually excluding each other, appear comple-
mentary to each other and have not seldom interacted in practice.
In the inter-State diplomatic contentieux, negotiation has often been “com-
plemented” by recourse to other methods of peaceful settlement,20 either fol-
lowing judicial settlement (as in the North Sea Continental Shelf case, 1969), or
else preceding recourse to such other methods of settlement (when negotiations
come to a standstill). Negotiations – or else consultations – are referred to in cer-
tain treaties sometimes as a preliminary to recourse to other methods of peace-
ful settlement.21 But when negotiations fail, the situation at issue may aggravate,
and lead to severance of relations between the parties concerned, as illustrated,
inter alia, by the Hostages case, the contentieux between the United States and
Iran following the seizure of the U.S. Embassy in Tehran in 1979.22
Hence the importance of complementarity between negotiation and other
methods of peaceful settlement. As aptly pointed out, more than once, by the
ICJ,23 there is no requisite in International Law whereby a State would be bound
to “exhaust” negotiations before having recourse to other means of peaceful
settlement. But if negotiations have not prospered, there would be all the more
17 Composed of 21 members elected by the Assembly of Heads of State and Govern-

ment; cf. T.O. Elias, “The Commission of Mediation, Conciliation and Arbitration
of the Organization of African Unity”, 40 British Year Book of International Law
[BYBIL] (1964) pp. 336-348; D.W. Bowett, The Law of International Institutions, 2nd.
ed., London, Stevens, 1970, pp. 280-282.
18 Cf. infra, as to the practice.
19 L.B. Sohn, “The Function of International Arbitration Today”, 108 Recueil des Cours
de l’Académie de Droit International [RCADI] (1963) pp. 18-19.
20 Cf., for examples, e.g., H.G. Darwin, “Methods of Peaceful Settlement – Negotia-
tion”, in International Disputes: the Legal Aspects, London, Europa Publs., 1972, p.
81.
21 Cf. J. Collier and V. Lowe, The Settlement of Disputes in International Law – Institu-
tions and Procedures, Oxford, University Press, 2000, p. 21.
22 Cf. J.G. Merrills, International Dispute Settlement, 3rd. ed., Cambridge, University
Press, 1998, pp. 22-23.
23 E.g., in the Nicaragua versus United States case, 1984, and in the case concerning
Land and Maritime Boundary between Cameroon and Nigeria, 1998 (supra).
536 Chapter XXIV
reason for resorting to other methods, this possibility being open at any time,
even while negotiations are still pending, so as to avoid aggravating the dispute
at issue. Endeavours have constantly been undertaken in the United Nations to
foster conciliation as a means of dispute settlement.24 Both the Security Council
and the General Assembly have in practice
“not often themselves assumed the formal role of an organ of conciliation. In general
their efforts of conciliation have taken the form of encouraging the parties to nego-
tiate, or making available to them the good offices of the Presidents of the Security
Council or General Assembly or of the Secretary General or of putting at their dis-
posal the services of a mediator, and usually in conjunction with a peace-observa-
tion mission”.25
Parallel to the commissions of inquiry and conciliation, the U.N. has developed
other techniques of the kind, in entrusting to the President of the General As-
sembly, in particular, certain missions of conciliation. Resort to these methods
has not been limited to the U.N. level, but has been extended also at regional
level, such as the Mission of Observation of the Organization of American States
[OAS] in Belize in 1972.26 Conciliation, the nature of which has been much dis-
cussed,27 has attracted growing attention in recent years; it is foreseen in several
multilateral treaties (cf. infra), and it is nowadays regarded as a method which
may foster compulsory recourse to peaceful dispute settlement.
On its part, the procedure of international fact-finding, from its institution-
alization, as an autonomous method, by the two Hague Peace Conferences (of
1899 and 1907) to date, has undergone an interesting evolution. In this respect,
one may recall the early attempt, by the U.N. General Assembly, of putting into
practice the mechanism of a commission of fact-finding and conciliation (1949)
to assist States in settling their disputes even outside the U.N., or help the U.N.
organs to that end. In 1967 it was decided to elaborate a list of experts in fact-
finding,28 at the disposal of States, to resort to so as to avoid or impede conflicts,
24 J.-P. Cot, La conciliation internationale, Paris, Pédone, 1968, pp. 262-263; V. Pechota,
op. cit. supra n. (12), pp. 3, 50 and 54. For a general study, cf. also H. Rolin, La concili-
ation internationale, Genève, Inst. Dr. Intl. (extrait), 1959, pp. 1-38.
25 D. Davies Memorial Institute, International Disputes: the Legal Aspects..., op. cit. su-
pra n. (1), pp. 15-16; and cf. F. Vallat, “The Peaceful Settlement of Disputes”, in Cam-
bridge Essays in International Law – Essays in Honour of Lord McNair, London/N.Y.,
Stevens/Oceana, 1965, p. 164.
26 By means of an agreement between Guatemala and the United Kingdom, this latter
not an OAS member State.
27 D. Bardonnet, “Problèmes intéressant les États nouveaux – l’État des ratifications
des Conventions de La Haye de 1899 et de 1907 sur le règlement pacifique des con-
flits internationaux”, 7 AFDI (1961) pp. 726-741.
28 With the names forwarded by the member States to the Secretary General.
thus singling out the preventive function of fact-finding.29 Early in U.N. practice
the procedure of investigation began to be utilized,30 the same happening in the
purely inter-State contentieux (e.g., the case of the Red Crusader 31).
At regional level, in the period 1977-1979, during the frontier dispute between
Costa Rica and Nicaragua, the OAS established three Ad Hoc Commissions of
Observers and one Commission of Civil Observers.32 Another example is pro-
vided by the Consultative [Advisory] Committee of the [then] OAU on Nigeria
(1967-1968), which acted during the “war of Biafra” or the “Nigerian civil war”.33
Furthermore, fact-finding can be put into practice either as an “autonomous”
method, per se, of investigation, or “integrated” as a part of a system of settlement
of disputes or of control in the application of international conventions.34
It is at global level that a most remarkable illustration of the development
of good offices is found: the exercise of these latter by the U.N. Secretary Gen-
eral, on his own initiative (in the ambit of his competence) or at the request of
a competent organ of the U.N. or the choice by the contending parties them-
selves. In practice, the powers of the U.N. Secretary General to utilize good of-
fices have enlarged considerably, parallel to the search for solutions by consensus
and conciliation; Article 99 of the U.N. Charter 35 has been interpreted as con-
29 A method based in Article 33 of the U.N. Charter; N. Bar-Yaacov, The Handling of

International Disputes by Means of Inquiry, London, RIIA/O.U.P., 1974, pp. 296-312
and 344-347.
30 In cases such as those of Palestine (1947), Greece (1947-1949), Indonesia (1947-1948),
Germany (1951-1953), South Africa (as from 1967); ibid., pp. 276-292; and cf. H.G.
Darwin, “[Methods of Peaceful Settlement -] Factfi nding and Commissions of In-
quiry”, International Disputes: the Legal Aspects, op. cit. supra n. (1), pp. 172-177;
and cf. ibid., p. 23; as to the U.N. Security Council in particular, cf. E.L. Kerley, “The
Powers of Investigation of the U.N. Security Council”, 55 American Journal of Inter-
national Law [AJIL] (1961) pp. 892-918.
31 A dispute opposing Denmark to the United Kingdom dealt with by a fact-finding
commission was established by the two States; cf. N. Bar-Yaacov, op. cit. supra n.
(29), pp. 179-195.
32 Given the virtual lack of application in practice of the Pact of de Bogotá; cf. E. La-
gos, “Los Nuevos Mecanismos Procesales para la Eficácia de la Solución Pacífica de
las Controvérsias, con Particular Referencia a la Práctica de la OEA en los Últimos
Años”, in Perspectivas del Derecho Internacional Contemporáneo, vol. II, Santiago,
Universidad de Chile/Instituto de Estudios Internacionales, 1981, pp. 79-91.
33 On this latter, cf., e.g., Z. Cervenka, The Organization of African Unity and Its Char-
ter, 2nd. ed., London, C. Hurst & Co., 1969, pp. 209-210.
34 Cf. T. Bensalah, L’enquête internationale dans le règlement des conflits, Paris, LGDJ,
1976, pp. 3-222; and, for an empirical study, cf. G. Fischer and D. Vignes, L’inspection
internationale – quinze études de la pratique des États et des organisations interna-
tionales, Bruxelles, Bruylant, 1976, pp. 3-518.
35 For a study of its legislative history, cf. S.M. Schwebel, “The Origins and Develop-
ment of Article 99 of the Charter”, 28 British Year Book of International Law [BY-
BIL] (1951) pp. 371-382.
538 Chapter XXIV
ferring upon the Secretary General “all the necessary powers” for the search of
peaceful settlement, including those of investigation.36 Examples of the growing
exercise of good offices by the U.N. Secretary General in international crises can
be found, e.g., inter alia, in the Cuban missile crisis (1962), in the war of Vietnam
(1965-1971), in the conflict between India and Pakistan (1965-1971), in the tension
between Cambodia and Thailand (1961-1968), at times “fi lling gaps” of the lim-
ited operation of the collective organs of the United Nations.37 Such exercise of
good offices can take place also on the part of international organs,38 as well as on
the part of States, as it has often happened in practice.39
As to mediation, the U.N. has in fact resorted at times to private person-
alities to exert the function of mediators, and has from the start appointed a
commission of “good offices” or a “mediator” for the settlement of disputes.40 At
regional level, the practice of Latin American States bears witness of some cases
of recourse to mediation, namely, e.g., that by the Foreign Ministers of Costa
Rica, Guatemala and Nicaragua in the conflict between El Salvador and Hondu-
ras (shortly before the beginning of the hostilities in 1969), and that of the Peru-
vian jurist Bustamante y Rivero, whose recommendations led to the settlement
of the conflict between El Salvador and Honduras.41
The prolonged mediation conducted by the Holy See of the Argentinian-
Chilean controversy over the Beagle Channel, drawing on the earlier arbitral
award (of 1977) in the same case, was not tied up to a rigid procedure, and con-
templated separate as well as joint meetings with the Delegations of the two
countries, with the presence and intervention of the representative of the Holy
36 V. Pechota, The Quiet Approach – A Study of the Good Offices Exercised by the Unit-
ed Nations Secretary-General in the Cause of Peace, N.Y., UNITAR, 1972, pp. 2-9,
and cf. pp. 11 and 25. Cf. also M.W. Zacher, “The Secretary General and the United
Nations’ Function of Peaceful Settlement”, 20 International Organization (1966) pp.
725-726, 730, 733-734 and 738.
37 V. Pechota, op. cit. supra n. (12), pp. 10-11 and 17-18.
38 E.g., in the case of the independence of Indonesia from Dutch ruling and its entry
into the United Nations, an important role was exerted by the Committee of Good
Offices established by the U.N. Security Council (particularly in the period 1949-
1950).
39 E.g., in the case of the emancipation of Algeria from French ruling (1955-1962), at a
certain stage of the conflict (1957) Morroco and Tunisia offered their good offices.
40 E.g., cases of Indonesia, 1947-1950; of Palestine, 1947-1949; of the conflict between
India and Pakistan, 1948; of Korea, 1951; of Cyprus, 1964; of the Middle East cri-
sis, 1967; among others; H.G. Darwin, “[Methods of Peaceful Settlement -] Media-
tion and Good Offices”, International Disputes: the Legal Aspects, London, Europa
Publs., 1972, pp. 89-92.
41 Cf., on this latter, e.g., A.A. Cançado Trindade and F. Vidal Ramírez, Doctrina Lati-
noamericana del Derecho Internacional, vol. II, San José of Costa Rica, IACtHR,
2003, pp. 5-66.
See.42 The representative originally appointed by the Pope, Cardinal A. Samoré,

played an active role throughout most of the mediatory process, but died before
its conclusion. A personal account by a participant in the célèbre mediation, that
of Santiago Benadava, credits Cardinal Samoré with the presentation, at a certain
stage of the process (June 1980) of a list of “ideas” passed on to the contending
parties, which, though containing concessions on the part of both,
“did not assume abdication of any principle of natural law, did not contrast with
the constitutional foundations of the Parties nor did they oppose substantially the
ineluctable exigencies or dictates of the conscience of one or the other Party or of
their representatives”.43
The patient endeavours of the Holy See were rewarded by the Peace Treaty at
last concluded between Chile and Argentina on 29.11.1984, whereby the two Par-
ties reiterated their duty to abstain from the threat or use of force, settled the
maritime delimitation at issue, and established methods of settlement in case of
future differences (comprising recourse to conciliation and arbitration).
Numerous cases of systematic recourse to arbitration (some 400 instances),
since the 1794 Jay Treaty until the end of the thirties in the XXth century, are reg-
istered in A.M. Stuyt’s Survey of International Arbitrations 1794-1970, to refer but
to one source.44 At global level, the historical contribution of arbitral procedure
to peaceful settlement is set forth in publications of arbitral awards in series.45
Along the XXth century, most cases submitted to arbitration were settled mainly
by ad hoc arbitral tribunals.46 Like other methods of peaceful settlement, arbi-
tration has also been resorted to, along the last decades, with varying results,47
42 For an account, cf. A. Brouillet, “La médiation du Saint-Siège dans le différend entre
l’Argentine et le Chili dans la zone australe”, 25 AFDI (1979) pp. 47-73.
43 S. Benadava, Recuerdos de la Mediación Pontificia entre Chile y Argentina (1978-
1985), Santiago de Chile, Edit. Universitaria, 1999, p. 75, and cf. pp. 66-67 and 156.
44 Followed by other subsequent cases; cf. A.M. Stuyt, Survey of International Arbitra-
tions 1794-1970, 2nd. printing, Leiden/N.Y., Sijthoff/Oceana, 1976, p. VII.
45 Of the kind of the Moore’s History and Digest of International Arbitrations, the La
Pradelle and Politis’s Recueil das arbitrages internationaux; the successive volumes
of the series Reports of International Arbitral Awards (of the U.N.) and of the Inter-
national Law Reports (ed. E. Lauterpacht), among others.
46 Thus, in the era of the old PCIJ, while this latter dealt with 29 contentious cases
(judicial settlement), some 80 cases were settled by ad hoc arbitral tribunals. In con-
trast, only seven cases (among which the case of Sovereignty over Various Red Sea
Islands, Eritrea versus Yemen) have been dealt with by the Permanent Court of Ar-
bitration [PCA].
47 For a general study, cf., e.g., J.L. Simpson and H. Fox, International Arbitration, Lon-
don, Stevens, 1959, pp. 1ss.; and cf. J.J. Caicedo Castilla, “El Arbitraje en las Confer-
encias Panamericanas hasta el Pacto de Bogotá de 1948 sobre Soluciones Pacíficas”,
4 Boletim da Sociedade Brasileira de Direito Internacional [BSBDI] (1948) n. 8, pp.
5-33.
540 Chapter XXIV
as illustrated, e.g., by the Lac Lanoux case (France versus Spain, 1957), the Rann
of Kutch (India versus Pakistan, 1968), the case of the Delimitation of the Conti-
nental Shelf case (United Kingdom versus France, 1977), the Beagle Channel case
(Argentina versus Chile, 1977-1984), the Dubai/Sharjah Boundary case (1981), the
Maritime Delimitation case (Guinea versus Guinea Bissau, 1985), the La Bretagne
case (Canada versus France, 1986), the Taba case (Egypt versus Israel, 1988), the
Maritime Delimitation case (Guinea Bissau versus Senegal, 1989), the St. Pierre
and Miquelon case (Canada versus France, 1992), the Laguna del Desierto case
(Argentina versus Chile, 1994-1995), among others.48
In Latin America, despite the conclusion of multilateral instruments such as
the Pact of Bogotá (1948), recourse to arbitration continued to take place on an
ad hoc basis, from time to time, as illustrated by the cases of the Beagle Chan-
nel (1977) and of the Laguna del Desierto (1994-1995, cf. infra), both opposing
Argentina to Chile. In the African continent, parallel to the OAU Permanent
Commission of Mediation, Conciliation and Arbitration (1963, supra), which has
remained to some extent inactive, member States of the former OAU (nowadays
African Union) continued at times to resort to more flexible means of negotiated
settlement (outside the Commission – cf. supra), – what has led, e.g., to a settle-
ment, outside this latter, of the conflicts opposing Somalia to Kenya and to Ethio-
pia, the territorial dispute between Algeria and Morocco, and the controversies
between Côte d’Ivoire and Guinea over detention of diplomats.49
The fact remains that the arbitral solution does not appear susceptible of
generalizations, for being an essentially ad hoc and casuistic means of settlement
of international disputes. Judicial settlement, dealt with in more detail in the fol-
lowing chapter, has evolved to a large extent on the basis of an analogy with the
function of tribunals at domestic law level.50 It may have occurred that at times
expectations have not been amply fulfilled, and this may be partly due to the fact
that not seldom what the contending parties were seeking was not so much an
interpretation of the law, but rather a modification in the law,51 or its progressive
development. In any case, there has been lately a gradual jurisdictionalization of
dispute settlement, as a result of the gradual creation and operation of multiple
international tribunals.52
48 Cf., for an assessment, C. Gray and B. Kingsbury, “Inter-State Arbitration since 1945:
Overview and Evaluation”, in International Courts for the Twenty-First Century (ed.
M.W. Janis), Dordrecht, Nijhoff, 1992, pp. 55-83, esp. p. 69.
49 D.W. Bowett, op. cit. supra n. (17), p. 283.
50 R. Bierzanek, “Some Remarks on the Function of International Courts in the Con-
temporary World”, 7 Polish Yearbook of International Law (1975) pp. 121-150. For
critical remarks, cf. also, e.g., J. Fawcett, International Economic Conflicts: Preven-
tion and Resolution, London, Europa Publs., 1977, pp. 80-81.
51 F.S. Northedge and M.D. Donelan, op. cit. supra n. (2), pp. 326 and 330; and cf., for
a general study, e.g., Max-Planck-Institut, International Symposium on the Judicial
Settlement of International Disputes, Heidelberg, 1972, pp. 1-28 (mimeographed).
III. Settlement of Disputes in Multilateral Treaties

Along the XXth century, a major effort in dispute settlement, in the inter-war
period of the League of Nations, was represented by the 1928 General Act for the
Pacific Settlement of International Disputes (revised in 1949), which provided for
conciliation, judicial settlement and arbitration. Although it did not produce the
expected results, it in a way stimulated the celebration of bilateral and regional
treaties for dispute settlement.53 In our times, an elaborate scheme of dispute set-
tlement can be found, e.g., in the relevant provisions of the 1982 U.N. Convention
on the Law of the Sea (Part XV, Articles 279-299),54 comprising the Law of the
Sea Tribunal (Annex VI, Statute), its Seabed Disputes Chamber (Articles 186-
191), and distinct or special chambers (provided by its Statute), a Commission of
Conciliation (Annex V), arbitration (Annex VII, including the constitution of an
Arbitral Tribunal), and special arbitration (Annex VIII, including the constitu-
tion of a Special Arbitral Tribunal, with fact-finding powers).55 Article 297 of the
Convention lists three options (the International Tribunal for the Law of the Sea
itself, the ICJ, or arbitration), binding procedures (at the request of a contending
party), thus setting limits to the traditional free choice of means invoked in this
chapter of International Law.
The scheme at issue was the result of prolonged and complex negotiations
in the preparatory work of the 1982 Montego Bay Convention. Throughout those
travaux préparatoires the principle of compulsory settlement gave rise to much
controversy. There were those who preferred an optional protocol, recalling to
that end that solution, set forth in the corresponding provisions of the 1958 Con-
ventions on the Law of the Sea. Others considered that proposal unacceptable for
an all-embracing Convention such as that of Montego Bay, containing so many
innovations likely to raise disputes which could only be resolved by the use of an
obligatory third party procedure. The disagreements which prevailed rendered it
unlikely to select a single method of peaceful settlement. Thus,
53 E.g., in the European continent, the 1957 European Convention for the Peaceful Set-
tlement of Disputes, – like the aforementioned General Act of Geneva, – had some
of its 12 States Parties excluding so-called “non-legal disputes” from the application
of the provisions on arbitration; K. Nakamura, “The Convention for the Pacific Set-
tlement of International Disputes in Historical Perspective – In Commemoration of
the Centennial of the I Hague Peace Conference”, 43 Japanese Annual of Interna-
tional Law (2000) pp. 9, 15 and 18.
54 For an account of the travaux préparatoires, cf., e.g., L. Valencia Rodríguez, Arreglo
de Controversias Según el Derecho del Mar, Caracas, UNESCO, 1989, pp. 15-205.
55 On this dispute-settlement system, cf., e.g., A.O. Adede, The System for Settlement
of Disputes under the United Nations Convention on the Law of the Sea, Dordrecht,
Nijhoff/Kluwer, 1987, pp. 3-283.
542 Chapter XXIV
“Faced with this wide divergence of views, the negotiators of the Convention took
the only practicable course and resolved the problem by (...) invoking (...) a choice of
methods of binding settlement”.56
Hence the aforementioned options left to the States Parties, which had their free-
dom of choice thus sensibly limited, in addition of the introduction of an element
of compulsory settlement.
The scheme of dispute-settlement set forth in the 1982 U.N. Convention on
the Law of the Sea is particularly significant for such a Convention of a universal
character. Moreover, it is indeed unique in comparison with other great codifica-
tion Conventions of the United Nations, in which the ways and means of settling
disputes remain left to the free choice of the parties.57 In addition, some other
U.N. codification Conventions (e.g., the 1961 Vienna Convention on Diplomatic
Relations, the 1963 Vienna Convention on Consular Relations, the 1969 Conven-
tion on Special Missions) have adopted the system of separate Optional Protocols
on peaceful settlement;58 in this respect, L. Caflisch has forcefully argued that,
since any progress in the effective application of substantive law goes through
the improvement of methods of peaceful settlement, there is a case for adding a
system (preferrably of a jurisdictional nature) of peaceful settlement to the U.N.
codification Conventions themselves.59
In this connection, a significant development has been the establishment of
a compulsory procedure of conciliation, as adopted by the 1969 and 1986 Vienna
Conventions on the Law of Treaties,60 and the 1975 Convention on the Represen-
tation of States in Their Relations with International Organizations of Universal
Character,61 and the 1978 and 1983 Vienna Conventions on State Succession.62 In
its turn, the 1959 Antarctica Treaty provides for consultations between the Con-
tracting Parties, so that any controversy as to its interpretation or application is
solved by negociation, investigation, mediation, conciliation, arbitration, judicial
settlement (recourse to the ICJ) or any other peaceful means of their choice (Ar-
56 J.G. Merrills, International Dispute Settlement, op. cit. supra n. (22), pp. 172-173.
57 G. Bosco, “40 Years of U.N.: The Evolution of International Law Concerning the
Peaceful Settlement of Disputes”, in The Evolution of International Law since the
Foundation of the U.N., with Special Emphasis on the Human Rights – Thesaurus
Acroasium – vol. XVI, Thessaloniki, IIPLIR, 1990, pp. 33-35.
58 In practice, “ces Protocoles ont d’ailleurs connu un succès fort modeste”; R.-J. Du-
puy, “Codification et règlement des différends...”, op. cit. supra n. (3), p. 72, and cf. p.
73.
59 L. Caflisch, “Cent ans de règlement pacifique des différends interétatiques”, 288
RCADI (2001) pp. 261, 363 and 459, and cf. p. 286.
60 Article 66, and Annex, in case of controversies as to nullity, termination and sus-
pension of operation of treaties.
61 Article 85.
62 Vienna Convention of 1978, Part VI, Article 42; Vienna Convention of 1983, Part V,
Article 43.
ticle XI). Similarly, the 1967 Treaty for the Prohibition of Nuclear Weapons in
Latin America (or Treaty of Tlatelolco) provides that any question or controversy
as to its interpretation or application can be submitted to the ICJ, except if the
parties concerned agree on another method of peaceful settlement (Article 24).
Recourse to conciliation (even when mentioned as an alternative among oth-
er means of peaceful settlement) is set forth in some environmental law treaties.63
At global U.N. level, when the Ozone Layer Convention was adopted in 1985, an
episode occurred which should not pass unnoticed: according to an account, a
group of 16 States annexed a declaration to the Final Act of the Conference of
Plenipotenciaries on the Protection of the Ozone Layer (21.03.1985), stating that
they expressed their regret that the Vienna Convention for the Protection of the
Ozone Layer lacked any provision for the compulsory settlement of disputes (by
third parties upon request of one party); furthermore, they appealed to all Par-
ties to the Convention to make use of a possible declaration under Article 11(3) of
the aforesaid Convention.64
In the African continent, the Cairo Protocol on Mediation, Conciliation and
Arbitration, of July 1964, annexed to the [then] OAU Charter, created a Perma-
nent Commission on Mediation, Conciliation and Arbitration. As a complement
to it, since the outbreak of the Algerian-Moroccan conflict of 1963, the main or-
gans of the OAU established subsidiary ad hoc Committees to foster negotiations,
or good offices, mediation, inquiry and conciliation; such ad hoc Committees,
composed of member-States (a maximum of ten) rather than personalities, have
acted in the conflict of Mali versus Haute Volta (declaration of reconciliation of
1975), later settled by the ICJ (Judgment of 1986); they also acted in the civil war
of Chad, and have become the most utilized means of settlement of inter-African
conflicts to date.65
63 E.g., the 1963 Optional Protocol (Concerning the Compulsory Settlement of Dis-
putes) to the Vienna Convention on Civil Liability for Nuclear Damage (which pro-
vides for the establishment of a conciliation procedure), the 1969 International Con-
vention on Intervention on the High Seas in Cases of Oil Pollution Casualties, the
1985 Vienna Convention for the Protection of the Ozone Layer (which fosters the
tendency towards unilateral recourse to conciliation), the 1992 Framework Conven-
tion on Climate Change, the 1992 Convention on Biological Diversity, the 1994 Con-
vention to Combat Desertification; these last four Conventions also list, as other
peaceful settlement means, arbitration (examples of which are provided, in distinct
contexts, by the successful decisions of arbitral tribunals in the aforementioned Lac
Lanoux case in 1957, and, much earlier on, in the Behring Sea Fur Seals case in 1893,
opposing the United Kingdom to the United States) as well as judicial settlement (by
the ICJ); cf. C.P.R. Romano, The Peaceful Settlement of International Environmental
Disputes, The Hague, Kluwer, 2000, pp. 61-63 and 322.
64 G. Bosco, op. cit. supra n. (57), p. 38.
65 H. Gharbi, “Le règlement des différends dans le cadre de l’Organisation de l’Unité
Africaine (OUA)”, in Règlement pacifique des différends internationaux (ed. F. Hor-
chani), Tunis/Bruxelles, Centre de Publication Universitaire/Bruylant, 2002, pp.
538-540.
544 Chapter XXIV
In turn, the [then] OAU Council of Ministers itself has exerted its good of-
fices in the frontier dispute between Ethiopia and Somalia. The OAU Conference
of Heads of State and Government, declared that the mechanism instituted by
the 1964 Cairo Protocol (supra) was an integral part of the [then] OAU Charter,
and thus all OAU member-States were automatically Parties to the Statute of the
Permanent Commission on Mediation, Conciliation and Arbitration. The main
objective of this mechanism is conflict-prevention, but it faces the difficulty of
lack of resources; when recourse to arbitration is decided by common agreement,
the institution of an arbitral tribunal is foreseen.66
IV. Current Developments: Fact-Finding and the Search for Justice and the
Prevalence of the Rule of Law
As a technique of dispute-settlement, fact-finding has lately been utilized in pur-
suance of the prevalence of common and superior values, such as the search for
justice and the safeguard of democracy and the rule of law. Some recent develop-
ments to this effect should not pass unnoticed. The use of fact-finding as a meth-
od of peaceful settlement of international disputes has much expanded through
the work of international supervisory organs in the field of human rights67 and
of commissions of inquiry under the ILO Constitution.68 In addition, from the
mid-seventies onwards, successive Truth Commissions have been established in
distinct parts of the world, for the determination of facts related to grave viola-
tions of human rights and in the framework of the struggle against impunity.
In the period of 1974-1994,69 e.g., 15 Truth Commissions then instituted have dis-
closed the following common characteristics: firstly, the operation as organs of
66 Composed of 21 member-States of the OAU Conference of Heads of State and Gov-

ernment; ibid., pp. 541-551 and 554.
67 Cf. B.G. Ramcharan (ed.), International Law and Fact-Finding in the Field of Human
Rights, The Hague, M. Nijhoff, 1982, pp. 137-150, 151-159 and 176-179 (papers by E.
Vargas Carreño, H.C. Kruger and B.G. Ramcharan, respectively).
68 Cf. ibid., pp. 160-175 (paper by G. von Potobsky).
69 Namely, Uganda (1974), Bolivia (1982), Argentina (Report Nunca Más, 1986), Uruguay
(1985), Zimbabwe (1985), Uganda again (1986), Philippines (1986), Chile (National
Commission on Truth and Reconciliation, 1990-1991), Chad (1990), South Africa (I
African National Congress, 1992), Germany (1992), El Salvador (1991), Rwanda (1992-
1993), South Africa again (II African National Congress, 1993), and Ethiopia (1992-
1993). To those fi fteen Truth Commissions (cf. op. cit. infra n. (70)), one is to add two
other rather recent initiatives: that of the Truth Commission for Haiti, which did
not produce satisfactory results (cf. [Centre International des Droits de la Personne
et du Développement Démocratique,] Proposition pour une Commission de la Vérité
en Haiti – Élements constitutifs, Montréal, 27.11.1994, pp. 1-13), and that of the inves-
tigations undertaken by the National Comissariat of Protection of Human Rights,
of Honduras (cf. Comisionado Nacional de Protección de los Derechos Humanos,
Los Hechos Hablan por Sí Mismos – Informe Preliminar sobre los Desaparecidos en
Honduras 1980-1993, Tegucigalpa, Ed. Guaymuras, 1994, pp. 11-496).
fact-finding in a context of democratic transition in distinct countries; secondly,

the examination of facts occurred in the past, pertaining not so much to isolated
events, but rather to a generalized situation of violations of human rights in given
countries; and thirdly, a mandate with temporal limitation, expiring with the
presentation of the final report with the results of the investigations.70
The mandates of those Truth Commissions have varied from case to case,
as well as the results of their investigations: some have naturally been more suc-
cessful than others. Among those that achieved concrete results, the Truth Com-
mission for El Salvador (inspired in the experiences on the matter in Chile and
Argentina) was the first of the kind to be sponsored and funded by the United
Nations;71 others had a governmental origin, as exemplified by the Commission of
Truth and Reconciliation of Chile, established in 1990 by the Presidency of the Re-
public;72 the Truth Commission for Rwanda (which reported in 1993) was, in turn,
of non-governmental (international) character;73 the two Truth Commissions for
South Africa (appointed by Nelson Mandela) resulted from an original decision
of the African National Congress of investigating and reporting publicly on past
human rights abuses.74 Recently, the Commission on Truth and Reconciliation of
Peru concluded its work and presented, in August 2003, a substantial report.75
Amidst the diversity of their mandates and of the results achieved, Truth
Commissions have, – as a characteristic feature of their work, – operated in the
investigation of past events in relation to which the national society at issue had
been profoundly divided and polarized; such investigation is regarded as remain-
ing, however, necessary, as what happened in the past may have influence in the
present and the future of the social environment at issue.76 Overcoming opera-
70 P.B. Hayner, “Fifteen Truth Commissions – 1974 to 1994: A Comparative Study”, 16

Human Rights Quarterly (1994) pp. 598-604.
71 Cf. ibid., p. 599.
72 For the results of the investigations, cf. Informe Rettig – Informe de la Comisión
Nacional de Verdad y Reconciliación, vol. I, Santiago, Feb. 1991, pp. 1-448; Informe
Rettig – Informe de la Comisión Nacional de Verdad y Reconciliación, vol. II, San-
tiago, Feb. 1991, pp. 449-890; and, for an account of the experience, cf. P. Aylwin, “La
Comisión de la Verdad y Reconciliación de Chile”, in Estudios Básicos de Derechos
Humanos, vol. II (eds. A.A. Cançado Trindade and L. González Volio), San José of
Costa Rica, Inter-American Institute of Human Rights (IIHR), 1995, pp. 105-119; P.
Aylwin, “La Comisión Chilena sobre la Verdad y Reconciliación”, in Estudios Básicos
de Derechos Humanos, vol. VII (eds. A.A. Cançado Trindade, G. Elizondo Breedy, L.
González Volio and J. Ordóñez), San José of Costa Rica, IIHR, 1996, pp. 35-52.
73 P.B. Hayner, op. cit. supra n. (70), pp. 600 and 629-632.
74 Ibid., pp. 600, 625-626 and 632-634; and cf. A. Omar, “Truth and Reconciliation in South
Africa: Accounting for the Past”, 4 Buffalo Human Rights Law Review (1998) pp. 5-14.
75 Cf., in particular, Comisión de la Verdad y Reconciliación, Informe Final – Conclu-
siones Generales, Lima, CVR/Peru, 2003, pp. 9-45.
76 [Various Authors,] Truth Commissions: A Comparative Assessment (Seminar of
Harvard Law School, of May 1996), Cambridge/Mass., Harvard Law School, 1997,
pp. 16, 70 and 81.
546 Chapter XXIV
tional difficulties, Truth Commissions have proven to be, in most cases, a rel-
evant instrument in the crystallization of the right to truth77 in its relations with
the search for justice and the struggle against impunity.78
On rare occasions fact-finding has been undertaken also in pursuance of
the prevalence of what comes to be perceived as the right to the juridical or con-
stitutional order. This is what occurred in the case of the Institutional Crisis of
Nicaragua (1993-1994). Upon request of the Nicaraguan Government, the then
Secretary-General of the OAS (J.C. Baena Soares), in the ambit of a decision of
the OAS Permanent Council of 03.09.1993 titled “Support to the Constitutional
Government of Nicaragua”, appointed the Commission of Jurists of the OAS for
Nicaragua to “establish the reality of the facts”.79 The Commission80 was set up
by the OAS Secretary-General in Managua, on 07.09.1993, when received by the
President of the Republic of Nicaragua (Violeta Barrios de Chamorro). In the fol-
lowing months the work of fact-finding, as from a strictly juridical approach, was
conducted by the Commission, which was aware that the facts had taken place in
a highly politicized and polarized context.81
The difficult work undertaken by the Commission of Jurists disclosed a sui
generis feature, in that questions of an essentially constitutional and domestic
order were taken up to the examination and consideration of an ad hoc inter-
national fact-finding organ at the request of the Government of the State con-
cerned. The sole precedent of the kind, and a rather distant one in time, found by
the Commission of Jurists, was the case of the Compatibility of Certain Decrees-
Laws of Danzig with the Constitution of the Free City of Danzig (1935), in which a
request was made to a judicial organ, the old Permanent Court of International
Justice (PCIJ), – entirely distinct from the Commission of Jurists of the OAS for
Nicaragua, this latter devoid of jurisdictional functions as an essentially fact-
77 On the meaning of fact-finding, in the search for truth, on past violations of hu-
man rights, cf. M. Parlevliet, “Considering Truth – Dealing with a Legacy of Gross
Human Rights Violations”, 16 Netherlands Quarterly of Human Rights (1998) pp.
141-174. And on the relationship between truth and justice, cf. T.G. Phelps, Shat-
tered Voices – Language, Violence and the Work of Truth Commissions, Philadelphia,
University of Pennsylvania Press, 2004, pp. 53-54, 61-67, 79-82, 86, 111-117 and 128.
78 For an assessment, cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos
Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 400-406; N.
Roht-Arriaza (ed.), Impunity and Human Rights in International Law and Practice,
Oxford, Oxford University Press, 1995, pp. 3-381; K. Ambos, Impunidad y Derecho
Penal Internacional, Medellín, Fund. K. Adenauer et alii, 1997, pp. 25-451.
79 Pertaining to conflicts in the National Assembly of that country (which led virtu-
ally to its paralysis) and to the procedure of removal of the Contralor General of the
Republic.
80 Integrated by A.A. Cançado Trindade (Brazil), E. Ferrero Costa (Peru) and A.
Gómez-Robledo Verduzco (Mexico).
81 The applicable law was identified as being essentially Nicaraguan domestic law,
placing the two questions under examination in the ambit of the imperative of the
prevalence of the rule of law (Estado de Derecho).
finding organ, – to resolve whether certain decrees-laws of Danzig were or not

compatible with the Constitution of the Free City of Danzig.82
The case of the Institutional Crisis of Nicaragua had, thus, no precedent
in the American continent. On 04.02.1994 the three members of the aforemen-
tioned Commission of Jurists handled its substantial final Report to the OAS
Secretary-General at the headquarters of the Organization in Washington D.C..
The Report, promptly transmitted by the OAS Secretary-General to the Govern-
ment of Nicaragua, much contributed to put an end to the serious institutional
crisis which affected that country, and in particular to the reopening of the work,
on a regular and permanent basis, of the Nicaraguan National Assembly.
Only four years later, in 1998, the Commission’s Report was published,83
when it was deemed that the issues dealt with therein had found a solution, as
their contents had a bearing on historical facts that would no longer affect the po-
litico-institutional framework of the country concerned. There thus already ex-
ist, in our days, elements – although insufficiently known so far – for an in-depth
study of the right to the constitutional order (directly linked to the prevalence
of democracy and the rule of law), bringing closer together the international and
domestic legal orders, as illustrated by the mission of fact-finding undertaken
by the Commission of Jurists of the OAS in the case of the Institutional Crisis of
Nicaragua (1993-1994).
V. The Search for ad hoc Solutions

International practice has disclosed a variety of means of dispute-settlement re-
sorted to by States, ranging from negotiations and consultations to good offices
and conciliation, from fact-finding to mediation, and also including arbitration
and judicial solution. In the American continent, parallel to the constant and un-
successful endeavours to secure some degree of effectiveness to the comprehen-
sive codifying treaty on peaceful settlement of disputes in the region (the 1948
82 Cf. doc. cit. n. (83) infra, p. 336. The PCIJ, in an Opinion of 04.12.1935, concluded that
such decrees-laws were incompatible with the guarantees of individual rights set
forth in the Constitution of Danzig. The PCIJ understood that, once the question
was raised to the international level (the guarantee by the League of Nations of the
Constitution of Danzig), it was incumbent upon it to pronounce on the matter; cf.
PCIJ, Series A/B, n. 65, 1935, pp. 41-57, especially pp. 50 and 57.
83 A.A. Cançado Trindade, E. Ferrero Costa and A. Gómez-Robledo Verduzco, “Caso
da Crise Institucional da Nicarágua (1993-1994): Informe de la Comisión de Juristas
de la Organización de los Estados Americanos (OEA) para Nicarágua”, 113/118 Bo-
letim da Sociedade Brasileira de Direito Internacional (1998) pp. 335-386. The report
was subsequently republished in monograph form: A.A. Cançado Trindade, E. Fer-
rero Costa and A. Gómez-Robledo Verduzco, “Gobernabilidad Democrática y Con-
solidación Institucional: El Control Internacional y Constitucional de los Interna
Corporis – Informe de la Comisión de Juristas de la OEA para Nicarágua (Febrero
de 1994)”, 67 Boletín de la Academia de Ciencias Políticas y Sociales – Caracas/Ven-
ezuela (2000-2001) n. 137, pp. 593-669.
548 Chapter XXIV
Pact of Bogotá), a significant practice of dispute-settlement has been developing

on an ad hoc basis, seeking individual solutions to each cas d’espèce.
This practice of peaceful settlement has in some instances produced con-
crete positive results; and this has taken place on some occasions also outside the
institutional mechanisms of the regional system of peace. Pertinent examples are
afforded, for instance, in Central and South America, in the last three decades.84
The conflict between El Salvador and Honduras, e.g., was settled by the media-
tion of J.L. Bustamante y Rivero, which led to the Treaty of Peace of 1980 between
the two countries concerned.85 Some cases transcended the ambit of regional ar-
rangements and were taken into the global – United Nations – level, such as the
cause célèbre, in the Caribbean, of the Cuban missile crisis (1962), taken up to the
U.N. Security Council.86
The search for ad hoc solutions has by no means been limited to the Ameri-
can continent. In the African continent, one may recall the co-existence (supra)
between the OAU Permanent Commission on Mediation, Conciliation and Ar-
bitration and ad hoc Committees subsidiary to the main organs of the former
OAU (nowadays African Union), reflecting the old professed purpose of finding
African solutions for inter-African disputes.87 And, in the Asian continent, an
example is afforded by the 1997 fisheries agreement between China and Japan,
whereby the two countries revised their earlier agreement of 1975 in the light
of the entry into force – in respect of them – of the 1982 U.N. Convention on
the Law of the Sea;88 reference can also be made to the Southern Bluefin Tuna
case (Australia and New Zealand versus Japan) (1993-2000), encompassing both
the arbitral procedure under that Convention and negotiations between the con-
tending parties.89 Two such experiences of the search for ad hoc solutions may
84 E.g., the handling of the border problem between Costa Rica and Nicaragua, in 1977-
1979, and of the conflict between El Salvador and Honduras in 1980; and, in South
America, the handling of the crisis opposing Peru and Ecuador, in the eighties and
nineties (infra).
85 H. Gros Espiell, “La Paz entre El Salvador y Honduras”, 30 Revista Internacional y
Diplomática (1981) n. 361, pp. 28-29.
86 For an account, cf. A. Chayes, The Cuban Missile Crisis, Oxford, University Press,
1974, pp. 1-154.
87 Cf. J.-M. Bipoun-Woum, Le droit international africain, Paris, LGDJ, 1970, pp. 269-
273; O. Okongwu, “The OAU Charter and the Principle of Domestic Jurisdiction in
Intra-African Affairs”, 13 Indian Journal of International Law (1973) pp. 589-593; M.
Bedjaoui, “Le règlement pacifique des différends africains”, 18 AFDI (1972) p. 92.
88 The new 1997 agreement significantly sets up a “provisional measures zone”, as “a
zone of joint management where the two countries partially exercise joint control or
enforcement measures, pending the delimitation of their maritime boundaries”; M.
Miyoshi, “New Japan-China Fisheries Agreement – An Evaluation from the Point of
View of Dispute Settlement”, 41 Japanese Annual of International Law (1998) p. 30,
and cf. pp. 31-43.
89 Cf., e.g., N. Tanaka, “Some Observations on the Southern Bluefin Tuna Arbitration
Award”, 44 Japanese Annual of International Law (2001) pp. 9-34.
be singled out, given their contribution to contemporary techniques of dispute

settlement, namely, those of the process of Contadora, and of recourse to guaran-
tor States.
1. The Experience of Contadora

In the eighties, given the intensification of tension in the Central-American re-
gion, coupled with the incapacity of international organizations – such as the
OAS – to resolve the conflict, the Foreign Ministers of Panama, Mexico, Ven-
ezuela and Colombia convened a meeting in the Island of Contadora in January
1983, to formulate a proposal of dialogue and negotiation to reduce tension and
reestablish peaceful co-existence among Central American States. The docu-
ment ensuing therefrom was called the Declaration of Contadora (of 09.01.1983),
and the articulation of the four countries came to be known as the Group of
Contadora.
Following initial efforts of good offices on the part of the Presidents of those
four countries, in June 1984 the Foreign Ministers of the Group of Contadora
drew a document (the so-called Act of Contadora)90 containing the points and
recommendations agreed upon. In September of the same year, the Group of
Contadora forwarded to the Heads of State of the Central American countries a
revised version of the Act of Contadora,91 stressing the need of reestablishment of
peace in the region on the basis of compliance with the principles of international
law and of the joint search for a regional solution to the Central American crisis;
it moreover described the instruments of verification and inspection foreseen for
the execution and follow-up of the engagements agreed upon.92
The major difficulties remained the reduction of armaments and demilitar-
ization, the operation of mechanisms of verification and control, and the internal
reconciliation. On the other hand, however, the negotiations pursued – together
with consultations, ad hoc mechanisms of fact-finding, and good offices, – and
the international support they received, avoided the aggravation of the conflict
with unforeseeable consequences not only for the region but for the whole conti-
nent. In mid-1985, the Foreign Ministers of Argentina, Brazil, Peru and Uruguay
held informal consultations which led to the creation of the so-called Group of
Support to Contadora. The two Groups had their first joint meeting in Carta-
gena, in August 1985. In the following months, with the frequency of meetings
of the Chancellors of the Groups of Contadora and of Support, the tendency was
formed to the effect of minimizing the distinction between the two Groups and
of foreseeing common operational initiatives.93 This was the historical root of the
90 Its full title was “Act of Contadora for Peace and Cooperation in Central America”.
91 Accompanied by four Additional Protocols.
92 For a study, cf. A.A. Cançado Trindade, “Mécanismes de règlement pacifique des
différends en Amérique Centrale: de Contadora à Esquipulas-II”, 33 AFDI (1987) pp.
798-822.
93 For an account, cf. ibid., pp. 798-822.
550 Chapter XXIV
establishment, later on, parallel to the OAS, of the so-called Group of Rio, with a
much-expanded agenda (no longer centred on the Central American crisis).
Support to the process of Contadora came at last from the Presidents of the
five Central American countries themselves (Guatemala, El Salvador, Honduras,
Nicaragua and Costa Rica), in the declaration they adopted in their meeting in
Esquipulas, Guatemala, on 25 May 1986 (Esquipulas-I). It was followed by the
Plan Arias, adopted by the five Central American Presidents in San José of Costa
Rica on 15 February 1987. On 06-07 August 1987 they met again in Esquipulas,
where they at last agreed on and signed the “Procedure for the Establishment of
the Firm and Lasting Peace in Central America” (Esquipulas-II). The main en-
gagements undertaken were directed towards national reconciliation, cease-fi re,
democratization and free elections, cessation of aid to irregular forces and rebels,
non-use of territory to attack other States, assistance to refugees and displaced
persons, the consolidation of democracy.94 Two supervisory organs were prompt-
ly set up, namely, the International Commission of Verification and Follow-up
and the Executive Committee.
The Procedure worked out in August 1987 managed to save time and occupy
political space in the negotiating and fact-finding process, which finally led to
the creation of a new atmosphere of peace in the Central American region. The
Contadora/Esquipulas-II process, as a whole, had the merit and importance of
avoiding the escalade of the regional conflict into one of possibly much greater
proportions and unforeseeable consequences for the whole continent. This pro-
cess, as already pointed out, evolved outside the institutional framework of the
OAS and the United Nations, – but eventually counted on the support of both or-
ganizations95 (and of virtually the whole international community), which reck-
oned that they could not effectively replace it. The process – even before Esqui-
pulas-I and II – was soon recognized as the only viable way to a negotiated peace
in the region. Ultimately, it amounted to a non-institutionalized regional Latin
American initiative of settlement of the Central American crisis on the basis of
consensus of all parties concerned. Negotiations and fact-finding played a very
important role in the settlement. The strong international law tradition of Latin
American countries was another element of relevance in the successive formulas
negotiated, which proved conducive to peace in the region.
2. The Experience of Guarantor States

In South America, the prolonged border problem between Ecuador and Peru,
which led to armed confrontation between the two countries in 1981 and 1994-
1995, was handled invariably by the guarantors designated in the 1942 Protocol
of Rio de Janeiro, settled at last in 1998. To the Declaration of Peace of Itamaraty,
signed by Peru and Ecuador in Brasilia, on 17 February 1995, in the presence of
94 Points 7, 10 and 11 of Esquipulas II were of particular importance to the means of

peaceful settlement.
95 Cf. A.A. Cançado Trindade, op. cit. supra n. (92), pp. 798-822, esp. p. 810, n. 57.
representatives of the four guarantor States (Argentina, Brazil, Chile and United
States), followed the Declaration of Montevideo of 28 February of the same year,
signed by the Foreign Ministers of Ecuador and Peru, together with the Foreign
Ministers of Argentina, Brazil and Chile, and the Secretary of State of the United
States, in which they ratified their will to comply fully with the Declaration of
Peace of Itamaraty.
The exercise of mediation undertaken by the guarantor States of the 1942
Protocol of Rio de Janeiro (Argentina, Brazil, Chile and United States) intensified
as from 1995.96 The Declaration of the Guarantors signed in Brasilia on 16 April
1997 took note of the exchange of the descriptive explanations of the respective
“lists of deadlocks” (listas de impasses). The document further recalled that it
was the “exclusive responsibility” of the contending parties to carry on the peace
conversations, as to the guarantors corresponded the “autonomous capacity” to
make recommendations, suggestions, exhortations, declarations and evaluations
on the peace process. The operation of this ad hoc mechanism contributed deci-
sively to ease the tensions between Ecuador and Peru, in the search for a peaceful
settlement of their border problem.
The successful outcome of the exercise culminated in the final Peace Agree-
ment of 26 October 1998 between Peru and Ecuador. This latter, which insisted in
the renegotiation of the frontier as established in the 1942 Protocol, by means of
the 1995 Declaration of Peace of Itamaraty admitted that the Protocol remained
in force in exchange for the Peruvian recognition that the conclusion of the de-
marcation foreseen in that instrument required the prior settlement of substan-
tive questions. In October 1996, by the Agreement of Santiago, the contending
parties agreed to entrust the guarantor States with the initiative of proposed
formulas for peaceful settlement. The first one of them, accepted by all, was the
formula of “single undertaking”, whereby no individual aspect of the dispute was
to be resolved independently of an over-all solution of the conflict.
Ecuador and Peru, for the first time since 1942, set up a common agenda of
discussion, suspending temporarily their respective claims; assisted by the guar-
antor States,97 and “recommendatory opinions” on minor issues, they started
holding direct bilateral meetings, most often in Brasilia; in difficult moments
of the exercise each contending party met with the guarantor States in separate
rooms. The colegial and concerted exercise of the contending parties together
with the guarantor States enlarged the negotiating “package”, so as to add to the
frontier issue other aspects pertaining to cooperation and joint development in
the region. The strategy succeeded,98 and the peace process culminated in the
ceremony of the signature of the final peace document of 26.10.1998, which put
96 Successive documents were signed in Quito (agreement of 23.02.1996), Buenos Aires

(communiqué of 19.06.1996), and Santiago (agreement of 29.10.1996).
97 The consultations followed the formula “2 plus 4”, that is, the two contending parties
together with the four guarantor States.
98 Oral testimonies that I collected in private interviews with protagonists in the peace
process from distinct sides.
552 Chapter XXIV
an end to the misunderstandings which had prevailed until 1995. This is a posi-
tive contemporary example of a successful mediation stressing the key role of the
guarantor States.
VI. Endeavours of Systematization

At regional level, the systematization of peaceful settlement of international dis-
putes undertaken by the 1948 American Treaty of Peaceful Settlement (Pact of
Bogotá) was much awaited,99 but despite the contribution of this latter at concep-
tual level,100 there remained a practical problem. As the Pact entered into force
through the successive ratifications of the States Parties, the effects of previous
treaties on peaceful settlement of disputes101 ceased for these latter;102 but as some
States of the region had ratified the Pact and others had not (infra), this gave rise
to a diversity of situations where individual States were bound either by the Pact
of Bogotá itself, or by earlier treaties or – as in the case of several Caribbean
countries – by none.
The Pact was in fact invoked in a boundary conflict between Honduras and
Nicaragua in 1957,103 but this was a rather isolated instance in this respect. Three
decades later, in the mid-eighties, there remained 18 member States of the OAS
which were not Parties to the Pact of Bogotá; half of those were bound by earlier
treaties,104 thus forming a rather diversified – if not confusing – framework of
international legal instruments for dispute settlement. This unsatisfactory legal
99 The mechanism of (multilateral) reciprocal consultations (in case of threat to peace

in the region) was created earlier, by the 1936 Convention on the Maintenance, Pres-
ervation and Reestablishment of Peace, and was institutionalized shortly afterwards
by the Declaration of Lima of 1938. Th is mechanism is the same one which operated
continuously in the course of the following decades, and until the eighties, in the
consideration of successive crises, such as, e.g., in the Anglo-Argentinian conflict in
the South Atlantic over the Falklands/Malvinas Islands (1982).
100 With, e.g., its elaborate definitions of means of settlement; for a study, cf., e.g., J.M.
Yepes, “La Conférence Panaméricaine de Bogotá et le droit international américain”,
Revue générale de droit international public (1949) pp. 52-74.
101 For example, the Gondra Treaty (1923, of prevention of disputes between the Ameri-
can States), the two General Conventions of Washington of Inter-American Con-
ciliation and Arbitration (1928-1929), the Anti-Bellic Treaty of Non-Aggression and
Conciliation (1933, also known as Treaty Saavedra Lamas), the Convention on Main-
tenance, Preservation and Reestablishment of Peace (1936, setting up the system of
reciprocal consultations), and the Treaties on Prevention of Disputes and on Good
Offices and Mediation (both of 1936).
102 Article LVIII.
103 J.C. Lupinacci, “Los Procedimientos Jurisdiccionales en el Tratado Americano de
Soluciones Pacíficas (Pacto de Bogotá)”, Anuario Uruguayo de Derecho Internac-
ional (1962) pp. 205-206.
104 Cf. OAS, document OEA/Ser.G/CP/CAJP-541/84, of 30 July 1984, pp. 80-82; and cf.
note (101), supra.
framework has remained unchanged to date. Nowadays, of the 34 member States

of the OAS, only 14 have ratified the Pact (8 of which with reservations).105 It was
thus not surprising to witness, along the years, successive calls for ratification by
all OAS member States of the Pact as the “best way” to improve and consolidate
the regional system of peace,106 and also for revision of the Pact.107
In the meantime, recourse to distinct methods continued to take place,
moreover rendering it difficult to generalize as to their effectiveness. The reso-
lution of the controversy between Chile and Argentina over the Beagle Channel
(shortly after the 1977 arbitral award, followed by the mediation of the Holy See,
as from 1979), by means of the adoption of the treaty of peace of 1984 between
those two countries, e.g., paved the way for the settlement of another boundary
dispute between Argentina and Chile, over the Laguna del Desierto. This latter
was submitted to an arbitral tribunal, which rendered its award on 21 October
1994 (followed by another award – on Chile’s requests for revision and interpre-
tation – of 13 October 1995);108 the 1994 award is of interest for the consideration
of the concept of res judicata, and the application of the principle non ultra petita
partium in the domain of International Law.
The field of peaceful settlement of disputes became in fact object of special
attention of the second reform of the OAS Charter, – that of the Protocol of
Cartagena de Indias of 1985. Attentive to the prevailing situation in the region,
endeavours focussed on the search for individual solutions, adequate to each cas
d’espèce. This implied an acknowledgement of the virtual immobility of the re-
gional Organization to take effective action in this field as from the first reform
of its Charter (the 1967 Protocol of Buenos Aires). This prompted the 1985 reform
to devise more flexible methods of operation in conflict resolution. Accordingly,
the OAS Charter as amended by the 1985 Protocol of Cartagena de Indias was to
authorize any party to a dispute – in relation to which none of the procedures
105 Except for the Dominican Republic and Haiti, Caribbean countries have not ratified
it at all; cf. OAS Treaty Series, ns. 17 and 61 (General Information of the Treaty A-42).
To this one could add the lack of accession by new OAS member States to the Pact.
106 Comité Jurídico Interamericano, Recomendaciones e Informes – Documentos Ofi-
ciales 1967-1973, vol. X, OAS General Secretariat, 1978, pp. 392-407; Comité Jurídico
Interamericano, Recomendaciones e Informes – Documentos Oficiales 1965-1966, vol.
IX, Rio de Janeiro, Gráf. IBGE, 1970, p. 321.
107 Cf., e.g., C. Sepúlveda, “The Reform of the Charter of the Organization of American
States”, 137 RCADI(1972) pp. 107-108, and cf. pp. 99-101 and 131. On the historical
experience of the old Inter-American Commission of Peace (formally constituted in
1948), cf. A. Herrarte, “Solución Pacífica de las Controversias en el Sistema Intera-
mericano”, VI Curso de Derecho Internacional Organizado por el Comité Jurídico
Interamericano (1979), Washington D.C., OAS General Secretariat, 1980, p. 231, and
cf. pp. 222-223.
108 For an account, cf. F.O. Salvioli, “Las Sentencias del Tribunal Arbitral sobre el Dif-
erendo Argentino-Chileno en Relación al Recorrido del Límite entre el Hito 62 y el
Monte Fiz Roy”, 101/103 Boletim da Sociedade Brasileira de Direito Internacional
(1996) pp. 187-205.
554 Chapter XXIV
foreseen in the Charter was being made use of – to resort to the OAS Permanent
Council to obtain its good offices (Article 84); such direct recourse replaced the
previous requirement of prior consent of both, or all, contending parties. More-
over, the former Inter-American Commission on Peaceful Settlement, set up by
the 1967 reform of the OAS Charter (supra), was replaced by the OAS Permanent
Council’s new faculty of establishing ad hoc Commissions, with the acquiescence
of the contending parties (Articles 85-87).
With the new OAS Charter reforms of 1985,109 a more practical and flexible
mechanism was thus devised, carefully avoiding, at the same time, to “impose
solutions” upon either of the parties.110 Furthermore, the OAS Secretary-General
became endowed with the new faculty or initiative of bringing to the attention
of the OAS General Assembly or Permanent Council any question which in his
opinion might affect peace in the continent (Article 116). While these initiatives
of institutional reform of the OAS methods of action were being taken, with the
apparent understanding that it would be proper and convenient to leave open to
contending parties the largest possibilities or schemes of peaceful settlement,
once again, not only inside but also outside the regional Organization new means
were pursued to tackle a grave situation which was indeed affecting peace in the
continent throughout the eighties: the Central-American crisis (the Contadora
experiment, cf. supra).
At global U.N. level, the Special Committee of the Charter of the United Na-
tions and of the Strengthening of the Role of the Organization, established in De-
cember 1975 and composed of 47 member States, soon turned its attention pre-
cisely to the chapter of peaceful settlement of international disputes.111 In March
1978 the aforementioned Special Committee prepared a list of 51 proposals,112
and decided, in 1980, to elaborate a draft Declaration on Peaceful Settlement of
109 For an assessment, cf. J.C. Baena Soares, “Aspectos Jurídico-Políticos das Recentes
Reformas da Carta da Organização dos Estados Americanos (OEA)”, 87/90 Boletim
da Sociedade Brasileira de Direito Internacional (1993) pp. 59-71; J.-M. Arrighi, “Les
réformes à la Charte de l’Organisation des États Américains: Problèmes des droits
de traités”, 43 AFDI (1997) pp. 1-12.
110 The new mechanism in a way resembled that of the old Inter-American Commission
of Peace (supra).
111 U.N., Report of the Special Committee on the Charter of the United Nations and on
the Strengthening of the Role of the Organization, suppl. nº 33 (A/32/33), 1977, pp. 39
and 42-46. There was support for the strengthening of the functions of the Secu-
rity Council, the General Assembly and the Secretary General as to fact-fi nding,
through the more effective use of groups of experts and fact-finding panels, – as well
as for more effective conciliatory procedures; cf. ibid., pp. 143-145.
112 Cf. U.N., Report of the Special Committee on the Charter of the United Nations and
on the Strengthening of the Role of the Organization, suppl. n. 33 (A/33/33), 1978, pp.
3-4 and 63-70. The Special Committee recalled the drafting of the 1970 Declaration
on Principles of International Law Concerning Friendly Relations and Cooperation
among States in Accordance with the U.N. Charter; cf. ibid., pp. 15 and 21. And cf.
chapter III, supra.
Disputes.113 In 1982, the Special Committee concluded the draft of the Manila
Declaration on Peaceful Settlement of International Disputes.114 The principles
of good faith, of peaceful settlement of disputes, of sovereign equality of States,
were reaffirmed therein.115 Part II of the draft, with 6 paragraphs, started by call-
ing upon member States to utilize the provisions of the U.N. Charter – particu-
larly those of chapter VI – on peaceful settlement of disputes.
The document reaffirmed the function of the U.N. General Assembly of de-
bate and – under Article 12 – recommendation of measures for peaceful settle-
ment of situations which could affect friendly relations among States, and called
upon States to utilize consultations in the ambit of the Assembly (and subsidiary
organs) aiming at facilitating peaceful settlement (par. 3). It reasserted the main
function of the U.N. Security Council in the area (e.g., Article 33), referring to its
investigatory powers (of fact-finding) and to the utilization of subsidiary organs
in the exercise of its functions (par. 4).116 The functions of the U.N. Secretary-
General were reaffirmed, in connection with the operation of the Security Coun-
cil and the General Assembly, in the settlement of international disputes (par. 6).
The Manila Declaration on Peaceful Settlement of International Disputes was
adopted by U.N. General Assembly resolution 37/10, of 15 November 1982.
VII. Peaceful Settlement and the Renunciation of the Use of Force in

International Relations
From the two Hague Peace Conferences (1899 and 1907) to date, successive en-
deavours have been undertaken with the concrete purpose of securing peaceful
settlement and prohibiting the use or threat of force in the conduction of interna-
tional relations.117 Subsequently, the system of collective security was formed (in
the United Nations era), determined, to a great extent, by the nuclear deadlock,
by the growing economic interdependence among States, and by the general re-
jection of the unilateral use of force by the States.118
In 1980, in the debates on dispute-settlement of the U.N. Special Committee
on Enhancing the Effectiveness of the Principle of Non-Use of Force in Interna-
113 Cf. U.N., Report of the Special Committee on the Charter of the United Nations and
on the Strengthening of the Role of the Organization, suppl. n. 33 (A/35/33), 1980, pp.
63-108.
114 Submitted to the appreciation of the U.N. General Assembly. The draft started with
a preamble (with 11 consideranda), followed by part I, with 13 paragraphs.
115 Cf. loc. cit. supra, suppl. n. 33 (A/37/33), 1982, pp. 9-11.
116 It further pointed out the utility of recourse to the ICJ in disputes with a predom-
inantly juridical character and endorsed the practice of insertion into treaties of
clauses foreseeing such recourse for the settlement of disputes about their interpre-
tation and application (par. 5).
117 Cf. J. Zourek, L’interdiction de l’emploi de la force en droit international, Leiden/
Genève, Sijthoff/Inst. H.-Dunant, 1974, pp. 39-42.
118 Ibid., pp. 47-49.
556 Chapter XXIV
tional Relations, there was expression for the concern of non-aligned countries
with their security and stability, to be better served by the emphasis on the need
of a full implementation of the provisions of chapter VII of the Charter and the
development of the system of peaceful settlement of disputes contained in chap-
ter VI (rather than by the adoption of a new treaty reiterating the existing obli-
gations).119 For the representatives of Spain as well as India, e.g., the principle of
the non-use of force in international relations had become peremptory norm of
International Law (jus cogens).120 In the debates of 1981, three countries of East-
ern Europe – Romania, Bulgaria and Poland – lent support to the thesis that the
principle of non-use of force had become an imperative norm of International
Law.121
In the framework of the interrelationship between peaceful settlement and
the renunciation of the use or threat of force in international relations, special at-
tention is to be given to the endeavours of prevention of disputes at international
level. Fact-finding has often been contemplated to that end. The 1988 Declaration
on the Prevention and Removal of Disputes and Situations Which May Threaten
International Peace and Security and on the Role of the United Nations in This
Field, e.g., called for the “full use of the fact-finding capabilities of the Security
Council, the General Assembly and the Secretary-General” in the preservation
of international peace and security.122 The Handbook on the Peaceful Settlement
of Disputes between States prepared by the U.N. Office of Legal Affairs, and pub-
lished in 1992, contains in fact several examples of initiatives of prevention, as
well as settlement, of international disputes, undertaken by the U.N. Security
Council, General Assembly and the Secretary-General.123
VIII. Peaceful Settlement beyond State Voluntarism: Some New Trends

As from the aforementioned United Nations debates of the eighties, an aware-
ness seems to have been formed to the effect of overcoming the vicissitudes of
free will in the present domain of International Law. In this respect, on succes-
sive occasions the initiative of a compulsory recourse to conciliation has been
taken. Such proposal found expression in the 1982 U.N. Convention on the Law
119 U.N., Report of the Special Committee on Enhancing the Effectiveness of the Principle
of Non-Use of Force in International Relations, suppl. nº 41 (A/34/41), 1979, pp. 25-
26.
120 In the meaning of Articles 53 and 64 of the 1969 Vienna Convention on the Law of
Treates; cf. ibid., pp. 11 and 28-29.
121 U.N., Report of the Special Committee on Enhancing the Effectiveness of the Principle
of Non-Use of Force in International Relations, suppl. n. 41 (A/37/41), 1982, pp. 17, 37,
39, 49, 55, 57, 60-61 and 84-85, respectively; that thesis was to appear in the report of
the Working Group of the Special Committee; ibid., pp. 54 and 59.
122 U.N., Handbook on the Peaceful Settlement of Disputes between States, N.Y., U.N.
Office of Legal Affairs/Codification Division, 1992, p. 25.
123 Ibid., pp. 120-121 and 127-129.
of the Sea (Articles 297(2) and (3) and 298(1)(a)), just as it likewise did in some of
the “codification Conventions” (e.g., the 1969 Vienna Convention on the Law of
Treaties, the 1986 Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations, the 1975
Vienna Convention on Representation of States in Their Relations with Inter-
national Organizations of Universal Character, the 1978 Vienna Convention on
State Succession in Respect of Treaties, the 1983 Vienna Convention on State
Succession in Respect of Assets, Archives and Debts); compulsory recourse to
conciliation was also enshrined into the 1985 Vienna Convention on the Protec-
tion of the Ozone Layer, the 1992 Framework Convention on Climate Change,
the 1992 Convention on Biological Diversity.
In the same line of thinking, the 1997 Ottawa Convention on Anti-Personnel
Mines and the 1997 U.N. Convention on the Law of the Non-Navigational Uses
of International Watercourses lent support to the idea of compulsory recourse
to fact-finding. Although the result of either conciliation or fact-finding is not
compulsory, recourse to one or the other becomes so, under those respective
Conventions, and it has rightly been suggested that the fact that such recourse is
provided for in those multilateral treaties “may have the effect of guiding States
to conform to the substantive rules of the Conventions”.124
These initiatives further suggest a determination of overcoming sheer State
voluntarism, and gradually moving towards the configuration of some degree
of compulsory settlement also in relation to the operation of non-jurisdictional
methods of dispute settlement, – to the benefit, ultimately, of the international
community as a whole. Still at United Nations level, the 1982 Manila Declaration
on the Peaceful Settlement of International Disputes, the 1988 Declaration on
the Prevention and Removal of Disputes and Situations Which May Threaten
International Peace and Security and on the Role of the United Nations in this
Field, and the 1991 Declaration on Fact-Finding by the United Nations in the Field
of the Maintenance of International Peace and Security, disclose an outlook of
the matter which could hardly fit into a rigid positivist outlook of strict applica-
tion of legal rules. They surely go beyond that outlook, in propounding peaceful
settlement of international disputes also on the basis of the general principles of
International Law.
Another illustration to the effect that the domain of peaceful settlement of
international disputes is no longer entirely open to manifestations of State volun-
tarism lies in the fairly recent establishment of the mechanism of dispute settle-
ment in the ambit of the World Trade Organization [WTO]. In this latter one
can identify, in fact, the advent of a jurisdictionalized mechanism of settlement
of disputes (with double degree of jurisdiction 125), of compulsory character, in
the ambit of the law on international trade. This mechanism comes to emphasize
124 T. Treves, “Recent Trends in the Settlement of International Disputes”, 1 Cursos Eu-
romediterráneos Bancaja de Derecho Internacional – Castellón (1997) pp. 415-417.
125 That is, the panels and the Appellate Body.
558 Chapter XXIV
(although still with some imperfections in practice126) multilateralism in contem-

porary international relations, with rather satisfactory results to date.127 The new
multilateral mechanism of settlement of disputes of the WTO represents, by its
very existence, a sensible advance in the present domain of International Law. To
start with, it establishes an obligation of conduct, in the sense of the observance
of pre-established proceedings. The decisions are binding, and bring about legal
consequences; the mechanism, in sum, is an integral part of Public International
Law,128 and orients itself by the due process of law, what is endowed with signifi-
cance and relevance.
In fact, the procedure of the mechanism of settlement of disputes of the
WTO was conceived in a way of promoting, as far as possible, the foreseeability
and the stability in the contentieux of international trade; hence its tendency
to a preponderantly juridical outlook. The Appellate Body, of the mechanism of
peaceful settlement of the WTO, in some of its reports – mainly in the first of
them – has emphasized that the WTO mechanism referred to, – guided by an es-
sentially “rule-oriented” outlook, – effectively integrates International Law, and
the cases resolved by it fall into the ambit of the contentieux proper of Public
International Law.129 In a chapter of International Law constantly marked, to a
large extent, by inter-State voluntarism, the operation of a compulsory and ju-
risdictionalized mechanism of peaceful settlement of international disputes is at
last achieved in the field of international trade, which fulfils the need of juridical
security (also in this domain), oriented by the principles and norms of Law rather
than considerations of power, – what in turn reverts itself, ultimately, to the ben-
efit of the evolution of International Law itself.130
In sum, the old ambivalence between the duty of peaceful settlement and
the free choice of means (cf. supra) needs to be reassessed in our days. The time
seems to have come to tip the balance in favour of the former, which corresponds
126 Calling for, e.g., the adoption of rules of its own of more universal acceptance (rather
than by reference to more circumscribed experiments, such as OECD).
127 In the operation of the WTO mechanism referred to, the relationship between the
environment and international trade, for example, has been considered. Cf. the
Shrimp/Turtle case (1999), and comments in Ph. Sands, “Turtles and Torturers: The
Transformation of International Law”, 33 New York University Journal of Interna-
tional Law and Politics (2000) p. 534.
128 J. Pauwelyn, “The Role of Public International Law in the WTO: How Far Can We
Go?”, 95 AJIL (2001) pp. 535-578; D. Palmeter and P.C. Mavroidis, “The WTO Legal
System: Sources of Law”, 92 AJIL (1998) pp. 398-413.
129 J.H. Jackson, The World Trade Organization – Constitution and Jurisprudence, Lon-
don, Royal Institute of International Affairs, 1999 [reprint], pp. 61-62, 89 and 98.
The Appellate Body has made it clear, in its practice, that the general principles of
international law (also in the matter of interpretation of treaties) are applicable to
the agreements of the WTO.
130 J. Cameron and K.R. Gray, “Principles of International Law in the WTO Dispute
Settlement Body”, 50 International and Comparative Law Quarterly (2001) pp. 248-
298.
to a general principle of international law, and its prevalence over the latter,
which is but a faculty open to the contending parties. The international commu-
nity seems to have attained a level of consciousness to concede that the principle
of peaceful settlement ought to condition the free choice of means. Develop-
ments in the present chapter of International Law in recent decades, as already
indicated, appear to point in this direction. The growing institutionalization of
dispute settlement systems,131 in particular under some multilateral treaties,132 is
bound to foster a less permissive and more clearly rule of law-oriented approach,
emphasizing obligations to cooperate, which at times may appear as being truly
erga omnes partes.133 Such developments are reassuring, as they appear in keep-
ing with the general interests of the international community.
IX. Peaceful Settlement and the General Interests of the

It can hardly be doubted that peaceful settlement of international disputes is
in keeping with the general interests of the international community. By and
large, at universal level, States have displayed in most cases a certain preference
for less rigid and more flexible methods of conflict resolution, suitable to the
circumstances of the cas d’espèce, – but this has not impeded them to resort, in
some cases, to arbitral and judicial solutions. There have lately been attempts of
codification and progressive development of the matter at universal U.N. level,134
and some progress has indeed been achieved in recent years, as illustrated by
the mechanism of dispute-settlement of the 1982 U.N. Convention on the Law
of the Sea. Furthermore, the reaction of some States expressing their preference
for compulsory settlement of disputes under the 1985 Vienna Convention for the
Protection of the Ozone Layer has disclosed a greater awareness in the interna-
tional community as to the need of international compulsory jurisdiction.135
131 Such as, inter alia, as already seen, the panels and the Appelate Body of the current
mechanism of dispute settlement of the World Trade Organization (WTO, supra).
132 E.g., compulsory recourse to conciliation and to fact-fi nding (supra).
133 A. Peters, “International Dispute Settlement: A Network of Cooperational Duties”,
14 European Journal of International Law (2003) pp. 1-5, 9-11 and 30-34.
134 Such as, e.g., at global (United Nations) level, the 1982 Manila Declaration on the
Peaceful Settlement of International Disputes; the 1988 U.N. Declaration on the Pre-
vention and Removal of Disputes and Situations Which May Th reaten International
Peace and Security and on the Role of the United Nations on This Field; and various
U.N. General Assembly resolutions (including resolution 44/21, of 15.11.1989) on the
enhancement of international peace in accordance with the U.N. Charter. Cf. B.
Boutros-Ghali, An Agenda for Peace (1995), 2nd. ed. (with Supplement), N.Y., U.N.,
1995, p. 52.
135 Cf. chapter XXV, infra, on the matter.
560 Chapter XXIV
If international practice yielded in the past to State voluntarism, such pos-

ture is in our days under heavy criticism;136 distinct domains of Public Interna-
tional Law have long overcome the voluntarist dogma,137 and there is reason for
hope that dispute-settlement may also evolve to the same effect. There exists
nowadays, at least, a growing awareness of some factors which can pave the way
for advances in this matter to this end.138 First, there is consensus nowadays as
to the importance of prevention, – of taking all possible preventive measures
to avoid the outbreak and escalation of conflicts. Secondly, the understanding
seems now to prevail whereby settlement of disputes cannot focus only on the
symptoms, but ought to encompass also the underlying causes which generate
them, and their removal, – if a durable solution is to be achieved at all. And
thirdly, there is today, furthermore, generalized awareness of the need to find
such permanent solutions to conflicts, and of the virtual impossibility to reach
them without a sense of fairness and justice. After all, peace and justice go hand
in hand; one cannot be achieved without the other.
Thus, although peaceful settlement of international disputes remains a
chapter of International Law marked by the ambivalence between the general
duty underlying it and – in most cases – the prerrogative of free choice of means,
it is bound to benefit from recent advances on international adjudication in par-
ticular.139 After all, this is also a domain of International Law which, despite that
ambivalence, for over a century, – from the two Hague Peace Conferences of 1899
and 1907 to date, – has been constantly revised and revitalized by initiatives aim-
ing to explore the potential of the consolidated methods of dispute-settlement.140
The advent of the League of Nations, added to the 1928 Briand-Kellogg Pact, in
turn, contributed to relate peaceful settlement to advances in the substantive law
itself.141 In the United Nations era, there have been successive initiatives of in-

137 E.g., the international protection of human rights, the law of international organiza-
tions, the international regulation of spaces – particularly as regards the so-called
“global commons”, – the international protection of the environment, to name a
few.
138 A.A. Cançado Trindade, “Regional Arrangements and Conflict Resolution in Latin
America”, in Conflict Resolution: New Approaches and Methods, Paris, UNESCO,
2000, pp. 141-162.
140 In historical perspective, it is reckoned that the two aforementioned Hague Peace
Conferences contributed in particular to such methods as mediation and good of-
fices, besides dwelling upon investigation and arbitral procedure; L. Caflisch, op. cit.
supra n. (59), pp. 308-309 and 325. And cf. also, generally, Permanent Court of Arbi-
tration, The Hague Peace Conferences of 1899 and 1907 and International Arbitration
– Reports and Documents (ed. S. Rosenne), The Hague, T.M.C. Asser Press, 2001, pp.
21-457; R. Redslob, Traité de droit des gens, Paris, Rec. Sirey, 1950, pp. 354-359 and
368-377.
141 L. Caflisch, op. cit. supra n. (59), pp. 259-261.
stitutionalization of procedures of peaceful settlement (e.g., conciliation), under

codification Conventions and other multilateral treaties (cf. supra).
Thus, the new approach to the technique of choice of procedures, inaugu-
rated by the 1982 Law of the Sea Convention, was retaken (in a simplified way,
with a choice between the ICJ and arbitration) by the 1991 Protocol of Madrid
on the Protection of the Antarctica Environment. This is likewise found (in the
same simplified formula), although without a compulsory character, in the 1985
Convention on the Protection of the Ozone Layer, in the 1992 Framework Con-
vention on Cimate Change, and in the 1992 Helsinki Conventions on Protection
and Utilization of Transfrontier Watercourses and International Lakes, and on
Transfrontier Effects of Industrial Accidents; although rendered entirely option-
al by those treaties, the latitude of choice of procedures open to the contending
parties at least seeks to ensure the settlement of disputes thereunder.142
Parallel to the multilateral treaties, the U.N. General Assembly has, on
distinct occasions, expressed the need and has lent support to the institution-
alization of procedures. It has, e.g., contemplated the method of investigation
operating on a permanent basis (including even a list of fact-finders);143 it has,
furthermore, recommended a wider use of a general procedure of conciliation,144
given its usefulness in practice. In one of its well-known resolutions in the pres-
ent context, incorporating the Manila Declaration on Peaceful Settlement of
Disputes (of 15.11.1982), the General Assembly restated the principles of peace-
ful settlement and good faith, and stressed its own role in the present domain
(consultations within the Assembly), apart from that of the Security Council.
Approved by consensus, the Manila Declaration drew renewed attention to the
present chapter of International Law, and was regarded as being, above all, the
“expression d’une conscience de plus en plus aiguë du besoin de la réalisation pra-

tique du principe du règlement pacifique des différends”.145
In 1999, in the centennial celebration of the first Hague Peace Conference (1899),
attention was again drawn to ideas and proposals on dispute settlement. They
included, e.g., the following ones: the relevance of prevention of international
disputes,146 further use of conciliation, flexible forms of mediation, institution-
alization of inquiry and fact-finding, contribution in recent years of Truth and
Reconciliation Commissions, enhancement of the advisory function of the ICJ,
participation of non-State entities and individuals in ICJ proceedings, rendering
142 Ibid., pp. 448-449.

143 G.A. resolution 2329(XXII) of 13.12.1967.
144 G.A. resolution 50/50, of 11.12.1995.
145 M. Sahovic, “La Déclaration de Manille sur le règlement pacifique des différends
internationaux”, in Essays in International Law in Honour of Judge Manfred Lachs
(ed. J. Makarczyk), The Hague, Nijhoff, 1984, p. 458, and cf. pp. 452-453.
146 As in, e.g., international environmental law.
562 Chapter XXIV
regional organizations entitled to request advisory opinions from the ICJ.147 The
current reconsideration of the matter discloses the renewed importance attrib-
uted to it by the international community.
There is, moreover, a variety of forms of dispute-settlement, some of them
not necessarily involving two of more States. There are distinct kinds of disputes
at international level. A considerable progress has been achieved, e.g., in the
settlement of disputes opposing individual complainants to respondent States,
as disclosed by the advances in the domain of the International Law of Human
Rights. Much has been achieved also in specialized areas, such as those of en-
vironmental as well as commercial dispute settlement, among others. Progress
may appear somewhat slow in the settlement of traditional inter-State disputes,
but even here a certain awareness seems to have been developing in recent years,
– otherwise the initiatives already referred to (cf. supra), and materialized, some
of them, in multilateral treaties, would not have been taken and would not have
flourished. Given the factual inequalities of power among juridically equal States,
peaceful settlement of international disputes may be perceived as beneficial to
States, and, ultimately, to the international community as a whole.
After all, settlement of disputes on the basis of the rule of law is bound to
serve better the interests of contending States than calculations of power with
their characteristic unpredictability. When bilateral negotiations appear no lon-
ger viable, third-party dispute settlement appears needed as a guarantee against
“unilateral interpretation by a State” (usually, the factually more powerful one) of
given provisions.148 Peaceful settlement by means of the application of the meth-
ods known in International Law draws attention to the juridical equality of States
and to the role of law in the present domain. States seem at last to have become
aware that they cannot at all be expected to endanger international peace and
security by placing what they perceive as their own individual interests above
the general and superior interests of the international community in the mainte-
nance of peace and realization of justice.
X. Concluding Observations
The fact that the general duty of peaceful settlement of disputes has appeared to
date coupled with the free choice of means left to the contending parties, does
not mean that it is in the nature of this chapter of International Law that it should
always and ineluctably be so. Not at all. That general duty ensues from a general
principle of International Law, that of peaceful settlement of disputes. The free
147 Cf., generally, e.g., F. Orrego Vicuña and C. Pinto, “Peaceful Settlement of Disputes:
Prospects for the XXIst Century (Revised Report Prepared for the Centennial of the
I International Peace Conference)”, in The Centennial of the I International Peace
Conference – Reports and Conclusions (ed. F. Kalshoven), The Hague, Kluwer/UNI-
TAR, 2000, pp. 268-399.
148 M.M.T.A. Brus, Third Party Dispute Settlement in an Interdependent World, Dor-
drecht, Nijhoff, 1995, p. 183.
choice of means is not a principle of International Law, but rather a faculty which
States – duly or unduly, I see no point in indulging into conjectures here, – have
reserved for themselves. The 1982 Manila Declaration on Peaceful Settlement of
International Disputes, though rightly sharing, with other Declarations of the
kind, an approach of the matter on the basis of general principles of International
Law (cf. supra), in one specific aspect fell into an imprecision: it mistakenly called
the free choice of means a “principle”, when it is nothing but a faculty granted to
the contending parties, and an increasingly residual one.
In that respect, the 1982 Manila Declaration drew on the 1970 Declaration of
Principles of International Law Concerning Friendly Relations and Cooperation
among States,149 but the Manila Declaration added a qualification, to the effect
that peaceful settlement of disputes by the means freely chosen by the contending
parties should be undertaken “in conformity with obligations under the Charter
of the United Nations and with the principles of justice and International Law”.150
It should not pass unnoticed that Article 33(1) of the U.N. Charter, in opening up
a wide choice of means of peaceful settlement to contending parties (negotiation,
inquiry, mediation, conciliation, arbitration, judicial settlement, resort to region-
al arrangements), lays down, in imperative terms (“shall [...] seek a solution”), the
principle of the duty of States to settle peacefully any dispute the continuance of
which is likely to endanger the maintenance of international peace and security.
This is the basic principle guiding the whole matter, that of peaceful settle-
ment, set forth in mandatory terms in Article 2(3) of the U.N. Charter. The free
choice of means is but a prerrogative open to contending parties to make sure
that that duty is duly complied with. Moreover, it could hardly be doubted that
there have been advances in international dispute settlement in recent years, sur-
veyed herein, tipping the balance nowadays in favour of the general principle of
peaceful settlement. This is reassuring. As the prolongation and aggravation of
certain international disputes can put directly at risk international peace and
security, it is to be hoped that this trend will continue, and that States will be
increasingly conscious that their common and general interests are much better
served by reliance upon the general principle of peaceful settlement than stub-
born insistence upon voluntarism, i.e., an entirely free choice of means.
Almost two decades ago, in my lectures of 1987 at the Hague Academy of
International Law, I saw it fit to ponder that
“(...) the terminology itself of human rights treaties provides a clear indication that
the rationale of their implementation, directed to protection of human rights, can-
not be equated to that of the classic means of peaceful settlement of inter-State con-
flicts of interests. (...) The chapter on peaceful settlement of international disputes
has constantly been particularly vulnerable to manifestations of State voluntarism.
(...) (...) In contrast, in the fulfi lment of their international obligations (...) concerning
149 2nd. principle, par. 5. And cf. chapter III, supra.

150 3rd. principle, par. 3, and cf. par. 10; and cf. A.A. Cançado Trindade, “Co-existence
and Co-ordination of Mechanisms...”, op. cit. infra n. (151), pp. 387-388 and n. 1284.
564 Chapter XXIV
the settlement of ‘human rights cases’, States cannot be expected to claim or count
on the same degree of freedom of action or margin of appreciation. Moreover, the
relationship of equilibrium dictated by the principle of sovereign equality of States
(supra) is no longer present in the settlement of human rights complaints, which is
directed to the protection of the ostensibly weaker party, the alleged victims”.151
The international experience gathered and accumulated in recent years, e.g., in

the settlement of human rights cases,152 has contributed to shift the emphasis
onto considerations of general interest or ordre public in the peaceful settlement
of international disputes in general. To this the purpose of prevention of disputes
is to be added. And here we are faced with the basic legacy of the two Hague
Peace Conferences (of 1899 and 1907), which has been characterized as “a land-
mark in the history of mankind”, in recalling, inter alia, the passage of the Final
Act of the I Conference (of 1899) whereby the substantial restriction of military
charges would be “extremely desirable for the increase of the material and moral
welfare of mankind”.153
In peaceful dispute-settlement, in any case, despite recurring invocations
of the faculty of free choice of means, the specification, by several multilateral
treaties of various kinds, of choices of means of settlement of disputes open to
States Parties as to their interpretation and application, notably reduces in prac-
tice the traditionally wide – and almost limitless – freedom of choice of means
of peaceful settlement that States used to enjoy, or used to believe to be entitled
to enjoy. The time seems now come to have a more generalized recourse to bind-
ing methods of peaceful settlement, which may operate to the benefit not only of
contending parties, in settling their differences, but also, ultimately, of human-
kind itself, in preserving international peace and security. The decreasing discre-
tion left to contending States is nowadays noticeable in, besides the International
Law of Human Rights, also such other domains of International Law, such as the
International Law of the Sea (cf. supra), among others.
There is greater awareness nowadays that peaceful settlement of interna-
tional disputes transcends the interests of contending States, and is in keeping
with the general interests of the international community as a whole. It does in
fact constitute a response to the necessities and requirements of contemporary
international relations. Recent initiatives such as those of a compulsory recourse

national Protection of Human Rights (At Global and Regional Levels)”, 202 RCADI
(1987) pp. 385-389, and cf. p. 390.
152 In the same line of thinking, K. Vasak has aptly emphasized the primacy, in this last
domain, of the “valeurs communes à l’emsemble des États parties” to the human
rights treaties at issue; K. Vasak, “Le droit international des droits de l’homme”, 140
RCADI (1974) pp. 383-384.
153 F. Kalshoven (ed.), The Centennial of the First International Peace Conference – Re-
ports and Conclusions, The Hague, Kluwer/UNITAR, 2000, pp. 1 and 54 (interven-
tions by F. Kalshoven and H. Blix, respectively).
to conciliation as well as to fact-finding, and the growing emphasis on preven-

tion of disputes, are illustrative of the aforementioned greater awareness. Here
the recourse to such methods is what becomes binding, even though the solution
or outcome is not compulsory. But this trend likewise illustrates the growing
awareness of the relevance of peaceful settlement, to the ultimate benefit not
only of the contending parties themselves but of the international community as
a whole. In a vulnerable world such as ours, the fate of one appears linked to that
of the others.
In fact, the international community itself is increasingly conscious that, if
international disputes remain unsettled and are likely to spread, they may affect
other States and, as pointed out by V. Pechota, impair “common shared values”;154
the U.N. Charter itself refers to disputes or situations likely to affect friendly rela-
tions among States and to endanger international peace and security (Articles 33
and 14), and, throughout the last decades, the concept of “international concern”
has come to apply to a growing variety of situations. Thus, even a chapter of In-
ternational Law so much marked in the past by State voluntarism as the present
one, may be approached in the light of common and superior interests, so as to
promote the values shared by the international community. Third-party settle-
ment functions may thus be regarded as endowed with a new feature, insofar as
their exercise contributes not only to settle disputes but also to restore the equi-
librium of values of the international community.155
The relationship between the principles of peaceful settlement of disputes
and of the duty of international cooperation in the present domain of Interna-
tional Law has already been pointed out (cf. supra). Other principles of Interna-
tional Law come likewise into play, such as that of the prohibition of the use or
threat of force. Moreover, in acting in good faith (in pursuance of another ba-
sic principle), States will not only be complying with International Law, but also
serving their own interests in implementing it, as, ultimately, International Law
is the guardian of their own rights; in not acting in good faith, they would – as
pertinently warned by M. Lachs – be risking much more than what they would
have to gain.156
Bearing recent developments on the matter in mind, the conditions seem
to be met for international legal doctrine to move definitively away from volun-
tarism and ample permissiveness (as to choice of methods) and to place greater
154 V. Pechota, “Complementary Structures of Third-Party Settlement of International

Disputes”, in Dispute Settlement through the United Nations (ed. K. Venkata Ra-
man), Dobbs Ferry N.Y., Oceana, 1977, p. 174, and cf. 217.
155 Cf. ibid., pp. 175-176 and 178-180.
156 M. Lachs, “Some Thoughts of the Role of Good Faith in International Law”, in Dec-
larations on Principles, A Quest for Universal Peace – Liber Amicorum Discipulo-
rumque B.V.A. Roling, Leyden, Sijthoff, 1977, p. 54; and cf. E. Zoller, La bonne foi en
Droit international public, Paris, Pédone, 1977, pp. 3-354; R. Kolb, La bonne foi en
Droit international public – Contribution à l’étude des principes généraux de Droit,
Paris/Genève, PUF/IUHEI, 2000, pp. 3-688.
566 Chapter XXIV
weight upon the sense of responsibility and obligation (of peaceful setttlement of
disputes), in conformity with a general principle of International Law, and in ful-
filment of the general interests of the international community as a whole. Those
recent developments indicate that an appropriate study of the matter at issue, if
it is to reflect faithfully its present stage of evolution, should no longer take as a
starting point – as the legal doctrine of the past did – the free choice of means; it
should rather start from the duty of peaceful settlement emanating from a gen-
eral principle of International Law, bearing in mind that the outbreak and persis-
tence of international disputes cause damage to international relations, and their
aggravation put at risk international peace and security. Hence the pressing need
to have them peacefully settled, in pursuance also of the principle of the prohibi-
tion of the threat or use of force in International Law.157
Furthermore, the spectre of nuclear deadlock, and the current threat of the
arsenals of weapons of mass destruction, and of the arms trade, as well as the
outbreak of violent (internal) conflicts in different latitudes in recent years, mark
their alarming presence in current concerns with the need to secure greater effec-
tiveness to methods of peaceful settlement of international disputes. In the pres-
ent era of blatant vulnerability of humankind, the prevalence of an international
legal order giving expression to values shared by the international community as
a whole appears as, more than voluntary, truly necessary.158 Peaceful settlement
of disputes, in particular those which may endanger international peace and se-
curity, operates thus to the ultimate benefit of humankind as a whole. This out-
look of the matter ought to illuminate the present chapter of the new jus gentium,
of the International Law for humankind, at this beginning of the XXIst century.
With the preceding considerations in mind, and in the same line of reasoning,
the way appears now paved for the examination of what I regard as the necessity
of compulsory jurisdiction for the improvement of international adjudication in
particular.
157 The principles of international cooperation and good faith have also a role to play
herein, disclosing the function of law in dispute-settlement; P.J.I.M. de Waart, The
Element of Negotiation in the Pacific Settlement of Disputes between States, The
Hague, Nijhoff, 1973, pp. 27-28 and 202, and cf. p. 5.
158 Cf. The Collected Papers of J. Westlake on Public International Law (ed. L. Op-
penheim), Cambridge, Cambridge University Press, 1914, p. 79; M. Bourquin,
“L’humanisation du Droit des Gens”, La technique et les principes du Droit pub-
lic – Études en l’honneur de Georges Scelle, vol. I, Paris, LGDJ, 1950, p. 35; M. Bos,
“Dominant Interests in International Law”, 21 Revista Española de Derecho Interna-
cional (1968) p. 234.
Chapter XXV International Rule of Law:
The Need and Quest for International
Compulsory Jurisdiction
I. International Rule of Law Beyond Peaceful Settlement of Disputes

Most of the classic works on international adjudication date from a time when
one counted only on, besides the Permanent Court of Arbitration and interna-
tional arbitral tribunals, the Hague Court – the Permanent Court of Interna-
tional Justice [PCIJ] followed by its successor, the International Court of Justice
[ICJ]. In recent years international adjudication has experienced a considerable
expansion, with the emergence of new international tribunals. This phenomenon
appears to acknowledge that judicial settlement of international disputes comes
to be seen as retaining a superiority, at least at conceptual level, in relation to
political means of settlement, to the extent that the solution reached is based on
the rule of law, and no State is to regard itself as standing above the law.
International jurisdiction seems nowadays to go beyond the framework of
methods of peaceful settlement of international disputes. Its expansion in con-
temporary International Law responds and corresponds to a need of the inter-
national community of our times. The international rule of law finds expression
no longer only at national, but also at international, level. At this latter, the idea
of a préeminence of International Law has gained ground in recent years, as ac-
knowledged, e.g., by the Advisory Opinion of the ICJ on the Obligation to Arbi-
trate by Virtue of Section 21 of the 1947 U.N. Headquarters Agreement (1988); this
idée-force has fostered the search for the realization of justice under the rule of
law at international level, and has stressed the universal dimension of a new jus
gentium in our days.1
The growth of international adjudicative organs transcends peaceful settle-
ment of disputes, pointing to the gradual formation of a judicial branch of the in-
ternational legal system.2 There is great need for a sustained law-abiding system
1 J.-Y. Morin, “L’état de Droit: émergence d’un principe du Droit international”, 254
Recueil des Cours de l’Académie de Droit International de La Haye [RCADI] (1995)
pp. 199, 451 and 462.
2 J. Allain, “The Future of International Dispute Resolution – The Continued Evolu-
tion of International Adjudication”, in Looking Ahead: International Law in the 21st
Century / Tournés vers l’avenir: Le droit international au 21ème siècle (Proceedings
568 Chapter XXV
of international relations3 (a true international rule of law); nowadays “any prog-

ress in International Law passes through progress in international adjudication”.4
Judicial settlement bears testimony of the superiority of law over will or pressure
or force. The applicable legal norms preexist the dispute itself. Some advances
have been achieved in recent years in the domain of international compulsory
jurisdiction, although there appears to remain still a long way to go. A current
reassessment of international adjudication can thus be appropriately undertaken,
in my view, in historical perspective and in the context of the growth of interna-
tional jurisdiction, bearing in mind the recurring need and quest for compulsory
jurisdiction, in pursuance of the realization of international justice.
II. International Rule of Law: The Saga of the Optional Clause of

Compulsory Jurisdiction
1. From the Professed Ideal to a Distorted Practice

In this respect, one may initially recall the legislative history of the provision of
the optional clause of compulsory jurisdiction, as found in Article 36(2) of the
Statute of the ICJ, which is essentially the same as the corresponding provision
of the Statute of its predecessor, the old PCIJ. The aforementioned Article 36(2)
establishes that
“The States Parties to the present Statute may at any time declare that they rec-
ognize as compulsory ipso facto and without special agreement, in relation to any
other State accepting the same obligation, the jurisdiction of the Court in all legal
disputes concerning: a) the interpretation of a treaty; b) any question of internation-
al law; c) the existence of any fact which, if established, would constitute a breach of
an international obligation; d) the nature or extent of the reparation to be made for
the breach of an international obligation”.
Article 36(3) adds that “the declaration referred to above may be made uncondi-
tionally or on condition of reciprocity on the part of several or certain States, or
for a certain time”.5
of the 29th Annual Conference of the Canadian Council of International Law, Ot-
tawa, October 2000), The Hague, Kluwer, 2002, pp. 65, 67, 69 and 71, and cf. pp. 61
and 64.
3 Bin Cheng, “Whither International Law?”, in Contemporary Issues in International
Law (eds. D. Freestone, S. Subedi and S. Davidson), The Hague, Kluwer, 2002, pp. 56
and 35.
4 J. Allain, A Century of International Adjudication: The Rule of Law and Its Limits,
The Hague, T.M.C. Asser Press, 2000, p. 186, and cf. p. 185.
5 And Article 36(6) determines that “in the event of a dispute as to whether the Court
has jurisdiction, the matter shall be settled by the decision of the Court”.
International Rule of Law: The Need and Quest for International Compulsory Jurisdiction 569
The origin of the aforementioned provision is found in the travaux prépara-

toires of the original Statute of the PCIJ. This latter was drafted in 1920 by an
Advisory Committee of Jurists (of 10 members),6 appointed by the Council of
the League of Nations, and which met at The Hague, in June-July 1920. On that
occasion there were those who favoured the pure and simple recognition of the
compulsory jurisdiction of the future PCIJ, to what the more powerful States
were opposed, objecting that one had gradually to come to trust the interna-
tional tribunal to be created, before conferring upon it compulsory jurisdiction
tout court. In order to overcome the deadlock within the Committee of Jurists
referred to, one of its members, the Brazilian jurist Raul Fernandes, proposed
the ingenuous formula which was to become Article 36(2) of the Statute – the
same as the one of the present Statute of the ICJ, – which came to be known as
the “optional clause of the compulsory jurisdiction”.7 The Statute, approved on
13.12.1920, entered into force on 01.09.1921.8
At that time, the decision that was taken constituted the initial step that,
during the period of 1921-1940, contributed to attract the acceptance of the com-
pulsory jurisdiction – under the optional clause – of the PCIJ by a total of 45
States.9 The formula of Raul Fernandes,10 firmly supported by the Latin-Ameri-
can States,11 was incorporated into the Statute of the PCIJ; it served its purpose
6 Namely: Mr. Adatci (Japan), Altamira (Spain), Fernandes (Brazil), Baron Descamps
(Belgium), Hagerup (Norway), De La Pradelle (France), Loder (The Netherlands),
Lord Phillimore (Great Britain), Ricci Busatti (Italy) and Elihu Root (United States).
7 Cf. R.P. Anand, Compulsory Jurisdiction of the International Court of Justice, New
Delhi/Bombay, Asia Publ. House, 1961, pp. 19 and 34-36.
8 For an account, cf., inter alia, J.C. Witenberg, L’organisation judiciaire, la procédure
et la sentence internationales – Traité pratique, Paris, Pédone, 1937, pp. 22-23; L.
Gross, “Compulsory Jurisdiction under the Optional Clause: History and Practice”,
The International Court of Justice at a Crossroads (ed. L.F. Damrosch), Dobbs Ferry/
N.Y., ASIL/Transnational Publs., 1987, pp. 20-21.
9 Cf. the account of a Judge of the old PCIJ, M.O. Hudson, International Tribunals
– Past and Future, Washington, Carnegie Endowment for International Peace/
Brookings Institution, 1944, pp. 76-78. – That total of 45 States represented, in real-
ity, a high proportion, at that epoch, considering that, at the end of the thirties, 52
States were members of the League of Nations (of which the old PCIJ was not part,
distinctly from the ICJ, which is the main judicial organ of the United Nations, and
whose Statute forms an organic whole with the U.N. Charter itself).
10 In his book of memories published in 1967, Raul Fernandes revealed that the Com-
mittee of Jurists of 1920 was faced with the challenge of establishing the basis of the
jurisdiction of the PCIJ (as from the mutual consent among the States) and, at the
same time, of safeguarding and reaffi rming the principle of the juridical equality
of the States; cf. R. Fernandes, Nonagésimo Aniversário – Conferências e Trabalhos
Esparsos, vol. I, Rio de Janeiro, M.R.E., 1967, pp. 174-175.
11 J.-M. Yepes, “La contribution de l’Amérique Latine au développement du Droit in-
ternational public et privé”, 32 RCADI (1930) p. 712; F.-J. Urrutia, “La Codification
du Droit International en Amérique”, 22 RCADI (1928) pp. 148-149; and cf., more
570 Chapter XXV
in the folowing two decades. Even before the creation and operation of the PCIJ
in the period already referred to, the pioneering example of the Central Ameri-
can Court of Justice, created in 1907, should not pass unnoticed. That Court,
endowed with a wide jurisdiction, and to which individuals had direct access
(enabled to complain even against their own States), operated on a continuous
basis during one decade (1908-1918). It heralded the advances of the rule of law at
international level, and, during its existence, it was regarded as giving expression
to the “Central American conscience”.12
At the San Francisco Conference of 1945, the possibility was contemplated
to take a step forward, with an eventual automatic acceptance of the compulsory
jurisdiction of the new ICJ; nevertheless, the great powers – in particular the
United States and the Soviet Union – were opposed to this evolution, sustain-
ing the retention, in the Statute of the new ICJ, of the same “optional clause of
compulsory jurisdiction” of the Statute of 1920 of the predecessor PCIJ. The rap-
porteur of the Commission of Jurists (entrusted with the study of the matter at
the San Francisco Conference of 1945), the French jurist Jules Basdevant, pointed
out that, although the majority of the members of the Commission favoured the
automatic acceptance of the compulsory jurisdiction, there was no political will
at the Conference (and nor in the Dumbarton Oaks proposals) to take this step
forward.13
Consequently, the same formulation of 1920, which corresponded to a con-
ception of International Law of the beginning of the XXth century, was main-
tained in the present Statute of the ICJ. Due to the intransigent position of the
more powerful States, a unique oportunity was lost to overcome the lack of au-
tomatism of the international jurisdiction and to foster a greater development of
the compulsory jurisdiction of the international tribunal. It may be singled out
that all this took place at the level of purely inter-State relations. The formula of
the optional clause of compulsory jurisdiction (of the ICJ) which exists today,
is nothing more than a scheme of the twenties, stratified in time,14 and which,
recently, S.A. Alexandrov, Reservations in Unilateral Declarations Accepting the

Compulsory Jurisdiction of the International Court of Justice, Dordrecht, Nijhoff,
1995, pp. 7-8.
12 C.J. Gutiérrez, La Corte de Justicia Centroamericana, San José of Costa Rica, Ed.
Juricentro, 1978, pp. 31, 42, 106, 150-154 and 157-158.
13 Cf. the account of R.P. Anand, op. cit. supra n. (7), pp. 38-46; and cf. also, on the issue,
S. Rosenne, The Law and Practice of the International Court, vol. I, Leyden, Sijthoff,
1965, pp. 32-36; Ian Brownlie, Principles of Public International Law, 6th. ed., Ox-
ford, University Press, 2003, pp. 677-678; O.J. Lissitzyn, The International Court of
Justice, N.Y., Carnegie Endowment for International Peace, 1951, pp. 61-64.
14 For expressions of pessimism as to the practice of States under that optional clause,
at the end of the seventies, cf. J.G. Merrills, “The Optional Clause Today”, 50 British
Year Book of International Law [BYBIL] (1979) pp. 90-91, 108, 113 and 116.
rigorously speaking, no longer corresponds to the needs of the international con-

tentieux not even of a purely inter-State dimension.15
Such is the case that, by mid-2005, for example, of the totality of member
States of the United Nations, no more than 69 States were subject to the compul-
sory jurisdiction of the ICJ by acceptance of the optional clause of Article 36(2) of
its Statute,16 – that is, roughly a third of the international community of our days.
And several of the States which have utilized it, have made a distorted use of it,
denaturalizing it, in introducing restrictions which militate against its rationale
and deprive it of all efficacy. In reality, almost two-thirds of the declarations of
acceptance of the aforementioned clause have been accompanied by limitations
and restrictions which have rendered them “practically meaningless”.17
One may, thus, seriously question whether the optional clause keeps on
serving the same purpose which inspired it at the epoch of the PCIJ.18 The rate of
its acceptance in the era of the ICJ is proportionally inferior to that of the epoch
of its predecessor, the PCIJ. Furthermore, throughout the years, the possibility
opened by the optional clause of acceptance of the jurisdiction of the interna-
tional tribunal became, in fact, object of excesses on the part of some States,
which only accepted the compulsory jurisdiction of the ICJ in their own terms,
15 Regretting (as former President of the ICJ) that this outdated position has insulated
the Hague Court from the great corpus of contemporary International Law, cf. R.Y.
Jennings, “The International Court of Justice after Fifty Years”, 89 American Journal
of International Law (1995) p. 504.
16 For the most recently published texts of the declarations of acceptance, cf. ICJ, Year-
book 2002-2003, vol. 57, The Hague, ICJ, 2003, pp. 127-172 (by then, 64 States had
deposited their declarations of acceptance).
17 G. Weissberg, “The Role of the International Court of Justice in the United Nations
System: The First Quarter Century”, The Future of the International Court of Justice
(ed. L. Gross), vol. I, Dobbs Ferry N.Y., Oceana Publs., 1976, p. 163; and, on the feeel-
ing of frustration that this generated, cf. ibid., pp. 186-190. Cf. also Report on the
Connally Amendment – Views of Law School Deans, Law School Professors, Inter-
national Law Professors (compiled under the auspices of the Committee for Effec-
tive Use of the International Court by Repealing the Self-Judging Reservation), New
York, [1961], pp. 1-154.
18 Cf. statistic data in G. Weissberg, op. cit. supra n. (17), pp. 160-161; however, one
ought to recall the clauses compromissoires pertaining to the contentious jurisdic-
tion of the ICJ, which, in the mid-seventies, appeared in about 180 treaties and con-
ventions (more than two thirds of which of a bilateral character, and concerning
more than 50 States – ibid., p. 164).
572 Chapter XXV
with all kinds of limitations.19 Thus, it is not at all surprising that, already by the
mid-fifties, one began to speak openly of a decline of the optional clause.20
Those excesses occurred precisely because, in elaborating the Statute of the
new ICJ, one failed to follow the evolution of the international community. One
abandoned the very basis of the compulsory jurisdiction of the ICJ to a volun-
tarist conception of International Law, which prevailed at the beginning of the
last century, but was subsequently dismissed by its harmful consequences to the
conduction of international relations, – such as vehemently warned by the more
authoritative contemporary international juridical doctrine. There can be no
doubt whatsoever that the distorted and incongruous practice, developed under
Article 36(2) of the Statute of the ICJ, definitively does not serve as an example or
model to be followed by the States Parties to treaties of protection of the rights
of the human being (such as the European and American Conventions on Hu-
man Rights), in relation to the extent of the jurisdictional basis of the work of the
European and Inter-American Courts of Human Rights.
2. International Compulsory Jurisdiction: Reflections Lex Lata

Contemporary International Law has gradually evolved, putting limits to the
manifestations of a State voluntarism which revealed itself as belonging to an-
other era.21 Much progress has here been achieved due to the impact of the Inter-
national Law of Human Rights upon Public International Law. The methodology
of interpretation of human rights treaties,22 to start with, has been developed as
from the rules of interpretation set forth in International Law (such as those for-
mulated in Articles 31-33 of the two Vienna Conventions on the Law of Treaties,
19 Some of them gave the impression that they thus accepted that aforementioned op-
tional clause in order to sue other States before the ICJ, trying, however, to avoid
themselves to be sued by other States; J. Soubeyrol, “Validité dans le temps de la
déclaration d’acceptation de la juridiction obligatoire”, 5 Annuaire français de Droit
international (1959) pp. 232-257, esp. p. 233.
20 C.H.M. Waldock, “Decline of the Optional Clause”, 32 BYBIL (1955-1956) pp. 244-
287. And, on the origins of this decline, cf. the Dissenting Opinion of Judge Guerrero
in the Norwegian Loans case (Judgment of 06.07.1957), ICJ Reports (1957) pp. 69-70.
21 When this outlook still prevailed to some extent, in a classic book published in 1934,
Georges Scelle, questioning it, pointed out that the self-attribution of discretionary
competence to the rulers, and the exercise of functions according to the criteria of
the power-holders themselves, were characteristics of a not much evolved, imper-
fect, and still almost anarchical international society; G. Scelle, Précis de droit des
gens – Principes et systématique, part II, Paris, Rec. Sirey, 1934 (reed. 1984), pp. 547-
548. And cf., earlier on, to the same effect, L. Duguit, L’État, le Droit objectif et la loi
positive, vol. I, Paris, A. Fontemoing Ed., 1901, pp. 122-131 and 614.
22 As can be inferred from the vast international case-law in this respect, analysed
in detail in: A.A. Cançado Trindade, El Derecho Internacional de los Derechos Hu-
manos en el Siglo XXI, Santiago/Mexico/Buenos Aires/Barcelona, Editorial Jurídica
de Chile, 2001, pp. 15-58.
of 1969 and 1986), comprising not only the substantive norms (on the protected
rights) but also the clauses that regulate the mechanisms of international protec-
tion.
The optional clauses of recognition of the contentious jurisdiction of both
the European Court of Human Rights [ECtHR] (prior to Protocol n. 11 to the Eu-
ropean Convention)23 and the Inter-American Court of Human Rights [IACtHR]
found inspiration in the model of the optional clause of compulsory jurisdiction
of the ICJ, – a formula originally conceived 90 years ago (cf. supra). Despite the
common origin, in search of the realization of the ideal of international justice,
the rationale of the application of the optional clause has been interpreted in a
fundamentally distinct way, on the one hand in inter-State litigation, and on the
other hand in that of human rights. In the former, considerations of contractual
equilibrium between the Parties, of reciprocity, of procedural balance in the light
of the juridical equality of the sovereign States have prevailed to date; in the lat-
ter, there has been a primacy of considerations of ordre public, of the collective
guarantee exercised by all the States Parties, of the accomplishment of a common
goal, superior to the individual interests of each Contracting Party (cf. infra).
The two aforementioned international human rights Tribunals have found
themselves under the duty to preserve the integrity of the regional conventional
system of protection of human rights as a whole. In their common understand-
ing, it would be inadmissible to subordinate the operation of the respective con-
ventional mechanisms of protection to restrictions not expressly authorized by
the European and American Conventions, interposed by the States Parties in
their instruments of acceptance of the optional clauses of compulsory jurisdic-
tion of the two Courts (Article 62 of the American Convention, and Article 46 of
the European Convention before Protocol n. 11). Th is would not only immediate-
ly affect the efficacy of the operation of the conventional mechanism of protec-
tion at issue, but, furthermore, it would fatally impede its possibilities of future
development.
By virtue of the principle ut res magis valeat quam pereat, which corre-
sponds to the so-called effet utile (sometimes called the principle of effective-
ness), widely supported by case-law, States Parties to human rights treaties ought
to secure to the conventional provisions the proper effects at the level of their
respective domestic legal orders. Such principle applies not only in relation to
substantive norms of human rights treaties (that is, those which provide for the
protected rights), but also in relation to procedural norms, in particular those re-
lating to the right of individual petition and to the acceptance of the contentious
23 Protocol n. 11 to the European Convention of Human Rights entered into force on

01.11.1998. On the original optional clause (Article 46) of the European Conven-
tion, cf. Council of Europe/Conseil de l’Europe, Collected Edition of the ‘Travaux
Préparatoires’ of the European Convention on Human Rights/Recueil des Travaux
Préparatoires de la Convention Européenne des Droits de l’Homme, vol. IV, The
Hague, Nijhoff, 1977, pp. 200-201 and 266-267; and vol. V, The Hague, Nijhoff, 1979,
pp. 58-59.
574 Chapter XXV
jurisdiction of the international judicial organs of protection.24 Such convention-

al norms, essential to the efficacy of the system of international protection, ought
to be interpreted and applied in such a way as to render their safeguards truly
practical and effective, bearing in mind the special character of the human rights
treaties and their collective implementation.
The ECtHR had the occasion to pronounce in this respect. Thus, in its Judg-
ment on Preliminary Objections (of 23.03.1995) in the case of Loizidou versus
Turkey, it warned that, in the light of the letter and the spirit of the European
Convention the possibility cannot be inferred of restrictions to the optional
clause relating to the recognition of the contentious jurisdiction of the ECtHR,25
by analogy with the permissive State practice under Article 36 of the Statute
of the ICJ; under the European Convention, a practice of the States Parties was
formed precisely a contrario sensu, accepting such clause without restrictions.26
In the domain of the international protection of human rights, there are no “im-
plicit” limitations to the exercise of the protected rights; and the limitations set
forth in the treaties of protection ought to be restrictively interpreted. The op-
tional clause of compulsory jurisdiction of the international tribunals of human
rights makes no exception to that: it does not admit limitations other than those
expressly contained in the human rights treaties at issue, and, given its capital
importance, it could not be at the mercy of limitations not foreseen therein and
invoked by the States Parties for reasons or vicissitudes of domestic order.27
24 Cf., to this effect, the decision of the old European Commission of Human Rights
(EComHR) in the case Chrysostomos et alii versus Turkey (1991), in EComHR, Deci-
sions and Reports, vol. 68, Strasbourg, C.E., [1991], pp. 216-253; and cf., earlier on, the
obiter dicta of the Commission, to the same effect, in its decisions in the Belgian
Linguistic Cases (1966-1967) and in the cases Kjeldsen, Busk Madsen and Pedersen
versus Denmark (1976).
25 Article 46 of the European Convention, prior to the entry into force, on 01.11.1998,
of Protocol n. 11 to the European Convention.
26 Moreover, it referred to the fundamentally distinct context in which international
tribunals operate, the ICJ being “a free-standing international tribunal which has
no links to a standard-setting treaty such as the Convention”; cf. European Court of
Human Rights (ECtHR), Case of Loizidou versus Turkey (Preliminary Objections),
Strasbourg, C.E., Judgment of 23.03.1995, p. 25, par. 82, and cf. p. 22, par. 68. On the
prevalence of the conventional obligations of the States Parties, cf. also the Court’s
obiter dicta in its previous decision, in the Belilos versus Switzerland case (1988).
– The Hague Court, in its turn, in its Judgment of 04.12.1998 in the Fisheries Juris-
diction case (Spain versus Canada), yielded to the voluntarist subjectivism of the
contending States (cf. ICJ Reports (1998) pp. 438-468), the antithesis of the very no-
tion of international compulsory jurisdiction, – provoking Dissenting Opinions of
five of its Judges, to whom the ICJ put at risk the future itself of the mechanism of
the optional clause under Article 36(2) of its Statute, paving the way to an eventual
desertion from it (cf. ibid., pp. 496-515, 516-552, 553-569, 570-581 and 582-738, respec-
tively). – And cf. chapter XII, supra.
27 Cf. IACtHR, case of Castillo Petruzzi and Others versus Peru (Preliminary Objec-
tions), Judgment of 04.09.1998, Series C, n. 41, Concurring Opinion of Judge A.A.
In their classic studies on the basis of the international jurisdiction, C.W.

Jenks and C.H.M. Waldock warned, already in the decades of the fifties and the
sixties, as to the grave problem presented by the insertion, by the States, of all
kinds of limitations and restrictions in their instruments of acceptance of the
optional clause of compulsory jurisdiction (of the ICJ).28 Although those limita-
tions had never been foreseen in the formulation of the optional clause, States, in
the face of such legal vacuum, have felt, nevertheless, “free” to insert them. Such
excesses have undermined, in a contradictory way, the basis itself of the system
of international compulsory jurisdiction. As well pointed out in a classic study on
the matter, the instruments of acceptance of the contentious jurisdiction of an
international tribunal should be undertaken “on terms which ensure a reasonable
measure of stability in the acceptance of the jurisdiction of the Court”,29 – that is,
in the terms expressly provided for in the international treaty itself (cf. infra).
The clause pertaining to the compulsory jurisdiction of international human
rights tribunals constitutes, in my view, a fundamental clause (cláusula pétrea) of
the international protection of the human being, which does not admit any restric-
tions other than those expressly provided for in the human rights treaties at issue.
This has been so established by the IACtHR in its Judgments on Competence in
the cases of the Constitutional Tribunal and Ivcher Bronstein versus Peru (1999):
“Recognition of the Court’s compulsory jurisdiction is a fundamental clause (cláu-

sula pétrea) to which there can be no limitations except those expressly provided for
in Article 62(1) of the American Convention. Because the clause is so fundamental
to the operation of the Convention’s system of protection, it cannot be at the mercy
of limitations not already stipulated but invoked by States Parties for reasons of
domestic order”.30
The permissiveness of the insertion of limitations, not foreseen in the human

rights treaties, in an instrument of acceptance of an optional clause of compul-
Cançado Trindade, pars. 36 and 38.

28 Examples of such excesses have been the objections of domestic jurisdiction (do-
mestic jurisdiction/compétence nationale exclusive) of States, the foreseeing of with-
drawal at any moment of the acceptance of the optional clause, the foreseeing of
subsequent modification of the terms of acceptance of the clause, and the foresee-
ing of insertion of new reservations in the future; cf. C.W. Jenks, The Prospects of
International Adjudication, London, Stevens, 1964, p. 108, and cf. pp. 113, 118 and
760-761; C.H.M. Waldock, “Decline of the Optional Clause”, op. cit. supra n. (20), p.
270; and for criticisms of those excesses, cf. A.A. Cançado Trindade, “The Domestic
Jurisdiction of States in the Practice of the United Nations and Regional Organisa-
tions”, 25 International and Comparative Law Quarterly (1976) pp. 744-751.
29 C.W. Jenks, op. cit. supra n. (28), pp. 760-761.
30 IACtHR, case of the Constitutional Tribunal (Competence), Judgment of 24.09.1999,
Series C, n. 55, p. 44, par. 35; CtIADH, case of Ivcher Bronstein (Competence), Judg-
ment of 24.09.1999, Series C, n. 54, p. 39, par. 36.
576 Chapter XXV
sory jurisdiction,31 represents a regrettable historical distortion of the original

conception of such clause, in my view unacceptable in the field of the interna-
tional protection of the rights of the human person.
It is the duty of an international tribunal of human rights to look after the
due application of the human rights treaty at issue in the framework of the do-
mestic law of each State Party, so as to secure the effective protection in the am-
bit of this latter of the human rights set forth in such treaty.32 Any understanding
to the contrary would deprive the international human rights tribunal at issue
of the exercise of the function and of the duty of protection inherent to its juris-
diction, failing to ensure that the human rights treaty has the appropiate effects
(effet utile) in the domestic law of each State Party.
The case of Hilaire versus Trinidad and Tobago (Preliminary Objections,
Judgment of 1st September 2001) before the IACtHR led one to a more detailed
examination of that specific point. Article 62(1) and (2) of the American Conven-
tion on Human Rights provides that
“A State Party may, upon depositing its instrument of ratification or adherence to

this Convention, or at any subsequent time, declare that it recognizes as binding,
ipso facto, and not requiring special agreement, the jurisdiction of the Court on all
matters relating to the interpretation or application of this Convention. Such decla-
ration may be made unconditionally, on the condition of reciprocity, for a specified
period, or for specific cases. It shall be presented to the Secretary General of the
Organization, who shall transmit copies thereof to the other member States of the
Organization and to the Secretary of the Court”.33
In fact, the modalities of acceptance, by a State Party to the Convention, of the

contentious jurisdiction of the IACtHR, are expressly stipulated in the aforemen-
tioned provisions. The formulation of the optional clause of compulsory juris-
diction of the IACtHR, in Article 62 of the American Convention, is not simply
illustrative, but clearly precise. No State is obliged to accept an optional clause,
31 Exemplified by State practice under Article 36(2) of the ICJ Statute (supra).
32 If it were not so, there would be no juridical security in international litigation, with
harmful consequences above all in the domain of the international protection of
human rights. The intended analogy between the classic inter-State contentieux and
the international contentieux of human rights – fundamentally distinct domains
– is manifestly inadequate, as in this latter the considerations of a superior order
(international ordre public) have primacy over State voluntarism. The States cannot
count on the same latitude of discretionality which they have reserved to themselves
in the traditional context of the purely inter-State litigation.
33 Paragraph 3 of Article 62 of the Convention adds that: – “The jurisdiction of the
Court shall comprise all cases concerning the interpretation and application of the
provisions of this Convention that are submitted to it, provided that the States Par-
ties to the case recognize or have recognized such jurisdiction, whether by special
declaration pursuant to the preceding paragraphs, or by a special agreement”.
as its own name indicates.34 But if a State Party decides to accept it, it ought to
do so in the terms expressly stipulated in such clause. According to Article 62(2)
of the Convention, the acceptance, by a State Party, of the contentious jurisdic-
tion of the IACtRH, can be made in four modalities, namely: a) unconditionally;
b) on the condition of reciprocity; c) for a specified period; and d) for specific
cases. Those, and only those, are the modalities of acceptance of the contentious
jurisdiction of the IACtHR foreseen and authorized by Article 62(2) of the Con-
vention, which does not authorize the States Parties to interpose any other con-
ditions or restrictions (numerus clausus).
In my Concurring Opinion in the aforementioned Hilaire versus Trinidad
and Tobago case, I saw it fit to ponder that,
“(...) In this matter, it cannot be sustained that what is not prohibited, is permitted.
This posture would amount to the traditional – and surpassed – attitude of the
laisser-faire, laisser-passer, proper to an international legal order fragmented by the
voluntarist State subjectivism, which in the history of Law has ineluctably favoured
the more powerful ones. Ubi societas, ibi jus... At this beginning of the XXIst cen-
tury, in an international legal order wherein one seeks to affirm superior common
values, among considerations of international ordre public, as in the domain of the
International Law of Human Rights, it is precisely the opposite logic which ought to
apply: what is not permitted, is prohibited.
If we are really prepared to extract the lessons of the evolution of International
Law in a turbulent world throughout the XXth century, (...) we cannot abide by an
international practice which has been subservient to State voluntarism, which has
betrayed the spirit and purpose of the optional clause of compulsory jurisdiction,
– to the point of entirely denaturalizing it, – and which has led to the perpetuation
of a world fragmented into State units which regard themselves as final arbiters of
the extent of the contracted international obligations, at the same time that they
do not seem truly to believe in what they have accepted: the international justice”
(pars. 24-25).
In its Judgment in the case of Hilaire versus Trinidad and Tobago, the IACtHR
rightly observed that, if restrictions interposed in the instrument of acceptance
of its contentious jurisdiction were accepted, in the terms proposed by the re-
spondent State in the cas d’espèce, not expressly foreseen in Article 62 of the
American Convention, this would lead to a situation in which it would have “as
first parameter of reference the Constitution of the State and only subsidiarily
the American Convention”, a situation which would “bring about a fragmenta-
tion of the international legal order of protection of human rights and would
render illusory the object and purpose of the American Convention” (par. 93).
And the Court correctly added that
34 Thus, a “reservation” to the optional clause of compulsory jurisdiction of the IAC-

tHR of Article 62 of the American Convention would amount simply to the non-ac-
ceptance of that clause, what is foreseen in the Convention.
578 Chapter XXV
“ (...) The instrument of acceptance, on the part of Trinidad and Tobago, of the con-
tentious jurisdiction of the Tribunal, does not fit into the hypotheses foreseen in
Article 62(2) of the Convention. It has a general scope, which ends up by subordi-
nating the application of the American Convention to the domestic law of Trinidad
and Tobago in a total way and pursuant to what its national tribunals decide. All
this implies that this instrument of acceptance is manifestly incompatible with the
object and purpose of the Convention” (par. 88).
This conclusion of the IACtHR found clear support in the precise, and quite
clear, formulation of Article 62(2) of the American Convention. Bearing in mind
the three component elements of the general rule of interpretation bona fides of
treaties – text in the current meaning, context, and object and purpose of the
treaty – set forth in Article 31(1) of the two Vienna Conventions on the Law of
Treaties (of 1969 and 1986), it could be initially inferred that the text, in the cur-
rent meaning (numerus clausus), of Article 62(2) of the American Convention,
fully corroborated the decision taken by the IACtHR in that Judgment.
In the theory and practice of International Law one has sought to distin-
guish a “reservation” from an “interpretative declaration”,35 in conformity with
the legal effects which are intended to be attributed to one and the other.36 In
any case, in considering the meaning and scope of a declaration of acceptance
of an optional clause of compulsory jurisdiction, – such as the one presented
by Trinidad and Tobago under Article 62 of the American Convention and in-
terposed as preliminary objection in the present case Hilaire, – one has to bear
35 Cf. U.N./International Law Commission, “Draft Guidelines on Reservations to Trea-

ties”, in: U.N., Report of the International Law Commission on the Work of Its 51st
Session (May/July 1999), G.A.O.R. – Suppl. n. 10 (A/54/10/Corr.1-2), 1999, pp. 18-24,
item 1.3; and in: Report of the International Law Commission on the Work of Its 52nd
Session (May/June and July/August 2000), G.A.O.R. – Suppl. n. 10 (A/55/10), 2000,
pp. 229-272, item 1.7.
36 For an examination of the question, cf., e.g., F. Horn, Reservations and Interpretative
Declarations to Multilateral Treaties, The Hague/Uppsala, T.M.C. Asser Instituut/
Swedish Institute of International Law, 1988, pp. 98-110 and 229-337, and cf. pp. 184-
222; D.M. McRae, “The Legal Effect of Interpretative Declarations”, 49 BYBIL (1978)
pp. 155-173. Thus, if one intends to clarify the meaning and scope of a given conven-
tional provision, it is an interpretative declaration, while if one intends to modify
a given conventional provision or to exclude its application, it is a reservation. In
practice, it has not always been easy to draw the dividing line between one and the
other, as illustrated by the controversy which has surrounded, in the last decades,
the question of the legal effects of declarations inserted into the instruments of
acceptance of the optional clause of compulsory jurisdiction, given the sui generis
character of such clause. It may be recalled that in the well-known case of Belilos
versus Switzerland (1988), the ECtHR considered that a declaration interposed by
Switzerland amounted to a reservation – of a general character – to the European
Convention on Human Rights, incompatible with the object and purpose of this lat-
ter. ECtHR, Belilos versus Switzerland case, Judgment of 29.04.1988, Series A, n. 132,
pp. 20-28, pars. 38-60.
in mind the nature of the treaty in which that clause appears. This corresponds
to the “context”, precisely the second component element of the general rule of
interpretation of treaties set forth in Article 31 of the two Vienna Conventions on
the Law of Treaties. In the Hilaire versus Trinidad and Tobago case (supra), the
IACtHR had duly done so, in stressing the special character of the human rights
treaties (pars. 94-97).
Likewise, the IACtHR has kept constantly in mind the third component ele-
ment of that general rule of interpretation, namely, the “object and purpose” of
the treaty at issue, the American Convention on Human Rights (pars. 82-83 and
88). Thus, the understanding advanced in the cas d’espèce by the respondent State
of the scope of its own acceptance of the optional clause of compulsory jurisdic-
tion of the IACtHR, did not resist the proper interpretation of Article 62 of the
American Convention, developed in the light of the canons of interpretation of
the law of treaties. As I saw it fit to point out, in this respect, in my Separate
Opinion in the case Blake versus Guatemala (Reparations, 1999) before the Inter-
American Court,
“(...) In contracting conventional obligations of protection, it is not reasonable, on

the part of the State, to assume a discretion so unduly broad and conditioning of the
extent itself of such obligations, which would militate against the integrity of the
treaty. (...) In so far as human rights treaties are concerned, one is to bear always in
mind the objective character of the obligations enshrined therein, the autonomous
meaning (in relation to the domestic law of the States) of the terms of such trea-
ties, the collective guarantee underlying them, the wide scope of the obligations
of protection and the restrictive interpretation of permissible restrictions. These
elements converge in sustaining the integrity of human rights treaties, in seeking
the fulfi llment of their object and purpose, and, accordingly, in establishing limits
to State voluntarism”.37
3. International Compulsory Jurisdiction: Reflections De Lege Ferenda

A further line of reflections, de lege ferenda, on international compulsory juris-
diction, is here called for. The “judicial decisions”, referred to in the enumeration
of the formal sources and evidences of International Law, set forth in Article
38(1)(d) of the Statute of the ICJ,38 certainly are not limited to the case-law of the
ICJ itself.39 They likewise comprise, nowadays, the judicial decisions of the inter-
national tribunals (Inter-American and European Courts) of human rights, of the
37 IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999, Series

C, n. 48, Separate Opinion of Judge A.A. Cançado Trindade, pp. 114-115, pars. 32-
33.
38 As “subsidiary means for the determination of rules of law”.
39 As this latter itself has acknowledged, e.g., in its Judgment of 18.11.1960 in the case
of the Arbitral Award of the King of Spain of 1906 (Honduras versus Nicaragua), ICJ
Reports (1960) pp. 204-217.
580 Chapter XXV
ad hoc International Criminal Tribunals (for ex-Yugoslavia40 and for Rwanda41),

of the International Tribunal for the Law of the Sea, of other international42 and
arbitral tribunals,43 as well as of national tribunals in matters of International
Law.44 This development may confer an increasingly greater importance to case-
law as a formal “source” of International Law,45 as one considers the further crea-
tion (in 2002), – parallel to the international tribunals aforementioned, – of the
new mixed or “internationalized” criminal courts46 (for Sierra Leone, Kosovo,
East Timor, and Cambodia, each one with its own distinctive features).47 This
expansion of international jurisdiction has been contributing, in my understand-
40 Cf. K. Lescure, Le Tribunal Pénal International pour l’ex-Yougoslavie, Paris, Montch-

restien, 1994, pp. 15-133; R. Kerr, The International Criminal Tribunal for the Former
Yugoslavia, Oxford, OUP, 2004, pp. 1-219; A. Cassese, “The International Criminal
Tribunal for the Former Yugoslavia and Human Rights”, 2 European Human Rights
Law Review (1997) pp. 329-352.
41 Cf., e.g., L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Develop-
ment of International Law, Leiden, Nijhoff, 2005, pp. 1-284; R.S. Lee, “The Rwanda
Tribunal”, 9 Leiden Journal of International Law (1996) pp. 37-61; [Various Authors,],
“The Rwanda Tribunal: Its Role in the African Context”, 37 International Review of
the Red Cross (1997) n. 321, pp. 665-715 (studies by F. Harhoff, C. Aptel, D. Wembou,
C.M. Peter, and G. Erasmus and N. Fourie).
42 Reference may be made to other contemporary international tribunals, such as the
Tribunal of the Andean Union, based in Quito (with a vast case-law); the Central
American Court of Justice, based in Managua; and, more recently, the Permanent
Tribunal of Revision of Mercosur (set up in Asunción on 13.08.2004). For a general
study, cf., e.g., K.N. Metcalf and I. Papageorgiou, Regional Integration and Courts of
Justice, Antwerpen/Oxford, Intersentia, 2005, pp. 1-118.
43 E.g., the Iran-United States Claims Tribunal, which, by mid-2005, has issued 314
awards, 30 partial awards, 238 awards on agreed terms, and 18 partial awards on
agreed terms. For a general study, cf., e.g., W. Mapp, The Iran-United States Claims
Tribunal – The First Ten Years, 1981-1991, Manchester, University Press, 1993, pp.
3-350.
44 R.A. Falk, The Role of Domestic Courts in the International Legal Order, Syracuse
University Press, 1964, pp. 21-52 and 170; J.A. Barberis, “Les arrêts des tribunaux
nationaux et la formation du droit international coutumier”, 46 Revue de droit inter-
national de sciences diplomatiques et politiques (1968) pp. 247-253; F. Morgenstern,
“Judicial Practice and the Supremacy of International Law”, 27 BYBIL (1950) p. 90.
45 Cf. chapter V, supra.
46 With both national and international judges.
47 For a general study, cf., Internationalized Criminal Courts – Sierra Leone, East
Timor, Kosovo, and Cambodia (eds. C.P.R. Romano, A. Nollkaemper and J.K. Kleff-
ner), Oxford, University Press, 2004, pp. 3-444. And cf. also, e.g., S. Linton, “Cambo-
dia, East Timor and Sierra Leone: Experiments in International Justice”, 12 Criminal
Law Forum (2001) pp. 185-246; R. Rossano, “La Corte Speciale per la Sierra Leone”,
12 I Diritti dell’Uomo (2001) pp. 83-87; S. de Bertodano, “Current Developments in
Internationalized Courts”, 1 Journal of International Criminal Justice (2003) pp.
226-244.
ing, to enlarge the aptitude of International Law to encompass legal relations in

distinct domains of human activity.48
The IACtHR, by means of the Judgments on Preliminary Objections in the
cases of Hilaire, Benjamin, and Constantine, as well as its earlier Judgments on
Competence in the cases of the Constitutional Tribunal and Ivcher Bronstein,
safeguarded the integrity of the American Convention on Human Rights, re-
mained master of its own jurisdiction and acted in accordance with the high
responsibilities accorded to it by the American Convention. The same can be
said of the ECtHR, by means of its Judgment on Preliminary Objections in the
case Loizidou versus Turkey, in so far as the European Convention on Human
Rights is concerned. Thus, the two aforementioned international Tribunals of
human rights, in their converging case-law on the question, have refused to yield
to undue manifestations of State voluntarism, have fully performed the functions
attributed to them by the human rights treaties which created them, and have
given a worthy contribution to the strengthening of the international jurisdiction
and to the realization of the old ideal of international justice.49
In the last 90 years, the advances in this particular domain could have been
much greater if State practice would not have betrayed the purpose which in-
spired the creation of the mechanism of the optional clause of compulsory ju-
risdiction (of the PCIJ and the ICJ), that is, the submission of political interests
to Law by means of the development in the realization of justice at international
level. The time has come to overcome definitively the regrettable lack of automa-
tism of the international jurisdiction. With the distortions of their practice on
the matter, States face today a dilemma which should have been overcome a long
time ago: either they return to the voluntarist conception of International Law,
abandoning for good the hope in the primacy of Law over political interests,50 or
else they retake and achieve with determination the ideal of construction of an
48 Cf. IACtHR, case Blake versus Guatemala (Reparations), Judgment of 22.01.1999,

Series C, n. 48, Separate Opinion of Judge A.A. Cançado Trindade, pp. 110 and 112,
pars. 23 and 27-28.
vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, ch. XV-XVI, pp. 60-83 and 147-
168.
50 Cf. a warning of Ch. de Visscher, Aspects récents du droit procédural de la Cour In-
ternationale de Justice, Paris, Pédone, 1966, p. 204; and cf. also L. Delbez, Les princi-
pes généraux du contentieux international, Paris, LGDJ, 1962, pp. 68, 74 and 76-77.
– For subsequent criticisms by two former Presidents of the ICJ of the unsatisfac-
tory and bad use made by the States of the mechanism of the optional clause (of the
compulsory jurisdiction of the ICJ) of the Statute of the Court, cf. R.Y. Jennings, op.
cit. supra n. (15), p. 495; and E. Jiménez de Aréchaga, “International Law in the Past
Third of a Century”, 159 RCADI (1978) pp. 154-155, And cf. further criticisms by H.W.
Briggs, “Reservations to the Acceptance of Compulsory Jurisdiction of the Interna-
tional Court of Justice”, 93 RCADI (1958) p. 273. And cf., in general, J. Sicault, “Du
caractère obligatoire des engagements unilatéraux en Droit international public”,
83 Revue générale de Droit international public (1979) pp. 633-688. – Such distorted
582 Chapter XXV
international community with greater cohesion and institutionalization in the

light of Law and in search of Justice, moving resolutely from jus dispositivum to
jus cogens.51
As I concluded in my Concurring Opinion in the Hilaire versus Trinidad
and Tobago case before the IACtHR,
“The time has come to consider, in particular, in a future Protocol of amendments

to the procedural part of the American Convention on Human Rights, aiming at
strengthening its mechanism of protection, the possibility of an amendment to Ar-
ticle 62 of the American Convention, in order to render such clause also manda-
tory, in conformity with its character of fundamental clause (cláusula pétrea), thus
establishing the automatism 52 of the jurisdiction of the Inter-American Court of
Human Rights.53 There is pressing need for the old ideal of the permanent interna-
tional compulsory jurisdiction to become reality also in the American continent, in
the present domain of protection, with the necessary adjustments in order to face
its reality of human rights and to fulfi l the growing needs of effective protection of
the human being” (par. 39).
III. The Recurring Need and Quest for Compulsory Jurisdiction

Despite the undeniable advances experienced by the idea of compulsory jurisdic-
tion in the domain of the International Law of Human Rights (supra), the picture
appears somewhat distinct in the sphere of purely inter-State relations: it is hard
to escape the assessment that, herein, compulsory jurisdiction has made a rather
modest progress in recent decades. As pointed out by C.W. Jenks over forty years
ago, the foundation of compulsory jurisdiction is, ultimately, the confidence in
State practice cannot, definitively, serve as model to the operation of the judicial
organs created by human rights treaties.
51 And always bearing in mind that the protection of fundamental rights places us
precisely in the domain of jus cogens; cf., e.g., my intervention in the debates of
12.03.1986 of the Vienna Conference on the Law of Treaties between States and In-
ternational Organizations or between International Organizations: U.N., United
Nations Conference on the Law of Treaties between States and International Organi-
zations or between International Organizations (Vienna, 1986) – Official Records,
volume I, N.Y., U.N., 1995, pp. 187-188 (intervention by A.A. Cançado Trindade).
52 Which became a reality, as to the European Court of Human Rights, as from the
entry into force, on 01.11.1998, of Protocol n. 11 to the European Convention of Hu-
man Rights (cf. infra).
53 With the necessary amendment, – by means of a Protocol, – to this effect, of Article
62 of the American Convention, putting an end to the restrictions therein foreseen
and expressly discarding the possibility of any other restrictions, and also putting
and end to reciprocity and the optional character of the acceptance of the conten-
tious jurisdiction of the Court, which would become compulsory to all the States
Parties.
the rule of law at international level.54 While full confidence is still lacking, not
much progress is bound to be achieved in the present domain.
In this respect, e.g., the Institut de Droit International, already in its Neuchâ-
tel session of 1959, adopted unanimously a resolution in support of the compul-
sory jurisdiction of international courts and tribunals. Noting with concern that
the evolution of international jurisdiction was already lagging behind the needs
of international justice, the resolution pondered that
“submission to law through acceptance of recourse to international courts and ar-

bitral tribunals is an essential complement to the renunciation of recourse to force
in international relations”.55
In order to overcome the unsatisfactory situation, the resolution inter alia called
for the development of the practice of insertion into general conventions of a
clause, binding on all States Parties, of submission of disputes, relating to the in-
terpretation or application of the respective conventions, to international courts
and tribunals.56
The plea for compulsory jurisdiction has been duly expressed in expert writ-
ing along the last eight decades. In a monograph published as early as in 1924
(four years after the adoption of the Statute of the old PCIJ), Nicolas Politis, in
recalling the historical evolution from private justice to public justice, advocated
the evolution, at international level, from optional justice to compulsory justice.57
Subsequently, despite the alleged “decline” of the optional clause of the ICJ Stat-
ute (cf. supra), one decade after the adoption by the Institut de Droit Interna-
tional (in 1959) of the aforementioned resolution, C.W. Jenks wrote that
“The problem of compulsory jurisdiction (...) remains one of the central problems of
world organization. (...) A larger measure of compulsory jurisdiction remains a fun-
damental element in the progress of the rule of law among nations. (...) The progress
of compulsory jurisdiction presupposes a parallel progress of the substantive law in
adjusting itself to the changing needs of a changing society”.58
54 C.W. Jenks, The Prospects..., op. cit. supra n. (28), pp. 101, 117, 757, 762 and 770. Like-
wise, in his book on international tribunals published in 1944, M.O. Hudson posi-
tioned himself clearly in support of compulsory jurisdiction, so as to “strengthen
the foundations of international law”; cf. M.O. Hudson, International Tribunals
– Past and Future, op. cit. supra n. (9), pp. 83, 153 and 251.
55 Annuaire de l’Institut de Droit International (1959), cit. in C.W. Jenks, op. cit. supra
n. (49), pp. 113-114.
56 Annuaire de l’Institut de Droit International (1959), cit. in ibid., p. 115.
57 Cf. N. Politis, La justice internationale, Paris, Libr. Hachette, 1924, pp. 7-255, esp. pp.
193-194 and 249-250.
58 C.W. Jenks, The World beyond the Charter, London, G. Allen and Unwin, 1969, p.
166.
584 Chapter XXV
International jurisdiction is becoming, in our days, an imperative of the contem-

porary international legal order itself, and compulsory jurisdiction responds to
a need of the international community in our days; although this latter has not
yet been fully achieved, some advances have been made in the last decades.59
The Court of Justice of the European Communities provides one example of su-
pranational compulsory jurisdiction, though limited to community law or the
law of integration. The European Convention of Human Rights, after the entry
into force of Protocol n. 11, affords another conspicuous example of automatic
compulsory jurisdiction. The International Criminal Court is the most recent
example in this regard; although other means were contemplated throughout
the travaux préparatoires of the 1998 Rome Statute (such as cumbersome “opting
in” and “opting out” procedures), at the end compulsory jurisdiction prevailed,
with no need for further expression of consent on the part of States Parties to the
Rome Statute.60 This was a significant decision, enhancing international jurisdic-
tion.
The system of the 1982 U.N. Convention on the Law of the Sea, in its own
way, moves beyond the traditional regime of the optional clause of the ICJ Stat-
ute. It allows States Parties to the Convention the option between the Interna-
tional Tribunal for the Law of the Sea, or the ICJ, or else arbitration (Article 287);
despite the exclusion of certain matters, the Convention succeeds in establishing
a compulsory procedure containing coercitive elements; the specified choice of
procedures at least secures law-abiding settlement of disputes under the U.N.
Law of the Sea Convention.61
These illustrations suffice to disclose that compulsory jurisdiction is already
a reality, – at least in some circumscribed domains of International Law, as in-
dicated above. International compulsory jurisdiction is, by all means, a juridical
possibility. If it has not yet been attained on a world-wide level, this cannot be
attributed to an absence of juridical viability, but rather to misperceptions of its
role, or simply to a lack of conscience as to the need to widen its scope. Compul-
59 H. Steiger, “Plaidoyer pour une juridiction internationale obligatoire”, in Theory of

International Law at the Threshold of the 21st Century – Essays in Honour of K.
Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 818, 821-822 and 832.
And cf. R.St.J. MacDonald, “The New Canadian Declaration of Acceptance of the
Compulsory Jurisdiction of the International Court of Justice”, 8 Canadian Year-
book of International Law (1970) pp. 21, 33 and 37. In support of the need for “a sys-
tem of general compulsory and binding dispute settlement procedures”, cf. further
M.M.T.A. Brus, Third Party Dispute Settlement in an Interdependent World, Dor-
drecht, Nijhoff, 1995, p. 182.
60 H. Corell, “Evaluating the ICC Regime: The Likely Impact on States and Interna-
tional Law”, The Hague, T.M.C. Asser Institute, 2000, p. 8 (internal circulation).
61 L. Caflisch, “Cent ans de règlement pacifique des différends interétatiques”, 288
RCADI (2001) pp. 365-366 and 448-449; J. Allain, “The Continued Evolution....”, op.
cit. supra n. (2), pp. 61-62; S. Karagiannis, “La multiplication des juridictions inter-
nationales...”, op. cit. infra n. (68), p. 34; M. Kamto, “Les interactions des jurispru-
dences internationales...”, op. cit. infra n. (69), p. 424.
sory jurisdiction is a manifestation of the recognition that International Law,

more than voluntary, is indeed necessary. In addition to the advances already
achieved to this effect, reference could also be made to endeavours in the same
sense. One such example is found in the Proposals for a Draft Protocol to the
American Convention on Human Rights, which I prepared as rapporteur of the
IACtHR, which inter alia advocates an amendment to Article 62 of the American
Convention so as to render the jurisdiction of the IACtHR in contentious matters
automatically compulsory upon ratification of the Convention.62
Furthermore, several international treaties63 foresee a compulsory resort to
the jurisdiction of the ICJ. To the extent that they do so, States Parties would
be under the Court’s jurisdiction to settle disputes pertaining to those treaties,
paving the way for a broader acceptance of compulsory jurisdiction on a world-
wide basis. In this connection, in the years immediately following the end of the
cold-war period, e.g., the then Soviet Union (succeeded by the Russian Federa-
tion), and some other Eastern European States, withdrew declarations they had
previously made to exclude compulsory settlement of disputes in several Con-
ventions they had celebrated during the cold-war period.64 In fact, the optional
clause (of the ICJ Statute) is not the only basis of compulsory jurisdiction of the
ICJ; another basis consists precisely of jurisdictional or compromissory clauses65
inserted into treaties conferring jurisdiction on international tribunals to settle
disputes concerning their interpretation and application.
Although not so often invoked as they possibly could, a more systematic
inclusion in treaties of such jurisdictional or arbitration clauses would contrib-
ute to widen the scope of compulsory jurisdiction.66 Such expansion is bound to
occur to the extent that States realize that it is ultimately in their own interest,
and in the common or general interest, to have their disputes normally settled
by judicial means. This latter is the most perfected way of peaceful settlement,
for all that it affords: preexisting rules, rigour and juridical security. Beyond such
settlement, compulsory jurisdiction is an expression of the rule of law at interna-
tional level, conducive to a more cohesive international legal order inspired and
guided by the imperative of justice.
62 A.A. Cançado Trindade, Informe: Bases para un Proyecto de Protocolo a la Conven-

ción Americana sobre Derechos Humanos, para Fortalecer Su Mecanismo de Pro-
tección, vol. II, 2nd. ed., San José of Costa Rica, Inter-American Court of Human
Rights, 2003, pp. 1-64.
63 E.g., inter alia, the 1957 European Convention on Peaceful Settlement of Disputes,
Article 1.
64 T. Treves, “Recent Trends in the Settlement of International Disputes”, 1 Bancaja
Euromediterranean Courses of International Law (1997) pp. 404-405.
65 Cf., on such compromissory clauses, e.g., H.M. Cory, Compulsory Arbitration of In-
ternational Disputes, N.Y., Columbia University Press, 1932 [reprint 1972], ch. VI, pp.
160-191.
66 C.W. Jenks, The Prospects..., op. cit. supra n. (28), p. 761, and cf. pp. 109 and 111.
586 Chapter XXV
IV. International Rule of Law: The Growth of International Jurisdiction

It is well-known that the international community counts nowadays on a multi-
plicity of international tribunals (e.g., besides the ICJ, the International Tribunal
for the Law of the Sea, the permanent International Criminal Court, the interna-
tional tribunals – Inter-American and European and African Courts – of human
rights, the ad hoc International Criminal Tribunals – for ex-Yugoslavia and for
Rwanda, – the Court of Justice of the European Communities, among others67).
This is symptomatic of the way contemporary International Law has evolved, and
of an increasing recourse to international adjudication. Throughout the last years
the old ideal of international justice has been revitalized and has gained ground,
with the considerable expansion of the international judicial function, reflected
in the creation of new international tribunals; the work of these latter has been
enriching contemporary international case-law, contributing, as already indicat-
ed, to assert and develop the aptitude of International Law to regulate adequately
juridical relations in distinct domains of human activity (cf. supra).
Disputes submitted to international adjudication in our days are no longer
vested with strict inter-State dimension; hence the creation and co-existence of
multiple specialized international tribunals of our times, reflecting a decentral-
ized international legal order.68 Still more significantly, in expanding interna-
tional jurisdiction, contemporary multiple international tribunals have enlarged
the access to international justice of the subjects of International Law (other than
States).69 They have done what the ICJ alone has not been capable of doing (by
force of the constraints of its Statute). They are responding to a pressing need
67 Such as the internationalized criminal courts (cf., e.g., C.P.R. Romano et alii (eds.),
Internationalized Criminal Courts – Sierra Leone, East Timor, Kosovo, and Cambo-
dia, Oxford, University Press, 2004, pp. 3-444), and subregional integration courts,
such as the Central American Court of Justice (cf., e.g., A. León Gómez, Doctrina de
la Corte Centroamericana de Justicia, Managua, UCA, 2002, pp. 1-501; R. Chamor-
ro Mora, La Corte de Justicia de la Comunidad Centroamericana, Managua, IAG,
2000, pp. 3-203), the Andean Court of Justice (cf., e.g., F. Novak Talavera and L.G.-C.
Moyano, Derecho Internacional Público, vol. III, Lima, PUC/Peru, 2005, pp. 189-194;
G. Larenas Serrano, El Tribunal de Justicia Andino, Quito, Ed. Casa de la Cultura
Ecuatoriana, 1980, pp. 13-162), and the newly-established (on 13.08.2004) of the Per-
manent Tribunal of Revision of the Mercosur (in Asunción).
68 S. Karagiannis, “La multiplication des juridictions internationales: un système an-
archique?”, in Société française pour le Droit international, in La juridictionnalisa-
tion du Droit international (Colloque de Lille), Paris, Pédone, 2003, pp. 61 and 156;
E. Jouannet, “La notion de jurisprudence internationale en question”, in ibid., p. 365;
M. Bedjaoui, “La multiplication des tribunaux internationaux ou la bonne fortune
du droit des gens”, in ibid., pp. 530 and 539.
69 H. Ascensio, “La notion de juridiction internationale en question”, in La juridiction-
nalisation du Droit international (Colloque de Lille), Paris, Pédone, 2003, p. 198; M.
Kamto, “Les interactions des jurisprudences internationales et des jurisprudences
nationales”, in ibid., pp. 414 and 459; J.-P. Cot, “Le monde de la justice internation-
of the contemporary international community.70 The human person has at last

been granted access to justice, no longer only at national level, but likewise at
Specialized international tribunals, such as the European and Inter-Ameri-
can and African Courts of Human Rights, and the ad hoc International Criminal
Tribunals for Ex-Yugoslavia and Rwanda, have asserted universalist principles,
and the primacy of humanitarianism over traditional techniques of inter-State
litigation.71 Their work, lately fostering comparative studies,72 has thus proved
to be complementary to that of the ICJ, and they have contributed to erect con-
temporary international adjudication into a new universalist dimension, beyond
peaceful settlement of international disputes on a strictly inter-State basis. They
have thereby enriched contemporary Public International Law.
The multiplication of international tribunals is, thus, a reassuring phenom-
enon, in providing additional forums for the access to, and realization of, justice
at international level. Attention should be focused on this healthy substantial
development which is a reflection of the expansion of the application of Inter-
national Law in general and of judicial settlement in particular,73 instead of at-
tempting – as some international lawyers have tried to do – to create a “problem”
with the traditional concern with delimitation of competences. The issues arising
from the co-existence of international tribunals can be properly addressed by
means of dialogue among international judges, not by self-assertions of alleged
supremacy.74
ale”, in ibid., pp. 517 and 521; M. Bedjaoui, “La multiplication des tribunaux interna-
tionaux ou la bonne fortune du droit des gens”, in ibid., pp. 541-544.
70 Moreover, studies of the case-law of the specialized international tribunals take
regularly into account the contribution of the case-law of other international tribu-
nals. Cf., e.g., inter alia, L.J. van den Herik, The Contribution of the Rwanda Tribu-
nal to the Development of International Law, Leiden, Nijhoff, 2005, pp. 1-284; A.A.
Cançado Trindade and M.E. Ventura Robles, El Futuro de la Corte Interamericana
de Derechos Humanos, 3rd. ed., San José of Costa Rica, IACtHR/UNHCR, 2005, pp.
7-629.
71 M. Koskenniemi and P. Leino, “Fragmentation of International Law? Postmodern
Anxieties”, 15 Leiden Journal of International Law (2002) pp. 576-578.
72 Cf., e.g., G.-J.A. Knoops, An Introduction to the Law of International Criminal Tri-
bunals – A Comparative Study, Ardsley/N.Y., Transnational Publs., 2003, pp. 1-199;
J.R.W.D. Jones, The Practice of the International Criminal Tribunals for the Former
643.
73 Cf. J.I. Charney, “Is International Law Th reatened by Multiple International Tribu-
nals?”, 271 RCADI (1998) pp. 116, 121, 125, 135, 347, 351 and 373.
74 There is currently no basis in any international instrument for asserting the su-
premacy of the ICJ, or any other international tribunal, over the other international
courts; nowhere is such “supremacy” set forth in any text whatsoever. L. Cafl isch,
“Cent ans de règlement pacifique...”, op. cit. supra n. (61), p. 431. And cf., to the same
effect, H. Caminos, “The Creation of Specialised Courts: The Case of the Interna-
588 Chapter XXV
Contemporary international tribunals, working in a cooperative and com-

plementary way, have the common mission of realization of justice at interna-
tional level. Far more important than the classic question of the delimitation of
competences is the advance they have accomplished in the ideal of realization
of international justice: they have already considerably enlarged the circles of
justiciable persons, and this is a very significant contemporary phenomenon in-
deed. In this spirit, some international specialized tribunals are entrusted with
the task of deciding on highly specific or technical matters, giving moreover their
contribution to the evolution of an expanded International Law.75
The co-existing international human rights Tribunals in operation to date,
the ECtHR and the IACtHR, have, for example, succeeded in setting forth ap-
proximations and convergences in their respective case-law, despite the distinct
factual realities of the two continents in which they operate.76 The work of the
ECtHR and the IACtHR has indeed contributed to the creation of an interna-
tional ordre public based upon the respect for human rights in all circumstanc-
es. Moreover, the dynamic or evolutive interpretation of the respective human
tional Tribunal for the Law of the Sea”, in Liber Amicorum Judge S. Oda (eds. N.
Ando, E. McWhinney and R. Wolfrum), vol. I, The Hague, Kluwer, 2002, pp. 569-
574; C.-A. Fleischhauer, “The Relationship between the International Court of Jus-
tice and the Newly Created International Tribunal for the Law of the Sea in Ham-
burg”, 1 Max Planck Yearbook of United Nations Law (1997) pp. 327-333. – Article 95
of the U.N. Charter foresees the creation of new international tribunals without in
any way suggesting any such “supremacy”.
75 There has been an expansion of the international judicial function itself, beyond the
purely inter-State level, encompassing the settlement of disputes involving also non-
State entities. K. Oellers-Frahm, “Multiplication of International Courts and Tribu-
nals and Conflicting Jurisdiction – Problems and Possible Solutions”, 5 Max Planck
Yearbook of United Nations Law (2001) p. 69; J. Collier and V. Lowe, The Settlement
of Disputes in International Law – Institutions and Procedures, Oxford, OUP, 2000,
p. 14.
76 This converging case-law has generated their common understanding that human
rights treaties are endowed with a special nature (as distinguished from multilateral
treaties of the traditional type); that human rights treaties have a normative charac-
ter, of ordre public; that their terms are to be autonomously interpreted; that in their
application one ought to ensure an effective protection (effet utile) of the guaranteed
rights; that the obligations enshrined therein do have and objective character, and
are to be duly complied with by the States Parties, which have the additional com-
mon duty of exercise of the collective guarantee of the protected rights; and that
permissible restrictions (limitations and derogations) to the exercise of guaranteed
rights are to be restrictively interpreted. A.A. Cançado Trindade, Tratado de Direito
Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed.,
1999, ch. XI, pp. 23-58 and 185-194; and cf. A.A. Cançado Trindade, “Approximations
and Convergences in the Case-Law of the European and Inter-American Courts of
Human Rights”, in Le rayonnement international de la jurisprudence de la Cour eu-
ropéenne des droits de l’homme (eds. G. Cohen-Jonathan and J.-F. Flauss), Bruxelles,
Nemesis/Bruylant, 2005, pp. 101-138.
rights Conventions (the intertemporal dimension) has been followed by both the
ECtHR77 and the IACtHR.78 This outlook grows in importance for having come
at a time when the establishment of a new international human rights Tribunal
(an African Court on Human and Peoples’ Rights) under the 1998 Protocol to the
African Charter on Human and Peoples’ Rights has lately taken place (2005).
Despite the challenges that the two human rights Tribunals in operation
nowadays face, particularly with the increasing overload of cases (the ECtHR to
a far greater extent than the IACtHR), individuals have been raised as subjects of
the International Law of Human Rights, endowed with full procedural capacity,
and have recovered their faith in human justice when it appeared to fade away at
domestic law level.79 This significant procedural development, with the automa-
tism of the international jurisdiction of the ECtHR and recent developments to
this effect as regards the IACtHR, strongly suggests, as far as the two interna-
tional human rights Tribunals are concerned, that the old ideal of the realization
of international justice is finally seeing the light of the day. This is the point I have
seen it fit to single out in my address at the ceremony of opening of the judicial
year of 2004 of the ECtHR (on 22.01.2004, at the Palais des Droits de l’Homme in
Strasbourg), as follows:
“(...) In some international legal circles attention has been diverted in recent years
from this fundamental achievement to the false problem of the so-called ‘prolif-
eration of international tribunals’. Th is narrow- minded, unelegant and derogatory
expression simply misses the key point of the considerable advances of the old ideal
of international justice in the contemporary world. The establishment of new inter-
national tribunals is (...) an acknowledgment of the superiority of the judicial means
of settlement of disputes, bearing witness of the prevalence of the rule of law in
democratic societies, and discarding any surrender to State voluntarism.
Since the visionary writings and ideas of Nicolas Politis and Jean Spiropoulos
of Greece, Alejandro Álvarez of Chile, André Mandelstam of Russia, Raul Fern-
andes of Brazil, René Cassin and Georges Scelle of France, Hersch Lauterpacht of
the United Kingdom, John Humphrey of Canada, among others, it was necessary
to wait for decades for the current developments in the realization of international
justice to take place, nowadays enriching rather than threatening International Law,
strengthening rather than undermining International Law. The reassuring growth
of international tribunals is a sign of our new times, and we have to live up to it, to
77 Cases Tyrer versus United Kingdom, 1978; Airey versus Ireland, 1979; Marckx versus
Belgium, 1979; Dudgeon versus United Kingdom, 1981, among others.
78 Advisory Opinion n. 16, on The Right to Information on Consular Assistance in the
Framework of the Guarantees of the Due Process of Law, 1999; and Advisory Opinion
n. 18, on Juridical Condition and Rights of Undocumented Migrants, 2003.
79 Cf. chapters IX and X, supra.
590 Chapter XXV
make sure that each of them gives its contribution to the continuing evolution of
International Law in the pursuit of international justice”.80
In the domain of the protection of the fundamental rights of the human person,
the growth and consolidation of international human rights jurisdictions in the
European and American continents, have set higher standards of State behaviour
and established some degree of control over the interposition of undue restric-
tions by States, and have reassuringly enhanced the position of individuals as
subjects of the International Law of Human Rights, endowed with full proce-
dural capacity. In so far as the basis of the jurisdictions of the IACtHR and the
ECtHR in contentious matters is concerned, eloquent illustrations of their firm
stand in support of the integrity of the mechanisms of protection of the two
Conventions are afforded, for example, by recent decisions of the ECtHR81 as well
as of the IACtHR.82 The two international human rights Tribunals, by correctly
resolving basic procedural issues raised in such recent cases, have aptly made
use of the techniques of Public International Law in order to strengthen their
respective jurisdictions of protection of the rights of the human person. They
have decisively safeguarded the integrity of the mechanisms of protection of the
American and European Conventions on Human Rights, whereby the juridical
emancipation of the human person vis-à-vis her own State is achieved.
Human rights treaties such as the European and American Conventions
have, by means of an interpretative interaction, reinforced each other mutually,
to the ultimate benefit of the protected human beings.83 Interpretative interac-
tion has in a way contributed to the universality of the conventional law on the
protection of human rights. This has paved the way for a uniform interpretation
of the corpus juris of contemporary International Human Rights Law. Such uni-
form interpretation in no way threatens the unity of International Law. Quite on
80 A.A. Cançado Trindade, “Speech Given on the Occasion of the Opening of the Ju-
dicial Year [of the European Court of Human Rights], 22 January 2004”, in ECtHR,
Annual Report 2003, Strasbourg, ECtHR, 2004, pp. 41-49; (and Rapport annuel 2003,
Strasbourg, CourEDH, 2004, pp. 41-50); and cf. A.A. Cançado Trindade, “The Merits
of Coordination of International Courts on Human Rights”, 2 Journal of Interna-
tional Criminal Justice (2004) pp. 309-312.
81 In the Belilos versus Switzerland case (1988), in the Loizidou versus Turkey case (Pre-
liminary Objections, 1995), and in the I. Ilascu, A. Lesco, A. Ivantoc and T. Petrov-
Popa versus Moldovia and the Russian Federation case (2001).
82 In the Constitutional Tribunal and Ivtcher Bronstein versus Peru cases, Competence
(1999), and in the Hilaire, Constantine and Benjamin and Others versus Trinidad
and Tobago (Preliminary Objection, 2001).
83 A.A. Cançado Trindade, “The Development of International Human Rights Law by
the Operation and the Case-Law of the European and Inter-American Courts of Hu-
man Rights”, 25 Human Rights Law Journal (2004) n. 5-8, pp. 157-160; A.A. Cançado
Trindade, “Le développement du Droit international des droits de l’homme à travers
l’activité et la jurisprudence des Cours européenne et interaméricaine des droits de
l’homme”, 16 Revue universelle des droits de l’homme (2004) n. 5-8, pp. 177-180.
the contrary, instead of threatening “to fragment” International Law, the two Tri-
bunals at issue have helped to develop and achieve the aptitude of International
Law to regulate efficiently relations which have a specificity of their own – at
intra-State, rather than inter-State, level, opposing States to individuals under
their respective jurisdictions, – and which require a specialized knowledge from
the Judges. The unity and effectiveness of Public International Law itself can be
measured precisely by its aptitude to regulate legal relations in distinct contexts
with equal adequacy.
From all the aforesaid one can detect the current historical process of hu-
manization of International Law (a new jus gentium), disclosing a new outlook of
the relations between public power and the human being, – an outlook which is
summed up, ultimately, in the recognition that the State exists for the human be-
ing, and not vice-versa. In operating, and constructing their converging case-law,
to that effect, the two international human rights Tribunals, the European and
the Inter-American Courts, have indeed contributed to enrich and humanize
contemporary Public International Law. They have done so as from an essentially
and necessarily anthropocentric outlook, as aptly foreseen, since the XVIth cen-
tury, by the so-called founding fathers of the law of nations (the droit des gens).
Part VIII
Perspectives
Chapter XXVI The Legacy of the Recent
Cycle of World Conferences of the
United Nations
I. Preliminary Observations: The International Legal Order in a World of

Profound Contradictions
International Law has marked its presence in the recent cycle of the World Con-
ferences convened by the United Nations in the nineties and by the turn of the
century. Those Conferences, which I had the occasion to follow closely,1 have con-
tributed decisively to form the substantive content of the international agenda of
this beginning of the XXIst century. Relevant passages of their final documents
(declarations and plans or programmes of action) identify key issues of direct
concern to the international community, propose courses of action as a response
to new challenges and in pursuance of a new international order with more social
justice, and propound the cultural and spiritual development of human societies,
to the benefit of humankind as a whole.
They contain, in fact, numerous references to the international community,
in the sense not of the traditional community of States but rather and clearly of
the enlarged international community, – comprising States, international orga-
nizations and human beings, either individually or in human groups or collec-
tivies. Their messages are thus addressed to States as well as the other subjects
of contemporary International Law. References are often made to international
treaties and instruments regulating matters of interest to humankind as a whole
(mainly in the domains of human rights protection and environmental protec-
tion, among others).
One could hardly assess the legacy of the recent cycle of U.N. World Con-
ferences without outlining preliminarily some features of the world scenario in
which they took place, – as perspicatiously summed up, e.g., by the statement of
the Delegation of Pakistan at the II World Conference on Human Rights in Vien-
na, on 16 June 1993, which drew lessons from our times in the following terms:
1 Having personally participated in all the stages, including the Drafting Committee,
of one of them (the 1993 II World Conference on Human Rights), in the preparatory
world of another (the 1995 World Summit on Social Development), and in events
associated with yet another one (the 1992 U.N. Conference on Environment and
Development).
596 Chapter XXVI
“The World Conference on Human Rights is taking place in the twilight of the XXth
century, – a century which has witnessed greater progress in science and technol-
ogy than all of recorded history. Yet, this century has also seen greater destruc-
tion and more killing than all the wars of history put together. The XXth century
will be remembered for the conquest of space and for the information revolution. It
will also be remembered as a period when States officially sanctioned the deliberate
slaughter of innocent men, women and children, – in the gas chambers of Ausch-
witz, the gulags of Siberia, the carpet bombing of London, Berlin and Dresden and
the atomic destruction of Hiroshima and Nagasaki”.2
At the same World Conference of Vienna, the President of the Republic of Na-
mibia, on his turn, pondered that, despite the flagrant, persistent violations of
human rights in many parts of the world, the last quarter of the XXth century
witnessed the emergence of human rights as the central point in inter-State rela-
tions, and the 1993 World Conference provided “a rare opportunity for humanity
to reaffirm the centrality and indivisibility of basic human rights and fundamen-
tal freedoms as the pillars of both domestic and international policy”.3
1. A Transformation of Epoch
In fact, at this beginning of the XXIst century we can witness, more than an ep-
och of transformations, a transformation of epoch. This latter has been marked
by profound contradictions, such as that between, on the one hand, the consider-
able development in communications, and, on the other hand, the growing – if
not alarming – socio-economic disparities between countries and at the interior
of these latter (among segments of the population), as well as the outbreak of
violent internal conflicts in various parts of the world. The events which have
dramatically changed the international scenario, as from 1989, keep on taking
place in an overwhelming rhythm, without enabling us to foresee what awaits us
in the immediate future. To those victimized by the current internal conflicts in
many countries, many others are added in search of their cultural identity in this
rapid and overwhelming transformation of epoch. The growing concentration of
income in world scale has brought about the tragic growth of those marginalized
and excluded in all parts of the world.
The Habitat Agenda and Declaration of Istanbul, adopted by the II U.N.
World Conference on Human Settlements (Istanbul, June 1996), e.g., warned as
to the precarious situation nowadays affecting “more than one billion people liv-
2 U.N., “Statement of Begum Nusrat Bhutto, Leader of the Pakistan Delegation to the
World Conference on Human Rights”, Vienna, 16.06.1993, pp. 2-3 (internal circula-
tion), cit. in A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 272-273.
3 U.N., “Speech by H.E. Dr. Sam Nujoma, President of the Republic of Namibia, at
the Closing of the World Conference on Human Rights”, Vienna, 25.06.1993, p. 2-3
(internal circulation), cit. in ibid., pp. 2-3, cit. in ibid., p. 273.
The Legacy of the Recent Cycle of World Conferences of the United Nations 597
ing in absolute poverty” in the world today, in a state of abandonment, without

adequate housing and in infra-human conditions.4 The Draft Declaration (of
June 1994) before the Preparatory Committee of the Copenhagen World Sum-
mit for Social Development after warning against open unemployment,5 called
for a “rebirth of the ideals of social justice” to find solutions for the problems
of our societies, as well as for a “world development of humankind”; it further
warned, bearing in mind the future of humankind, that the social responsibilities
of knowledge should be kept in mind, since – as stressed for a long time – “sci-
ence without a conscience can only be the ruin of the soul”.6 The Copenhagen
Declaration on Social Development, adopted by the World Summit of 1995, duly
emphasized the pressing need of seeking solutions to current social problems,7 as
a great challenge emerging of the current transformation of epoch.
2. The Spirit of Our Epoch

In fact, the conscience of the need to fulfil the basic needs of all human beings
has led to the acknowledgement of the legitimacy of the concern of the whole
international community with the situation and the conditions of living of all hu-
man beings everywhere, as from a necessarily humanist outlook, in this transfor-
mation of epoch in which we live. Thus, the Vienna Declaration and Programme
of Action,8 adopted by the World Conference on Human Rights on 25.06.1993,
besides setting forth (in its preamble) positions of principle,9 invoked “the spirit
of our epoch and the realities of our time” (15th considerandum), to require that
all the peoples of the world and all U.N. member States “rededicate themselves
to the global task” of promoting and protecting all human rights so as to se-
cure their “full and universal enjoyment”. The deliberations in Vienna in 1993 on
4 Cf. U.N., Habitat Agenda and Istanbul Declaration (II U.N. Conference on Human
Settlements, Istanbul, 03-14 June 1996), N.Y., U.N., 1996, pp. 7 and 47, and cf. pp. 6-7,
17-17, 78-79 and 158-159. – For further statistical data, cf. e.g., United Nations/CE-
PAL, La Cumbre Social – Una Visión desde América Latina y el Caribe, Santiago,
CEPAL, 1994, pp. 29, 16 and 14.
5 Affecting nowadays about 120 million persons all over the world, added to 700 mil-
lion underemployed persons; U.N. doc. A/CONF.166/PC/L.13, of 03.06.1994, p. 37,
and cf. pp. 21 and 16.
6 Ibid., pp. 3-4 and 6.
7 Particularly in its paragraphs 2, 5, 16, 20 and 24; text in U.N. doc. A/CONF.166/9,
of 19.04.1995, Informe de la Cumbre Mundial sobre Desarrollo Social (Copenhagen,
06-12.03.1995), pp. 5-23.
8 United Nations, World Conference on Human Rights – The Vienna Declaration and
Programme of Action, June 1993, N.Y., U.N., 1993, pp. 25-71.
9 Such as the undertaking, under Articles 55-56 of the U.N. Charter, the Universal
Declaration and the two U.N. Covenants on Human Rights, to take measures to
secure further progress in the universal observance of human rights, these latter
ensuing from the dignity and worth inherent to the human person.
598 Chapter XXVI
this considerandum led to one of the most enlightening moments that I recall
of the debates of the Drafting Committee of that World Conference. In my own
personal recollections (in book form) of thoses debates, which took place in the
afternoon of 23.06.1993, I reported that
“Originally it was contemplated to make reference only to the ‘spirit of our epoch’,
but the decision was taken to add another reference to the ‘realities of our time’ in
the understanding that these latter should be appreciated in the light of the former:
the ‘spirit of our epoch’ is characterized by the common aspiration to superior val-
ues, to the growth of the promotion and protection of human rights intensified
in the democratic transition and the establishment of the rule of law in so many
countries, to the search for global solutions in the treatment of global themes (with
reference made, e.g., to the need of erradication of extreme poverty). This was the
understanding which prevailed, in this respect, in the Drafting Committee”.10
3. Universalism and Cultural Diversity

Another substantial debate in the same Vienna Conference was reflected in the
counterposition between the universality of human rights and the so-called cul-
tural particularisms. Having always supported the universality of human rights,11
my experience as Delegate to that World Conference and my participation in the
work of its Drafting Committee have reinforced my position. There is nowadays
recognition of the relevance of the cultural identity and diversity to the effective-
ness – and indeed the universality – of legal norms of human rights protection.
Some points are here to be kept in mind.
Firstly, cultures are not static, they manifest themselves dynamically in time,
and have appeared open to the advances in the domain of human rights in the
last decades. Secondly, many human rights treaties have been ratified by States
with the most diverse cultures; thirdly, there are more recent treaties, – such
as the Convention on the Rights of the Child (1989), – which, in their travaux
préparatoires, took in due account the cultural diversity, and enjoy nowadays a
virtually universal acceptance.12 Fourthly, cultural diversity has never been an
obstacle to the formation of a universal hardcore of non-derogable fundamental
rights, set forth in several human rights treaties. Moreover, cultural diversity has
not restrained the contemporary tendency of criminalization of grave human
rights violations, nor the recent advances in international criminal law, nor the

vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, chapter V, pp. 242-243,
pars. 14-15.
11 Cf., recently, A.A. Cançado Trindade, El Derecho Internacional de los Derechos Hu-
manos en el Siglo XI, Santiago, Editorial Jurídica de Chile, 2001, pp. 15-455.
12 The Geneva Conventions on International Humanitarian Law (1949), e.g., also count
today on a virtually universal acceptance.
acknowledgement of the principle of universal jurisdiction in some human rights

treaties,13 nor the universal struggle against impunity.
Cultural diversity has not impeded, either, the creation in our days of a true
international regime of absolute prohibition of torture, forced disappearances
of persons, and summary, extra-legal and arbitrary executions.14 These develop-
ments have enhanced the safeguard of non-derogable rights in any circumstances.
Eight years after the Vienna Conference, the 2001 World Conference against Rac-
ism, Racial Discrimination, Xenophobia and Related Intolerance duly stressed the
value of mutual understanding and respect for cultural diversity.15 In its call for a
“harmonious multicultural world”,16 the Dunbar Declaration and Programme of
Action stressed “the need to seek common ground among and within civilizations
in order to address common challenges to humanity”,17 and added that
“Cultural diversity is a cherished asset for the advancement and welfare of humanity
at large and should be valued, enjoyed, genuinely accepted and embraced as a per-
manent feature which enriches our societies. (...) All peoples and individuals con-
stitute one human family, rich in diversity. They have contributed to the progress of
civilizations and cultures that form the common heritage of humanity. Preservation
and promotion of tolerance, pluralism and respect for diversity can produce more
inclusive societies”.18
II. The Legacy of the Cycle of U.N. World Conferences:

Conditions of Life as a Matter of International Concern
Given the aggravation today of the tragic phenomenon of impoverishment of
large sectors of the population,19 attention is shifted in particular to the situ-
ation of the vast segments of the population unjustly excluded from the ben-
efits of so-called “economic growth” and “modernization”.20 The matter has,
13 Such as, e.g., the 1984 U.N. Convention against Torture, among others.
14 Cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,
15 Dunbar Declaration and Programme of Action, paragraphs 40, 148-149 and 179.
17 8th preambular paragraph.
18 19th preambular paragraph, and par. 6.
19 On the considerable and alarming number of persons (more than a billion people)
living – or surviving – nowadays in conditions of extreme poverty, cf. UNDP, Hu-
man Development Report 1993, Oxford, University Press, 1993, p. 1. On the “cultural
dimension” of “critical poverty”, with increase of violence and prejudices against the
poor segments of society, cf. UNESCO, La Erradicación de la Pobreza Crítica en
America Latina y el Caribe, Paris, UNESCO, 1988, pp. 4-7.
20 A.A. Cançado Trindade, Direitos Humanos e Meio Ambiente – Paralelo dos Siste-
mas de Proteção Internacional, Porto Alegre/Brazil, S.A. Fabris Ed., 1993, pp. 96-97,
and cf. pp. 99-112.
600 Chapter XXVI
not surprisingly, attracted considerable attention in recent World Conferences

convened by the United Nations (on Environment and Development, 1992; Hu-
man Rights, 1993; Population and Development, 1994; Social Development, 1995;
Women, 1995; Habitat-II, 1996; International Criminal Jurisdiction, Rome, 1998;
Struggle against Racism, Durban, 2001). Those Conferences (in particular those
held in the period 1992-1996) have acknowledged the pressing need to reverse
the deterioration of living conditions affecting growing segments of the popula-
tion in many parts of the world nowadays. In fact, if one is to detect a common
denominator in the recent U.N. World Conferences, it may well be found in the
recognition of the legitimacy of the concern of the international community as a
whole with the conditions of living of all human beings.
Developmental and environmental considerations21 have been invoked to
the effect of achieving the improvement of economic and social conditions of life.
Regarded by some as a principle of contemporary International Law,22 sustain-
able development 23 has come to be regarded as meeting basic human needs (as to
health, nutrition, housing, education). The links between development and some
of the economic and social rights24 hardly require any demonstration. Amidst
the growing call for the pursuance of social justice among and within nations, de-
velopment came to be seen as encompassing environmental sustainability, social
justice and the strengthening of democratic institutions (public participation).
1. U.N. Conference on Environment and Development (Rio de Janeiro, 1992)

Agenda 21, adopted by the 1992 U.N. Conference on Environment and Develop-
ment (UNCED), expressly referred to the vulnerable groups,25 the central con-
cern laying in the satisfaction of basic human needs26 (food, health preservation,
21 Cf. World Commission on Environment and Development, Our Common Future,

Oxford, University Press, 1987, pp. 75-90, 40, 43-66 and 8-9.
22 Cf. Nagendra Singh, “Sustainable Development as a Principle of International Law”,
International Law and Development (ed. P. De Waart, P. Peters and E. Denters),
Dordrecht, Nijhoff, 1988, pp. 2-5.
23 Which occupied a central place in the 1987 Brundtland Commission report (n. 21,
cit. supra); as known, in its view sustainable development called for meeting the
needs and aspirations of the present without compromising the ability of future
generations to meet their own needs.
24 Enshrined in human rights treaties like the 1966 U.N. Covenant on Economic, So-
cial and Cultural Rights, the 1988 Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights, and the 1981
African Charter on Human and Peoples’ Rights.
25 E.g., the urban and rural poor, indigenous populations, children, women, the elderly,
the homeless, the terminally-ill, the disabled persons; chapter 6, par. 2, 5, 13 and 23;
chapter 3, par. 4 and 8-9; and chapter 7, par. 16, 20, 26-27, 30, 36, 45, 51 and 76.
26 Chapter 4, par. 5 and 8, and chapter 6, par. 1, 18 and 32, and chapter 7, par. 4-6 and
67-68. Agenda 21 expressed the hope that, through the integration of environmental
and developmental considerations, a “global partnership” can be attained, so as to
adequate housing, education). On their turn, both the Framework Convention

on Climate Change and the Convention on Biological Diversity (1992) expressly
referred, in their respective preambles, to the fundamental and urgent aim of
eradication of poverty.27 Likewise, the Declaration of Principles on Forests, also
adopted by the 1992 Rio Conference, also called for the eradication of poverty
and the meeting of the “social, economic, ecological, cultural and spiritual hu-
man needs of present and future generations”.28
Both the Declaration of Rio de Janeiro and the Agenda 21, adopted by
UNCED on 14.06.1992, were significantly permeated by elements proper to the
conceptual universe of human rights and nowadays common to the two domains
of protection (of the human being and of the environment).29 The 1992 Rio Dec-
laration – like Agenda 2130 – devoted particular attention to the right of par-
ticipation (in environmental management and in the promotion of sustainable
development).31 And it was categorical in asserting that “the right to development
must be fulfilled so as to equitably meet developmental and environmental needs
of present and future generations” (Principle 3).
2. II World Conference on Human Rights (Vienna, 1993)

On its turn, the Vienna Declaration and Programme of Action, the main docu-
ment adopted by the II World Conference on Human Rights (1993), began by
recalling the determination expressed in the preamble of the U.N. Charter itself
“to save succeeding generations from the scourge of war”, and “to establish con-
ditions under which justice and respect for obligations arising from treaties and
other sources of International Law can be maintained”.32 It stressed the interre-
lationship between democracy, development and respect for human rights.33 The
approval of the insertion of the section on the right to development as a human
fulfi l basic human needs, to protect and to manage better the ecosystems and to
improve the living conditions for all; chapter 1, par, 1-2; and cf. chapter 8, par. 2 and
4.
27 The former relates it to the “legitimate priority needs of developing countries” and
the latter regards it, together with economic and social development, as “the first
and overriding priorities of developing countries”.
28 Paragraphs 7(a) and 2(b), respectively.
29 Cf. Principles 1, 3, 5 and 10 of the Rio Declaration on Environment and Develop-
ment. The Rio Declaration referred expressly to International Humanitarian Law
applicable to the protection of the environment (Principle 24), to the protection of
human health (Principle 14), and to the interdependence and indivisibility between
environmental protection, development and peace (Principle 25).
30 Cf. its chapters 24-27, and 29-32, and cf. chapter 36, pars. 1-4; chapter 1, par. 3; and
chapter 38, pars. 11 and 13-14.
31 Cf. Principles 20-22 of the Rio Declaration.
33 Part I, paragraph 8; and cf. part II, paragraph 80.
602 Chapter XXVI
right into the Vienna Declaration and Programme of Action represented a major
breakthrough in the elaboration and adoption of the document: the Vienna Dec-
laration and Programme of Action significantly endorsed34 the key provisions of
the 1986 Declaration on the Right to Development.35
The final document of the Vienna Conference called for universal obser-
vance of human rights in accordance with the U.N. Charter, “other instruments
relating to human rights and International Law”;36 it urged States to withdraw
reservations which were contrary to the object and purpose of human rights
Conventions or which were “otherwise incompatible with international treaty
law”.37 It further called upon States to refrain from any unilateral measure that
impeded the full realization of human rights, “in particular the rights of every-
one to a standard of living adequate for their health and well-being, including
food and medical care, housing and the necessary social services”.38
3. International Conference on Population and Development (Cairo, 1994)

The Programme of Action adopted by the Cairo Conference on Population and
Development (1994) referred to sustainable development,39 relating populations
issues and reproductive health to it and to universally recognized human rights
standards. The Programme of Action, containing its Principles, called for an im-
provement in the standards and quality of life,40 in stating that “human beings
are at the centre of concerns for sustainable development”.41 The Cairo Confer-
34 Part I, paragraphs 10-11; part II, paragraph 72.

35 Cf. part I, pars. 10-11, and part II, paragraph 72. For an account and general assess-
ment of the Vienna Conference results, cf. A.A. Cançado Trindade, “Balance de los
Resultados de la Conferencia Mundial de Derechos Humanos (Viena, 1993)”, in Es-
tudios Básicos de Derechos Humanos, vol. III, San José of Costa Rica, IIHR, 1995, pp.
17-45.
36 Part I, paragraph 1.
37 Part II, paragraph 39.
38 Part I, pars. 30-31. – The Programme of Action went further, in indicating “addi-
tional approaches” to strengthen the enjoyment of economic, social and cultural
rights, such as “a system of indicators to measure progress in the realization of the
rights” set forth in the U.N. Covenant on Economic, Social and Cultural Rights; part
II, par. 98.
39 For which, its preamble stated, “Agenda 21 provides a framework”. In fact, the Cairo
document acknowledged, in its chapter III, that “Agenda 21 leaves to the Interna-
tional Conference on Population and Development further consideration of the in-
terrelationship between population and the environment”; doc. cit. infra n. (43), p.
15.
40 Chapter II, Principles 5, 6 and 8.
41 Principle 2.
ence also devoted attention to vulnerable groups,42 and restated the right to de-
velopment in its Principle 3.43
The Programme of Action insisted upon poverty eradication as a major chal-
lenge in order to achieve sustainable development,44 and called for compliance
with treaties for the protection of the human person.45 The Cairo Programme of
Action was attentive to the well-being of present and future generations, and was
likewise attentive to the observance of relevant norms of International Refugee
Law.46 The Cairo final document related population problems to social develop-
ment and women’s rights and empowerment,47 thus establishing a proper linkage
between the 1994 World Conference and the then forthcoming World Confer-
ences in Copenhagen (on Social Development) and Beijing (on Women).48
4. World Summit for Social Development (Copenhagen, 1995)

The Declaration and Programme of Action adopted by the World Summit for
Social Development (1995) purported to address the core issues of eradication
(originally, alleviation and reduction) of poverty, expansion of productive em-
ployment, and enhancement of social integration (particularly of the more dis-
advantaged groups). Its main objetives included those of placing human needs
at the centre of development, identifying common problems of disadvantaged
or socially marginalized groups, mobilizing resources for social development,49
and ensuring a more effective rendering of social services for the more disadvan-
42 Principles 11, 12, 13 and 14.

43 Cf. U.N., Population and Development – Programme of Action Adopted at the In-
ternational Conference on Population and Development (Cairo, 05-13.09.1994), U.N.
doc. ST/ESA/SER.A/149, 1995, p. 9.
44 Cf. doc. cit. supra n. (43), chapter III, pp. 13-14.
45 Such as the 1989 Convention on the Rights of the Child, the 1949 Geneva Conven-
tion Relative to the Protection of Civilian Persons in Time of War, and the 1951
Convention and 1967 Protocol Relating to the Status of Refugees; cf. ibid., pp. 26 and
31, 48 and 56.
46 Cf. preamble, and chapter X of the Programme of Action.
47 On gender equality, equity and empowerment of women, cf. chapter IV of the Pro-
gramme of Action. – The whole of chapter VII of the Programme of Action was
devoted to reproductive rights and health. The Cairo document observed at last, in
chapter XVI on the follow-up of the Conference, that the “implementation of the
Programme of Action at all levels ought to be viewed as part of an integrated fol-
low-up eff fort” to the recent and major World Conferences convened by the United
Nations.
48 Cf. S. Johnson, The Politics of Population: The International Conference on Popula-
tion and Development – Cairo 1994, London, Earthscan, 1995, pp. 10, 64, 175-176 and
209.
49 At local, national, regional and international levels.
604 Chapter XXVI
taged. All those points were duly reflected in the Copenhagen Declaration on
Social Development, which expressed the conviction that
“social development and social justice are indispensable for the achievement and
maintenance of peace and security within and among our nations. In turn, social
development and social justice cannot be attained in the absence of peace and se-
curity or in the absence of respect for all human rights and fundamental freedoms.
This essential interdependence was recognized 50 years ago in the Charter of the
United Nations and has since grown ever stronger”.50
The 1995 Declaration identified the following “major sources of social distress
and instability” in the world today: chronic hunger and malnutrition, chronic
poverty, lack of productive employment and social disintegration, illicit drug
problems, organized crime, corruption, foreign occupation, armed conflicts, il-
licit arms trafficking, terrorism, intolerance and incitement to hatreds (racial,
ethnic, religious and of other kinds), xenophobia, endemic and communicable
and chronic diseases, arms production and acquisition and expenditure.51 The
Copenhagen Declaration and Programme of Action further enshrined the com-
mitments to eradicate – not only to alleviate or reduce – poverty in the world;
like the final documents of previous World Conferences (supra), it also referred
expressly to the right to development, – to the effect of placing human beings
at the centre of all development and economics at the service of human needs,52
– and focused attention on vulnerable groups (including migrants, refugees and
displaced persons).53 It warned as to the risks of social disintegration (in its vari-
ous manifestations) and the need to promote social development in the light of
50 U.N., Report of the World Summit for Social Development (Copenhagen, 06-
12.03.1995), U.N. doc. A/CONF.166/9, of 19.04.1995, Annex I, p. 5, par. 5.
51 Ibid., pp. 8 and 23, pars. 20, 23 and 29(9)(g). It called inter alia for “the appropriate
reduction of excessive military expenditures, including global military expendi-
tures and the arms trade, and investments for arms production and acquisition,
(...) so as to allow possible allocation of additional funds for social and economic
development”; ibid., p. 23, par. 29(9)(g).
52 U.N., Proyecto de Resultado de la Cumbre Mundial sobre Desarrollo Social: Proyecto
de Declaración y Proyecto de Programa de Acción, document A/CONF.166/PC/L.22,
of 25.11.1994, p. 6; and, for the final version, cf. U.N., Informe de la Cumbre Mun-
dial sobre Desarrollo Social (Copenhagen, 06-12.03.1995), doc. A/CONF.166/9, of
19.04.1995, Annex I, pp. 10-29.
53 U.N., Informe de la Cumbre Mundial..., doc. cit. supra n. (52), pp. 5-101; U.N., Proyec-
to de Resultado..., doc. cit. supra n. (52), pp. 15-47. – As pointed out in a seminar
of follow-up to the World Summit, the Declaration and Programme of Action of
Copenhagen enlarged the concept of poverty so as “to include lack of access to basic
services and amenities, lack of security and exclusion from participation in the life
of the community. Furthermore, discrimination and social inequality were empha-
sized as significant facets of poverty; and the reduction of poverty was explicitly
linked to the reduction of inequalities”. United Nations Research Institute for Social
the observance of human rights, setting forth detailed agendas for law-making by
States54 and for co-ordinated action by international organizations.
5. IV World Conference on Women (Beijing, 1995)

The Beijing Declaration, adopted by the IV World Conference on Women (1995),
expressed its determination “to advance the goals of equality, development and
peace for all women everywhere in the interest of all humanity”, as well as “to
ensure respect for international law, including humanitarian law, in order to pro-
tect women and girls in particular”.55 The Platform for Action, adopted by the
same World Conference, also warned against the threatening growth of poverty
(affecting mostly women)56 and singled out the role of women in the struggle
against poverty.57 It further pondered that, while the international changes in the
world scenario since the end of the cold war seemed to have reduced the threat
of a global armed conflict, yet
“wars of aggression, armed conflicts, colonial or other forms of alien domination

and foreign occupation, civil wars and terrorism continue to plague many parts of
the world. Grave violations of human rights of women occur, particularly in times of
armed conflict, and include murder, torture, systematic rape, forced pregnancy and
forced abortion, in particular under policies of ethnic cleansing”.58
In a “world of continuing instability”, the Beijing Platform further warned, viola-

tions of International Humanitarian Law and International Human Rights Law
continue to occur, victimizing mainly women and children (besides the elderly
and the disabled), who nowadays constitute some 80 per cent of the world’s mil-
Development (UNRISD), After the Social Summit: Implementing the Programme of

Action (Report, Geneva Seminar, 04.07.1995), Geneva, UNRISD, 1995, p. 4.
54 J. Paul, Incorporating Human Rights into the Work of the World Summit for Social
Development, Washington, American Society of International Law (Issue Papers on
World Conferences n. 3), 1995, pp. 54, and cf. pp. 27 and 33.
55 Preamble and pars. 3 and 33.
56 U.N., IV World Conference on Women – The Beijing Declaration and the Platform of
Action (Beijing, September 1995), N.Y., U.N., 1996, p. 23, pars. 13 and 16.
57 U.N., Informe de la IV Conferencia Mundial sobre la Mujer (Beijing, 04-15.09.1995),
doc. A/CONF.177/20, of 17.10.1995, Annex I, chapter II, pars. 16-17 and 21; and chap-
ter IV, pars. 47-57.
58 U.N., IV World Conference on Women..., op. cit. supra n. (56), p. 22, pars. 10-11, and
p. 121, pars. 211-212, and p. 126, par. 230(c). The Platform denounced that “excessive
military expenditures, including global military expenditures and arms trade or
trafficking, and investments for arms production and acquisition have reduced the
resources available for social development”; ibid., p. 23, par. 13. It added that “family
disintegration, population movements between urban and rural areas within coun-
tries, international migration, war and internal displacements are factors contribut-
ing to the rise of female-headed households”; ibid., p. 25, par. 22.
606 Chapter XXVI
lions of refugees and internally displace persons.59 The document added that
those violations are breaches of “fundamental principles” of International Hu-
manitarian Law and International Human Rights Law, which have, moreover,
constituted
“abhorrent practices that are strongly condemned and must be stopped immediately
(...). (...) Gross human rights violations and policies of ethnic cleansing in war-torn
and occupied areas continue to be carried out. These practices have created, inter
alia, a mass flow of refugees and other [internally] displaced persons in need of
international protection (...), the majority of whom are women, adolescent girls and
children. Civilian victims, mostly women and children, often outnumber casualties
among combatants”.60
Chapter IV of the Beijing Platform for Action called repeatedly for compliance
with certain human rights and humanitarian treaties,61 given the “systematic and
systemic character of discrimination against women”.62 The Platform warned
against violence originating from certain cultural practices (traditional or mod-
ern) and aggravated by social pressures.63 Like other final documents of recent
U.N. World Conferences, the 1995 Platform for Action clearly saw itself as part
of the process of formation of the international agenda – centered on human be-
ings, their needs and rights – of the XXIst century.64
6. U.N. Conference on Human Settlements (Habitat-II, Istanbul, 1996)

The II U.N. Conference on Human Settlements (Habitat-II, Istanbul, June 1996)
purported to dwell upon the central issues of sustainable human settlements in
an urbanizing world65 and adequate shelter for all. The Habitat Agenda, adopted
by the Conference, acknowledged the interdependence of economic and social
59 Ibid., pp. 83-84, pars. 134-136.

60 Ibid., pp. 82-83, pars. 131 and 133.
61 Such as the two U.N. Covenants on Human Rights, the U.N. Convention against
Torture, the 1951 Convention and the 1967 Protocol on the Status of Refugees, the
1949 Geneva Conventions on Humanitarian Law and its two Additional Protocols of
1977, the U.N. Convention on the Rights of the Child, the Convention on the Elimi-
nation of All Forms of Racial Discrimination, and, in particular, the Convention on
the Elimination of All Forms of Discrimination against Women; cf., as to this latter,
in doc. cit. supra n. (56), e.g., chapter IV, pars. 124, 199 and 221; and chapter V, pars.
323-324 and 327.
62 Chapter IV, par. 222, and cf. pars. 213 and 223.
63 Cf. chapter IV, pars. 118, 224, 251 and 276-277.
64 Cf. chapter IV, par. 106.
65 U.N., Why a Conference on Cities?, N.Y., U.N., 1995, pp. 1-3.
development and environmental protection,66 and affirmed the right of everyone

to an adequate standard of living, including “adequate food, clothing, housing,
water and sanitation”, and to the “continuous improvement of living conditions”.67
It further stated that its objectives were “in full conformity” with the purposes
and principles of the U.N. Charter and International Law, and professed its aim
to promote international peace and security and support all endeavours to settle
international disputes by peaceful means, in accordance with the U.N. Charter,
adding that “to safeguard the interests of present and future generations in hu-
man settlements is one of the fundamental goals of the international commu-
nity”.68
In the Istanbul World Conference debates, which invoked the role of human
solidarity in the reduction of inequalities within and between countries, there
was support for the view that “a sustainable habitat was no longer the respon-
sibility and function of the State alone, but a challenge for all societal actors”.69
The improvement of the condition of human settlements, and of quality of life in
general, was depicted as a “common cause of all mankind”, one which aimed at
ensuring “a brighter future for humanity”.70 The Habitat Agenda devoted special
attention to “vulnerable groups and people with special needs”,71 urged States to
cooperate in order to achieve “the elimination of such practices and all unilateral
measures impeding social and economic development”, and expressed the belief
that attaining the goals listed in the Istanbul document would promote “a more
stable and equitable world free from injustice and conflict” and would contribute
to “a just, comprehensive and lasting peace”.72
7. U.N. Conference on the Establishment of an International Criminal Court

(Rome, 1998)
By the time the U.N. Conference on the Establishment of an International Crimi-
nal Court [ICC] was convened in Rome in 1998, its Preparatory Committee had
already opted for the principle of complementarity73 to characterize the nature
66 U.N. Centre for Human Settlements, Habitat Agenda as Adopted at the United Na-
tions Conference on Human Settlements (Habitat II), preamble, considerandum 1.
67 Ibid., preamble, considerandum 9.
68 U.N., Habitat Agenda and Istanbul Declaration, op. cit. supra n. (66), pp. 21-22 and
27.
69 U.N., Report of the United Nations Conference on Human Settlements (Habitat II)
(Istanbul, 03-14 June 1996), N.Y., U.N., 1997, pp. 135, 140 and 172, and cf. p. 219.
70 Cf. ibid., p. 222.
71 U.N., Habitat Agenda and Istanbul Declaration, op. cit. supra n. (66), pars. 72-75,
and cf. pars. 86-92 and 15 (poverty eradication, creation of productive employment
and social integration).
72 Ibid., par. 13.
73 Cf. 10th preambular paragraph of the Rome Statute; and cf. Articles 12-14, on the
preconditions to the exercise of the ICC jurisdiction.
608 Chapter XXVI
of the relations between the ICC and national jurisdictions, and attention was
turned to the “core crimes” to fall under the competence ratione materiae of the
future ICC, as well as the “triggering mechanism” and the status and faculties
of the Prosecutor, in the prolonged discussions in the six periods of sessions of
that Committee (1996-1998).74 On 17.07.1998 the U.N. Rome Conference approved
the Statute of the ICC,75 which defined four categories of “core crimes” (Article
5) under the jurisdiction of the ICC,76 – after debates which prolonged up to the
end of the Conference, – namely, genocide (Article 6),77 crimes against humanity
(Article 7), war crimes (Article 8), and the crime of aggression.78 For the inclusion
of this latter in the Statute it was necessary to overcome prolonged resistances
and controversies, partly due to the involvement in the issue of a political organ
like the U.N. Security Council.79
The Statute set forth general principles of international criminal law,80 de-
spite the conceptual differences between Delegations of countries of droit civil
and those of common law.81 It was, in addition, clarified that, to crimes of the
gravity of genocide, crimes against humanity and war crimes, no statutes of limi-
tations can apply, as those crimes fall under the domain of jus cogens, bringing
about obligations erga omnes.82 The 1998 Rome Conference has thus contributed
74 For an account of the work of the Preparatory Committee, cf. U.N., doc. A/AC.249/1,
of 07.05.1996, pp. 1-132; U.N., doc. A/AC.249/1998/L.3, of 04.02.1998, pp. 1-175. Like
previous U.N. World Conferences, the process of the Rome Conference also counted
on the contribution of non-governmental organizations; cf., e.g., Amnesty Interna-
tional, The International Criminal Court: Making the Right Choices, Part I, Jan. 1997,
pp. 1-3; Part II, July 1997, pp. 1-96; Part III, July 1997, pp. 1-63; Part IV, March 1998,
pp. 1-51. Human Rights Watch, Commentary for the Siracusa Meeting of Experts on
the Establishment of a Permanent International Criminal Court, N.Y., HRW, [1997],
pp. 1-5.
75 Besides its Annexes, and the Final Act of the Conference.
76 Cf. Articles 34-39 of the Statute, on its Pre-Trial, Trial and Appeals Chambers.
77 The definition of which derives from that set forth in Articles II-III of the 1948 Con-
vention against Genocide.
78 On this latter, cf. Articles 5(2), 121 and 123 of the Statute.
79 The absence of a statutory definition of the crime of aggression was cause for con-
cern. Likewise, the “transitory provision” of Article 124 of the Statute, – reflecting
the vicissitudes of the negotiatory process, – allowing for the non-acceptance of the
jurisdiction of the ICC over war crimes (Article 8) for a period of seven years (sSince
the entry into force of the Statute for the State Party at issue), was, not surprisingly,
promptly criticized (mainly by non-governmental organizations).
80 Cf., generally, A. Cassese, International Criminal Law, Oxford, University Press,
2003, pp. 31-36.
81 Cf. H.-P. Kaul, “Towards a Permanent International Criminal Court – Some Obser-
vations of a Negotiator”, 18 Human Rights Law Journal (1997) p. 173, and cf. p. 171.
82 Cf., e.g., M.C. Bassiouni, “International Crimes: Jus Cogens and Obligatio Erga
Omnes”, in Reining in Impunity for International Crimes and Serious Violations of
Fundamental Human Rights (Proceedings of the Siracusa Conference, September
to overcome a gap which persisted in traditional international law, in establish-

ing a permanent international criminal jurisdiction; it has further contributed to
the configuration of accountability under International Law for atrocities perpe-
trated against human beings. It has become an important step in the long-stand-
ing struggle against impunity, and has enhanced the rule of law, at both national
and international levels. It remains now to see how will the Rome Statute be put
into practice.
8. World Conference against Racism, Racial Discrimination, Xenophobia

and Related Intolerance (Durban, 2001)
Human suffering has in fact projected itself in time, encompassing successive
victims;83 the Durban Declaration and Programme of Action, the main final
document adopted by the 2001 World Conference against Racism, Racial Dis-
crimination, Xenophobia and Related Intolerance (Durban, South Africa), was,
not surprisingly, wholly victim-oriented. It warned that racism, racial discrimi-
nation, xenophobia and related intolerance “constitute a negation of the purposes
and principles” of the U.N. Charter.84 It denounced the “devastating evils of hu-
manity”, such as those “inflicted on millions of men, women and children as a
result of slavery, the slave trade, the transatlantic slave trade, apartheid, genocide
and past tragedies”;85 it further singled out the “dehumanizing conditions of ex-
1998, ed. C.C. Joyner), Ramonville St.-Agne, Érès, 1998, pp. 133-148. – The Rome Stat-
ute provided for ex officio faculties of the Prosecutor (Articles 15-18), including that
of initiating investigations motu propio; and as to the system of penalties, while
under the Statutes of the ad hoc International Criminal Tribunals for the Former
Yugoslavia and Rwanda there was a renvoi to the respective domestic legal orders,
the Rome Statute, in turn, established its own applicable penalties (Article 77).
83 In this respect, when asked what could one behold, from the perspective of the vic-
tims, in human experience along the XXth century, one of the coordinators of the
2001 World Conference against Racism, Racial Discrimination, Xenophobia and Re-
lated Intolerance (Durban, South Africa) replied: – “We see a path full of corpses:
those of the Armenian genocide, those of the genocide in the Soviet gulags, those of
the holocaust of millions of Jews but also of hundreds of thousands of gypsies and
the subjection to slavery of hundreds of millions of individuals in Europe, those of
the Cambojan genocide, those of the Rwandan genocide, those of the ethnic cleans-
ings in all parts of the world: in the Balcans, in the Region of the Great Lakes of Af-
rica, in Tibet, in Guatemala, to mention but some examples”. J.L. Gómez del Prado,
La Conferencia Mundial contra el Racismo – Durban, Sudáfrica 2001, Bilbao, Uni-
versity of Deusto, 2002, p. 11.
84 13th preambular paragraph, text in: U.N., Report of the World Conference against
Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban,
31.08.2001 to 08.09.2001), U.N. doc. A/CONF.189/12, 2001, p. 6. The Declaration re-
asserted non-discrimination as a “fundamental principle of International Humani-
tarian Law”; ibid., p. 12, par.20.
85 Durban Declaration, paragraphs 3 and 100.
610 Chapter XXVI
treme poverty to which more than one billion [people] are currently subjected”,
and to which “historical injustices have undeniably contributed”.86 The Durban
Declaration further acknowledged that
“slavery and the slave trade, including the transatlantic slave trade, were appalling
tragedies in the history of humankind not only because of their abhorrent barba-
rism but also in terms of their magnitude, organized nature and especially their
negation of the essence of the victims (...)”.87
The Durban Declaration and Programme of Action, accordingly, devoted atten-

tion to the provision of remedies, reparations and compensation to victims at
domestic and International Law, and recalled that some States had already taken
the initiative to apologize and pay reparation, where appropriate, for grave and
massive violations committed. It stressed the relevance of the right to seek just
and adequate reparation or satisfaction for damages suffered as a result of dis-
crimination, as enshrined in numerous international human rights instruments,
such as the U.N. Convention on the Elimination of All Forms of Racial Discrim-
ination.88 It further invited the international community and its members “to
honour the memory of the victims” of racism and to restore their dignity, with a
view to “closing those dark chapters in history and as a means of reconciliation
and healing”.89
9. U.N. Millenium Summit (2000) and World Summit Outcome (2005)

By the end of December 1998, the U.N. General Assembly decided to convene
yet another World Conference (in 2000), to be called the Millenium Summit.90
Four months before the Summit, the U.N. Secretary-General (Kofi Annan) in-
vited governments to take the occasion to consider expressing support for a core
list of 25 multilateral treaties (including human rights treaties and international
criminal law treaties) that he hoped would attain universal participation; he ob-
tained responses from 84 governments.91 The Summit meetings (four roundta-
bles) took place in the U.N. headquarters in New York, with an impressive pres-
ence of Heads of State and Government, on 06-08 September 2000. By means of
its resolution 55/2, of 08.09.2000, U.N. General Assembly adopted the so-called
Millenium Declaration, purporting to foster the process of reforms of the United
Nations.
86 Durban Declaration, pars. 3, 19 and 158.

87 Durban Declaration, paragraph 13, text in op. cit. supra n. (84), p. 11.
88 Paragraphs 165-166, 100 and 104.
89 Paragraph 101.
90 U.N., General Assembly resolution 53/202, of 17.12.1998.
91 Cf. M.G. Schechter, United Nations Global Conferences, London/N.Y., 2005, pp. 156-
161.
After reasserting the principles and purposes of the U.N. Charter, regarded as
“atemporal and universal” (par. 3), the Declaration professed respect for the rule
of law at both national and international levels, and the determination to secure
the implementation of treaties in such areas as, e.g., disarmament and control of
armaments, International Humanitarian Law and International Human Rights
Law (par. 9). The Millenium Declaration focused on the strengthening of the
United Nations,92 in order to secure justice and the rule of law in international
relations (par. 30).93 It then identified what it called the “Millenium Development
Goals” (such as erradication of extreme poverty, universality of primary educa-
tion, protection of human health and reduction of child mortality, promotion of
environmental sustainability and global partnership for development, and em-
powerment of women and promotion of their equality with men),94 – some of
which had already been asserted and stressed by earlier U.N. World Conferences
(cf. supra).
In September 2003 the then U.N. Secretary-General announced, in the frame-
work of the reforms, the creation of a High Level Panel to study the threats and
challenges confronting the United Nations, and the changes required therefrom.
The Report of the Panel, titled “A More Secure World: Our Shared Responsibility”,
issued on 02.12.2004, warned against the threats to human rights and humanitar-
ian law, to health and of environmental degradation, of poverty, of weapons of
mass destruction, and of terrorism.95 The 2004 Report called for a more effective
system of collective security, with adjustments in the Security Council,96 and for
92 It reasserted the “central position” of the General Assembly, the necessity of inten-
sifying efforts to achieve a comprehensive reform of the Security Council “in all its
aspects”, and called for the enhancement of the International Court of Justice ((par.
30).
93 U.N., G.A. resolution A/RES/55/2, of 08.09.2000, pp. 1-9.
94 On the centrality of the human rights approach in the “Millenium Development
Goals”, cf. United Nations, Claiming the Millenium Development Goals: A Human
Rights Approach, N.Y./Geneva, UNHCHR, 2008, pp. 1-52.
95 U.N., A More Secure World: Our Shared Responsibility – Report of the High-Level
Panel on Threats, Challenges and Change (Executive Summary), N.Y., U.N., 2004,
pp. 1-2. – Hence the importance of prevention and of a more effective system of col-
lective security. In this regard, Brahimi Report of 2000 had already called upon U.N.
member States to a greater cooperation with U.N. peace operations; ibid., pp. 2-4;
and cf. L. Boisson de Chazournes, “Rien ne change, tout bouge, ou le dilemme des
Nations Unies propos sur le rapport du Groupe de Personnalités de Haut Niveau sur
les menaces, les défis et le changement”, 109 Revue générale de Droit international
public (2005) pp. 155-156, and cf. pp. 147-161.
96 By means either of the increase of new permanent members without veto, or else of
four new non-permanent members, in rotation. It may be recalled that successive
projects of reforms of the Security Council have been considered and debated in the
United Nations since 1991; cf. B. Fassbender, U.N. Security Council Reform and the
Right of Veto – A Constitutional Perspective, The Hague, Kluwer, 1998, ch. IX, pp.
221-275.
612 Chapter XXVI
the creation of a new organ of the United Nations, the Peacebuilding Commission,
which would act in coordination with regional organizations, to devote the neces-
sary attention to countries emerging from a situation of conflict.97
Shortly afterwards, the U.N. Secretary-General presented, six months be-
fore the 2005 World Summit, its Report of 21.03.2005 titled “In Larger Freedom:
Towards Development, Security and Human Rights for All”, which addressed the
enhancement of collective action to sustain the rule of law at national and inter-
national levels,98 and to protect “potential or real victims of mass atrocities”.99
It singled out the role of the international judicial function (contemporary in-
ternational tribunals),100 as well as of fact-finding,101 as components of the afore-
mentioned rule of law. It further called for the universal ratification of treaties
which are essential to face the new challenges to the international community,
and reasserted the continuing validity of the principles and purposes of the U.N.
Charter.102 The Report recognised the need of structural changes of the United
Nations, and contained recommendations, in that regard, to the forthcoming
World Summit of Heads of State and Government.103
In mid-September 2005, the World Summit took place at the U.N. head-
quarters in New York. The intervening Heads of State and Government (or their
representatives) dwelt upon the virtual totality of the items of the agenda; suc-
cessive interventions dwelt upon several aspects of the threats and challenges
97 U.N., A More Secure World: Our Shared Responsibility..., op. cit. supra n. (95), pp.
5-6.
98 Cf. U.N., In Larger Freedom: Towards Development, Security and Human Rights for
All – Report of the Secretary General, document A/59/2005, of 21.03.2005, pp. 6 and
24.
99 Ibid., pp. 34-36. On the formulation of the “responsability to protect”, originated
from a Canadian proposal, cf., e.g., P. Hilpold, “The Duty to Protect and the Reform
of the United Nations – A New Step in the Development of International Law?”, 10
Max Planck Yearbook of United Nations Law (2006) pp. 50-54; H. Owada, “The Unit-
ed Nations and the Maintenance of International Peace and Security – The Current
Debate in the Light of Reform Proposals”, 48 Japanese Annual of International Law
(2006) pp. 7-10.
100 Adding to the ad hoc International Criminal Tribunals for the Former Yugoslavia
and for Rwanda (cf., e.g., P. Tavernier and C. Renaut (eds.), Actualité de la juris-
prudence pénale internationale à l’heure de la mise en place de la Cour Pénale In-
ternationale, Bruxelles, Bruylant, 2004, pp. 7-278), the so-called internationalized
or mixed Tribunals; cf., e.g., [Various Authors,] Internationalized Criminal Courts
– Sierra Leone, East Timor, Kosovo and Cambodia (eds. C.P.R. Romano, A. Nol-
lkaemper and J.K. Kleff ner), Oxford, University Press, 2004, pp. 3-444; D. Linton,
“Cambodia, East Timor and Sierra Leone: Experiments in International Justice”, 12
Criminal Law Forum (2001) pp. 185-246; R. Rossano, “La Corte Speciale per la Sierra
Leone”, 12 I Diritti dell’Uomo (2001) pp. 83-87.
101 E.g., the commissions of fact-fi nding for Darfour, East Timor and Côte d’Ivoire.
102 U.N., In Larger Freedom..., op. cit. supra n. (98), pp. 36 and 39.
103 Cf. ibid., pp. 52 and 55-62.
to the present-day international community.104 The World Summit decided in

effect in favour of the creation of the Peacebuilding Commission, as well as of a
new Human Rights Council in order to replace the former U.N. Commission on
Human Rights. There was no decision as to the reform of the Security Council,
which was postponed, to the dissatisfaction of many delegates; the U.N. Secre-
tary-Geral himself expressed his “disappointment” with the deletion from the
final document of the Summit of all references to disarmament and nuclear non-
proliferation.105
Half a decade after the Millenium Declaration (2000), the U.N. at last ad-
opted the document titled the 2005 World Summit Outcome, as considered by the
Summit and the General Assembly (LX Session). Composed of five parts and 178
paragraphs, the document addressed the following themes: a) values and prin-
ciples; b) development; c) peace and collective security; d) human rights and the
rule of law; and e) strengthening of the United Nations.106 In the first part, the
World Summit Outcome stressed the importance of multilateralism, of collective
security, of the universality of human rights, of cultural and religious diversity
for the enrichment of humankind, and of the need to face the causes of the cur-
rent threats and challenges to the international community.107 In the second part,
it recalled the commitment with the erradication of poverty, of environmental
protection and of sustainable development;108 moreover, it stressed the impor-
tance of a society centred in the population.109
In the third part, concerning peace and collective security, it condemned
State unilateralism, and reiterated the fundamental principles of the prohibition
of the use of force and of peaceful settlement of international disputes, and the
commitment of all with multilateralism.110 It stressed the important role of the
United Nations in peacekeeping and peacebuilding, in the application of sanc-
tions without resorting to the use of force, and in the struggle against terrorism
(with due respect for International Law, encompassing the International Law of
Human Rights, the International Law of Refugees and International Humanitar-
ian Law).111 As to peacebuilding, the decision was effectively taken to create a
104 For a recent account, cf. A.A. Cançado Trindade, Direito das Organizações Inter-
nacionais, 4th. ed., Belo Horizonte/Brazil, Edit. Del Rey, 2009, pp. 545-552, esp. pp.
549-555.
105 Cf. ibid., p. 2.
106 Cf. U.N., 2005 World Summit Outcome, document A/60/L.1, of 15.09.2005, pp. 1-40.
107 Paragraphs 6-8 and 13-14.
108 It further launched the International Decade for Action “Water for Life”; paragraphs
19, 24 and 56.
109 With due respect for the rights of women and of migrants; paragraphs 60-62.
111 Paragraphs 81-87, 91-92, 97-98 and 106. On the promotion of the dialogue and un-
derstanding among civilizations, cf. paragraph 82.
614 Chapter XXVI
Peacebuilding Commission as a “consultative intergovernmental organ”.112 The

fourth part of the aforementioned document of 2005, after reiterating the uni-
versality and interdependence of all human rights, decided to strengthen the
U.N. High-Commissioner for Human Rights.113 In a significant paragraph, the
document asserted that
“Recognizing the need for universal adherence to and implementation of the rule
of law at both the national and international levels, we: – reaffirm our commitment
to the purposes and principles of the Charter and international law and to an inter-
national order based on the rule of law and international law, which is essential for
peaceful coexistence and cooperation among States”.114
The fifth and last part, on the strengthening of the United Nations, restated the
determination to this end, so as to enhance the U.N. organs to face the “needs of
the XXIst century”, as well as the pursuance of the “prompt reform” of the Secu-
rity Council, so as to render it more widely representative, efficient and transpar-
ent.115 It further expressed its commitment to continue to give a follow-up to the
results of the U.N. World Conferences116 (cf. supra). It decided to create a Human
Rights Council, to strengthen further the U.N. mechanisms of human rights.117
The document finally added that, as the U.N. Trusteeship Council (TC) had al-
ready performed the historical functions conferred upon him, chapter XIII of the
U.N. Charter should be deleted, as well as the reference to the TC in chapter XII;
it also expressed its decision to eliminate the references to “enemy States” found
in Articles 53, 77 and 107 of the Charter.118
III. The United Nations and the Rule of Law at National and
International Levels
It is reassuring to notice that the rule of law is now being considered also at in-
ternational level, and has found its place in the recent debates concerning the re-
form of the United Nations (supra). In effect, it is to be kept in mind that the con-
cept of rule of law has a long history; its roots go back to the thought of ancient
Greeks (Plato, Aristotle). As with them, in ancient Rome Cicero sustained that
112 Paragraph 97.

113 Paragraphs 120-121 and 124. And cf., on the protection of refugees as well as inter-
nally displaced persons, paragraphs 132-133.
114 Paragraph 134(a). On the protection of populations, – by means of “collective action”
under the U.N. Charter (chapter VII), – against genocide, war crimes, ethnic cleans-
ing, and crimes against humanity, cf. paragraph 139. And on the “dialogue among
cultures, civilizations and religions”, cf. paragraphs 141-145.
116 Paragraphs 155, 157 and 169.
117 Paragraph 157.
law emanated from the recta ratio and aimed to accomplish the common good.119
Thus conceived, the rule of law had another ancestor in Thomas Aquinas.120 Later
on, Enlightenment philosophers expressed confidence in the application of right
reason in pursuance of universal principles.121 Thereafter, the rule of law kept on
being cultivated,122 both in the relations between the public power and individu-
als, and in those among nation States. In our days, the rule of law is considered in
greater depth at national as well as international levels, and bearing in mind the
needs and aspirations of the international community as a whole.
In fact, as already indicated, in the debates at the United Nations in the
period 2000-2005, attention has reassuringly been drawn into the rule of law at
both national and international levels. At first, the U.N. Millenium Declaration,
adopted in September 2000, called for “respect for the rule of law in international
as in national affairs”, as well as the implementation by States Parties of treaties
in the domains of disarmament and arms control, International Humanitarian
Law, and International Human Rights Law.123 This passage echoed the call, made
on various occasions in recent years, in successive U.N. World Conferences as
well as in expert writing.124
119 To him, true law is right reason, eternal and spread through all people (On the Com-
monwealth, book 3, section 33); right reason establishes justice, which “constitutes
the bond among humans” (On the Laws, book 1, section 42); Cicero, On the Com-
monwealth and on the Laws (ed. J.E.G. Zetzel), Cambridge, University Press, 2003
[reprint], pp. 71, 120 and 172.
120 In his locus classicus on natural law, his Treatise on Law (found in the second part
of his Summa Theologiae), Thomas Aquinas, upholding the rectitude of reason itself
and the existence of universal precepts, asserted that “the end of law is the common
good, because, as Isidore says (...), law should be framed, not for any private benefit,
but for the common good of all the citizens” (question 96, article 1); Th. Aquinas,
Treatise on Law, Washington D.C., Regnery Publs./Gateway Eds., 2001 [reprint], p.
88, and cf. p. 107, and, on synderesis, cf. also p. 57.
121 B.Z. Tamanaha, On the Rule of Law – History, Politics, Theory, Cambridge, Univer-
sity Press, 2004, pp. 7, 11-12, 18-19 and 39-42, and cf. pp. 71, 80, 120-121, 127 and 136.
122 Spinoza, for example, aware of the place occupied by recta ratio in the stoicism, drew
attention to its specificity, the (universal) rectitude of which leads to right action; B.
Rousset, “La ‘Recta Ratio’”, in La Recta Ratio: Criticiste et spinoziste? – Hommage
en l’honneur de B. Rousset (ed. L. Bove), Paris, Presses de l’Univ. Paris-Sorbonne,
1999, pp. 18 and 25. It is, thus, quite distinct from, and indeed opposed to, calcula-
tions and rationalizations, which not seldom appear irrational; the ancient Greeks
already distinguished between reason and calculation, between logos and logismos;
B. Piettre, “Calcul et raison”, in ibid., pp. 202-203, 205, 209 and 228.
123 Part II(9) of the Declaration.
124 As to this latter, to recall but one example, one decade earlier, in an essay published
in 1991, the Russian jurist G.I. Tunkin recalled U.N. General Assembly resolutions,
such as the 1981 Declaration on the Prevention of War, which stipulated that States
and their rulers that first resorted to the use of nuclear weapons would “commit
the greatest crime against humanity”; he argued that only the U.N. could take en-
forcement measures, limited to issues of international peace and security. Singling
616 Chapter XXVI
In the framework of the preparatory work of the 2005 review of progress in

the implementation of that Declaration together with the “Millenium Develop-
ment Goals”, the U.N. Secretary-General decide to convene a “treaty event”, in
September 2005, titled “Focus 2005: Responding to Global Challenges”. To that
end, a selection was made, out of 500 multilateral treaties of which he was de-
positary, of the key provisons and objectives of a “core group” of 32 multilateral
treaties, reflecting a broad array of interconnected concerns, namely: protection
of human rights and of refugees, protection of the environment, disarmament,
law of treaties, law of the sea, health, penal matters, combat of terrorism, and of
organized crime and corruption.125
Urging all States to become Parties to those treaties and to implement them,
the Secretary-General warned that advances in such selected domains “depends,
crucially, on the strength of our collective efforts to consolidate and advance the
rule of law”, at national and international levels.126 The central purpose of the
whole exercise was to secure the “continuing commitment” of States to “the cen-
tral role of the rule of law in international relations”.127 The selected treaties, – in
the ponderation of the Secretary-General, – further reflected the international
community’s endeavours, over 60 years, “to build a multilateral framework of
agreed rules not only to govern inter-State relations but also to strengthen the
legal environment in which individuals live” and work.128
It is worth singling out the main traits of this exercise, in the progress review
of the Millenium Declaration and the “Millenium Development Goals”, namely:
the focus on multilateral treaties, the search for – and assertion of – the primacy
of the rule of law at both national and international levels, and the overcoming
of the purely inter-State outlook of the matter. Half a decade after the launching
of this exercise at the United Nations, the new document 2005 World Summit
Outcome, adopted in September 2005, referring to the aforementioned “treaty
event”, recognized “the need for universal adherence to, and implementation of,
out the contribution of the “increasing role” of international organizations in the

settlement of international disputes, he stressed their crucial role also for moving
forward to “the primacy of international law”. To him, “international politics should
abide by international law because without it politics cannot ensure a durable nor-
mal functioning of the international system, and therefore the survival of mankind”.
G.I. Tunkin, “Remarks on the Primacy of International Law in Politics”, in Le droit
international au service de la paix, de la justice et du développement – Mélanges M.
Virally, Paris, Pédone, 1991, pp. 457 and 462-463.
125 Cf. United Nations, Multilateral Treaty Framework: An Invitation to Universal Par-
ticipation – Focus 2005: Responding to Global Challenges, N.Y., U.N., 2005, pp. 1-
154.
126 U.N., Multilateral Treaty Framework..., op. cit. supra n. (125), p. XI.
127 Ibid., p. VII.
128 Ibid., p. VIII.
the rule of law at both the national and the international levels”.129 Such rule of
law is a component of the new jus gentium of our days.
In fact, at the U.N. 2005 World Summit itself, and subsequently to it (period
2005-2008), attention has further been focused on the needed strengthening of
the rule of law at national and international levels.130 In fact, shortly after the
adoption of the document World Summit Outcome (2005), it was pointed out
to the U.N. Secretary General that the international and national dimensions
of the rule of law were “strongly interlinked”, and that “the strengthening of the
rule of law at the international level thus had a direct impact on the rule of law at
national level”.131 As a follow-up to the commitment to that end given at the U.N.
World Summit, the subject was taken up for further consideration, in 2006, by
the VI Committee of the U.N. General Assembly.
This latter, on its turn, recommended, on 17.11.2006, a “solemn commitment
to an international legal order based on the rule of law and international law”,
bearing in mind the “indivisible core values and principles of the United Na-
tions”.132 The U.N. General Assembly, on its part, endorsed the recommendation
of its VI Committee, in its resolution on “The Rule of Law at the National and
International Levels”, adopted on 18.12.2006.133 The fact that the subject has been
taken up at the highest level by the United Nations seems to disclose a new con-
sciousness of the pressing need to secure the preservation and strengthening of
the rule of law at national and international levels. And, in this domain, the right
of direct access to justice at national and international levels has a key role to
play.
Pursuant to the U.N. General Assembly resolution 61/39, of 2006, the U.N.
Secretary General presented an interim report, circulated on 15.08.2007, on “The
Rule of Law at the National and International Levels”, which surveyed current
activities of the organs, bodies, offices, departments, funds and programmes
within the U.N. system devoted to the promotion of the rule of law at the na-
tional and international levels, for consideration of the U.N. General Assembly.
The compiled inventory 134 covered the following activities: a) at the international
level, activities relating to the teaching and dissemination and promotion of in-
ternational law, to assistance in the domestic implementation of international
law, to dispute resolution at the international level, and to conflict resolution and
trasitional justice; and b) at the national level, activities relating to the strength-
129 Part IV(134) of the document.

130 U.N., G.A. resolution 60(1), of 2005.
131 Annex to the letter from Liechtenstein and Mexico to the U.N. Secretary General,
of 11.05.2006, U.N. doc. A/61/142, par. 2, and cf. par. 4.
132 U.N., Report of the VI Committee, U.N. doc. A/61/456, of 17.11.2006, p. 3, par. 9.
133 U.N., G.A. resolution 61/39, of 18.12.2006, pars. 1-5.
134 On the basis of the information provided by a total of 40 entities within the U.N.
system contacted to that end.
618 Chapter XXVI
ening of administrative institutions and public law and governance issues, and to
the administration of justice and law enforcement.135
Furthermore, the U.N. Secretary General presented another report, on
11.07.2007, also on “The Rule of Law at the National and International Levels”,
on the comments and information received from governments on the subject at
issue.136 It is significant that, by then, the subject had gathered growing attention
at the U.N., in a clear sign of the awakening of conscience as to its importance in
our times. This can clearly be seen in some converging comments made by Dele-
gations of countries from different continents and distinct cultural backgrounds
on the matter under consideration.137
There was a call for “universal adherence” to the rule of law at national and
international levels, duly implementing it, and singling out the rule of law in post-
conflict situations as well as in the context of long-term development.138 More re-
cently, in a resolution adopted on 11 December 2008, the U.N. General Assembly
itself has reaffirmed “the need for universal adherence to and implementation of
the rule of law at both the national and international levels”, as well as its “com-
mitment to an international order based on the rule of law and international
135 Cf. U.N. document A/62/261, of 15.08.2007, pp. 1-12.

136 Cf. U.N. document A/62/121, of 11.07.2007, pp. 1-35.
137 For example, one of the Delegations pointed out that the international rule of law
meant that “international law constitutes the foundation of international relations”,
and that an important role was reserved to the U.N. and multilateral institutions in
this domain; statement by Sweden, in ibid., p. 31. In fact, some Delegations expressly
recalled and endorsed the commitment of the 2005 World Summit Outcome docu-
ment to the rule of law at national and international levels. The commitment to the
purposes and principles of the U.N. Charter was likewise reiterated (statement by
Kuwait, in ibid., p. 21). State conduct was to be guided by the principles of interna-
tional law, there being a need of “an effective multilateral system so as to prevent or
sanction violations of international law” (statement by Germany, in ibid., pp. 18-19).
The broad concept of rule of law, – it was argued, – encompassed not only the norms
regulating human activity (of both the governing and the governed), but also the
subjects of rights; at international level, the rule of law is grounded on the princi-
ples of the U.N. Charter, there being a need to strengthen the role of international
tribunals (statement by Mexico, in ibid., pp. 24-27). There was also need to secure
compliance with judgments of international tribunals and resolutions of interna-
tional organizations (statement by Egypt, in ibid., p. 11). The subjection of the State
and its authorities to the law was called for, as no one was above the law (statement
by The Netherlands, in ibid., pp. 28-29). Likewise, it was asserted “the subjection of
the State to the law, meaning that the executive authority is bound by the law in all
the actions that it takes and measures that it pursues” (statement by Qatar, in ibid.,
p. 30).
138 Statement by Liechtenstein, in ibid., p. 23. The strengthening of the rule of law was
supported as “a condition for the prevention of conflict and a key element in peace-
making and peacebuilding” (statement by France, in ibid., p. 16). Attention was
drawn to the interrelatedness between the rule of law and peace, security, develop-
ment and respect for human rights (statement by Finland, in ibid., p. 12).
law”.139 The universal juridical conscience keeps on moving ahead contemporary

International Law, the new jus gentium of our times.

What lessons can be extracted from the present transformation of epoch?
The XXth century has left a tragic mark: never, as in the last century, so much
progress in science and technology has been verified, accompanied paradoxically
by destruction and cruelty in an unprecedented scale.140 Despite all the advances
registered in the last decades, e.g., in the protection of human rights, grave and
massive violations of these latter have persisted. The remarkable transformations
in the contemporary world scenario launched as from 1989, by the end of the cold
war and the outbreak of numerous internal conflicts, have characterized the end
of the XXth century as a moment in history of considerable political density and
of profound reflection on the very bases of international society, and of the grad-
ual formation of the international agenda of the beginning of the XXIst century.
The rapid changes amidst the search for new forms of political, social and
economic organization have disclosed the growing vulnerability of human be-
ings, and their increasingly greater needs of protection. International Law has
not remained indifferent to the fate of human beings: despite the recurrence of of
the breaches of the law and of violations of human rights, the reaction of human
conscience is nowadays felt, much more promptly than in the past. There is, thus,
reason for hope. The turn of the century has been marked by an over-all reassess-
ment of many concepts in the light of the consideration of themes which affect
humankind as a whole (human rights, development, environment, population,
human security and peace, international criminal justice and struggle against
racism). It is not surprising that, in approaching such themes of universal con-
cern, the U.N. World Conferences have criticized and discarded unwarranted
unilateral measures.141
The recent cycle of U.N. World Conferences has generated an unprecedent-
ed and impressive universal dialogue and concert, not at all limited to the official
debates among governmental Delegates; such Conferences have all been accom-
panied by World Forums of non-governmental organizations and entities of civil
139 U.N., General Assembly resolution 63/128, of 11.12.2008, on “The Rule of Law at the
National and International Levels”, fourth preambular paragraph.
140 Cf. chapter XVI, supra.
141 In this respect, the 1995 Beijing Platform for Action, for example, saw it fit eloquent-
ly to “discourage the adoption of and refrain from any unilateral measure, not in
accordance with International Law and the Charter of the United Nations, that im-
pedes the full achievement of economic and social development by the population of
the affected countries”. U.N., IV World Conference on Women..., op. cit. supra n. (56),
p. 89, par. 144(h). The Platform supported the taking of measures “in accordance
with international law with a view to alleviating the negative impact of economic
sanctions on women and children”; ibid., p. 89, par. 144(i).
620 Chapter XXVI
society, national and international.142 The views of these latter have been duly
taken into account. Such wide participation – States and civil society – has char-
acterized the dialogue sustained also in the follow-up of the U.N. World Confer-
ences.143 It is today generally acknowledged that such transparent “State-societal
interaction” has stressed the relevance of universal principles and social values,
has fostered multilateralism and established a pattern of change in ideas aiming
at the general improvement of the human condition.144
These points have simply been missed by the so-called “realists”, who, in
their characteristic myopia,145 have, not surprisingly, attempted, in vain, to mini-
mize the universal dialogue emerging from the recent U.N. World Conferences.
“Realists” cannot understand the construction of a universal international law
incorporating ethical values, engulfed as they have permanently been in their
Hobbesian outlook of national self-interest, endless competition, struggle for
survival, and blatant power theories on international relations. In their constant
subservience to power, – as they see it at a given moment in history, – “real-
ists” surely cannot share Cicero’s conception of jus gentium as a common law of
humankind, nor F. Suárez’s jus gentium proper to humankind, nor the Grotian
construction of a new jus gentium – based on the dictates of recta ratio – for the
new times.146
“Realists” have thus been rather inclined to justify armaments and the arms
race, and have somewhat cynically developed rationalizations of whatever prac-
tical objectives they happened to have chosen to uphold, in their rejection of all
idealism and of universal ethical principles.147 To their surprise, if not astonish-
ment and confusion, contemporary International Law has suceeded to transcend
142 I had the occasion, parallel to the official Conferences (cf. note (1), supra), to partici-
pate in two of those NGO World Forums, namely, those of the 1992 U.N. Conference
on Environment and Development (Rio de Janeiro), and of the 1993 II World Con-
ference on Human Rights (Vienna). My personal recollections of those events are
assembled in A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
Humanos, vol. I, 2nd. ed., Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 214-231 and
261-267. Cf. also, e.g., World Conference on Human Rights (Vienna, June 1993) – The
Contribution of NGOs, Reports and Documents (ed. M. Nowak), Vienna, Manz,
1994, pp. 1-231.
143 An assessment of the impact of these latter has held that such wide participation
is nowadays necessary for ensuring the effectiveness of the relevant international
law norms as well of their follow-up mechanisms. Cf. [Various Authors,] United
Nations-Sponsored World Conferences – Focus on Impact and Follow-up (ed. M.G.
Schechter), Tokyo, U.N.U. Press, 2001, pp. 5, 7, 58-59, 61-62, 67, 75 and 180-181.
144 Cf. A.F. Cooper, Tests of Global Governance: Canadian Diplomacy and United Na-
tions World Conferences, Tokyo, United Nations University Press, 2004, pp. 1-5, 13-
14, 21, 39-68 and 248-249.
146 Cf. Ch.S. Edwards, Hugo Grotius, the Miracle of Holland – A Study of Political and
Legal Thought, Chicago, N.-Hall Publs., 1981, pp. 53, 63, 74, 89-90, 103 and 171-173.
147 Cf. ibid., pp. 174-176.
the traditional inter-State paradigm, which they have been so used to, and fa-
miliar with. The law of nations has in fact evolved – amidst a profound crisis of
values – into a universal International Law.
The fact that societal aspirations have been duly taken into account in the
unprecedented dialogue of recent U.N. World Conferences has conferred, in my
view, special relevance and an undeniable legitimacy upon the respective final
documents of those World Conferences (supra): they identify the contents of the
international agenda of this new century, the needs and aspirations of the inter-
national community lato sensu, comprising States and other subjects of Inter-
national Law, engaged into that sustained universal dialogue to the benefit of
In those U.N. World Conferences, the issues of satisfaction of basic human
needs, peoples’ empowerment, sustainable development,148 and search for more
effective protection of economic, social and cultural rights (largely overlooked
in the past) have occupied a special place and attracted particular attention. The
recent U.N. World Conferences have been particularly attentive to the conditions
of life and special needs of protection in particular of vulnerable groups and the
poorer segments of the population. This is reflected in various passages of their
lengthy final documents, which place human beings at the centre of their con-
cerns. In focusing on vulnerable groups (such as, among others, those formed by
the poorest segments of society), the immediate concern has been with meeting
basic human needs, and therefrom with fostering people’s empowerment. The
experience in human rights promotion and protection has not, in fact, been con-
fined to meeting basic human needs: it has gone much further than that, towards
empowerment, in the civil, political, economic, social and cultural domains.
The United Nations itself has summed up the message of its recent World
Conferences in singling out their new people-centred, sustainable, gender-sen-
sitive and social dimension, as well as the “universality of concern” regarding
the issues dealt with.149 The international human rights agenda has, moreover,
with the crystallization of the right to development as a human right,150 expand-
ed considerably. In sum, the common denominator of the recent cycle of U.N.
World Conferences has been the special attention to the conditions of living of
the population, – in particular of those conforming vulnerable groups, in special
148 Regarded as encompassing the eradication of poverty, the meeting of basic human
needs (the central preoccupation of Agenda 21) and the improvement of socio-eco-
nomic conditions of life.
149 U.N., The World Conferences – Developing Priorities for the XXIst Century, N.Y.,
U.N., 1997, pp. V-VI, 1-3 and 6.
150 By means of the reassertion of the right to development as a human right by the 1992
Rio de Janeiro Declaration, the 1993 Vienna Declaration and Programme of Action,
and the 1994 Cairo Programme of Action, followed by the 1995 Copenhagen Decla-
ration and Programme of Action, the 1995 Beijing Platform for Action, and the 1996
Habitat Agenda.
622 Chapter XXVI
need of protection.151 The implications of placing people at the centre of politico-

economic changes and of all development process are considerable and call for
a reassessment of traditional concepts (e.g., models of development, security, in-
ternational cooperation).
The great challenges of our times, addressed in the final documents of the
U.N. World Conferences, have urged States and other subjects of International
Law to foster the revitalization of the very foundations and principles of contem-
porary International Law, shifting the emphasis from classic jurisdictional and
spacial (territorial) solutions on to the notion of solidarity. Underlying those final
documents of U.N. World Conferences, added to the 1998 Rome Statute of the
ICC, and the 2001 Durban Declaration and Programme of Action, is ultimately
the universal search for justice. This comprises not only distributive justice, but
also redress for the wrongs inflicted upon millions of human beings.
International Law, the new jus gentium of this beginning of the XXIst cen-
tury, is to respond to this call from the universal juridical conscience. The recent
U.N. World Conferences have sought to elevate human rights related issues to
a central place on the agenda of contemporary international relations. Human
rights do in fact permeate all areas of human activity, and the recognition of this
phenomenon corresponds to a new ethos of our times. The final documents of
those Conferences should be duly taken into account by all international lawyers,
taking our discipline no longer as an instrumental at the service of power, but
rather as a new jus gentium of emancipation of human beings, as the Interna-
tional Law for humankind.
151 A.A. Cançado Trindade, “Sustainable Human Development and Conditions of Life
as a Matter of Legitimate International Concern: The Legacy of the U.N. World Con-
ferences”, in Japan and International Law – Past, Present and Future (International
Symposium to Mark the Centennial of the Japanese Association of International
Law), The Hague, Kluwer, 1999, pp. 285-309.
Chapter XXVII Codification and Progressive
Development of a Universal
International Law
I. Introduction
In the course of the present book, reiterated references were made to codifica-
tion1 and progressive development2 of International Law, in the assessment of the
evolution of distinct chapters of the discipline. I purport now to dedicate some
reflections to the codification and progressive development of International Law
as such, no longer tangentially, as an illustration of the historical projection of
each of the chapters surveyed, but rather as a central point of attention, aiming
at drawing lessons from past endeavours to foster the gradual ongoing construc-
tion of the new jus gentium of our days. In the present chapter attention will at
first be turned to the exercise of codification and progressive development of the
discipline in historical perspective.
In this respect, I have already referred3 to the acknowledgement, along the
past decades, that the systematization of the discipline, through the exercises of
its codification and progressive development, has attributed great importance to
general principles of International Law, in pursuance of an essentially humanist
outlook, endowing International Law with an objective basis, and contributing to
its universalization; the normative content to that end flowed from the conscience
of the members of the international community, giving expression to the opinio
juris communis, in response to their common needs and aspirations (infra). In
this chapter, attention will at last be turned to the lessons and projections of the
codification and progressive development of International Law, moved, as they
have been, ultimately by the universal juridical conscience.
II. Codification and Progressive Development in Historical Perspective

In fact, already in the first half of the XXth century, in an epoch when the raw
materials of the practice of International Law were not yet systematized as they
1 Cf. chapters V, VI, XVIII, XIX, XX, XXII and XXIV, supra.
2 Cf. chapters VIII, XVIII and XXII, supra.
3 Cf. chapter XXII, supra.
624 Chapter XXVII
are in our days, there was awareness of the relevance of the identification and
systematization of the principles of International Law.4 This task appeared as a
considerable challenge, in face of the great number of problems awaiting solu-
tion, many of which generated by two world wars, added to diverging doctrines
on certain issues of International Law,5 to the pessimism manifested in juridical
circles after the failure of the Hague Codification Conference of 1930,6 and, in
sum, to a state of uncertainty wherein International Law was found, in an epoch
regarded as one of transition.
Subsequently, with the vast normative production undertaken by distinct in-
ternational organs,7 the endeavours of codification and progressive development
of international law obtained a new impulse – mainly in the ambit of the United
Nations, – which, in a way, corresponded to the expectations not only of the
academic circles but also of the international community as a whole.8 The work
of codification and progressive development became even more necessary with
the occurrence of important transformations in the international scenario, as
illustrated, e.g., by the Law of the Sea (the four Geneva Conventions of 1958, suc-
ceeded by the Convention of Montego Bay of 1982). The work of the U.N. Inter-
4 Cf., on this point, e.g., C. Parry, “The Practice of States”, 44 Transactions of the Gro-
tius Society (1958-1959) pp. 145-186; C. Parry, The Sources and Evidences of Inter-
national Law, Manchester, University Press, 1965, pp. 1-27 and 56-82; S. Rosenne,
Practice and Methods of International Law, London/N.Y., Oceana Publs., 1984, pp. 1-
121; Ch. Rousseau, Droit international public, 11th. ed., Paris, Dalloz, 1987, pp. 11-16;
A.A. Cançado Trindade, “Elementos para uma Sistematização da Prática do Direito
Internacional”, 158 Arquivos do Ministério da Justiça – Brasília (1981) pp. 29-35.
5 Such as, inter alia, the different approaches, among countries of the European and
American continents, of the whole chapter on the international responsibility of
States.
6 Cf. “Ata Final da Conferência para a Codificação do Direito Internacional (The
Hague, 12.04.1930)”, 3 Textos e Documentos – Rio de Janeiro (1981) n. 11, pp. 15-19.
And, for antecedents, cf. S. Rosenne (ed.), League of Nations – Committee of Ex-
perts for the Progressive Codification of International Law [1925-1928], vol. II, Dobbs
Ferry/N.Y., Oceana Publs., 1972, pp. 1-487; cf. also, S. Rosenne, “The Codification of
the Law of State Responsibility (1924-1990)”, The International Law Commission’s
Draft Articles on State Responsibility (ed. S. Rosenne), Dordrecht, Nijhoff, 1991, pp.
8-17; R. Saraiva Guerreiro, “Métodos e Processos de Codificação e Desenvolvimento
do Direito Internacional nas Nações Unidas”, 61/66 Boletim da Sociedade Brasileira
de Direito Internacional (1975-1979) pp. 9-10; Roberto Ago, “Nouvelles réflexions sur
la codification...”, op. cit. infra n. (16), pp. 9-10.
7 Cf. E. McWhinney, Les Nations Unies et la formation du droit, Paris, Pédone/
UNESCO, 1986, pp. 101-129 and 261-287; A. Pellet, “La formation du droit interna-
tional dans le cadre des Nations Unies”, 6 European Journal of International Law
(1995) pp. 401-425; F. Cede, “New Approaches to Law-Making in the U.N. System”, 1
Austrian Review of International and Comparative Law (1996) pp. 51-66.
8 K. Zemanek, “Codification of International Law: Salvation or Dead End?”, in Le
Droit international à l’heure de sa codification – Études en l’honneur de Roberto
Ago, vol. I, Milano, Giuff rè, 1987, p. 581.
Codification and Progressive Development of a Universal International Law 625
national Law Commission [ILC]9 had great success in areas in relation to which
there already existed a vast international practice, such as those of diplomatic
and consular relations (Vienna Conventions of 1961 and 1963, respectively),10 and
of the law of treaties (Vienna Conventions of 1969 and 1986, respectively).11
The work of codification in relation to other matters (e.g., inter alia, the code
of offences against the peace and security of mankind, State immunities, to recall
a couple of the most significant ones) did not from the start correspond entirely
to the expectations,12 – even though the possibility could not be discarded that
non-ratified codification conventions could exert influence in the formation of
opinio juris.13 The criteria for the identification of topics for codification have
been, most often and above all, the fulfi lment of the pressing needs of the inter-
national community in the juridical domain, and the guidance for responses, in
practice, to key questions of international relations.14
With the emergence of new topics, reflecting new demands of the interna-
tional community, the process of codification and progressive development of
International Law has become complex15 and multifaceted, being nowadays con-
ducted in different international forums (cf. supra). It is a necessarily dynamic
work,16 as the normative production in the present domain ought to accompany
9 Cf. United Nations, The Work of the International Law Commission, 7th. ed., vol.
I, N.Y., U.N., 2007, pp. 7-244; C. Calero Rodrigues, “O Trabalho de Codificação do
Direito Internacional nas Nações Unidas”, 101/103 Boletim da Sociedade Brasileira
de Direito Internacional (1996) pp. 23-30; C.-A. Fleischhauer, “The United Nations
and the Progressive Development and Codification of International Law”, 25 Indian
10 Cf. chapter XXII, supra.
11 Cf. chapter XVIII, supra.
12 K. Zemanek, “Codification of International Law...”, op. cit. supra n. (8), pp. 587-590;
E. Suy, “Développement progressif et codification du Droit international...”, op. cit.
infra n. (40), p. 221.
13 J. Monnier, “Observations sur la codification et le développement progressif du Droit
international”, in Mélanges Georges Perrin, Lausanne, Université de Lausanne/Payot,
1984, p. 248; C.Th. Eustathiades, “Unratified Codification Conventions”, in Gilberto
Amado Memorial Lectures, Brasília, FUNAG/M.R.E., 1998, pp. 62-65.
14 A. Yankov, “Strengthening the Process of Codification and Development of Inter-
national Law: the Evolving Functions of the International Law Commission and
Increasing the Commitments of States”, in International Law as a Language for In-
ternational Relations – Proceedings..., op. cit. infra n. (40), pp. 233 and 239.
15 Cf. G. Abi-Saab, “La Commission du Droit International, la codification et le proc-
essus de formation de Droit international”, in Making Better International Law: the
International Law Commission at 50 (Proceedings of the U.N. Colloquium, New
York, 1997), N.Y., U.N., 1998, pp. 181-200; P. Tomka, “Major Complexities Encoun-
tered in Contemporary International Law-Making”, in ibid., pp. 209-219.
16 D.P. Verma, “Rethinking about New International Law-Making Process”, 29 Indian
Journal of International Law (1989) pp. 38-51. – On the thesis of the “spontaneous”
formation of the norms of International Law, moved by the conscientization of the
626 Chapter XXVII
the transformations of the world.17 This is illustrated, e.g., by the work of codifica-
tion undertaken by the ILC pertaining to the chapter of sucession of States18 (the
two Vienna Conventions, on Succession of States in Respect of Treaties, of 1978,
and on Succession of States in Respect of Property, Archives and Debts, of 1983)
and the considerable changes undergone by the subject ever since, particularly
along the last two decades.
The endeavours of codification and progressive development of Internation-
al Law in the last half-century have disclosed to the States their incapacity to
resolve individually, by themselves, many of the problems which affect them; to
that end they stand in need of the co-participation of other States and of other
subjects of International Law. The international community has given signs of its
preparedness to move away from the traditional Hobbesian – or “realist” – out-
look of international relations (marked by power politics)19 and to get gradually
closer to a Kantian outlook of a universal community characterized by coopera-
tion and solidarity.20
III. Codification and Progressive Development: Lessons and Projections

Codification appears to go hand in hand with progressive development of In-
ternational Law: if the former does not take account of the latter, it will in all
probability not withstand the onslaught of time, of the passing of time. It may
be charged as not amounting to proper codification, but rather to “ossification
of the development” of International Law on the matter at issue:21 this has in fact
been lately argued in relation, e.g., to the 2004 U.N. Convention on Jurisdictional
Immunities of States and Their Property. In fact, in its travaux préparatoires
members of the international community, cf. Roberto Ago, “Nouvelles réflexions

sur la codification du Droit international”, in International Law at a Time of Per-
plexity – Essays in Honour of S. Rosenne (ed. Y. Dinstein), Dordrecht, Nijhoff, 1989,
pp. 2 and 22.
17 G.E. do Nascimento e Silva, “The Influence of Science and Technology on Interna-
tional Law”, in Gilberto Amado Memorial Lectures, op. cit. supra n. (13), pp. 152 and
155.
18 Cf. chapter XX, supra.
19 An illustration of the distortions of this outlook can be found in the hopeless com-
ments of G. Schwarzenberger, The Frontiers of International Law, London, Stevens,
1962, pp. 22, 24 and 57.
20 Cf. A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transfor-
mação, Rio de Janeiro, Ed. Renovar, 2002, pp. 1042-1043 and 1072-1075; A. Cassese,
International Law in a Divided World, Oxford, Clarendon Press, 1986, pp. 31 and
123.
21 L. McGregor, “State Immunity and Jus Cogens”, 55 International and Comparative
Law Quarterly (2006) p. 445, and cf. p. 437; and cf. L.McGregor, “Addressing the
Relationship between State Immunity and Jus Cogens Norms: A Comparative As-
sessment”, in International Prosecution of Human Rights Crimes (eds. W. Kaleck et
alii), Berlin, Springer, 2007, p. 84.
the path was opened for the inclusion into its draft of an acknowledgment of
conceptual advances achieved in the corpus of other Conventions (e.g., on the
Law of Treaties, of 1969 and 1986), in the sense of setting forth, for example, the
conception of peremptory norms of international law (jus cogens). Yet, the ILC
Working Group was of the view (report of 1999) that the point “did not seem to
be ripe enough” for codification.22
However, almost two decades after the adoption of the first Vienna Con-
vention on the Law of Treaties (1969), and 17 years before the adoption of the
aforementioned 2004 Convention, the Polish jurist Manfred Lachs aptly warned
that the aim of codification is to consolidate, not to immobilize, and added that
the acknowledgement of jus cogens in the work of codification and progres-
sive development (as from the 1969 Vienna Convention on the Law of Treaties)
amounted to a prise de conscience as to its need, and, moreover, progressive de-
velopment itself called for codification.23 Such acknowledgement of jus cogens,
bearing witness of the interrelationship of codification and progressive develop-
ment of International Law, is remindful of the ideal of a civitas maxima gentium,
propounded by the so-called “founding fathers” of International Law, moving us
towards a universal jus gentium.
This point is just one illustration, and a very significant one, of the inter-
mingling between codification and progressive development. Contemporary In-
ternational Law no longer admits being confined within the rigid postulates of
traditional conventional International Law. It has advanced new concepts, it has
created new legal regimes – as illustrated by the 1982 U.N. Convention on the
Law of the Sea – in order to respond to the needs of the international community
as a whole, thus moving towards the universalization of International Law. In do-
ing so, it has taken into due account basic considerations of humanity, as we have
already seen in relation to various chapters of International Law.24
The more Conventions of codification and progressive development of the
discipline do so, the longer they are bound to last. In dwelling upon the matter,
Roberto Ago pondered that the atrocities of the XXth century, added to the prob-
lems facing the international community in our times, have awakened human
conscience to the need to construct a new international legal order beyond State
sovereignty, more sensitive to opinio juris, and erected to a much greater extent
on cooperation and solidarity.25 From this perspective, codification and progres-
sive development do indeed point towards the universalization of International
Law; the misleading and meaningless question of so-called “fragmentation” of
International Law 26 should not have been retained by the U.N. International Law
22 U.N. document A/C.6/54/L.12, of 12.11.1999, p. 7, par. 47.

23 M. Lachs, The Teacher in International Law, 2nd. rev. ed., Dordrecht, Nijhoff, 1987,
pp. 209 and 218-219, and cf. pp. 43, 50-51 and 58-59.
24 Cf. chapters XVI-XXIII, supra.
25 R. Ago, “Nouvelles réflexions sur la codification...”, op. cit. supra n. (16), pp. 1-31.
26 For a criticism, cf., e.g., A.A. Cançado Trindade, “The Merits of Coordination of
International Courts on Human Rights”, 2 Journal of International Criminal Justice
628 Chapter XXVII
Commission, as it begs the question, and it is not, and has never been, a topic of
codification and progressive development of our discipline.
The 2004 Convention on Jurisdictional Immunities of States and Their
Property has lately been severely criticized for having taken the easier course of
simply not addressing the issue of the impact of the considerable advances of In-
ternational Law of Human Rights and of peremptory norms of International Law
on the traditional canons of State immunities.27 Codification Conventions, quite
on the contrary, are bound to be long-lasting if they give expression also to the
progressive development of the matter at issue, so as properly to fulfi l the needs
and aspirations of the international community as a whole.
Thus, “pragmatism” has also its pitfalls, as it cannot behold but the present
moment. The pragmatic attitude of having a text adopted for adoption’s sake,
making abstraction of the emergence and evolution of the new jus gentium of
our times, is bound to lead into a pyrrhic victory. The prompt responses of con-
temporary International Law to grave violations of the rights inherent to the hu-
man person, at the conceptual and normative levels, are a definitive achievement
of contemporary International Law, which has learned the lessons of the recent
past. One cannot make abstraction of this historical achievement in the work of
codification and progressive development of International Law.
IV. Concluding Observations: Codification and Progressive Development

Moved by the Universal Juridical Conscience
References have already been made to several Conventions which duly evoked the
superior interests or the concern or the heritage of humankind, in distinct do-
mains of International Law, such as, e.g., International Environmental Law, Law
of the Sea, International Law of Outer Space, and International Law of Bioeth-
ics.28 Some of those Conventions already have been, not surprisingly, long-last-
ing, and they have all gathered prompt and widespead support and have attracted
(2004), n. 2, pp. 309-312; L. Caflisch and A.A. Cançado Trindade, “Les Conventions
Américaine et Européenne des Droits de l’Homme et le Droit international général”,
108 Revue générale de Droit international public (2004) pp. 5-62.
27 Cf., e.g., C. Keith Hall, “U.N. Convention on State Immunity: The Need for a Human
Rights Protocol”, 55 International and Comparative Law Quarterly (2006) pp. 411-
426; L. Caflisch, “Immunité des États et droits de l’homme: Évolution récente”, in
Internationale Gemeinschaft und Menschenrechte – Festschrift für Georg Ress (eds.
J. Bröhmer et alii), Köln/Berlin, C. Heymanns Verlag, 2005, pp. 936-938 and 943; L.
McGregor, “State Immunity and Jus Cogens”, op. cit. supra n. (21), pp. 437-438, 441
and 444-445; and cf. also L.M. Caplan, “State Immunity, Human Rights and Jus
Cogens: A Critique of the Normative Hierarchy Theory”, 97 American Journal of
International Law (2003) pp. 741-744, 757-758, 768 and 780-781. And, for a debate
on current uncertainties, cf., e.g.: Various Authors, Le droit international des im-
munités: contestation ou consolidation? (ed. J. Verhoeven), Paris/Bruxelles, LGDJ/
Larcier, 2004, pp. 11-274.
28 Cf. chapter XIII, supra.
considerable attention. Since the beginning of the last century, the work of codi-
fication and progressive development of International Law has been undergoing a
process of sedimentation, and has been moving forward by the universal juridical
conscience. It is worth recalling some reflections to that effect.
To start with, the aforementioned work appeared to assume the conscienti-
zation as to its need. As we know it today, that work owes much to the influence
of the German “historical school” in the XIXth century (Savigny and others),
in its building of the normative order emanating from the juridical conscience
(then conceived as the Volksgeist, l’esprit du peuple), and perfected through the
social evolution.29 Somewhat distinctly, attention is turned today, in my view, to
the conscience of the international community as a whole (rather than of each
people), to the universal juridical conscience, as the ultimate material source of
universalized International Law.30
Codification of international law has already evolved in a long journey, of
over a century, pari passu with the progressive development of the discipline.
There are those who identify the two Hague Peace Conferences (of 1899 and 1907)
as “the first modern codification Conferences”.31 One century after the II Hague
Peace Conference, codification and progressive development of International
Law are nowadays undertaken by a multiplicity of organs, at universal as well as
regional levels, and by means of treaties as well as resolutions, in a much more
complex way, to fulfi l the current normative needs of the international commu-
nity as a whole.
Underlying this process is “the primacy of International Law in internation-
al relations”, as propounded, e.g., over a century ago, by one of the promoters of
the two Hague Peace Conferences (of 1899 and 1907), the Russian jurist F.F. de
Martens.32 In his recollections of the II Hague Peace Conference, the Cuban ju-
rist Antonio S. Bustamante y Sirvén pondered that the 1907 Conference contrib-
uted to developing further humanitarian principles and propitiated a greater ac-
ceptance of previous international instruments towards universal International
Law, a “common law of humankind”; in his outlook, the wider participation that
the 1907 Conference counted on, with contributions of States from different con-
29 G. Abi-Saab, “La Commission du Droit International, la codification et le proces-

sus de formation de Droit international”, in U.N., Making Better International Law:
The International Law Commission at 50 – Proceedings of the U.N. Colloquium on
Progressive Development and Codification of International Law (New York, October
1997), New York, U.N., 1998, p. 186.
31 Intervention by S. Rosenne, in U.N., Making Better International Law..., op. cit. su-
pra n. (29), p. 127; and cf. F. Münch, “La codification inachevée”, in Le Droit inter-
national à l’heure de sa codification – Études en l’honneur de Roberto Ago, vol. I,
Milano, Giuff rè, 1987, p. 376.
32 Y.M. Kolosov, “Overview of the International Law-Making Process and the Role of
the International Law Commission”, in U.N., Making Better International Law..., op.
cit. supra n. (29), p. 203.
630 Chapter XXVII
tinents and with distinct cultures, enabled the II Hague Peace Conference to be-
hold the advent of a world “juridical community” and to bear in mind the “unity
of humankind”.33 He added that the principles which found expression therein
contributed to the “progress of International Law” and the “human welfare”, and
left the legacy of the acknowledgement of the much-needed compliance with the
“duties of humanity”, even when they do not form part of positive law.34
The relationship between conscience and the formulation of general prin-
ciples and the codification of international law marked presence also in the
writings of the Chilean jurist Alejandro Álvarez. During the II world war, he
sustained (in 1944) that the principles of law and the precepts of international
justice emanated spontaneously from the international juridical conscience.35
In his view, it was natural law thinking which best captured that conscience,
wherefrom the principles of law emanate, including such “new principles” as the
condemnation of genocide, and “the condemnation of war as a crime against hu-
manity”.36 In 1947, in a report submitted to the Institut de Droit International
(1947 Lausanne session), A. Álvarez, amidst the “grave crisis” faced by Interna-
tional Law, reiterated his view that international justice was a manifestation of
the international juridical conscience, to which the precepts of the law of nations
owed their formation;37 he added that the general interests of the international
33 A.S. de Bustamante y Sirvén, La Segunda Conferencia de la Paz Reunida en el Haya

en 1907, vol. II, Madrid, Libr. Gen. de V. Suárez, 1908, pp. 137 and 139-141.
34 A.S. de Bustamante y Sirvén, La Segunda Conferencia de la Paz..., op. cit. supra n.
(33), pp. 157-159, and cf. pp. 133 and 147. In his forecast, the principles which found
expression at the II Hague Peace Conference would become “world law”, therefrom
emerging “the definitive and necessary codification of International Law”; ibid., pp.
157-158. He further regarded, as one of the greatest achievements of the 1907 Hague
Conference, the acknowledgement of the principle of the juridical equality of States;
ibid., p. 145.
35 A. Álvarez, La Reconstrucción del Derecho de Gentes – El Nuevo Orden y la Reno-
vación Social, Santiago de Chile, Ed. Nascimento, 1944, pp. 19-21, 24-25 and 86-87.
36 A. Álvarez, El Nuevo Derecho Internacional en Sus Relaciones con la Vida Actual
de los Pueblos, Santiago, Editorial Jurídica de Chile, 1961, pp. 155-157 and 304. He
further recalled the reference to conscience (as a source of applicable legal rules in
the absence of express conventional provisions) found in the preamble of the 1907
Hague Convention Respecting the Laws and Customs of War on Land (the well-
known Martens clause), in acknowledgement of the presence of conscience in the
work of codification, such as the one undertaken at the two Hague Peace Confer-
ences (of 1899 and 1907) in the regulation of war and neutrality. Cf. ibid., pp. 156 and
356-357. A. Álvarez’s outlook did not pass unnoticed to some of his contemporaries;
cf., e.g., J.-M. Yepes, “Les problèmes fondamentaux du Droit des gens en Amérique”,
47 Recueil des Cours de l’Académie de Droit International de La Haye (1934) p. 8.
37 A. Álvarez, “Méthodes de la codification du Droit international public – Rapport”,
in Annuaire de l’Institut de Droit International (1947) pp. 38 and 46-47, and cf. pp.
50-51, 54, 64 and 69.
community should “model” the “rights of States and individuals” and guide the
work of reconstruction of International Law.38
Ever since, the role of conscience in giving expression to the opinio juris
communis has been recognized time and time again.39 Expert writing is clear in
acknowledging, in our days, that the work of codification and progressive devel-
opment of International Law purports indeed to give expression to the opinio
juris of the international community as a whole.40 In a thoughtful essay on the
matter, Maarten Bos observed that the aforementioned work
“nous conduit, en effet, à l’essence du droit, à ses conditions vitales, à l’art d’exprimer
en une langue professionnelle des projections intérieures, à une prise de conscience
dans un domaine qui, de par sa nature même, appartient à l’invisible et est destiné à
y rester en dépit des symboles de notre écriture”.41
The work of codification and progressive development purports to strengthen

the international legal order, in securing the primacy of International Law; it en-
sues from a prise de conscience of the members of the international community
to respond to its normative needs,42 and it contributes decisively to the construc-
tion of a truly universal International Law.
38 Ibid., pp. 44-45 and 68-69, and cf. p. 70. On the international juridical conscience in
the present domain, cf. also A. Álvarez, Exposé des motifs et Déclaration des grands
principes du Droit international, 2nd. ed., Paris, Éditions Internationales, 1938, pp.
19 and 22-23, and cf. pp. 8-9, 16-21, 27 and 51.
39 Cf. J.G. Guerrero, La codification du Droit international, Paris, Pédone, 1930, pp. 9-
10, 13, 24, 27 and 150; G.E. do Nascimento e Silva, “A Codificação do Direito Interna-
cional”, 28-30 Boletim da Sociedade Brasileira de Direito Internacional (1972-1974)
ns. 55/60, p. 100; R. Ago, “Nouvelles réflexions sur la codification...”, op. cit. supra
n. (16), pp. 2 and 22; A. Mahiou, “Rapport général: Les objectifs de la codification”,
in Société Française pour le Droit International, La codification du Droit interna-
tional (Colloque d’Aix-en-Provence), Paris, Pédone, 1999, pp. 22, 30, 41-42 and 45.
The “international juridical conscience” is ineluctably related to the progressive de-
velopment of International Law; R. Fernandes, “A Responsabilidade dos Estados em
Direito Internacional” (1952), 48 Boletim da Sociedade Brasileira de Direito Interna-
cional (1995) n. 95/97, p. 27.
40 E. Suy, “Développement progressif et codification du Droit international: Le rôle de
l’Assemblée Générale revisité”, in U.N., International Law as a Language for Inter-
national Relations – Proceedings of the U.N. Congress on Public International Law
(New York, March 1995), U.N./Kluwer, The Hague, 1996, p. 216; and cf. K. Zemanek,
“Does Codification Lead to Wider Acceptance?”, in ibid., p. 228; K. Zemanek, “Codi-
fication of International Law...”, op. cit. supra n. (8), p. 601.
41 M. Bos, “Aspects phénomenologiques de la codification du Droit international pub-
lic”, in Le Droit international à l’heure de sa codification – Études en l’honneur de
Roberto Ago, vol. I, Milano, Giuff rè, 1987, p. 142.
42 R. Ago, “Nouvelles réflexions sur la codification...”, op. cit. supra n. (16), pp. 2 and
22.
632 Chapter XXVII
As pointed out by R.-J. Dupuy, humanity “parle aux consciences”, being a

“transcendance intérieure”; thus, “l’essentiel est d’avoir un projet pour l’humanité.
Ce qui suppose une prise de conscience par les gouvernements, les scientifiques,
les philosophes, de tous les hommes de pensée des devoirs nouveaux qu’impose
à tous l’avènement de l’humanité dans l’histoire”.43 He thereby perceived in an
organ of codification and progressive development of International Law, such as
the ILC, the much needed sensitivity
“à poser la primauté de l’éthique sur la technique, celle-ci devant être au service

de celle-là. Ainsi qu’il s’agisse du jus cogens naguère ou des crimes internationaux
aujourd’hui, ou constate de fréquentes références à des formules comme la ‘con-
science universelle’ ou à la ‘conscience générale des États’ qui expriment le fonde-
ment communautaire que l’on entend donner aux règles en cours de préparation”. 44
In my intervention in the centennial celebration of the II Hague Peace Confer-

ence, organized by The Hague Academy of International Law and held at The
Hague, on 06-07 September 2007, I saw it fit to ponder:
“It is highly significant that, at the time of the convening of the 1907 Hague Peace
Conference, when legal positivism was still at its height, with its characteristic and
invariable subservience to power, a new outlook of International Law was being
formed, shifting attention from the will of individual States to the fulfi lment of the
needs and aspirations of humankind. There was already consciousness of the pitfalls
of the positivist-voluntarist conception of International Law, as, if it was by their will
that States allegedly created International Law, it was also by their will that States
violated it, and such voluntarist conception revolved in a vicious circle, wholly inca-
pable of explaining the formation and evolution of the norms of International Law45.
The danger of increasing armaments and the threat of war awakened the general
awareness that, in order to preserve international peace, it was imperative to replace
Realpolitik by the pursuance by all of the common good, well beyond the interests of
individual States. It had become, in sum, imperative to reckon that conscience stood
well above the will. Thus, by the end of the II Hague Peace Conference of 1907 the
universalist outlook of International Law had gained considerable ground. The be-
trayal of its ideals engulfed the world into the tragedy of two wars of devastating and
catastrophic dimension, with millions of victims. But the seed of universalism, to
secure peace and justice, and going well beyond the insufficient inter-State dimen-
43 R.-J. Dupuy, op. cit. infra n. (44), pp. 260-261.

44 R.-J. Dupuy, Dialectiques du Droit international – souveraineté des États, commun-
auté internationale, et droits de l’humanité, Paris, Pédone, 1999, p. 145.
Assessment”, 59 Revue de droit international de sciences diplomatiques et politiques
(Sottile) – Geneva (1981) pp. 201-240.
sion of the past, had already been planted. From time to time it was again recalled,
up to our days, at this beginning of the XXIst century”.46
In the mid-XXth century, the reconstruction of International Law took account

of superior values common to humankind; the Swiss jurist Max Huber, in a col-
lection of essays published in 1954, referred to a “droit de l’humanité”, having in
mind the four Geneva Conventions of 1949 on International Humanitarian Law
and the U.N. Charter. In his perception, the principle of humanity was under-
lying them all, as well as several other treaties which did not expressly invoke
such principle, but contributed likewise to the emergence of a new jus gentium
“en sa qualité de droit naturel”, going beyond “toute codification”.47 The four Ge-
neva Conventions of 1949, transcending reciprocity, moved towards “un véritable
droit de l’humanité”, inspired by the principle of the dignity of the human per-
son.48 Such Conventions, it may be added, are an expression today of a universal
International Law.
Shortly before their adoption, the U.N. Charter, on its turn, reaffi rmed, in
its preamble, faith in fundamental human rights and in the dignity and worth of
the human person, in its determination to save succeeding generations from the
scourge of war (par. 1) and to establish conditions for the prevalence of peace and
justice and respect for international obligations (pars. 1-2); the Charter expressly
encouraged, in Article 13(1), the work of codification and progressive develop-
ment of International Law. In the view of M. Huber, the U.N. Charter itself had
become the turning point of a new stage in the progressive development of the
law of nations, of the droit de l’humanité; in his words, the Charter “emprunte
quelque chose de l’idée de la civitas maxima, que nombre de philosophes du
droit considèrent comme le but final de toute l’évolution juridique et de tous les
efforts qui tendent à l’établissement d’une paix durable”.49
46 A.A. Cançado Trindade, “The Presence and Participation of Latin America at the
II Hague Peace Conference of 1907”, in Actualité de la Conférence de La Haye de
1907, II Conférence de la Paix (Colloque de 2007) (éd. Y. Daudet), Leiden/La Haye,
Académie de Droit International/Nijhoff, 2008, pp. 81-82.
47 M. Huber, La pensée et l’action de la Croix-Rouge, Genève, CICR, 1954, pp. 26 and
247, and cf. pp. 270-271.
48 Ibid., pp. 290-291 and 304.
49 M. Huber, La pensée et l’action..., op. cit. supra n. (47), p. 286.
Chapter XXVIII Conclusions: International Law for
Humankind –
Towards a New Jus Gentium
I. The Process of Gradual Humanization of Public International Law

In the course of the last century International Law has undergone an extraordi-
nary development, which gradually took the shape of an historical process of its
humanization. Traditional International Law, in force at the beginning of the
XXth century, was characterized by unlimited State voluntarism, reflected in
the permissiveness of recourse to war, secret diplomacy and the celebration of
unequal treaties, the maintenance of colonies and protectorates and zones of in-
fluence. Against this oligarchical and unjust order arose principles such as those
of the prohibition of war of aggression and of the use and threat of force, – and
of the non-recognition of situations generated by these latter, – of the juridi-
cal equality of States, and of the peaceful settlement of international disputes.
Moreover, the struggle against inequalities started, with the abolition of the ca-
pitulations, the establishment of the system of protection of minorities under the
League of Nations, and the early international labour Conventions of the Inter-
national Labour Organization [ILO].
In mid-XXth century the necessity was recognized of the reconstruction
of International Law with attention turned to the rights of the human being, an
eloquent testimony of which having been given by the adoption of the 1948 Uni-
versal Declaration of Human Rights, followed, in the course of over five decades,
by more than 70 treaties of human rights protection nowadays in force at global
and regional levels. In the era of the United Nations, and by influence of this lat-
ter and its specialized agencies, as well as of regional organizations, International
Law came to experience an extraordinary expansion. The emergence of the new
States, amidst the historical process of decolonization, was to mark profoundly
its evolution in the decades of the fifties and sixties, in the framework of the
great impact within the United Nations of the emerging right of self-determina-
tion of peoples. The process of democratization of International Law was then
launched.
Thus, already by the mid-XXth century, the more enlightened doctrine of
International Law moved definitively away from the Hegelian and neo-Hegelian
formulation of the State as an assumed final repository of the freedom and re-
sponsibility of the individuals who composed it. The development of the uni-
636 Chapter XXVIII
versal movement in favour of human rights, in the last five decades, contributed
decisively to the historical rescue of the human being as subject of International
Law, – a development which I regard as the most precious legacy of the evolution
of legal science in the XXth century.
The United Nations gradually turned attention also to the economic and so-
cial domain, parallel to international trade and development, without prejudice
of the initial and continuing concern with the preservation of international peace
and security. In transcending the old parameters of the classic law of peace and
war, International Law equipped itself to respond to the new demands and chal-
lenges of international life, with greater emphasis on international cooperation.
In the decades of the sixties to the eighties, multilateral forums dedicated them-
selves to an intense process of elaboration and adoption of successive treaties and
resolutions of regulation of the spaces, in distinct areas such as those of the outer
space and the law of the sea.
The notable transformations in the contemporary world scenario launched,
as from 1989, by the end of the cold war and the outbreak of numerous internal
conflicts, have characterized the nineties as a moment in history marked by a
profound reflection, in a universal scale, on the very bases of the international
community and the gradual formation of the international agenda of the XXIst
century. The recent cycle of the World Conferences of the United Nations, of the
end of the XXth century and the beginning of the XXIst century, has proceeded
to a global reassessment of many concepts in the light of the consideration of
themes which affect humankind as a whole. Its common denominator has been
the special attention to the conditions of living of the population (particularly
of the vulnerable groups, in special need of protection), therefrom resulting the
universal recognition of the necessity to place human beings definitively at the
centre of all process of development.
In fact, the great challenges of our times – the protection of the human be-
ing and of the environment, disarmament, the erradication of chronic poverty
and human development, and the overcoming of the alarming disparities among
countries and within them, – have fostered, in a universal dialogue, the revi-
talization of the very foundations and principles of contemporary International
Law, tending to make abstraction of jurisdictional and spacial (territorial) classic
solutions and replacing the emphasis on the notion of solidarity. Looking back
in time, elements can indeed be found, in the recent cycle of U.N. World Confer-
ences, as well as in the recent work of UNESCO, in support of the new outlook of
a world-wide dialogue, rather than “clash”, of civilizations.
Traditional international order, marked by the predominance of State sover-
eignties and exclusion of the individuals, was not able to avoid the intensification
of the production and the use of weapons of mass destruction, nor the gross and
flagrant violations of human rights perpetrated in all the regions of the world,
and the successive atrocities of the XXth century, including the contemporary
ones, – such as the holocaust, the gulag, followed by new acts of genocide, e.g., in
South East Asia, in Central Europe (ex-Yugoslavia) and in Africa (Rwanda). Such
International Law for Humankind – Towards a New Jus Gentium 637
atrocities have awakened the universal juridical conscience to the necessity of

reconceptualizing the very bases of the international legal order.
At this beginning of the XXIst century, we effectively have the privilege
to witness the process of humanization of International Law, which comes to
occupy itself more directly with the realization of common superior goals. The
recognition of the centrality of human rights corresponds to a new ethos of our
times. Such process of humanization manifests itself, in my view, as I have been
sustaining for years, in all domains of the discipline: the foundations of Inter-
national Law, its subjects, its new conceptual constructions, the basic consid-
erations of humanity permeating all its chapters, and the quest for the interna-
tional rule of law for the realization of justice and maintenance of peace. Such
process, in turn, discloses the new jus gentium of our times, the International
Law for humankind.
II. The New Jus Gentium: International Law for Humankind

The new jus gentium of this beginning of the XXIst century, emerging from the
fragmentation of jus inter gentes, rescues, in its reconstruction, the vision and
ideals of the founding fathers of the discipline. It propounds a universalist out-
look, going beyond purely inter-State relations. Its foundations are independent
of the “will” of its subjects of law (States and others). It ultimately stems from
human conscience, and is erected upon ethical foundations incorporating basic
human values, shared by the entire international community and humankind as
a whole. It thus paves the way for the future evolution of the international legal
order.
The temporal dimension is inherent in legal science and underlies the whole
domain of International Law, which is formed, interpreted and applied in time.
Rather than implying historical “relativism”, this evidences that Law accompa-
nies the evolution of the relations it is meant to regulate, giving responses to
the needs and aspirations of humankind. In its protective function, it discloses
an increasingly relevant preventive dimension. The needs and aspirations of hu-
mankind can be fulfi lled by Law, rather than discretionary use of force, in the
pursuit of the realization of justice. It draws attention to common responsibilities
towards present and future generations.
1. Foundations
General principles of law are inextricably linked to the very foundations of Law,
and International Law makes no exception to that. Such principles inform and
conform the norms and rules of International Law, and account for their evolu-
tion. Those principles are a manifestation of the universal juridical conscience;
in the evolving jus gentium, basic considerations of humanity have an important
role to play. General principles of law have inspired not only the interpretation
and application of its norms, but also the very formation of law, the law-making
process itself.
638 Chapter XXVIII
There are general principles of law (such as that of the dignity of the human
person) which are truly fundamental, identified with the very foundations of the
legal system, and conforming the substratum of this latter. They have always
been present in the quest for justice. They have been repeatedly restated, and
retain their full validity in our days. Legal positivist thinking has always tried,
in vain, to minimize the role played by those principles, but the truth remains
that, without them, there is no legal system at all, national or international. They
give expression to the idea of an objective justice, expressing the universal juridi-
cal conscience, and paving the way to a universal International Law, the new jus
gentium, the International Law for humankind.
General principles of international law, projected in time and reiterated
in the last decades, retain their full validity in our days, and the fundamental
principle of the prohibition of the threat or use of force in inter-State relations,
endowed with judicial recognition, makes no exception to that. What is preven-
tive or “anticipatory” is law itself, not the use of force. The emerging right to
humanitarian assistance focuses on the fulfi lment of the needs of protection of
its titulaires, rather than on “intervention”. Force only generates force, and one
cannot pretend to erect a new “international order” on the basis of unwarranted
use of force, outside the framework of the U.N. Charter. The violation of the basic
principle of International Law of the prohibition of the threat or use of force does
not generate a “new practice”, but rather engages the international responsibility
of the wrongdoers. The primacy of International Law over force is a cornerstone
of contemporary International Law, and an imperative of jus cogens.
International law-making today goes well beyond the consideration of the
formal “sources” of International Law; these latter were never meant to be exhaus-
tive, and resort to them has been nothing more that an exercise of an outmoded
analytical positivism, which has never found nor provided a convincing expla-
nation of the validity of international legal norms. Such formal “sources” were
equated with the ways and means whereby international law has been formed.
The formation of contemporary international law constitutes a much wider pro-
cess than the formulation and acknowledgement of its formal “sources”, seeking
the legitimacy of international norms through the expression of the opinio juris
communis (going well beyond the subjective element of custom), as well as the
fulfilment of the public interest and the realization of the common good of the
international community as a whole. It points towards a universal International
Law, the new jus gentium, emanating ultimately from the universal juridical con-
science, which stands well above the “will” of the subjects of law (among which
the States).
The consideration of the formal “sources” of international law alone fails
to take into account the basic issue of the validity of International Law and the
substratum of legal norms (beliefs, values, ethics, ideas, human aspirations). It is
not possible to consider the legal order making abstraction of ethics. Hence the
necessity to examine the formal “sources” together with the ultimate material
source of International Law, the universal juridical conscience, also to enable
international law to face the new challenges of our times. The recta ratio is deeply
rooted in human thinking, and reiterated invocations of the universal juridical

conscience (going well beyond legal positivism) can be found, for the identifica-
tion of a communis opinio juris, in treaty-making and international treaties them-
selves, in the historical projection of the Martens clause, in judicial proceedings
and international case-law, in United Nations resolutions, and in a longstanding
trend of international legal doctrine. The universal juridical conscience is the
ultimate material source of International Law (as of all Law), and accounts for
the current construction of a new jus gentium, asserting the idea of an objective
justice, – the International Law for humankind.
2. Subjects
The gradual formation of a new jus gentium has been marked by the phenomenon
of the expansion of international legal personality, which, in turn, discloses the
current process of humanization of International Law. States themselves have
contributed to that expansion, aware of their insufficiencies to face individually
the contemporary challenges of international life, in particular those which are
the concern of humankind as a whole. Even in approaching their own rights and
duties, States have reckoned that they cannot ignore the international commu-
nity as a whole. They no longer insist on the plea of domestic jurisdiction, and, no
longer fearing the end of their past monopoly of international legal personality,
have learned to work together with international organizations, with individuals
and civil society, in pursuance of the common good.
International organizations, assuming a life of their own, have put an end
to the former State monopoly of international legal personality and of privi-
leges and immunities, have expanded the treaty-making power, have, – in sum,
– changed the structure of International Law itself, which would nowadays be
inconceivable without them. They have rendered the formation of International
Law multifaceted, and the rules pertaining to their own structure, composition
and decision-making ever more complex. Their resolutions, of varying contents
and legal effects, have contributed to the ascertainment of the communis opinio
juris. They have adjusted themselves to the new times and, responding to the
needs and aspirations of the international community as a whole, they have en-
riched the international law-making process and the function of international
regulation itself, in covering issues of concern to the whole of humankind.
The rescue of the condition of the human person as subject of International
Law is the most precious legacy of the international legal thinking of the second
half of the XXth century. It is in line with the contemporary process of human-
ization of contemporary International Law, of which it appears as one of its most
basic features. Individuals are subjects (titulaires) of rights and bearers of duties,
which emanate directly from International Law. They have begun to participate,
integrating entities of the civil society, in consultations conducive to the elabora-
tion of contemporary international instruments. They have been assuming an
increasingly significant role, directly or indirectly, in the formation of the com-
munis opinio juris. They are not only “actors”, but true subjects, of the new jus
640 Chapter XXVIII
gentium. The widespread recognition of the international legal personality – ac-

tive and passive – of the individual has responded to a true need of the interna-
tional community as a whole.
To such personality necessarily corresponds the legal capacity of individu-
als to act, and vindicate their rights, at international level. Th is is materialized
through their direct access – understood lato sensu – to international justice,
implying a true right to the Law (droit au Droit). The consolidation of their legal
capacity, through the exercise of their right of individual petition at international
level, is one of the most significant features of the new jus gentium: it marks the
emancipation of the individual from his own State. It is properly illustrated by
the jus standi of individuals before the European Court of Human Rights, and
the locus standi in judicio of individuals in the whole procedure before the In-
ter-American Court of Human Rights. The right of access (lato sensu) to inter-
national justice has at last crystallized as the right to the realization of justice at
Humankind as such has emerged as a subject of International Law, coexist-
ing with other subjects without replacing them. The principle of humanity per-
meates the whole corpus juris of International Law. This has been acknowledged
in the case-law of the ad hoc International Criminal Tribunals for the Former Yu-
goslavia and for Rwanda, singling out the feeling of humaneness, evidenced even
when humanity itself is victimized by international crimes. On their part, the
Inter-American and European Courts of Human Rights have asserted in their
case-law the fundamental principles of the dignity of the human person and of
the inalienability of the rights inherent to her.
When one comes to the expansion of international legal personality, it is
more precisely humankind (rather than humanity) that one has in mind, en-
compassing all the members of the human species as a whole, comprising, in
a temporal dimension, present as well as future generations. Humankind has
already been marking presence in the more lucid international legal doctrine, – a
presence which has lately been accentuated by the human rights framework. The
present challenge lies in the devising and completion of the conceptual construc-
tion of the legal representation of humankind, conducive to the consolidation
of its international juridical capacity, in the ambit of the new jus gentium of our
times.
3. Conceptual Constructions
In the gradual building of the international law for humankind, conceptual con-
structions are now in course. International jus cogens by definition goes well be-
yond the law of treaties, extending itself to the domain of State responsibility
and, ultimately, to any juridical act. It encompasses the whole of International
Law, and projects itself into domestic law as well, invalidating any measure or
act incompatible with it. Jus cogens has a direct bearing on the foundations of a
universal International Law, and is a pillar of the new jus gentium.
The existence of erga omnes obligations has met with judicial recognition
of contemporary international tribunals; it now remains to determine the legal
consequences for States of their breach. Those obligations mark their presence
in distinct domains of International Law (such as human rights protection, envi-
ronmental protection, disarmament and arms control). Obligations erga omnes
have a horizontal dimension, in the sense that they are owed to the international
community as a whole, and a vertical dimension, in the sense that they bind
everyone, the organs and agents of the State, as well as individuals themselves.
When the legal regime of obligations erga omnes consolidates itself (encompass-
ing the juridical consequences of their violation), the acknowledgment of actio
popularis at international level may take place without uncertainties. These de-
velopments take place, again, in the process of the humanization of International
Law, as the beneficiaries of compliance with, and due performance of, obligations
erga omnes, are, ultimately, all human beings.
Theoretical constructions of the new jus gentium have been purporting to
face the challenges confronting humankind today. The concept of common heri-
tage of mankind (in the Law of Outer Space, and, endowed with some degree of
institutionalization, in the Law of the Sea), e.g., discloses the temporal dimen-
sion of the links of solidarity uniting succeeding generations. Despite shortcom-
ings in its application, it was conceived bearing in mind the existence of superior
common interests, and the imperative of international distributive justice. The
same vision inspired the concept of common concern of mankind (in Interna-
tional Environmental Law), devoid of proprietary connotations, and coexisting
with the former concept, as well as with that of common heritage of humanity
(in the International Law of Bioethics). All these constructions, instead of vi-
sualizing humanity from the perspective of the States, recognize the limits of
the States from the perspective of the fulfilment of the needs and aspirations of
humankind.
Recent endeavours (e.g., by UNESCO) in the formulation of the right to
peace in international law have inserted it, beyond the level of inter-State rela-
tions, in the framework of the rights of the human person and of peoples to the
ultimate benefit of humankind. The same applies to the right to development,
which, on its part, as from the 1986 U.N. Declaration and the 1990 U.N. Global
Consultation on the matter, has become definitively incorporated to the lexicon
of contemporary International Law, embodying demands of the human person
and peoples to be fulfi lled to the ultimate benefit of humankind, well beyond the
strict inter-State dimension.
Recent developments in the new jus gentium have pointed towards the
complementarity between the international responsibility of States and the in-
ternational criminal responsibility of individuals (with their legal consequences).
Such complementarity, in the struggle against impunity and the pursuance of the
realization of justice at international level, bears witness of the acknowledgment
of the fundamental or superior interests of the international community, which
have, in turn, brought about a revitalization of the principle of universal jurisdic-
642 Chapter XXVIII
tion (going well beyond the confines of the classical principles of territoriality
and nationality).
4. Basic Considerations of Humanity

There is awareness today that never as in the XXth century there was so much
scientific-technological progress accompanied tragically by so much destruction
and cruelty and human suffering. In reaction to this great paradox, the univer-
sal juridical conscience has awakened to humanize contemporary International
Law. In fact, basic considerations of humanity permeate today the whole corpus
juris of the law of nations, as acknowledged by contemporary international in-
struments, by international case-law and by the more lucid international legal
doctrine.
The search for peace remains a permanent goal of humankind as a whole, for
its own survival. The initiative of the creation of zones of peace, and of nuclear-
weapon-free zones (Treaties of Tlatelolco, Rarotonga, Bangkok, Pelindaba and
Semipalatinsk) bears witness of this aim. The same applies to current endeav-
ours towards complete disarmament (the over-all disarmament regime having
as main cornerstones the CTBT and the NPT). Under the new jus gentium, tran-
scending the strictly inter-State dimension, and moved by the universal juridical
conscience, all weapons of mass destruction – including nuclear weapons – are
illegal, in any circumstances whatsoever, and are in breach of International Hu-
manitarian Law. From the perspective of the new jus gentium, the threat or use
of such weapons is a crime against humanity.
A classic chapter of International Law such as that of the law of treaties has
also been permeated by basic considerations of humanity. The dynamic interpre-
tation of human rights treaties and humanitarian treaties (as living instruments)
is one illustration in this regard, asserting the objective character of the obliga-
tions of protection, the autonomous meaning of its terms, and the emphasis on
their effet utile, the realization of their object and purpose. The system of reser-
vations to treaties enshrined in the two Vienna Conventions on the Law of Trea-
ties (of 1969 and 1986) has proven inadequate to human rights treaties, endowed
with mechanisms of supervision of their own; international supervisory organs
have lately displayed their preparedness to proceed to the determination of the
compatibility or otherwise of reservations with the object and purpose of the
respective treaties.
The denunciation of treaties is no longer entirely at the mercy of the de-
nouncing States, there being today humanitarian safeguards, as illustrated by
the pertinent provisions of the 1949 Geneva Conventions on International Hu-
manitarian Law, the 1984 U.N. Convention against Torture, and the European
and American Conventions on Human Rights. The same applies to the termina-
tion and suspension of the operation of treaties, as acknowledged by the relevant
provisions of the two Vienna Conventions on the Law of Treaties (1969 and 1986).
The law of treaties is thus nowadays open to basic considerations of humanity.
Such considerations further encompass the central chapter of State respon-

sibility, which can originate in any act or omission of any power (Executive, Leg-
islative or the Judiciary) or organ of State, irrespective of hierarchy. The prereq-
uisites for the implementation of State responsibility bear likewise witness of
basic considerations of humanity: the rule of exhaustion of local remedies, e.g.,
as a condition of admissibility of international claims, has an incidence in human
rights protection distinct from that in diplomatic protection, with due attention
to, and adjustments dictated by, the particularities and imperatives of the former,
a law of generalized protection. Furthermore, the international community as
such, and the peremptory norms of International Law, mark their presence now-
adays in the conceptual universe of the law on State responsibility.
Basic considerations of humanity also comprise the chapter of State suc-
cession: recent developments have disclosed support for the continuity of con-
ventional obligations of human rights protection, without interruptions. There
is nowadays a presumption that successor States are regarded, or regard them-
selves, as bound by such obligations concerning the rights inherent to the human
person, which have primacy over territorial mutations in general.
A classic chapter such as that of territory is nowadays approached from a
much wider outlook. Respect for State territory and its frontiers is regarded as
crucial for the maintenance of international peace. In addition, of the prereq-
uisites of statehood, attention is increasingly shifted to the living conditions of
the population. Non-self-governing territories acquired an international status
in the major interest of their inhabitants. The Antarctica system, on its turn, il-
lustrates the concerted initiative of a regime of non-militarization and peaceful
uses, in addition to other zonal initiatives for peace. And, bearing in mind the
historical precedents of the Saar Territory and the Free City of Danzig (in the
League of Nations era), the recent cases of Kosovo and East Timor provide ex-
amples, in the United Nations era, of transitional administration of territory on
behalf of the international community.
Diplomatic and consular law, having attained universality, undergo nowa-
days likewise a process of humanization. Their basic postulates are an irreducible
minimum constructed by humankind as a whole over the centuries. The right
to information on consular assistance is an individual right, which, as asserted
by the Inter-American Court of Human Rights in a pioneering way, is currently
situated in the framework of the guarantees of the due process of law. Here, once
again, basic considerations of humanity have played an important role, and have
been exerting a considerable impact on international legal thinking and prac-
tice.
Along the last two decades, the intensification of the convergences and in-
teractions of the regimes of protection of International Human Rights Law, In-
ternational Humanitarian Law and International Refugee Law have maximized
the protection of the human person in any circumstances whatsoever. Such in-
creasing convergences and interactions have taken place at normative, interpre-
tative and operational levels, to the ultimate benefit of all human beings.
644 Chapter XXVIII
5. International Rule of Law

Although the classic chapter of peaceful settlement of international disputes
has been marked by the ambivalence between the general duty (ensuing from a
principle) of peaceful settlement and the faculty (not a principle) of free choice
of means of the contending parties, some advances have been achieved in this
domain, amidst the pursuance of common values and considerations of ordre
public. Several multilateral treaties of various kinds have specified choices of
means of peaceful settlement, decreasing the discretion left to the contending
parties. The 1982 U.N. Convention on the Law of the Sea affords an example in
this respect. There is greater awareness nowadays that peaceful settlement of
disputes transcends the interests of the contending parties and is in keeping with
the general interests of the international community as a whole.
The old ideal of international compulsory jurisdiction is a manifestation of
the endeavours towards international rule of law and the quest of the interna-
tional community as a whole for the realization of justice at international level.
It is a reality in our days, as exemplified by the Court of Justice of the European
Communities, the European Court of Human Rights, the International Crim-
inal Court, and recent development in the Regulations of the Inter-American
Court of Human Rights in this direction. The recent case-law of this latter and
its European counterpart provide illustrations of advances in the construction
of the right of direct access to justice (lato sensu) at international level and the
preservation of the integrity of the respective mechanisms of protection. The
multiplicity of international tribunals in our times is a reassuring phenomenon;
the aforementioned Tribunals of human rights, together with the Law of the Sea
Tribunal, the ad hoc International Criminal Tribunals for the Former Yugosla-
via and for Rwanda, and the internationalized criminal courts (for Cambodia,
East Timor, Kosovo and Sierra Leone), among others, coexist nowadays with the
International Court of Justice, serving the common cause of the realization of
justice at international level.
Furthermore, international organizations – starting with the United Na-
tions – have been seeking to reform or readjust themselves, in the light of their
principles and purposes, so as to exercise their functions more effectively, in face
of new challenges and calls for responding to the needs and aspirations of the
population. International Law has not remained indifferent to the situation of
human beings, to the human condition. Moreover, in historical perspective, one
can perceive in successive exercises of codification and progressive development
of International Law, in recent decades, moments of enlightenment, disclosing a
humanist outlook, endowing its corpus juris with an objective basis, contribut-
ing to its universalization, and giving expression to the opinio juris communis,
emanated ultimately from the conscience of the members of the international
community of our times.
III. Epilogue: A Message of Confidence

More than an epoch of transformation, we live in a transformation of epoch. The
recent cycle of U.N. World Conferences along the nineties and by the turn of the
century has produced the international agenda of this beginning of the XXIst cen-
tury, and has reassessed many issues which affect humankind as a whole. It has
conducted a dialogue at universal level. It has drawn attention to the conditions
of life of all people everywhere, and to special needs of protection in particular
of vulnerable groups and the poorer segments of the population. It has identified
the needs and aspirations of the international community as a whole (comprising
States and other subjects of International Law, including humankind itself). It
has placed peoples and human beings at the centre of international concerns, not
only to meet their basic needs, but also to foster their empowerment.
This contemporary universal dialogue has been conducted amidst the pro-
found crisis of values in which we live, demonstrating that there is reason for
hope and confidence in the future of International Law, moved ultimately by the
universal juridical conscience. This is the basic message that I wish to leave with
the new generations of scholars of the discipline: to foster the revitalization of the
very foundations and basic principles of contemporary International Law, bear-
ing witness of the expansion of international legal personality, with the primacy
of International Law over force, in the search of the realization of international
justice so as to leave a better world to our descendants.
This is my understanding, herein submitted in an ineluctable intergenera-
tional perspective. We can aspire to a better world, to start with, by learning
properly the lessons of the past. It has been in historical moments of crisis, such
as the one we currently witness and endure, that one has gathered energy and
found inspiration to endeavour to improve the human condition. Human con-
science does not capitulate in face of great adversities; quite on the contrary, it
awakens as to the pressing need to face new challenges and to construct a better
world. At the end of this study, I dare to express my own confidence that, being
faithful to the humanist and universalist vision of the founding fathers of our
discipline, the new generations of its scholars will succeed to keep on construct-
ing, in the years to come, to the benefit of our descendants, the new jus gentium
of this new century, the International Law for humankind.
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Table of Cases
I. Parts I-II (Chapters I-IV)

PCIJ, S.S. “Lotus” case (France vs. Turkey, 1927) p. 17
ICJ, Temple of Preah Vihear case (Cambodia vs, Thailand, 1962) p. 33
ICJ, first (atmospheric) Nuclear Tests cases (Australia and New pp. 34 (n.12), 43-44
Zealand vs. France, 1974) (n. 55), 79, 84
ICJ, Aegean Sea Continental Shelf case (Greece vs. Turkey, 1978) pp. 36, 43 (n. 55)
ICJ, Advisory Opinion on Namibia (1971) pp. 38, 82, 84
ECtHR, Marckx vs. Belgium case (1979) p. 38 (n. 31)
ECtHR, Airey vs. Ireland case (1979) p. 38 (n. 31)
ECtHR, Dudgeon vs. United Kingdom case (1981) p. 38 (n. 31)
IACtHR, Advisory Opinion on The Right to Information on Consu-
lar Assistance in the Framework of the Guarantees of the Due
Process of Law (1999) pp. 39 and 60 (n. 31)
IACtHR, Advisory Opinion on the Interpretation of the American
Declaration of the Rights and Duties of Man (1989) p. 39 (n. 34)
ECtHR, Tyrer vs. United Kingdom case (1978) p. 39 (n. 32)
ECtHR, Loizidou vs. Turkey case (Prel. Objs., 1995) p. 39 (n. 33)
ICJ, Anglo-Iranian Oil Company case (United Kingdom vs. Iran,
Prov. Measures, 1951) p. 41 (n. 46)
ICJ, Application of the Convention against Genocide case (Bosnia-
Herzegovina vs. Yugoslavia [Serbia and Montenegro], Prov. pp. 42 (n. 49), 43
Measures, 1993) (n. 55), 44 (n. 56)
ICJ, Breard case (Paraguay vs. United States, Prov. Measures, 1998) p. 42 (n. 49)
ICJ, LaGrand case (Germany vs. United States, Prov. Measures,
1999) p. 42 (n. 49)
ICJ, Fisheries Jurisdiction case (United Kingdom vs. Iceland, 1972) p. 43 (n. 55)
ICJ, Hostages (U.S. Diplomatic and Consular Staff in Teheran) case
(United States vs. Iran, 1979) p. 43 (n. 55)
ICJ, Nicaragua vs. United States case (Prel. Objs., 1984) p. 43 (n. 55)
694 Table of Cases
ICJ, Frontier Dispute case (Burkina Faso vs. Mali, 1986) pp. 43 (n. 55), 44
(n. 56)
ICJ, Trial of Pakistani Prisoners of War (Pakistan vs. India, 1973) p. 44 (n. 55)
ICJ, Land and Maritime Boundary case (Cameroon vs. Nigeria,
Prov. Measures, 1996) p. 44 (n. 56)
ICJ, Armed Activities on the Territory of the Congo case (Congo vs.
Uganda, Prov. Measures, 2000) p. 44 (n. 56)
ICJ, Application of the Convention on the Elimination of All Forms
of Racial Discrimination case (Georgia vs. Russia, Prov. Mea-
sures, 2008) p. 44 (n. 56)
IACtHR, Community of Peace of San José of Apartadó vs. Colombia
case (Prov. Measures, 2000-2005) pp. 44-45
IACtHR, Haitians and Dominicans of Haitian Origin vs. Domini-
can Republic case (Prov. Measures, 2000-2001) pp. 44 (n. 58), 45
IACtHR, Indigenous People Kankuamo vs. Colombia case (Prov.
Measures, 2004) p. 45
IACtHR, Communities of the Jiguamiandó and of the Curbaradó
vs. Colombia case (Prov. Measures, 2003-2005) p. 45 (ns. 60 and 63)
IACtHR, Indigenous People Sarayaku vs. Ecuador case (Prov. Mea-
sures, 2004) p. 45 (ns. 60 and 64)
ECtHR, Ocalan vs. Turkey case (Prov. Measures, 1999) pp. 45-46
ECtHR, Cruz Varas and Others vs. Sweden case (1991) p. 45 (n. 65)
ITLS, Southern Bluefin Tuna cases (New Zealand and Australia vs.
Japan, 1999) pp. 46-47
ITLS, M/V Saiga case (Saint Vincent and the Grenadines vs. Guin-
ea, 1998) p. 46 (ns. 67-68)
ITLS, Mox Plant case (Ireland vs. United Kingdom, 2001) p. 46 (n. 67)
IACtHR, Advisory Opinion on the Juridical Condition and the pp. 56 (n. 6), 60
Rights of Undocumented Migrants (2003) (n. 31), 88
IACtHR, Advisory Opinion on the Juridical Condition and Human
Rights of the Child (2002) p. 60 (n. 31)
IACtHR, Five Pensioners vs. Peru case (2003) p. 60 (n. 31)
ICJ, Advisory Opinion on the Western Sahara (1975) pp. 75, 82, 84
ICJ, Nicaragua vs. United States case (Merits, 1986) pp. 80, 92, 109
(n. 103)
ICJ, Corfu Channel case (United Kingdom vs. Albania, 1949) pp. 80, 91
ICJ, East Timor case (Portugal vs. Australia, 1995) pp. 81-82, 84 (n. 161)
ICJ, Certain Phosphate Lands case (Nauru vs. Australia, 1992) p. 84
Arbitral Tribunal, Maritime Delimitation case (Guinea vs. Guinea-
Bissau, 1983) p. 83
Arbitration, Island of Palmas case (United States vs. Netherlands,
1928) pp. 32, 38 (n. 27)
Negotiation, Cuban Missile Crisis case (1961-1962) p. 94
Negotiation, Armed Conflicts in Central America case (1989-1994) pp. 58-59
Table of Cases 695
II. Part III (Chapters V-VI)

PCIJ, S.S. “Lotus” case (France vs. Turkey, 1927) pp. 116, 136, 147
ICJ, Asylum case (Colombia vs. Peru, 1950) p. 117
ICJ, North Sea Continental Shelf cases (Denmark and The Nether- pp. 119, 127-128
lands vs. F.R. Germany, 1969) (n. 81), 147
ICJ, Continental Shelf case (Libya vs. Malta, 1985) p. 119
ICJ, Advisory Opinion on Threat or Use of Nuclear Weapons (1996) pp. 119, 130-131,
152-153
PCIJ, “Wimbledon” case (Germany vs. France and Others, 1923) p. 119
ICJ, Advisory Opinion on the Western Sahara (1975) p. 130
ICJ, Advisory Opinion on Judgments of the Administrative Tribu-
nal of the ILO upon Complaints Made against UNESCO (1956) p. 130 (n. 97)
ICJ, Advisory Opinion on Certain Expenses of the United Nations
(1962) p. 130 (n. 97)
ICJ, Advisory Opinion on Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory (2004) p. 131
PCIJ, Advisory Opinion on the Status of Eastern Carelia (1923) p. 132
ICJ, Advisory Opinion on the Interpretation of Peace Treaties (1950) p. 132
ICJ, Advisory Opinion on Namibia (1971) p. 132
ICJ, Nicaragua vs. United States case (Merits, 1986) pp. 132-133
ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine
Area case (Canada vs. United States, 1984) p. 133
IACtHR, Advisory Opinion on The Right to Information on Con-
sular Assistance in the Framework of the Guarantees of the pp. 153 (n. 61), 159
Due Process of Law (1999) (n. 91)
IACtHR, Haitians and Dominicans of Haitian Origin vs. Domini- pp. 153 (n. 61), 159
can Republic case (Prov. Measures, 2000) (n. 91)
IACtHR, Bámaca Velásquez vs. Guatemala case (Merits, 2000) pp. 153 (n. 61), 159
(n. 91)
IACtHR, Advisory Opinion on the Juridical Condition and Rights
of Undocumented Migrants (2003) p. 159 (n. 91)
III. Part IV (Chapters VII-XI)

PCIJ, Advisory Opinion on Nationality Decrees in Tunis and Mo-
rocco (1923) pp. 172-173, 176
ICJ, Advisory Opinion on Reparations for Injuries (1949) pp. 178, 185-186, 193,
196
ICJ, Advisory Opinion on Interpretation of the Agreement of 1951
between the WHO and Egypt (1980) p. 187
ICJ, Advisory Opinion on the Legal Consequences of the Construc-
tion of a Wall in the Occupied Palestinian Territory (2004) pp. 190-191
ICJ, Lockerbie cases (Libya vs. United Kingdom, 1992) p. 204
IACtHR, Castillo Petruzzi and Others vs. Peru case (Prel. Objec- pp. 232 (n. 88), 252-
tions, 1998) 253, 254, 267 (n. 81)
696 Table of Cases
IACtHR, “Street Children” (Villagrán Morales and Others) vs. Gua-

temala case (Merits, 1999) pp. 232 (n. 90), 237
IACtHR, Advisory Opinion on The Right to Information on Con- pp. 233, 237-238,
sular Assistance in the Framework of the Guarantees of the 263-264, 267 (n. 81),
Due Process of Law (1999) 278
Rights of the Child (2002) p. 233
ICJ, Adv. Opinion on Reparations for Injuries (1949) p. 233 (n. 95)
IACtHR, Community Mayagna (Sumo) Awas Tingni vs. Nicaragua
(2001) p. 238 (n. 115)
of Undocumented Migrants (2003) p. 239
ICJ, Nottebohm case (Liechtenstein vs. Guattmala case, 1955) p. 245 (n. 13)
ICJ, Application of the Convention of 1902 Governing the Guardian-
ship of Infants case (The Netherlands vs. Sweden, 1958) p. 245 (n. 13)
ICJ, Trial of Pakistani Prisoners of War case (Pakistan vs. India,
1973) p. 245 (n. 13)
ICJ, Hostages (U.S. Diplomatic and Consular Staff ) in Teheran case
(United States vs. Iran, 1980) p. 245 (n. 13)
ICJ, East Timor case (Portugal vs. Australia, 1995) p. 245 (n. 13)
Herzegovina vs. Yugoslavia [Serbia and Montenegro], Prel.
Objections, 1996) pp. 245-246 (n. 13)
ICJ, Breard case (Paraguay vs. United States, 1998) p. 246 (n. 13)
ICJ, LaGrand case (Germany vs. United States, 2001) p. 246 (n. 13)
ICJ, Avena case (Mexico vs. United States, 2004) p. 246 (n. 13)
EComHR, Scientology Kirche Deutschland e.V. vs. Germany case
(1997) p. 249 (n. 26)
ECtHR, Norris vs. Ireland case (1988) p. 249
EComHR, Greek Federation of Customs Officials, N. Gialouris, G.
Christopoulos, and 3333 Other Customs Officials vs. Greece
case (1995) p. 249 (n. 26)
EComHR, K. Sygonnis, I. Kotsis and Police Union vs. Greece case
(1994) p. 249 (n. 26)
EComHR, Association of Air Pilots of the Republic, J. Mata et al. vs.
Spain case (1985) p. 249 (n. 26)
IACtHR, Constitutional Tribunal vs. Peru case (Competence, 1999) pp. 253-254
IACtHR, I. Bronstein vs. Peru case (Competence, 1999) pp. 253-254
IACtHR, Brothers Gómez Paquiyauri vs. Peru case (Merits, 2004) pp. 254-255, 270
(n. 92)
IACtHR, Hilaire, Benjamin and Constantine vs. Trinidad and To-
bago case (Prel. Objections, 2001) p. 254 (n. 40)
IACtHR, Castillo Páez vs. Peru case (Prel. Objections, 1996) pp. 255 (n. 44), 267
(n. 81)
Table of Cases 697
IACtHR, Loayza Tamayo vs. Peru case (Prel. Objections, 1996) pp. 255 (n. 44), 267
(n. 81)
ECtHR, Lawless vs. Ireland case (1960) pp. 256-257, 261
ECtHR, Vagrancy vs. Belgium cases (1970) p. 256
ACtHR, Loizidou vs. Turkey case (Prel.Objs., 1995) p. 257
IACtHR, El Amparo vs. Venezuela case (Reparations, 1996) pp. 261-262
IACtHR, Godínez Cruz and Velásquez Rodríguez vs. Honduras pp. 261 (n. 65), 262
cases (Reparations, 1989) (n. 68)
IACtHR, Constitutional Tribunal vs. Peru case (Prov. Measures,
2000) p. 264
IACtHR, Loayza Tamayo vs. Peru case (Prov. Measures, 2000) p. 264
IACtHR, Five Pensioners vs. Peru case (2003) pp. 269-270, p. 278
(n. 15)
IACtHR, Constitutional Tribunal vs. Peru case (Merits, 2001) p. 270 (n. 95)
IACtHR, Ivcher Bronstein vs. Peru case (Merits, 2001) p. 270 (n. 95)
IACtHR, Baena Ricardo and Others vs. Panama case (Merits, 2001) p. 270 (n. 95)
IACtHR, Blake vs. Guatemala case (Merits, 1998) p. 271 (n. 99)
IACtHR, Bámaca Velásquez vs. Guatemala case (Merits, 2000) p. 271 (n. 99)
IACtHR, “Street Children” (Villagrán Morales and Others) vs. Gua-
temala case (Reparations, 2001) pp. 271-272
IACtHR, Myrna Mack Chang vs. Guatemala case (2003) p. 271 (n. 99)
ECtHR, Hornsby vs. Greece case (Merits, 1997) p. 273
ICTR, J.-P. Akayesu case (1998) p. 277
ICTR, J. Kambanda case (1998)` p. 277
ICJ, Advisory Opinion on Reservations to the Convention against
Genocide (1951) pp. 278, 281
IACtHR, Massacre of Plan de Sánchez vs. Guatemala case (Merits,
2004) p. 278 (n. 10)
IACtHR, Advisory Opinion on the Juridical Condition and Rights pp. 264, 278 (n. 10),
of Undocumented Migrants (2003) 279
Rights of the Child (2002) pp. 278 (n. 15), 287
ICTFY (Appeals Chamber), Mucić et alii case (2001) p. 279
ICTFY (Trial Chamber), Celebici case (1998) p. 280
ICTFY (Trial Chamber), T. Blaskić case (2000) p. 280
ICTFY, Tadić case (1997) p. 285
ICTFY, Erdemović case (1996) p. 285
Negotiation, Aaland Islands case (Finland vs. Sweden, 1920-1921) p. 172 (n. 30)
Negotiation, Expulsion of the Oecumenical Patriarch case (Greece
vs. Turkey, 1925-1926) p. 172 (n. 30)
IV. Part V (Chapters XII-XV)

IACTHR, Advisory Opinion on the Juridical Condition and Rights pp. 292 (n. 1), 295,
of Undocumented Migrants (2003) 297, 301-302, 317
698 Table of Cases
PCIJ, Oscar Chinn case (United Kingdom vs. Belgium, 1934) p. 292 (n. 1)
Genocide (1951) pp. 294, 298
IACtHR, Cantoral Benavides vs. Peru case (Merits, 2000) pp. 297, 299-300
IACtHR, Maritza Urrutia vs. Guatemala case (2003) pp. 297, 300
IACtHR, Brothers Gómez Paquiyauri vs. Peru case (2004) pp. 297, 300, 303
(n. 43)
IACtHR, Tibi vs. Ecuador case (2004) pp. 297, 300, 303
(n. 43)
ICTFY (Trial Chamber), Furundzija case (1998) pp. 297, 301 (n. 40)
ICTFY (Trial Chamber), Jelisić case (1999) p. 297
ICTFY (Trial Chamber), A .Kupreski and Others case (2000) pp. 297, 321
ICTFY (Trial Chamber), Kunarac case (2001) p. 297
ICTFY (Trial Chamber), Krstić case (2001) p. 297
ICTFY (Trial Chamber II), Simić case (2002) p. 297
Objections, 1996) pp. 298, 313
ICJ, Advisory Opinion on Namibia (1971) p. 298 (n. 25)
IACtHR, Blake vs. Guatemala case (Prel. Objections, 1996) p. 300
IACtHR, Hilaire vs. Trinidad and Tobago case (2001) p. 300
IACtHR, Barrios Altos vs. Peru case (2001) p. 300
IACtHR, Sisters Serrano Cruz vs. El Salvador case (2004) p. 300
IACtHR, Baldeón García vs. Peru case (2006) pp. 301, 303
IACtHR, Caesar vs. Trinidad and Tobago case (2005) pp. 301, 303 (n. 43)
ECtHR, Soering vs. United Kingdom case (1989) p. 301 (n. 40)
sular Assistance in the Framework of the Guarantees of the
Due Process of Law (1999) pp. 302, 307 (n. 56)
IACtHR, Massacre of Plan de Sánchez vs. Guatemala case (2004) pp. 302-303 (n. 43),
367-369, 372-373,
379, 381 (n. 56), 389
IACtHR, Yatama vs. Nicaragua case (2005) p. 303 (n. 43)
IACtHR, Acosta Calderón vs. Ecuador case (2005) p. 303 (n. 43)
IACtHR, Massacres of Ituango vs. Colombia case (2006) p. 303 (n. 43)
IACtHR, López Alvarez vs. Honduras case (2006) p. 303
IACtHR, Ximenes Lopes vs. Brazil case (2006) p. 303 (n. 43)
IACtHR, Indigenous Community Sawhoyamaxa vs. Paraguay case
(2006) pp. 303 (n. 45), 307
IACtHR, Massacre of Pueblo Bello vs. Colombia case (2006) p. 303
IACtHR, Goiburú and Others vs. Paraguay case (2006) pp. 303-304, 305-
306
IACtHR, La Cantuta vs. Peru case (2006) pp. 304-305, 307
(n. 56)
Table of Cases 699
IACtHR, Almonacid Arellano vs. Chile case (2006) pp. 305-306

IACtHR, Institute of Rehabilitation of Minors vs. Paraguay case
(2004) p. 306
IACtHR, Indigenous Community Yakye Axa vs. Paraguay case
(2006) p. 307
IACtHR, Prison of Castro Castro vs. Peru case (2008) pp. 307-308, 309
(n. 65)
IACtHR, Barrios Altos vs. Peru case (2001) p. 307 (n. 56)
IACtHR, 19 Tradesmen vs. Colombia case (2004) pp. 307 (n. 56), 367,
372-373, 379, 389
IACtHR, Massacre of Mapiripán vs. Colombia case (2005) pp. 307 (n. 56), 319
(n. 103), 367, 369,
372-373, 379, 389
IACtHR, Moiwana Community vs. Suriname case (2005) pp. 307 (n. 56), 367,
372-373, 379, 389
IACtHR, Montero Aranguren and Others (Retén de Catia) vs. Ven-
ezuela case (2006) p. 307 (n. 56)
ICJ, Barcelona Traction case (Belgium vs. Spain, 1970) p. 313
ICJ, first (atmospheric) Nuclear Tests cases (Australia and New
Zealand vs. France, 1974) p. 313
ICJ, Nicaragua vs. United States case (Merits, 1986) p. 313
ICJ, East Timor case (Portugal vs. Australia, 1995) pp. 313-314
ICJ, Northern Cameroons case (Cameroons vs. United Kingdom,
1963) p. 313
ICJ, South West Africa case (Ethiopia and Liberia vs. South Africa,
1966) pp. 313, 322
ICJ, Advisory Opinion on Threat or Use of Nuclear Weapons (1996) p. 313
ICJ, Advisory Opinion on Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory (2004) p. 314
ECtHR, Ireland vs. United Kingdom case (1976-1978) p. 316
IACtHR, Blake vs. Guatemala case (Merits, 1998) pp. 298 (n. 26), 317
(n. 96), 319 (n. 101)
IACtHR, Blake vs. Guatemala case (Reparations, 1999) p. 319 (n. 101)
IACtHR, Las Palmeras vs. Colombia case (Prel. Objections, 2000) pp. 319 (n. 103), 325
(n. 120)
IACtHR, Community of Peace of San José of Apartadó vs. Colombia pp. 319 (n. 103), 326
case (Prov. Measures, 2002) (n. 120)
IACtHR, Community of the Jiguamiandó and of the Curbaradó vs. pp. 319 (n. 103), 326
Colombia case (Prov. Measures, 2003) (n. 120)
IACtHR, Prison of Urso Branco vs. Brazil case (Prov. Measures, pp. 319 (n. 103), 326
2004) (n. 120)
IACtHR, Indigenous People of Sarayaku vs. Ecuador case (Prov. pp. 322 (n. 112), 326
Measures, 2005) (n. 120)
700 Table of Cases
IACtHR, Indigenous People of Kankuamo vs. Colombia case (Prov.

Measures, 2004) p. 326 (n. 120)
IACtHR, Television Broadcasting Company ‘Globovisión’ vs. Ven-
ezuela case (Prov. Measures, 2004) p. 326 (n. 120)
IACtHR, Myrna Mack Chang vs. Guatemala case (2003) pp. 367-368, 372-
373, 379, 381 (n. 57),
389
IACtHR, Paniagua Morales and Others vs. Guatemala case (1998) p. 370
IACtHR, Loayza Tamayo vs. Peru case (1998) p. 371 (n. 16)
IACtHR, Castillo Páez vs. Peru case (1998) p. 371 (n. 16)
IACtHR, “Street Children” (Villagrán Morales and Others) vs. Gua- pp. 371 (n. 16), 382
temala case (Reparations, 2001) (n. 58)
IACtHR, Cesti Hurtado vs. Peru case (2001) p. 371 (n. 16)
IACtHR, Cantoral Benavides vs. Peru case (Reparations, 2001) pp. 371 (n. 16), 382
(n. 58)
IACtHR, Bámaca Velázquez vs. Guatemala case (2002) p. 371 (n. 16)
IACtHR, Trujillo Oroza vs. Bolivia case (2002) pp. 371 (n. 16), 382
(n. 58)
IACtHR, “The Last Temptation of Christ” (Olmedo Bustos and Oth-
ers) vs. Chile case (2001) p. 372
IACtHR, Juan Humberto Sánchez vs. Honduras case (2003) p. 371 (n. 16)
IACtHR, Bulacio vs. Argentina case (2003) pp. 371 (n. 16), 388
IACtHR, Aloeboetoe vs. Suriname case (1993) p. 382 (n. 58)
IACtHR, Barrios Altos vs. Peru (2001) pp. 382 (n. 58), 388
IACtHR, Durand and Ugarte vs. Peru (2001) p. 382 (n. 58)
ICTFY (Trial Chamber and Appeals Chamber), Tadić case (1995) p. 387
ICTFY (Trial Chamber), Erdemović case (1996) p. 387
V. Part VI (Chapters XVI-XXIII)

ICJ, Corfu Channel case (United Kingdom vs. Albania, 1949) pp. 395-396
ICJ, Advisory Opinion on Reservations to the Convention against pp. 395, 435, 437
Genocide (1951) (ns. 19 and 21),
443-444
ICJ, Nicaragua vs. United States case (1986) pp. 395-396
ITLOS, M/V Saiga case (1999) p. 396
sular Assistance in the Framework of the Guarantees of the pp. 396-397, 432,
Due Process of Law (1999) 497-508
IACtHR, Advisory Opinion on the Juridical Condition and Rights pp. 396-397, 432,
of Undocumented Migrants (2003) 446 (n. 60), 451
(n. 72), 500, 508,
508-509 (n. 75), 519
ICJ, first (atmospheric) Nuclear Tests cases (Australia and New
Zealand vs. France, 1974) pp. 414-416
Table of Cases 701
ICJ, second (underground) Nuclear Tests case (New Zealand vs.

France, 1995) pp. 414-416
ICJ, Barcelona Traction case (Belgium vs. Spain, 1970) p. 415
ICJ, Advisory Opinion on the Threat or Use of Nuclear Weapons pp. 416-419, 420-
(1996) 421, 423-424
ICJ, Advisory Opinion on Reparations for Injuries (1949) p. 422 (n. 119)
Genocide (1951) pp. 422-423 (n. 119)
ICJ, Advisory Opinion on Namibia (1971) p. 423 (n. 119)
PCIJ, S.S.“Lotus” case (France vs. Turkey, 1927) pp. 426-427
IACtHR, Blake vs. Guatemala case (Reparations, 1999) p. 431
ECtHR, Ringeisen vs. Austria case (1971) p. 431
ECtHR, König vs. F.R. Germany case (1978) p. 431
ECtHR, Le Compte vs. Belgium case (1981-1983) p. 431
IACtHR, Advisory Opinion on The Word “Laws” in Article 30 of the
American Convention on Human Rights (1986) p. 431
HRC, Van Duzen vs. Canada case (1982) p. 431
IACtHR, Advisory Opinion on the Interpretation of the American
Declaration on the Rights and Duties of Man (1989) pp. 431-432 (n. 7)
IACtHR, “Street Children” (Villagrán Morales and Others) versus
Guatemala case (Merits, 1999) pp. 432 (n. 7), 434
IACtHR, Cantoral Benavides vs. Peru case (Merits, 2000) p.432 (n. 7)
IACtHR, Bámaca Velásquez vs. Guatemala case (Merits, 2000) p.432 (n. 7)
IACtHR, Community Mayagna (Sumo) Awas Tingni vs. Nicaragua
case (2001) p.432 (n. 7)
IACtHR, Bámaca Velásquez vs. Guatemala case (Reparations,
2002) p.432 (n. 7)
ECtHR, Wemhoff vs. F.R. Germany case (1968-1969) p.432 (n. 8)
ECtHR, Belgian Linguistics case (1968) p.432 (n. 8)
ECtHR, Golder vs. United Kingdom case (1975) p.432 (n. 8)
ECtHR, Ireland vs. United Kingdom case (1978) pp. 432 (n. 8), 435
ECtHR, Soering vs. United Kingdom case (1989) p. 432 (n. 8)
ECtHR, Loizidou vs. Turkey case (Prel. Objections, 1995) pp. 432 (n. 9), 434
ECtHR, Belilos vs. Switzerland case (1988) pp. 434, 439
ECtHR, I. Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa vs. Moldo-
via and the Russian Federation case (2001) p. 434
IACtHR, Constitutional Tribunal vs. Peru case (Competence, 1999) p. 434
IACtHR, Ivcher Bronstein vs. Peru case (Competence, 1999) p. 434
IACtHR, Hilaire, Constantine and Benjamin and Others vs. Trini-
dad and Tobago cases (Prel. Objections, 2001) p. 434
702 Table of Cases
IACtHR, Barrios Altos vs. Peru case (2001) p. 434

IACtHR, Bulacio vs. Argentina case (2003) p. 434
ECtHR, Greek case (1967-1970) p. 435
HRC, I.Gueye et alii vs. France case (1989) p. 439
IACtHR, Advisory Opinion on Restrictions to the Death Penalty
(1983) p. 439 (n. 29)
IACtHR, Advisory Opinion on the Effect of Reservations on the En-
try into Force of the American Convention (1982) p. 439 (n. 29)
ECtHR, Weber vs. Switzerland case (1990) p. 439 (n. 28)
IACtHR, Hilaire, Constantine and Benjamin and Others vs. Trini-
dad and Tobago cases (2001-2002) p. 447
IACtHR, Brothers Gómez Paquiyauri vs. Peru case (2004) p. 451 (n. 72)
PCIJ, Certain German Interests in Polish Upper Silesia case (Ger-
many vs. Poland, 1926) p. 457
PCIJ, Advisory Opinion on German Settlers in Poland (1923) p. 457
ECtHR, Klass and Others vs. F.R. Germany case (1978) p. 457 (n. 22)
ECtHR, Johnston and Others vs. Ireland case (1986) p. 457 (n. 22)
ECtHR, Silver and Others vs. United Kingdom case (1983) p. 457 (n. 22)
ECtHR, De Jong, Baljet and van den Brink vs. The Netherlands case
(1984) p. 457 (n. 22)
ECtHR, Malone vs. United Kingdom case (1984) p. 457 (n. 22)
ECtHR, Norris vs. Ireland case (1988) p. 457 (n. 22)
IACtHR, “The Last Temptation of Christ” (Olmedo Bustos and Oth- pp. 457-458 (n. 22),
ers) vs. Chile case (2001) 461
IACtHR, Suárez Rosero vs. Ecuador case (1997-1999) p. 458 (n. 22)
IACtHR, Loayza Tamayo vs. Peru case (1997-1998) p. 458 (n. 22)
IACtHR, Castillo Petruzzi and Others vs. Peru case (1998-1999) p. 458 (n. 22)
HRC, Aumeeruddy-Cziff ra and Others vs. Mauritius case (1981) p. 458 (n. 23)
HRC, Handicapped Italians vs. Italy case (1984) p. 458 (n. 23)
HRC, J. Ballentyne, E. Davidson and G. McIntyre vs. Canada case
(1993) p. 458 (n. 23)
HRC, N. Toonen vs. Australia case (1994) p. 458 (n. 23)
AfComHPR, Constitutional Rights Project vs. Nigeria cases (1994) p. 458 (n. 23)
ICTFY (Appeals Chamber), Celebici case (2001) pp. 475-476
ICTFY (Appeals Chamber), Tadić case (Jurisdiction, 1997) p. 476 (n. 27)
Objections, 1996) p. 475 (n. 26)
ICJ, Advisory Opinion on the Western Sahara (1975) p. 481
ICJ, Advisory Opinion on the International Status of South West
Africa (1950) p. 483
Table of Cases 703
ICJ, Advisory Opinion on Voting Procedure on Questions Relating

to Reports and Petitions Concerning South West Africa (1955) p. 483 (n. 18)
ICJ, Advisory Opinion on Admissibility of Hearings of Petitioners
by the Committee on South West Africa (1956) p. 483 (n. 19)
(United States vs. Iran, 1979-1980) pp. 494-496
ICJ, A. Sadio Diallo case (Guinea vs. D.R. Congo, Prel. Objections,
2007) p. 496 (n. 16)
ICJ, LaGrand case (Germany vs. United States, 2001) pp. 500-503, 507
ICJ, Avena and Other Mexican Nationals (Mexico vs. United
States, 2004) pp. 501,507
ICJ, Breard case (Paraguay vs. United States, Prov. Measure, 1998) pp. 506-507
Due Process of Law (1999) p. 519
IACtHR, Haitians and Dominicans of Haitian Origin in the Do-
minican Republic case (Prov. Measures, 2000) p. 521
ECtHR, Soehring vs. United Kingdom case (1989) p. 522
ECtHR, Vilvarajah vs. United Kingdom case (1991) p. 522
CAT, Mutombo vs. Switzerland case (1994) p. 522
ECtHR, Monstaquim vs. Belgium case (1991) p. 522 (n. 51)
ECtHR, Beldjoudi vs. France case (1992) p. 522 (n. 51)
ECtHR, Djeroud vs. France case (1991) p. 522 (n. 51)
ECtHR, Lamguindaz vs. United Kingdom case (1992-1993) p. 522 (n. 51)
IACtHR, Las Palmeras vs. Colombia case (Prel. Objections, 2000) p. 524
ECtHR, Ireland vs. United Kingdom case (1981) p. 524 (n. 63)
HRC, Hong Kong (continuity of obligations) case (1996-1997) pp. 472-474
HRC, Former Yugoslavia (continuity of obligations) case (1992-
1993) pp. 473-475
District Court of Tokyo, Shimoda and Others vs. Japan case (1963) pp. 425-426, 427
Arbitration, Island of Palmas case (Netherlands vs. United States,
1925) pp. 459-460
Council of Europe, Legal Opinion on the Minsk Convention / Com-
monwealth of Independent States (CIS) case (1995) pp. 470-471, 527
Negotiation, Cuban Missiles Crisis case (1962) p. 406
VI. Parts VII-VIII (Chapters XXIV-XXVIII)

ICJ, Nicaragua vs. United States case (Jurisdiction and Admissibil-
ity, 1984) pp. 534, 535 (n. 23)
ICJ, Aegean Sea Continental Shelf case (Greece vs. Turkey, 1978) p. 534
ICJ, Land and Maritime Boundary case (Cameroon vs. Nigeria,
Prel. Objections, 1998) pp. 534, 535 (n. 23)
ICJ, North Sea Continental Shelf cases (Denmark and The Nether-
lands vs. F.R. Germany, 1969) p. 535
704 Table of Cases

(United States vs. Iran, 1980) p. 535
ICJ, Frontier Dispute case (Burkina Faso vs. Mali, 1986) p. 543
PCIJ, Advisory Opinion on the Compatibility of Certain Decree-
Laws of Danzig with the Constitution of the Free City of Danzig
(1935) pp. 546-547
ICJ, Advisory Opinion on the Obligation to Arbitrate by Virtue of
Section 21 of the 1947 U.N. Headquarters Agreement (1988) p. 567
ICJ, Norwegian Loans case (France vs. Norway, 1957) p. 572 (n. 20)
ECtHR, Loizidou vs. Turkey case (Prel. Objections, 1995) pp. 574, 581, 590
(n. 81)
EComHR, Chrysostomos et alii vs. Turkey (1991) p. 574 (n. 24)
EComHR, Belgian Linguistics case (1966-1967) p. 574 (n. 24)
EComHR, Kjeldsen, Busk Madsen and Pedersen vs. Denmark cases
(1976) p. 574 (n. 24)
ECtHR, Belilos vs. Switzerland case (1988) pp. 574 (n. 26), 578
(n. 36), 590 (n. 81)
ICJ, Fisheries Jurisdiction case (Spain vs. Canada, 1998) p. 574 (n. 26)
IACtHR, Constitutional Tribunal vs. Peru case (Competence, 1999) pp. 575, 581, 590
(n. 82)
IACtHR, Ivcher Bronstein vs. Peru case (Competence, 1999) pp. 575, 581, 590
(n. 82)
IACtHR, Castillo Petruzzi and Others vs. Peru case (Prel. Objec-
tions, 1998) p. 575 (n. 27)
IACtHR, Hilaire vs. Trinidad and Tobago case (Prel. Objections, pp. 576-579, 581-
2001) 582, 590 (n. 82)
IACtHR, Blake vs. Guatemala case (Reparations, 1999) pp. 579, 581 (n. 48)
ICJ, Arbitral Award of the King of Spain of 1906 case (Honduras vs.
Nicaragua, 1960) p. 579 (n. 39)
Due Process of Law (1999) p. 589 (n. 78)
of Undocumented Migrants (2003) p. 589 (n. 78)
ECtHR, I.Ilascu, A. Lesco, A. Ivantoc and T. Petrov-Popa vs. Moldo-
via and the Russian Federation case (2001) p. 590 (n. 81)
Arbitration, Lac Lanoux case (France vs. Spain, 1957) pp. 540, 543 (n. 63)
Arbitration, Algeria vs. Morocco case (1962) pp. 533, 540
Arbitration, Rann of Kutch case (India vs. Pakistan, 1968) p. 540
Arbitration, Delimitation of the Continental Shelf case (United
Kingdom vs. France, 1977) p. 540
Table of Cases 705
Arbitration, Dubai/Sharjah Boundary case (1981) p. 540

Arbitration, Maritime Delimitation case (Guinea vs. Guinea-Bis-
sau, 1985) p. 540
Arbitration, La Bretagne case (Canada vs. France, 1986) p. 540
Arbitration, Taba case (Egypt vs. Israel, 1988) p. 540
Arbitration, Maritime Delimitation case (Guinea-Bissau vs. Sen-
egal, 1989) p. 540
Arbitration, St. Pierre and Miquelon case (Canada vs. France, 1992) p. 540
Arbitration, Laguna del Desierto case (Argentina vs. Chile, 1994-
1995) p. 540, 553
Arbitration, Behring Sea Fur Seals case (United Kingdom vs. Unit-
ed States, 1893) p. 543 (n. 63)
Arbitration, Southern Bluefin Tuna case (Australia and New Zea-
land vs. Japan, 1993-2000) p. 548
Mediation, Beagle Channel case (Argentina vs. Chile, 1977-1984) pp. 533, 538-540, 553
Mediation, El Salvador vs. Honduras case (1980) pp. 538, 548
Conciliation, Mali vs. Haute Volta case (1975) p. 543
Good-offices, Central American Crisis case (1983-1987) pp. 549-550
Good-offices, Ecuador vs. Peru case (1994-1998) pp. 550-552
Fact-finding, Institutional Crisis of Nicaragua case (1993-1994) pp. 546-547
Fact-finding, Red Crusader case (Denmark vs. United Kingdom,
1961-1962) p. 537
Index
Actio popularis Bioethics

emergence of, 320-322 common heritage of humanity, 338
Roman law, in, 321 concept of, 336-339
African Court of Human and Peoples’ genetic heritage, rights and duties over,
Rights 337
individual right of direct access to, 264- law, evolving, 336
265 Universal Declaration on the Human
African Union Genome and Human Rights, 336-338
internal structure, 201 Biological weapons
international conventions, 192 repugnant use of, 152
Aggression Bynkershoek, Cornelius van, 216
U.N. definition 76
Ago, Roberto, 377-380, 458, 465-466 Cassin, René, 230
Alvarez, Alejandro, 630 Child
American Convention on Human Rights juridical condition and rights of, 233,
contentious jurisdiction, 575-578 237-238
Antarctica Cicero, M.T., 11-12, 102
common interests of international com- Common concern of mankind
munity, 485 common heritage of mankind, co-exist-
natural reserve, as, 485 ence of, 348-350
non-militarization, 484-486 concept of
peaceful uses of, 484-486 contribution of, 346-347
Treaty, 484-485 emergence of, 344-346
Protocol, 485 intention of, 351
Arbitral decisions origins, content, rationale and impli-
international criminal tribunals, of, 124 cations of, 345
source of international law, as, 123-124 proprietary connotations, avoiding,
Arbitration 347
settlement of disputes by, 539-540 growing interest of States in, 345
Armed force international Conventions, underlying,
prohibition of, 68-70 347
renunciation as instrument of national responsibilities, sharing, 351-352
policy, 89-91 universal solidarity and social responsi-
threat and use of, 95 bility, embodying, 349
Common good
Bello, Andrés, 227 pursuit of, 11-14
708 Index
Common heritage of mankind Cultural heritage

basic principles, 350 common heritage of mankind, concept
bioethics. See Bioethics of, 343
common concern of mankind, co-exist- destruction of, 341-342
ence of, 348-350 intangible, preservation of, 342-343
common good or interest underlying, preservation of, 341
328 Customary international law
concept, content and significance of, decolonization, proof at time of, 117
327-344 instant, 118
concept of, 641 norms of, 118
environmental law. See International position of, 115
environmental law treaties, in, 115
law of the sea. See Law of the sea
legislative history of, 332 de Vitoria, Francisco, 9-10, 13
outer space. See Outer space Debts
province of all mankind, and, 329 use of force for recovery of, 89
rationale, 351 Decolonization
responsibilities, sharing, 351-352 advent of, 47-48
scope, 328 customary international law, proof of,
universal solidarity and social responsi- 117
bility, embodying, 349 new States, emergence of, 158
Conciliation period of, 18
compulsory procedure, 542 Development
settlement of disputes by, 535-536, 542- human, conceptual construction of,
543, 565 361-363
Conscience right to
injustice and oppression, opposition to, African Charter, in, 358-359
141 crystallisation as human right, 360-361
juridical. See Juridical conscience crystallisation as human right, lessons
law emanating from, 291 from, 364-365
mankind, of, 281 elements of, 357-360
meanings attributable to, 142-143 existing rights, reinforcement of, 359
notion of, 142 formulation of, 357-363
Council of Europe human beings and peoples, perspec-
international conventions, 192 tive of, 358
Crime of State market forces, and, 360
configuration, 374-376 U.N. Declaration, 359
fundamental or superior interests of United Nations Development Pro-
international community, in relation gramme, 361-363
to, 377-379 Diplomatic and consular law
juridical consequences of, 379-383 basic considerations of humanity, 493-
punitive damages for, 381-383 509
reality of, 389 Central America, in, 505-507
reparations, 371, 380-383 codification, 495-496
systematic occurrences of, 382 consular assistance, right to information
Cultural diversity on, 497-501
common heritage of mankind, concept contemporary international practice,
of, 343 501-507
human rights, relevance to, 344 foreigner under detention, rights of, 498
universalism, and, 598-599 Hostages case, 494-495
Index 709
humanization, 501-507, 643 contemporary international law areas,

IACtHR, Advisory Opinion of, 497-501 in, 316
General Assembly, reference by, 501 crystallization of, 318
impact of, 507-508 emergence and scope of, 312-317
individual rights, opinio juris as to, 507 free exercise of rights. respect for, 319
inter-State outlook, beyond, 493-495 general duty as to, 322
Mexican nationals condemned to death grave breaches of, 326
in U.S., defence of, 503-504 horizontal and vertical dimensions,
trinational consular protection, Central 317-321
American States forming, 505 human beings, protection of, 318
universal international law, and, 495-496 human rights treaties, parties to, 315
Vienna Conventions, 493-494 humans and beneficiaries of, 325
Disarmament ICJ case-law, 313-314
biological weapons, 411 international community, owed by, 324
categories of weaponry, abolition, 411 international law, presence in, 323
general and complete, endeavour to- juridical recognition of, 641
wards, 410-413 jus cogens, and, 311
humanity, basic considerations 401-428 legal regime, 313, 315, 324
nuclear age, in, 401 protected rights, respect for, 325
nuclear weapons. See Nuclear weapons scope of, 316
treaties, 412-413, 418-419 self-determination, right to, 314
U.N. Conference, 412 European Convention on Human Rights
Doctrine compulsory jurisdiction, 584
humanity, basic considerations of, 398- European Court of Human Rights
399 admissibility requirement, 260
juridical conscience, invocation and as- case load, 589
sertion of, 153-156 contentious jurisdiction, optional clause
scope of, 126 of recognition of, 573-575
source of international law, as, 125-126 convergence of case law with IACtHR,
588
East Timor European Convention on Human
independent statehood of, 492 Rights, safeguarding integrity of, 581
protection of populations, centrality of, filtering of cases, 259
490-492 individuals
self-determination, 81 jus standi of, 269
transitional administration of 489-490 locus standi of, 256-260
Environmental law new, establishment of, 258
international, temporal dimension, 35 number of cases before, 259
Environmental protection provisional measures of protection, or-
international, 171 ders for, 45-46
Equity State behaviour, setting standards of,
individualized expression of justice, as, 590
127 treaties, interpretation, 431-432
source of international law, as, 127 universalist principles, assertion of, 587
Erga omnes obligations Eustathiades, Constantin, 228
actio popularis, emergence of, 320-322
breach, regulation of claims from, 453 Force, regulation of use of
common and superior interests, incor- authorization ex post facto, 96
porating, 326 colonial situations, in, 69
condemnation of, 109
710 Index
force, generating, 105 Hesse, Herman, 47, 106

implicit authorization, 96 Human rights
indiscriminate atrocities, 636-637
ending of, 88-89 basic foundation of legal order, as, 308
primitivism of, 108 cultural diversity, 598-599
international community, view of, 91 relevance of, 344
international law, primacy of declaration, Institut de Droit Interna-
armed attack on Iraq, and, 87-88 tional debates, 154
belief in, 87-92 development, to, crystallisation as, 360-
contemporary international law, as 361
cornerstone of, 93-97 lessons from, 364-365
humanitarian assistance, provision dignity of human beings, principle of
of, 101 respect for, 60
imperative of jus cogens, non-use as, evolution of public international law,
106-109 impact of law on, 500
interventions in, 93 framework, relevance of, 286
meaning and scope of term, 69-70 grave violations of, 277
military technique, effect of improve- absolute prohibition of, 323
ment of, 105 criminalization of, 234-235, 369-372
peaceful settlement of disputes, and, international community, as concern
555-556 of, 379, 389
principle of non-use, crystallization and reparations, 371, 380-383
continuing validity of, 87-92 State responsibility for, 368-369
prohibition, 68-70 systematic practices of, 376
fundamental principle, as, 92 human dignity safeguarding, 279
jus cogens, character of, 92 humanitarian law and refugee law, con-
recovery of debts, for, 89 vergence of regimes
self-defence. See Self-defence American content, in, 516-518
States, unilateral recourse by, 174 basic considerations of humanity,
threat of, 95 511-528
prohibition, 68-70 consolidated, 511-514
unwarranted, decivilizing effects of, developments in, 525
101-106 Europe, in, 515
identity of purpose, 511
Geneva Conventions intensification of, 514-518
denunciation 445-446 non-refoulement, principle of, 520-
derogation, prohibition, 221 524
grave breaches of, 385 norms, application of, 515
Genocide preventive dimension, 512
condemnation of, 215, 277 protection, law of, 525-526
Convention, 278, 385 uprootedness, contemporary problem
application of, 298 of, 518-520, 527
special characteristics of, 395 inalienability, 60-61
Gentili, Alberico, 215 individual petition, right of
Grotius, Hugo, 214 assessment of, 249
Guggenheim, Paul, 229 conditions governing, 249
European Convention, under, 250
Hague Conventions inter-American system, in, 250-255
Martens clause, historical significance juridical nature and scope of, 247-251
of, 150-152 inhuman treatment, meaning, 280
Index 711
international law obligations erga omnes partes, 315-317

emergence and consolidation of, 47 petitions, mechanism of, 316, 320-321
emergence and development of, 150 procedural issues, 433-434
specificity of, 433 reservations, 440, 443-445
international legal order, impact of law State responsibility, 460-461
on, 233 State succession to obligations, 472-
international responsibility, 455-456 476
international supervision, 513 substantive law, 434-435
international tribunals supervision, methods of, 317
case-law, evolution of, 38 termination and suspension of opera-
individuals, access of, 247 tion, 448-449
duty of, 576 uniform interpretation, 590
individual direct right of access undocumented migrants, 239, 302, 317
African system, in, 264-265 Universal Declaration, 60
developments in international law, 267- universalities, 598-599
268 World Conferences, 595-598, 601-602
domestic law antecedents, 266 Human security
subjective, 266 universal concern, as, 363
locus standi of individuals Humanitarian assistance
European system of protection, in, 256- basic needs of victims, and, 99
260 criterion for, 99
inter-American system of protection, in, diversification of sources, 100
261-264 emerging right to, 97-101
new outlook, 255 enhancement, need for, 98
life, right to, 421 Humanity
natural law, and, 225 basic considerations of, 642-643
norms, application of, 515 cultivation of, 399
obligations, natural law outlook contri- diplomatic and consular law, in rela-
bution to, 58 tion to, 493-509. See also Diplomatic
positive obligations of States, 320 and consular law
post-war emergence of law, 400 disarmament, in relation to, 401-428.
preventive dimension, 40 See also Disarmament
protection of human person regimes, human person, regimes of protection,
convergence of, 514-518 511-528
provisional measures, 43-45 international case-law, illustrations of,
treaties 395-397
denunciation, 446-447 international legal doctrine, illustra-
derogations, 433 tions of, 398-399
domestic law norms, harmonization law of the sea, and, 396
of, 460 nuclear-weapon-free zones, creation
effectiveness, principle of, 573 of, 405-409
integrity, preservation of, 435 omnipresence of, 395-399
international supervisory organs, relevance of, 393-394
methodology of, 451 State responsibility, in relation to,
interpretation, 430-432, 449-451 453-468. See also International re-
limitations, 433 sponsibility
living instruments, as, 38-39 state succession, in relation to, 469-
mutual reinforcement of, 590 477. See also State succession
object and purpose, consideration of, territory, in relation to, 479-492. See
579 also Territory
712 Index
treaties, law of, 429-451. See also Trea- international responsibility of State,
ties and, 367
considerations of, 280-281 reparations, 371
crimes against, 277, 284-285 State responsibility, complementarity,
grave nature of, 376 372-374
nuclear weapons, use of, 421 international criminal tribunals, before,
specificity, 375-376 234
war as, 630 international human rights tribunals
fundamental principle of, 276-280, 284 locus standi before
rights of, 142 European system of protection, in, 256-
Humankind 260
common law of mankind, 10, 285 new outlook, 255
creativity of, 159 right of direct access to
crises and disasters affecting, 159 African system, in,’ 264-265
dignity of human person, principle of developments in international law, 267-
respect for, 279 268
fundamental unity of, 10 domestic law antecedents, 266
humanity, considerations of, 280-281 subjective, 266
international law for, conceptual international instances of protection,
achievements, 291 access to, 230
meaning, 281 international justice, rights of access
needs and aspirations, law fulfilling, 50 lato sensu, 268-270, 272
opinions for, 396-397 international legal order
subject of international law, as, 350 alienation of, 221
emergence of, 640 attempted exclusion of, 217-219
capacity to act, 286-288 presence and participation of, 220-224
common and superior interests, per- international legal personality, 227
ceptions of, 275-276 accountability, 232, 236
emergence of, 281-285 assertion of, 273
human rights framework, relevance consolidation of, 235
of, 286 forceful assertion of, 238
legal consequences of acknowledge- need of international community, as
ment of, 286-288 response to, 232-234
legal representation, 286-288 international procedural capacity, 226
whole, as, 24 international tribunals, access to, 243-
world cultural patrimony of, 23-24 247
justice, right to obtain, 268-270
Indigenous peoples legal capacity, 640
rights, recognition of, 238-239 defence of rights, for, 245
Individuals human rights tribunals, access to, 247
attribution of duties to, 234-236 individual petition, juridical nature
defence of rights by, 271 and scope of right of, 247-251
diplomatic protection of, 226 International Court of Justice, proce-
duties, as subject of, 229 dural capacity before, 244-245
final subject of law, as, 228 international law experiments grant-
international access to justice, 236-239 ing, 246
international criminal responsibility, 235 legal foundations of, 243-247
affirmation and crystallization of, 370 present domain of protection, in, 273
determination of, 371 national society and inter-State society,
contraposition of, 227
Index 713
national tribunals, right of direct access fundamental values, safeguarding, 276

to, 266 grave violations of human rights, con-
norms of international law, participation cern of, 379, 389
in elaboration of, 240 interests of, State responsibility, 453-456
opinio juris communis, role in formation needs and aspirations of, 208-211
of, 222 objective law, guardian of, 282
own State, emancipation from, 251-255 State succession, general interests on,
rights and duties of, 226 471-472
subjects of international law, as, 165 universal values, 4
consolidation of, 213 International cooperation
denial, past attempts, 221 duty of, 72
direct exercise of rights, 231 growth of, 196-200
emerging law of nations, of, 213-217 International Court of Justice
exclusion from international legal or- erga omnes obligations of protection,
der, attempted, 217-219 development of, 313-314
historical significance of, 239-241 general principles of law
legal capacity. See legal capacity, above acknowledgement of, 62-65
presence and participation of, 220-224 international legal system, as pillars
reconstruction of law in recognition of, 63-65
of, 225 quest for justice, and, 62-63, 84-86
rescue of, 224-232 individuals, procedural capacity of, 244-
ultimate subjects of law, as, 237 245
victim, notion of, 271-272 inter-State character, 245-246
Inter-American Court of Human Rights international law applied by, 114
advisory procedure, 263-264 optional clause of compulsory jurisdic-
American Convention on Human tion
Rights, safeguarding integrity of, 581 acceptance of, 569-570
contentious jurisdiction, optional clause decline of, 572
of recognition of, 573, 575-578 effect of, 585
convergence of case law with ECtHR, formula, 570
588 ideal and practice of, 568-572
humankind, opinions for, 396-397 origins of, 569
individual petition, right of, 250-255 purpose of, 571
individuals reflections lex lata, 572-579
jus standi of, 269-270 States subject to, 571
locus standi of, 261-264 provisional measures, indication of,
juridical conscience, invocation of, 153 42-44
jus cogens, case-law on, 299-309 Statute, reference to sources of interna-
provisional measures of protection, 264 tional law, 113-128. See also Sources of
orders for, 44-45 international law
Rules of Court, 262-263 International crimes
State behaviour, setting standards of, concept of, 378
590 international community, reaction by,
universalist principles, assertion of, 587 466
victim, notion of, 271-272 International Criminal Court
International community compulsory jurisdiction, 584
erga omnes obligations owed by, 324 Statute
fundamental or superior interests, general principles of international
crime of State in relation to, 377-379 criminal law, setting out, 608
fundamental values of, 291-292
714 Index
individual international criminal re- American content, in, 516-518

sponsibility, recognition of, 235 basic considerations of humanity,
U.N. Conference on establishment of, 511-528
607-609 consolidated, 511-514
International criminal responsibility developments in, 525
centre of imputation, 373 Europe, in, 515
individual, of identity of purpose, 511
affirmation and crystallization of, 370 intensified, 514-518
determination of, 371 non-refoulement, principle of, 520-
international responsibility of State, 524
and, 367 norms, application of, 515
reparations, 371 preventive dimension, 512
State responsibility, complementarity, protection, law of, 525-526
372-374 uprootedness, contemporary problem
International criminal tribunals of, 518-520, 527
establishment of, 210-211 jus cogens, 59
individuals, judging, 234 Martens clause, historical significance
international jus cogens, contribution to of, 150-152
development of, 296-297 norms, application of, 515
judicial decisions as source of interna- respect for, requirement of, 420
tional law, 124 universal common core, 97
juridical conscience, invocation of, 153 victim-oriented, being, 59
reflections de lege ferenda, 580 International Labour Organization
international custom Constitution, 184
creation of norms, 118 International law
norms, proof of existence of, 117 accelerated development and universali-
proof of, 117 zation of, 21
source of international law, as, 116-119 anticipatory nature of, 40
International environmental law classic, expansion of, 25
common good of mankind, reference codification and progressive develop-
to, 339 ment of,
common heritage of mankind, concept aim of, 627
of, 339-344 areas of, 625
commonness, new idea of, 340 duration of Conventions, 627
cultural heritage, preservation of, 341- evolution of, 629
343 German historical school, influence
Group of Legal Experts, report of, 344 of, 629
instruments of, 340 historical perspective, 623-636
Stockholm Declaration, 339 individual inability to resolve issues,
UNCED, 600-601 disclosure of, 626
UNESCO Convention, 340-341 intermingling, 627
International humanitarian law lessons and projections, 626-628
armed conflicts, application in, 514 new impulse for, 624
customary, survey of, 97 sensitivity, need for, 632
evolution of, 220 systemization of discipline, 623
Geneva Conventions, Additional proto- universal juridical conscience, moved
cols, 75, 148 by, 628-633
human dignity safeguarding, 279 conceptual constructions, 640-642
human rights law and refugee law, con- contemporary challenge of, 636
vergence of regimes contemporary trends, survey of, 19
Index 715
contemporary, formation of, 113 reconstruction, necessity, 157

domains of protection, preventive di- sources. See Sources of international law
mension of, 39-40 spaces, regulation of, 35
domestic law, primacy over, 461 subjects of. See Subjects of international
evolution on twentieth century, 158 law
expansion systemization of practice, 21
function, of, 171 temporal dimension
impact on States, 170-172 contents and effectiveness of norms,
juridical recognition, 170 38
law of international organizations, by incidence of, 34-36
law of, 190-200 intertemporal problem, 32
new areas of activity, 170 interpretation and application of law,
normative level, at, 170 50
scope of application, of, 170 manifestations of, 34
subjects, of, 20 new needs of protection, in face of,
force, primacy over 36-39
armed attack on Iraq, and, 87-88 passage of time, impact or influence
belief in, 87-92 of, 32
contemporary international law, as political realism, myopia of, 47-50
cornerstone of, 93-97 precisions and lessons, 31-34
humanitarian assistance, provision present and future generations, com-
of, 101 mon responsibilities to, 51
imperative of jus cogens, as, 106-109 provisional measures. See Provisional
foreseeability, degree of, 32, 34 measures of protection
formation, study of, 132-134 relationship with time, 31
foundations, 637-639 World Conferences, presence during,
abstraction of, 55 50
future, optimism as to, 3 traditional, abuse of, 177
growth of, 3 universal, development of, 623-633
historical evolution, 32 universal jurisdiction, principle of, 383-
human person and humankind, con- 388
cerns of, 394 universalist conception of, 27-29
humanization of, 280, 291, 482, 591 universality, 141-145
process of, 635-637 universalization, 36
inter-state dimension, 3 progressive, 97
inter-State outlook, 15 validity, acknowledgement of, 18
jurisdictional immunities of States, 628 voluntary community of States, 16
last three decades, in, 2 International Law Commission
making of. See International law-making areas of successful work, 624-625
manifestations of, 113 basis for work of, 183
normative system, as, 55 Draft Code of Offences against Peace
norms. See Norms of international law and Security of Mankind, 284
objective, relevance of, 26 establishment of, 183
obligation to conform to rules of, 19 international responsibility, work on,
pluralism and universalism, 22-24 188-189
primacy of, 629, 631 reservations to treaties, work on, 441-
principles. See Principles of interna- 442
tional law State responsibility, work on, 453-454
protection, law of, 525-526 International law-making
reconstruction of, 633, 635 consent, role of, 134
716 Index
international organizations, contribu- corpus of international law, effect on,

tion of, 187 181
jus gentium, reconstruction of, 20-22 decisions, externalizing, 187
objective and subjective elements, 133 expansion of international law by law of
obligations, source of, 132 190-200
opinio juris, role of, 134-138 ideal of realization of justice, and, 182-
process of, 132-134 185
International legal order international claims by, 196
advent of international organizations, international community, responses to
modification by, 181-182 needs and aspirations of, 208-211
common and superior values, 22 international cooperation, fostering
contradictory world, in, 595-599 duty of, 198
human rights law, impact of, 233 international legal personality, 639
individuals international legal personality and re-
alienation of, 221 sponsibility, expansion of, 185-190
attempted exclusion of, 217-219 international responsibility of, 188
presence and participation of, 220-224 law of, 35
juridical minimum, 226 legality of acts, regime of control, 207
provisional measures. See Provisional matters within competencies of, 198-199
measures of protection mutual obligations with member States,
transformation of, 248 recognition of, 187
International legal personality operation, expansion of, 204
expansion of, 165, 240-241, 280, 639-640 opinio juris, ascertainment of, 191-193
effect of, 271 politicization, 197
individuals, of, 227 pressures exerted on, 197
accountability, 232, 236 progressive development of internation-
assertion of, 273 al law, contribution to, 206-211
consolidation of, 235 projected reforms, 200-206
forceful assertion of, 238 resolutions
need of international community, as contents of 206-208
response to, 232-234 declaratory, 131
juridical category of, 233 legal effects of, 206-208
new horizons, 177-179 recommendatory, 131
non-State actors, of, 222 source of international law, as, 129-132
statehood, 165-167 specificity, 130
States, of, 165 subjects of international law, as, 165
United Nations, of, 185 structure of international legal order,
International legal systems modification of, 181-182
assumptions, reconsideration of, 19 territories and regions as members of,
International organizations 194
advent and growth of, 129 treaty-making capacity, 193-194
advent and multiplication of, 181 International political organs
areas of work, 187 regime of control, 204
associate members of, 196 International practice
bilateral agreements between, 197 scope of, 118
composition of, 194-196 International relations
constitutive charters, interpretations of, democratization of, 223
187-188 International responsibility
contribution of, 187 aggravated, 379
Articles on, 454
Index 717
basic considerations of humanity, 453- criminal. See International criminal

468 tribunals
centre of imputation, 189 individuals, access by, 243-247
countermeasures, 454-455, 462 multiplication of, 587
criminalization, 377 realization of justice as international
determination of, 389 level, mission of, 588
evolution of law, 372 universalist principles, assertion of, 587
expansion of, 188 Iraq
grave violations of human rights, for, intangible cultural heritage, preserva-
368-372 tion of, 342-343
international community, general inter-
ests of, 453-456 Jaspers, Karl, 374
International Law Commission work on, Judicial decisions
188-189, 453-454 source of international law, as, 123-124
multiple aspects of, 453 Juridical conscience
objective, 298, 372 excesses of persons holding political
reparations, 371, 380-383 power, limiting, 156
source of, 456 fundamental principles of international
State, law, giving expression to, 157
behaviour and conduct, obligations international, 145-147
of, 460 international case-law, invocation in,
birth of, 456-462 152-153
censorship, 461 international legal doctrine, invocation
competences, distribution of, 459-460 and assertion in, 153-156
General Assembly agenda, on, 468 international treaties, invocation and
general recognition of, 458 assertion in, 147-150
human rights treaty, to, 460-461 judicial proceedings, invocation in, 152-
implementation of, 462-464 153
international law, central place in, 467 Martens clause, historical significance
origin of, 457-459 of, 150-152
relevance of, 467-468 metajuridical, being, 160
report on, 465 recourse to, 158
result, obligations of, 460 universal, 147-149, 156-161
serious breaches of obligations, 464- Jus cogens
467 crimes of State, resisting, 305
wrongfulness, circumstance preclud- foundations of, 150
ing, 462 general principle, 61
State and individuals, of, 367-369 international humanitarian law, 59
coexistence of, 371 international law
complementarity, 372-374 case-law, 296-297
universal jurisdiction, principle of, 383- content of, 292-295
388 emergence of, 292-295
States and individuals, of, 641 equality and non-discrimination, 302
International Tribunal for the Law of the evolution of, 322-323
Sea evolving scope of, 295-299
provisional measures of protection, or- Inter-American Convention to Pre-
ders for, 46-47 vent and Punish Torture, reference
International tribunals in, 296
co-existence of, 587 law, right to, 303-309
manifestations of, 299
718 Index
material content, expansion of, 299- international level, access by individu-

309, 323-324 als, 236-239
new jus gentium, as pillar of, 310-311 realization of, 369-372
primacy over force, 106-109 imperative of, 184
Vienna Convention, recognition in, international organizations, impact of,
294 182-185
norms, importance of, 149-150 search for, 179
objective illegality, concept of, 298 right of access to, 303-309
peremptory norms, as, 278 standard of, 51
prohibitions, jurisprudential develop- universal, 325
ment of, 300
scope of, 297-298 Kant, Immanuel, 102
ultimate aim of, 275 Kelsen, Hans, 140
universal conscience, expression of, Kosovo
147-148 protection of populations, centrality of,
voluntarist conception of international 490-492
law, and, 149 transitional administration of 487-489
Jus gentium Lauterpacht, Hersch, 49, 228
common law of humankind, as, 10 Law of nations
common principles, 9 contributions to, 144
emergence of, 10 individuals and subjects of, 213-217
emerging law of nations, association jus gentium, association with, 11
with, 11 will of States, based on, 26
evolving, legacy of, 11-14 Law of the sea
historical emergence of, 9-11 common heritage of mankind, 35
ideal of universality, rescuing, 25 concept of, 331-336
jus inter gentes, fragmentation into, humanity, basic considerations of, 396
14-15 international law, expression of, 328
natural reason, approved by, 12 international regulation, 35
new, 4 International Seabed Authority, 333
ambit of, 27 seabed, exploration of, 333
basic considerations of humanity, universality of regime, 334
642-643 Law of the Sea Convention
basic feature, identification of, 24-27 dispute settlement under, 534, 542
conceptual constructions, 640-642 jurisdiction under, 584
construction of, 86 States, rights and duties of, 199
foundations, 637-639
international law for humankind, as, Mandelstam, André, 226
637-644 Markets
jus cogens as pillar of, 310-311 free, 28
spatial and temporal dimensions, 28 Medication
subjects of, 639-640 settlement of disputes by, 538-539
private law origins, 9 Migrants
reconstruction, 20-22 protection of, 509
universal, 10 undocumented
universalist conception, 11 exploitation of, 527
Jus inter gentes human rights of, 239, 302, 317
jus gentium, fragmentation of, 14-15 Multilateralism
Justice growth of, 196-200
Index 719
Namibia testing
pre-independence status, 195 interim measures of protection, 415
Natural law key points at issue 416
basis of international law, as, 227 psychological injury caused by 415
human rights, and, 225 undefended cities, us against, 427
justification derived from common use of, 401
character, 14 crime against humanity, as, 421
law of nations, importance for, 139
objective content, 139 Opinio juris
re-birth, 135, 224 ascertainment of, 191-193
right reason, discoverable by, 12 conception, emergence of, 137
Non-governmental organizations formation of international law, role in,
opinio juris communis, role in formation 134-138
of, 222 formation, non-state actors in, 222
treaty-making, role in, 223 German historical school, thinking of,
Non-intervention 137
principle of, 70-72, 80 principles of international law reflect-
Norms of international law ing, 59
application of, 87 role of conscience in giving expression
customary, 118 of, 631
elaboration of, individuals participating scope of, 134-138
in, 240 universal jurisdiction, as to, 385
erga omnes obligations. See Erga omnes Organisation of American States
obligations internal structure, 201
formation and application, individual international conventions, 192
role in, 224 Outer space
formation, process of, 157 common heritage of mankind, concept
jus cogens. See Jus cogens of, 329-331
peremptory, serious breaches of obliga- development of law of, 200
tions, 464-467 geostationary orbit, character and utili-
principles, and, 65 zation of, 330-331
universal acceptance of, 283 humankind, for benefit of, 329
validity of, 135 international law of
Nuclear weapons domain of, 329-331
Advisor Opinion on Threat or Use of, expression of, 328
416-418 legal regime, formation of, 329-330
compensation for injuries suffered, 425- moral unity of human kind, develop-
426 ments reflecting, 283
elimination, need for, 424 peaceful uses of, 331
free zones, creation of, 405-409 regulation of, 35
illegality of, 413-424 space objects, damages caused by, 330
indiscriminatory nature of, 419
non-proliferation, 410 Pacta sunt servanda
prohibition principle of, 78-79
opinio juris communis, 414, 418 Palestine Liberation Organisations
U.N. General Assembly resolution, United Nations, observer status in, 195
420-421 Peace
repugnant use of, 152-153 attainment, goal of, 401-404
specific prohibition, absence of general coexistence in, right to, 354
treaty of, 419 Hague Agenda, 401-402
720 Index
law of, 171-172 legal

right to permanent and inevitable reality,
antecedents of, 355 premise of, 48
construction of, 353 pragmatism, 48
elements of, 353-355 temporal dimension, oblivious of, 47
formulation of, 353, 641 limitations of, 229-230
official recognition of, 356 material sources of international law
recent developments in formulation beyond, 145-147
of, 355-357 thoughtlessness of, 349
zonal initiatives for, 486 time, law independent of, 36
zones, creation of, 401-405 voluntarist
Peoples fallacy of, 16-20, 33
rights of, 83-84 general principles of law, position on,
Permanent Court of International Justice 86
general principles of law Principles of international law
acknowledgement of, 62-65 basic
international legal system, as pillars abstraction of, 55
of, 63-65 identification of, 56
quest for justice, and, 62-63, 84-86 specialized regimes, of, 56-57
individuals, procedural cacapity of, 244- States’ acts against, 178
245 contemporary doctrine, importance in,
optional clause of compulsory jurisdic- 65
tion, 569 equality of rights and self-determination
Statute of peoples, 72-73, 81-83, 85. See also
drafting, 62 Self-determination
sources of international law, reference formulation of, 68-74
to, 113-128. See also Sources of inter- general
national law foundations of international law, as,
voluntarist conception, 17-20, 33 121-123
Piracy full validity of, 638
universal jurisdiction, principle of, 384 legal culture, in. 56
Pluralism position and role of, 56-59
collective, 23 quest for justice, and, 62-63, 84-86
international community, origins of, source of, 86
22-23 Statute of Hague Court, acknowledge-
international law, of, 22-24 ment by, 62-65
Political realism voluntarists-positivists, position of, 86
criticism of, 49-50 general content, 65
critique of, 48 international cooperation, duty of, 72,
myopia of, 47-50 79
permanent and inevitable reality, international disputes, peaceful settle-
premise of, 48 ment of, 70
pragmatism, 48 international juridical conscience, as
prevalence of, 50 manifestation of, 55
regime of, 620 international legal system, as pillars of,
temporal dimension, oblivious of, 47 63-65
thoughtlessness of, 349 international obligations, good faith in
Positivism compliance with, 74, 79
history of, 16 interpretation and application of inter-
law against the codes, revolt of, 37 national law, shedding light on, 77
Index 721
interrelationship between, 78 historical transposition to international

juridical equality of States, 85, 168 legal order, 41
jurist, functions of, 61 human rights law, in, 43-45
non-intervention, 70-72, 80 Inter-American Court of Human Rights,
norms, and, 65 in, 264
operation of legal system on basis of, 58 orders by, 44-45
opinio juris communis, identification of, inter-State litigation, transposition to,
74-76 42-43
opinio juris, reflecting, 59 International Court of Justice, indica-
pacta sunt servanda, 78-79 tion by, 42
sovereign equality of states, 73, 76 international jurisdictional guarantee,
substratum of legal order, as, 59-61 as, 41
sustained validity, 77-81 international practice, in, 41
threat or use of force, prohibition of, International Tribunal for the Law of
68-70 the Sea, case-law of, 46-47
U.N., Charter, in, 66-67 international tribunals, case-law of, 41
U.N. Declaration, in juridical nature of, 42
currency of, 68 power of tribunal to indicate, 43-44
equality of rights and self-determina-
tion of peoples, 72-73, 81-83, 85. See Recta ratio
also Self-determination classic international legal thinking, of,
formulation and adoption of, 66 143-144
formulation of, 68-74 evolving jus gentium, legacy of, 11-14
fundamental, 67 lack or absence of, 143
general considerations, 65-68 meaning, 12
historical perspective, 65-68 prevalence of, 141
identification of opinio juris commu- Refugees
nis, as contribution to, 74-76 Cartagena Declaration, principles in, 58
international cooperation, duty of, Central American, protection and as-
72, 79 sistance to, 513
international disputes, peaceful settle- Declarations on, 516-517
ment of, 70 humanitarian law and human rights law,
international obligations, good faith in convergence of regimes
compliance with, 74 American content, in, 516-518
law-declaring resolution, as, 77 basic considerations of humanity,
non-intervention, 70-72, 80 511-528
sovereign equality of states, 73, 76 consolidated, 511-514
Special Committee, 67 developments in, 525
threat or use of force, prohibition of, Europe, in, 515
68-70 identity of purpose, 511
universal juridical conviction, as ex- intensified, 514-518
pression of, 75 non-refoulement, principle of, 520-
universal importance, 78 524
universality of international law, and, preventive dimension, 512
84-86 protection, law of, 525-526
Provisional measures of protection uprootedness, contemporary problem
binding nature of, 42 of, 518-520, 527
European Court of Human Rights, or- international law of, 527
ders by, 45-46 Latin America, protection in, 528
expansion of, 41-47 minimum protection of rights, 523
722 Index
movement and norms of human rights, secession, and, 73

relationship of, 512 U.N. Declaration on the Granting of
non-discrimination, principle of, 518 Independence to Colonial Countries
non-refoulement and Peoples, 82
concept of, 298 will of people of territory, expression
imperative character of, 521 of, 481
jus cogens character of, 520-524 Settlement of disputes, peaceful
preventive dimension, 521-522 ad hoc solutions, search for, 547-552
principle of, 58 American Treaty of Peaceful Settlement,
scope of, 526 552
rights of, 518-520 arbitration, 539-540
uprootedness, contemporary problem Cairo Protocol, 543
of, 518-520, 527 Commission of Jurists of OAS for Nica-
Vienna Declaration and Programme of ragua, work of, 546-547
Action, 513 compulsory jurisdiction
Relativism foundation of, 582
historical, 50 judicial decisions, 579
Rolland, Romain, 103 optional clause, 568-582
Rule of law problem of, 531-533, 583
international, 644 quest for, 582-585
national and international level, at, 614- reality of, 584
619 recurring need for, 582-585
United Nations, and, 614-619 reflections de lege ferenda, 579-582
reflections lex lata, 572-579
Scelle, Georges, 227 reservations and interpretative decla-
Security ration distinguished, 578
Declaration on Security in the Ameri- resolution in favour of, 583
cas, 403-404 States subject to, 571
human, 403 studies on, 575
Self-defence conciliation, 535-536, 542-543, 565
anticipatory, 95 Contadora, experience of, 549-550
permissible, 95 current developments, 544-547
preventive, 94-96 exhaustion of, 103
U.N. Charter provision, 93-94 fact-finding, 535-536, 544-547, 557, 565
Self-determination free choice of means, 558-559
consolidation of principle, 85 general duty, 562
East Timor case, 81 global level, at, 537
emerging right of, 158 good offices, development of, 537
evolving principle of, 81-84 Guarantor States, experience of, 550-552
external and internal right of, 83 human rights cases, 564
Geneva Conventions, Additional proto- institutional mechanisms, outside, 548
cols, 75, 148 institutionalization, initiatives, 560-561
mandate system, 82 interaction of complementarity of
non-self-governing territories, applica- means of, 533-540
bility to, 84 interests of contending States, tran-
right of, 72-73, 81-83 scending, 564
acknowledgement of, 481 international adjudication, 560
crystallized, 483 international adjudication, expansion of,
exercise of, 483 567-568, 580
rights erga omnes, 314
Index 723
international community, general inter- World Trade Organization, mechanisms

ests of, 559-562 within, 557-558
international cooperation, duty of, 565 Slave trading
international jurisdiction, growth of, universal jurisdiction, principle of, 384
586-591 Societas gentium
international level, at, 562 unity of, 9
international practice, 535 Sources of international law
international rule of law beyond, 567- categorization of, 31
568 formal
international rule of law, 644 Article 38, in, 116-128
justice, search for, 544-547 classic theory of, 134
Law of the Sea Convention, under, 534, consideration of, 638
542 doctrine, 125-126
League of Nations, advent of, 560 equity, 127
Manila Declaration, 561, 563 general considerations, 114-116
means, choice of, 562-564 general principles of law, 121-123
mediation, 538-539 inadequacy of, 136
methods of, 35 insufficiencies of, 139-141
efficacy of, 532-533 international custom, 116-119
Montego Bay Convention, 541-542 international organizations, resolu-
multilateral treaties, in, 541-544 tions of, 129-132
multiple instruments of, 531-532 judicial and arbitral decisions, 123-124
negotiations and recourse to judicial law-making going beyond, 638
settlement, 534-536 treaties, 119-121
nuclear age, importance in, 566 unilateral juridical acts of States, 128-
OAS Charter, reform of, 553-554 129
OAU Charter, 544 hierarchy of, 115
Pact of Bogotá, 552 international practice, scope of, 118
positive results, 548 material
presumption in favour of, 97 human conscience, 141-145
prevention, importance of, 560-561 legal positivism, beyond, 145-147
principle of, 71 recta ratio, 141-145
regional level, at, 537 relevance of, 139-141
responsibility and obligation, sense of, universal juridical conscience as, 159
566 natural law, 139
rule of law new outlook, 133
on basis of, 562 non-exhaustive enumeration of, 116
prevalence of, 544-547 PCIJ and ICJ Statutes, Article 38, 113-115
Special Committee of the United Na- treaties and custom, positions of, 115
tions, work of, 554-555 Spontaneous law
State voluntarism, vulnerability to mani- school of, 136
festations of, 531 State responsibility. See International re-
State voluntarism, beyond, 556-559 sponsibility
systemization, endeavours of, 552-555 State sovereignty
Truth Commissions, 544-545 concern for securing, 146-147
U.N. Charter, provisions of, 563 denial of existence, 390
U.N. Security Council procedures, 532 restrictions, 17
use of force in international relations, spectre of, 390
renunciation of, 555-556 treaties, relationship with notion of,
119-120
724 Index
State succession sovereign equality of, 73, 76

basic considerations of humanity, 469- statehood
477, 643 basic criteria for, 482
contexts of, 469-471 prerequisite of, 479-482
distinct moments of, 469-471 recognition, 165-167
Hong Kong, in respect of, 472 unilateral juridical acts, 128-129
human rights obligations, continuity of, voluntary community of, 16
472-476 will of, 291
international community, general inter- Suárez, Francisco, 10, 13, 214
ests of, 471-472 Subjects of international law
international practice, 476 expansion of, 639-640
Vienna Conventions, 469, 471 human person as, 639
Yugoslav, 471, 473 humankind as, 276-288, 350, 640
States individuals. See Individuals
acts against principles of international international organizations, 165, 182-211.
law, 178 See also International organizations
domestic jurisdiction personality. See International legal per-
determination of matters within, 176- sonality
177 persons or entities being, 222
erosion of, 172-177
international practice, 176 Tanaka, Kotaro, 229
League of Nations Covenant Article Territory
15(8), 172 basic considerations of humanity, 479-
matters within, 172-174 492, 643
objections of, 177 changes, effect of, 481
U.N. Charter, clause of 173-174 concept of in traditional international
emergence of, 170 law, 479
emancipation of individuals from, 251- integrity, duty to respect, 479-480
255 mandate system, under, 482
existence of, 166-167 non-self-governing, 482-484
expansion of international law, and, respect for, 479
170-172 transitional administration of
force, unilateral recourse to, 174 development of, 486
identity and continuity of, 482 East Timor, 489-490
independence, 168 historical precedents, 486-487
international legal personality, 165-167 Kosovo, 487-489
international responsibility of, 188 protection of populations, centrality
juridical equality of, 85 of, 490-492
juridical equality, 168 trusteeship, under, 480, 482
monopoly on conduct of international zonal initiatives for peace, and, 486
relations, loss of, 198 Torture
new, emergence of, 158 crime of, definition, 434-435
personification of, 15 Inter-American Convention to Prevent
personification, beginning of, 217 and Punish, 296
politically-emancipated, emergence of, international juridical regime prohibit-
170 ing, 300-301
preconditions for, 165 Toynbee, Arnold, 105
rights and duties of, 167-169 Treaties
riparian, rights and duties of, 169 basic considerations of humanity, 642
self-preservation, right of, 168 codification conventions 121
Index 725
corpus of general international law, pro- Vienna Convention, 78, 120-121, 557
visions in, 120 second, 193-194
denunciation of, 642 U.N. Economic and Social Council
considerations, 445-448 (ECOSOC)
effects, 447 facilities, broadening of, 183
Geneva Conventions, of, 445-446 UNESCO
human rights treaties, 446-447 Constitution, 185
human rights. See Human rights dialogue between civilizations, foster-
individuals and non-governmental or- ing, 23
ganizations, role of, 223 United Nations
international custom found in, 115 Charter
international law, forming, 25 authentic interpretations, 192
international organizations, capacity of, basic principles in, 66-67
193-194 domestic jurisdiction clause, 80
interpretation domestic jurisdiction clause, 173-174
general remarks, 429-433 international law, reference to, 183
human rights treaties, 430-432, 449- interpretation by U.N. organs, 205
451 interpretation, competence for, 175
international law, 430 non-member States acting in accord-
procedural issues, 433-434 ance with, 210
substantive law, 434-435 preamble, 633
juridical conscience, invocation and as- principles of international law, expres-
sertion of, 147-150 sion of, 77
law of, basic considerations of humanity, self-defence, article on, 93-94
429-451 collective action, enhancement of, 612
notions of State sovereignty, relation- Conference on Disarmament, 412
ship with, 119-120 Development Programme, 361-363
position of, 115 economic and social domain, attention
pre-existing custom, position as to, 116 to, 636
reservations financial crisis, 205
collegial system for acceptance of, 441 Food and Agriculture Organization,
considerations, 435-445 request for membership by EEC, 208-
dissatisfaction with, 438 209
human rights treaties, 440, 443-445 full membership, 196
ILC work on, 441-442 High Level Panel, report of, 202
lists of, 438 Human Rights Council, 202-203
multilateral treaties, 438 implied powers, doctrine of, 186, 188
object and purpose of treaty, incom- individual petitions, system of, 246
patible with, 436-438 internal structure, 201
objective determination, 443 international criminal tribunals, estab-
periodic review of, 442 lishment of, 210-211
present system of, 437 international legal personality, objec-
regional treaties, 439-440 tive, 185
wide scope, of, 436 law, perspective of, 190
settlement of disputes, 541-544 members, relationship with, 175
source of international law, as, 119-121 Millenium Declaration, 202, 610-616
specialized U.N. agencies, of, 157 normative production of, 191-192
termination and suspension of opera- peace operations, 210-211
tion 448-449 Peacebuilding Commission, 202-203
United Nations Series, 120
726 Index
permanent representative, non-State International Criminal Tribunal for the

entities having, 195 Former Yugoslavia, case-law of, 387
projected reforms, 200-206 legal reasoning in support, 386
rule of law, and, 614-619 non-applicability of statutory limita-
security, attention shifting to, 403-404 tions, 388
Security Council, authorization of use opinio juris communis, 385
of force, 96 principle of, 383-388
social agenda, 206 self-amnesty laws, and, 388
specialized agencies Universalism
bilateral agreements between, 197 international law, of, 22-24
normative production of, 191-192
treaties of, 157 Verdross, Alfred 146
strengthening, 614
threats and challenges, High Level Panel War
to study, 611 Briand-Kellog Pact, 354
treaty event, 616 crime against humanity, as, 630
Treaty Series, 120 illicit act, condemnation as, 171
World Conferences inutility, 105
challenge addressed in, 622 law of, 171-172
cycle of, 595 preventive, 96, 101, 104, 109
developmental and environmental renunciation as instrument of national
considerations, 600 policy, 89-91
Environment and Development, on, superior interests of international com-
600-601 munity to protect, 155
Establishment of International Crimi- twentieth century, in, 106
nal Court, on, 607-609 War crimes
final documents, 595 universal jurisdiction, principle of, 384
Human Rights, on, 595-598, 601-602 Weapons of mass destruction
Human Settlements, on, 606-607 condemnation of, 421-422
issues, 621 illegality of, 427-428
legacy of, 595, 599-614, 645 prohibition, opinio juris communis, 414
message of, 621 proliferation, avoidance of, 404
Millennium Summit, 610-614 threat of, 402
Population and Development, on, undefended cities, us against, 427
602-603 Wolff, Christian, 215-216, 325
Racism, Racial Discrimination, Xeno- World Trade Organization
phobia and Related Intolerance, dispute settlement mechanism, 557-558
against, 609-610
Social Development, Summit for, 603- Zweig, Stefan, 105, 349-350
605
spirit of epoch, 597-598
transformation of epoch, 596-597, 619,
645
universal dialogue and concert, gen-
eration of, 619-620
Women, on, 605-606
world scenario for, 595
World Summit Outcomes, 203, 613-614
Universal jurisdiction
cases in which applied, 384
THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS
1. Ian Brownlie, The Rule of Law in International Affairs: International Law at

the Fiftieth Anniversary of the United Nations, 1998 isbn 90 411 1068 2
2. Shabtai Rosenne, The Perplexities of Modern International Law, 2004
isbn 90 04 13692 4
3. Theodor Meron, The Humanization of International Law, 2006
isbn 90 04 15060 9
4. Symeon C. Symeonides, The American Choice-of-Law Revolution: Past,
Present and Future, 2006 isbn 90 04 15219 9
5. Arthur T. von Mehren, Adjudicatory Authority in Private International
Law: A Comparative Study, 2007 isbn 978 9004 15881 8
6. Antônio Augusto Cançado Trindade, International Law for Humankind To-
wards a New Jus Gentium, 2010 isbn 978 9004 18428 2

(Hague Academy of International Law Monographs, V. 6) Antnio Augusto Canado Trindade - International Law For Humankind (Mague Academy of International Law) (2010, BRILL)

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International Law for Humankind

THE HAGUE ACADEMY OF INTERNATIONAL LAW MONOGRAPHS

International Law for

Antônio Augusto Cançado Trindade

MARTINUS NIJHOFF PUBLISHERS

Library of Congress Cataloging-in-Publication Data

Trindade, Antônio Augusto Cançado, 1947-

isbn: 978 9004 18428 2

© 2010 The Hague Academy of International Law.

printed and bound in the netherlands.

Glossary of Abbreviations xvii

Introduction: Preliminary Considerations 1

Chapter I The Evolution towards a New Jus Gentium: The

Chapter II Time and Law Revisited: International Law and the

Part II Foundations of International Law 53

Chapter III Foundations of International Law: The Role and

Chapter IV The Primacy of International Law over Force 87

Part III Formation of International Law 111

Chapter V Contemporary International Law-making: A Reassessment

Chapter VI The Material Source of International Law:

Part IV Subjects of International Law 163

Chapter VII States as Subjects of International Law and the Expansion

Chapter VIII International Organizations as Subjects of

Chapter IX The Legal Personality of the Individual as Subject of

Chapter X The Legal Capacity of the Individual as Subject of

Chapter XI Humankind as a Subject of International Law 275

Part V Construction of the International Law for Humankind 289

Chapter XII Conceptual Constructions: Jus Cogens and Obligations

4.Jus Cogens as a Pillar of the New Jus Gentium, the International

Chapter XIII Conceptual Constructions: Common Heritage of Mankind

Chapter XIV Conceptual Constructions: The Right to Peace and the

Chapter XV Conceptual Constructions: Responsibility for International

and the International Criminal Responsibility of Individuals 372

Part VI Humanization of International Law 391

Chapter XVI Basic Considerations of Humanity in the Corpus Juris of

Chapter XVII Basic Considerations of Humanity in Relation to

Chapter XVIII Basic Considerations of Humanity in Relation to the

Chapter XIX Basic Considerations of Humanity in Relation to

Chapter XX Basic Considerations of Humanity in Relation to

Chapter XXI Basic Considerations of Humanity in Relation to Territory 479

Chapter XXII Basic Considerations of Humanity in Relation to Diplomatic

Chapter XXIII Basic Considerations of Humanity in Relation

Part VII Settlement of Disputes 529

Chapter XXIV Peaceful Settlement of International Disputes: Current

Part VIII Perspectives 593

Chapter XXVI The Legacy of the Recent Cycle of World Conferences

Chapter XXVII Codification and Progressive Development of a

Chapter XXVIII Conclusions: International Law for Humankind –

4. Basic Considerations of Humanity 642

Select Bibliography 647

Table of Cases 693

AIDI: Annuaire de l’Institut de Droit International

ASEAN: Association of South-East Asian Nations

CEPAL: U.N. Economic Commission for Latin America

COPUOS: Committee on the Peaceful Uses of Outer Space

CTBT: Comprehensive Nuclear-Test-Ban Treaty

EComHR: [former] European Commission of Human Rights

ECOSOC: U.N. Economic and Social Council

ECtHR: European Court of Human Rights

EEC: [former] European Economic Community

EJIL: European Journal of International Law

FAO: U.N. Food and Agriculture Organization

HRC: U.N. Human Rights Committee