THE DEVELOPMENT OF HUMAN RIGHTS LAW BY THE JUDGES OF THE INTERNATIONAL COURT OF JUSTICEPDF电子书下载

1. Introduction 1

Part Ⅰ Perspective: Legislative Role of the Judge and Human Rights Law 12

2. Legislative Role of the Judge: A Vital Force in the Life of the Law: 12

Ⅰ. The Core Truth: All Roads Lead to Rome 15

Ⅱ. The Core Truth in Retrospect An International Perspective 17

Ⅲ. Legislative Role of the EC J and the ECHR 19

Ⅳ. Legislative Role of the International Court of Justice 29

Ⅴ. The Development of Law and Judicial Ideologies 32

Ⅵ. Appraisal 34

3. Relationship between Human Rights and International Law:Principle of Human Dignity versus Principle of State Sovereignty: 37

Ⅰ. Basis of International Law: The Principle of Sovereignty 39

Ⅱ. Basis of Human Rights Law: The Principle of Human Dignity 49

Ⅲ. Appraisal: Principle of Human Dignity in Retrospect and Prospect 72

Part Ⅱ The Development of Human Rights Law by the International Court of Justice:Contentious Cases 87

Introduction to the Contentious Procedure of the Court 87

4. Corfu Channel case (United Kingdom v Albania) (1947-1949) 105

Ⅰ. The Principle of Elementary Considerations of Humanity 105

Ⅱ. Judge Alvarez: Manifest Misuse of a Right Not Protected by Law 107

5. South West Africa cases (Ethiopia v South Africa; Liberia v South Africa): Violation of Human Rights Law Led to Formation of Human Rights Law (1960-1966) 109

Ⅰ. Prelude 109

Ⅱ. Norm of Non-Discrimination and 1962 Judgment: Court Has Jurisdiction to Adjudicate Upon the Merits 112

Ⅲ. Judges Jessup and Bustamante: Voting in Favour of 1962 Judgment with Human Rights Additions 115

Ⅳ. Second Phase Judgment: Compositional Politics a Setback to Human Rights 117

Ⅴ. Disproportionate Quorum: A Setback to Human Rights 120

Ⅵ. Second Phase Judgment: Legal Formalism Circumvents Human Rights 122

Ⅶ. Judge Tanaka and the Development of Human Rights Law 126

Ⅷ. Judge Jessup: Principle of Equal Rights is Universal and Apartheid is a Justiciable Issue 142

Ⅸ.Judge Padilla Nervo: The Principle of Non-Discrimination and Obligation to Promote Respect for Human Rights are Internationally Recognized in Most Solemn Form 144

Ⅹ. Judge Wellington Koo: A Nation is a Developed Nation only if all its Citizens are Treated on the Basis of Equality before the Law 146

Ⅺ. Judge Koretsky: Racial Discrimination an Issue of Vital Importance 147 ⅩⅡ. Judge Mbanefo's Dynamic Interpretation: Mandate and Apartheid 148

Ⅻ. Judge Forster's Bold Teleological-Sociological-Natural Interpretation of Law Condemns Apartheid 149

ⅩⅣ. Postlude:Violation of Human Rights Law Led to Formation ofHuman Rights Law 150

6. Barcelona Traction, Light and Power Company, Limited (New Application: 1962) case (Belgium v Spain) (1962-70) 157

Ⅰ. Human Rights Run Erga Otnnes 157

Ⅱ. Enforcement of Human Rights 160

7. United States Diplomatic and Consular Staff in Tehran case(USA v Iran) (1979-1981) 163

Ⅰ. Human Dignity and Diplomatic Immunity 163

Ⅱ.1948 Universal Declaration of Human Rights is Binding in Character 165

8. Military and Paramilitary Activities in and against Nicaragua case(Nicaragua v USA) (1984-1991) 167

Ⅰ. The Use of Force not an Appropriate Method to Ensure Respect for Human Rights 167

Ⅱ. The Principle of Self Determination: adherence to a particular doctrine Does Not Violate Customary International Law 170

9. East Timor case (Portugal v Australia) (1991-1994): Human Rights versus State Sovereignty (1991-1994) 171

Ⅰ. Some PreUminary Reflections 171

Ⅱ. Human Dignity through Self-Determination v the Power of State Sovereignty 174

Ⅲ.Court Upholds the State Sovereignty in the face of Human Dignity 176

Ⅳ. Monetary Gold Principle v Human Rights 181

Ⅴ. 'We the Peoples', Self-Determination and State Sovereignty 185

Ⅵ. Sacred Trust of Civilization v State Sovereignty 187

Ⅶ. Dissent: Internal and Public: 190

a) Judge Weeramantry: the principle of self-determination is the very basis of ationhood 190

b) Judge Weeramantry: practical operation of different aspects of right erga omnes 191

c) Judge Weeramantry: 'principle of self-dtermination can itself be described as central to the Charter' 192

d) Judge Skubiszewski: four elements concerning Law, Justice and Human Dignity 194

e) Judge Skubiszewski: three elementary assumptions about Self-Determination 195

f) Public Dissent 199

Ⅷ. Nevertheless: The Court did Add Authority to the Various Areas DC. 202

Ⅸ.Conclusion 204

10. Application of the Convention on the Prevention and Punishment of the Crime of Genocide Case (Bosnia and Herzegovia v Serbia Montenegro)(1993-) Prohibition of Genocide as Jus Cogens 207

11. Legality of Use of Force cases (Yugoslavia v Belgium; Yugoslavia v Canada;Yugoslavia v France; Yugoslavia v Germant; Yugoslavia v Italy; Yugoslavia v Netherlands; Yugoslavia v Portugal; Yugoslavia v Spain; Yugoslavia v UK;Yugoslavia v USA) (1999-) 213

Ⅰ. Yugoshima: Human Rights Issues of the Gravest Nature: Law Remained Silent When the Bombs Spoke 214

Ⅱ. Grand Case, Grand Subject, Grand Law and Grund Obligation 216

Ⅲ. Obiter Dicta and Ratio Decidendi: A Contradiction of Human Rights 218

Ⅳ. Prima Facie Jurisdiction and Human Rights 221

Ⅴ. The Development of Human Rights Law. Static Jurisdiction v Dynamic Law 225

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

Ⅰ. Some Preliminary Reflections 229

Ⅱ. The Factual Background of the Yerodia case 232

Ⅲ. Why Separate the issues of Universal Jurisdiction and Immunity 235

Ⅳ. Doctrine of Immunity and Concept of Human Dignity 237

a) Judge Al-Khasawneh: the Concept of Combating of Grave Crimes Prevails Over the Rules of Immunity 241

Ⅴ. The Principle of Universal Jurisdiction and the Concept of Human Dignity 243

a) Judge Guillaume: The Clarity of the Principle of Universal Jurisdiction 246

b) Judge Ranjeva: Territoriality as the Basis of Entitlement to Jurisdiction Remains at the Core of Contemporary Positive International Law 248

c) Judge Koroma: Concepts of Jurisdiction and Immunity are not the Same 249

d) Judges Higgins, Kooijmans and Buergenthal: Universal Jurisdiction in absentia for the most Heinous Crimes is Permitted under Certain Safeguards 251

e) Judge Rezek Judicial Restraint Going Hand in Hand with Political Restraint 252

f) Judge ad hoc Bula-Bula: Universal Jurisdiction in Absentia Runs Counter to the Dignity of People 254

g) Judge ad hoc Van Den Wyngaert: Universal Jurisdiction in absentia is Permissible 255

Ⅵ. Belgian Reaction After the Judgment 255

Ⅶ. Conclusion 256

13. Vienna Convention on Consular Relations cases (1998-2004):The Convention Does Create Individual Rights 259

Ⅰ. Some Preliminary Observations 259

Ⅱ. Three Cases with One Common Fact: Vienna Convention on Consular Relations Creates Human Rights 261

Ⅲ. Case Concerning the Vienna Convention on Consular Relations(Paraguay v United States of America): Individual Rights Remained Undecided 262

Ⅳ. LaGrand Case (Germany v United States of America): Vienna Convention Does Create Individual Rights 263

Ⅴ. The Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America): Individual Rights Further Clarified 270

V-A. United States Must Provide 'Review and Reconsideration of Convictions and Sentences' 270

V-B. Interdependence of the Rights of the State and Individual Rights Contents 271

V-C. Right of an Arrested Person to Information and Time Factor 271

V-D. Judge Tomka: 'State authorities must show due diligence in the exercise of their powers' 272

V-E. Judge Tomka: Individual First Element Not the State 273

Ⅵ. General Conclusion 273

Part Ⅲ The Development of Human Rights Law by the International Court of Justice: Advisory Cases 227

Introduction to the Advisory Procedure of the Court 227

14. International Status of South West Africa case (1949-1950) The Principle of Sacred Trust of Civilization 279

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

16. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Nothwithstanding Security Council Resolution 276 (1970) case (1970-1971) 291

Ⅰ. Introduction 291

Ⅱ. Self-Determination in Retrospect and Prospect 292

Ⅲ. Apartheid as a Policy Constitutes a Denial of Fundamental Human Rights 294

Ⅳ. People as Such Can Become Holder of Rights 295

17. Western Sahara case (1974-75) The Principle of Self-Determination 297

18. Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations case (1989) 301

Ⅰ. Special Rapporteur of UN Human RightsCommission Entitled to Privileges and Immunities of a UN Expert on Mission 301

Ⅱ. Judge Evensen: Integrity of a Person's Family and Family Life is Basic Human Right 302

Ⅲ. Judge Evensen: Rights of Family and Family Life are Integral Parts of Privileges and Immunities 303

19. Legality of the Use by a State of Nuclear Weapons in Armed Conflict case (request by World Health Organization) (1993-1996) 305

Ⅰ. Human Right to Health v Use of Force: separation of powers is the Answer 305

Ⅱ. Judge Weeramantry. to find law on nuclear weapons is not to legislate on the subject 308

Ⅲ. Judge Koroma: right to health is a pillar of peace 308

20. Legality of the Threat or Use of Nuclear Threat case (request by UN General Assembly):—May Use; May not Use; But Do not Use. Hence, Legislate: MAY NOT USE—(1994-1996) 331

Ⅰ. Judge Oda: Judges do not Legislate 315

Ⅱ. Right to Life and Human Rights Component of the Law of War 316

Ⅲ. Judge Bedjaoui: Nuclear Weapons v Right to Life 318

Ⅳ. Judge Weeramantry: Nuclear Weapons Totally Belie Human Dignity 320

Ⅴ. Judge Koroma: Both Human Rights and International Humanitarian Law Have as their raison d'etre the Protection of the Individual as well as the Worth and Dignity of the Human Person 321

Ⅵ. Genocide and Nuclear Weapons 322

Ⅶ. Judge Higgins: intent approximates to legal doctrine of foreseeability 323

Ⅷ. Judge Weeramantry: Nuclear Weapons are Instruments of Genocide and their use is Plainly Genocide 324

Ⅸ. Judge Koroma: Quantum of the People Killed by Nuclear Weapons Could be Tantamount to Genocide 327

Ⅹ. Human Component of the Law of War 327

Ⅺ. Conclusion 329

21. Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights (1998-1999) 331

22. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2003-04): Belligerent Occupation and Human Rights 337

Ⅰ. Some Preliminary Observations: 337

Ⅱ. Facts of the Case in a Nutshell 338

Ⅲ. Historical Analysis of the Occupied Territory 339

Ⅳ. Human Rights Law Does Apply in the Occupied Territories 340

Ⅴ. International Humanitarian Law Does Apply in the Occupied Territory. The Rules of International Humanitarian Law are Binding on All Nations and the Law is Erga Omnes 345

Ⅵ. Terrorism v Self-defence: Grave Infringement of Human Rights Cannot be Justified by Military Exigencies and National Security 347

Ⅶ. The Court's Advice to the General Assembly: Human Rights are Violated by Israel and They Must be Enforced by All States 349

Ⅷ. Conclusion 350

23. Summary and General Conclusion 353

Bibliography of Books and Articles 371

Bibliography of Works by Judges of the Court 379

Bibliographical Annexes 385

1 Judgments of the International Court of Justice 385

2 Advisory Opinions of the International Court of Justice 389

3 Orders on Provisional Measures of the International Court of Justice 390

4 Judges of the International Court of Justice 392

5 Judges ad hoc of the International Court of Justice 451

Index 467