THE DEVELOPMENT OF HUMAN RIGHTS LAW BY THE JUDGES OF THE INTERNATIONAL COURT OF JUSTICE【2025|PDF下载-Epub版本|mobi电子书|kindle百度云盘下载】

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1. Introduction1

Part Ⅰ Perspective: Legislative Role of the Judge and Human Rights Law12

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

Ⅰ. The Core Truth: All Roads Lead to Rome15

Ⅱ. The Core Truth in Retrospect An International Perspective17

Ⅲ. Legislative Role of the EC J and the ECHR19

Ⅳ. Legislative Role of the International Court of Justice29

Ⅴ. The Development of Law and Judicial Ideologies32

Ⅵ. Appraisal34

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 Sovereignty39

Ⅱ. Basis of Human Rights Law: The Principle of Human Dignity49

Ⅲ. Appraisal: Principle of Human Dignity in Retrospect and Prospect72

Part Ⅱ The Development of Human Rights Law by the International Court of Justice:Contentious Cases87

Introduction to the Contentious Procedure of the Court87

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

Ⅰ. The Principle of Elementary Considerations of Humanity105

Ⅱ. Judge Alvarez: Manifest Misuse of a Right Not Protected by Law107

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. Prelude109

Ⅱ. Norm of Non-Discrimination and 1962 Judgment: Court Has Jurisdiction to Adjudicate Upon the Merits112

Ⅲ. Judges Jessup and Bustamante: Voting in Favour of 1962 Judgment with Human Rights Additions115

Ⅳ. Second Phase Judgment: Compositional Politics a Setback to Human Rights117

Ⅴ. Disproportionate Quorum: A Setback to Human Rights120

Ⅵ. Second Phase Judgment: Legal Formalism Circumvents Human Rights122

Ⅶ. Judge Tanaka and the Development of Human Rights Law126

Ⅷ. Judge Jessup: Principle of Equal Rights is Universal and Apartheid is a Justiciable Issue142

Ⅸ.Judge Padilla Nervo: The Principle of Non-Discrimination and Obligation to Promote Respect for Human Rights are Internationally Recognized in Most Solemn Form144

Ⅹ. Judge Wellington Koo: A Nation is a Developed Nation only if all its Citizens are Treated on the Basis of Equality before the Law146

Ⅺ. Judge Koretsky: Racial Discrimination an Issue of Vital Importance 147 ⅩⅡ. Judge Mbanefo's Dynamic Interpretation: Mandate and Apartheid148

Ⅻ. Judge Forster's Bold Teleological-Sociological-Natural Interpretation of Law Condemns Apartheid149

ⅩⅣ. Postlude:Violation of Human Rights Law Led to Formation ofHuman Rights Law150

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

Ⅰ. Human Rights Run Erga Otnnes157

Ⅱ. Enforcement of Human Rights160

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

Ⅰ. Human Dignity and Diplomatic Immunity163

Ⅱ.1948 Universal Declaration of Human Rights is Binding in Character165

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 Rights167

Ⅱ. The Principle of Self Determination: adherence to a particular doctrine Does Not Violate Customary International Law170

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

Ⅰ. Some PreUminary Reflections171

Ⅱ. Human Dignity through Self-Determination v the Power of State Sovereignty174

Ⅲ.Court Upholds the State Sovereignty in the face of Human Dignity176

Ⅳ. Monetary Gold Principle v Human Rights181

Ⅴ. 'We the Peoples', Self-Determination and State Sovereignty185

Ⅵ. Sacred Trust of Civilization v State Sovereignty187

Ⅶ. Dissent: Internal and Public:190

a) Judge Weeramantry: the principle of self-determination is the very basis of ationhood190

b) Judge Weeramantry: practical operation of different aspects of right erga omnes191

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 Dignity194

e) Judge Skubiszewski: three elementary assumptions about Self-Determination195

f) Public Dissent199

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

Ⅸ.Conclusion204

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 Cogens207

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 Spoke214

Ⅱ. Grand Case, Grand Subject, Grand Law and Grund Obligation216

Ⅲ. Obiter Dicta and Ratio Decidendi: A Contradiction of Human Rights218

Ⅳ. Prima Facie Jurisdiction and Human Rights221

Ⅴ. The Development of Human Rights Law. Static Jurisdiction v Dynamic Law225

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 Reflections229

Ⅱ. The Factual Background of the Yerodia case232

Ⅲ. Why Separate the issues of Universal Jurisdiction and Immunity235

Ⅳ. Doctrine of Immunity and Concept of Human Dignity237

a) Judge Al-Khasawneh: the Concept of Combating of Grave Crimes Prevails Over the Rules of Immunity241

Ⅴ. The Principle of Universal Jurisdiction and the Concept of Human Dignity243

a) Judge Guillaume: The Clarity of the Principle of Universal Jurisdiction246

b) Judge Ranjeva: Territoriality as the Basis of Entitlement to Jurisdiction Remains at the Core of Contemporary Positive International Law248

c) Judge Koroma: Concepts of Jurisdiction and Immunity are not the Same249

d) Judges Higgins, Kooijmans and Buergenthal: Universal Jurisdiction in absentia for the most Heinous Crimes is Permitted under Certain Safeguards251

e) Judge Rezek Judicial Restraint Going Hand in Hand with Political Restraint252

f) Judge ad hoc Bula-Bula: Universal Jurisdiction in Absentia Runs Counter to the Dignity of People254

g) Judge ad hoc Van Den Wyngaert: Universal Jurisdiction in absentia is Permissible255

Ⅵ. Belgian Reaction After the Judgment255

Ⅶ. Conclusion256

13. Vienna Convention on Consular Relations cases (1998-2004):The Convention Does Create Individual Rights259

Ⅰ. Some Preliminary Observations259

Ⅱ. Three Cases with One Common Fact: Vienna Convention on Consular Relations Creates Human Rights261

Ⅲ. Case Concerning the Vienna Convention on Consular Relations(Paraguay v United States of America): Individual Rights Remained Undecided262

Ⅳ. LaGrand Case (Germany v United States of America): Vienna Convention Does Create Individual Rights263

Ⅴ. The Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America): Individual Rights Further Clarified270

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 Contents271

V-C. Right of an Arrested Person to Information and Time Factor271

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 State273

Ⅵ. General Conclusion273

Part Ⅲ The Development of Human Rights Law by the International Court of Justice: Advisory Cases227

Introduction to the Advisory Procedure of the Court227

14. International Status of South West Africa case (1949-1950) The Principle of Sacred Trust of Civilization279

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 Convention287

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. Introduction291

Ⅱ. Self-Determination in Retrospect and Prospect292

Ⅲ. Apartheid as a Policy Constitutes a Denial of Fundamental Human Rights294

Ⅳ. People as Such Can Become Holder of Rights295

17. Western Sahara case (1974-75) The Principle of Self-Determination297

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 Mission301

Ⅱ. Judge Evensen: Integrity of a Person's Family and Family Life is Basic Human Right302

Ⅲ. Judge Evensen: Rights of Family and Family Life are Integral Parts of Privileges and Immunities303

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 Answer305

Ⅱ. Judge Weeramantry. to find law on nuclear weapons is not to legislate on the subject308

Ⅲ. Judge Koroma: right to health is a pillar of peace308

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 Legislate315

Ⅱ. Right to Life and Human Rights Component of the Law of War316

Ⅲ. Judge Bedjaoui: Nuclear Weapons v Right to Life318

Ⅳ. Judge Weeramantry: Nuclear Weapons Totally Belie Human Dignity320

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 Person321

Ⅵ. Genocide and Nuclear Weapons322

Ⅶ. Judge Higgins: intent approximates to legal doctrine of foreseeability323

Ⅷ. Judge Weeramantry: Nuclear Weapons are Instruments of Genocide and their use is Plainly Genocide324

Ⅸ. Judge Koroma: Quantum of the People Killed by Nuclear Weapons Could be Tantamount to Genocide327

Ⅹ. Human Component of the Law of War327

Ⅺ. Conclusion329

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 Rights337

Ⅰ. Some Preliminary Observations:337

Ⅱ. Facts of the Case in a Nutshell338

Ⅲ. Historical Analysis of the Occupied Territory339

Ⅳ. Human Rights Law Does Apply in the Occupied Territories340

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 Omnes345

Ⅵ. Terrorism v Self-defence: Grave Infringement of Human Rights Cannot be Justified by Military Exigencies and National Security347

Ⅶ. The Court's Advice to the General Assembly: Human Rights are Violated by Israel and They Must be Enforced by All States349

Ⅷ. Conclusion350

23. Summary and General Conclusion353

Bibliography of Books and Articles371

Bibliography of Works by Judges of the Court379

Bibliographical Annexes385

1 Judgments of the International Court of Justice385

2 Advisory Opinions of the International Court of Justice389

3 Orders on Provisional Measures of the International Court of Justice390

4 Judges of the International Court of Justice392

5 Judges ad hoc of the International Court of Justice451

Index467