423
and 75(1) of the Additional Protocol I and in the preamble and in article 4(1) of the
Additional Protocol II to the Geneva Conventions of 1949, and also in many important resolutions.
7
At the same time, in case law, the reference to ‘considerations of humanity’ is
recurrent. Dating back as far as the Naulilaa case in 1928 the arbitral tribunal there
applied the principle of humanity to limit the area of application of reprisals: “[la
représaille] est limitée par les expériences de l’humanité et les règles de la bonne
foi, applicable dans les rapports d’État à État”.
8
Likewise in the jurisprudence of the International Court of Justice (ICJ), which
constitutes the archetypal body that exercises judicial functions at international
level, one can find references to ‘considerations of humanity’. This is possible
because the ICJ has universal jurisdiction ratione materiae, which means that it has
no limitations over its subject matter jurisdiction. In this regard, the Court is able to
interpret and develop norms which belong to different branches of international law,
including international human rights law. Moreover, the ICJ is one of the main
organs of the United Nations which represents a model for the progressive development of international jurisprudence. The ICJ has played a very important role in the
development of the protection and the application of human rights in its jurisprudence
9
since the beginning of its work, through precisely the ‘elementary considerations of humanity’.
10
Undeniably, the contribution of the Court in the field of
bound by the principles of the law of nations, resulting from the usages established among civilized peoples, the laws of humanity, and the dictates of public conscience. This provision thus
guarantees that international customary law will still apply to States no longer bound by the
Geneva Conventions as treaty law. And for quite some time, of course, the status of the Geneva
Conventions as customary law has been confirmed by the ICJ and hardly ever contested”. See
Meron (2006), p. 19. In this regard see also Abi Saab (1984), p. 269 and the four Geneva
Conventions: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, 12 August 1949, Art. 63, 75 UNTS 31; Convention for the Amelioration of the
Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 12 August
1949, Art. 62, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, 12 August
1949, Art. 142, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time
of War, 12 August 1949, Art. 158, 75 UNTS 287.
7 See amongst others, Declaration on the prohibition of the use of nuclear and thermo-nuclear
weapons, UN Doc. A/RES/1653 (XVI), 24 November 1961, Preamble; Final Act of the International
Conference on Human Rights, Res, XXIII, para. 2, at 18, UN Sales No. E.68. XIV.2 (1968).
8 AT, Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises
du sud de l’Afrique (Portugal contre Allemagne), Award, 31 July 1928.
9 On the role of the ICJ in the development of human rights see among others, Schwelb (1972),
Rodley (1989), Schwebel (1992, 1996), Higgins (1998), Duxbury (2000), Grimheden (2001),
Zyberi (2007), Bedi (2007), Zyberi (2008), pp. 65–258, and Zyberi (2010), Ghandhi (2011),
pp. 527–555, Simma (2012), and Gall (2014).
10 In this regard it is interesting to recall a dissenting opinion of Judge Weeramantry in the Nuclear
Weapons case, which refers to the close relationship between considerations of humanity and
human rights. In particular, he recognised the role of human rights in shaping “considerations of
humanity” and “dictates of the public conscience”: “The enormous developments in the field of
human rights in the post-war years, commencing with the Universal Declaration of Human Rights
in 1948, must necessarily make their impact on assessments of such concepts as ‘considerations of
humanity’ and ‘dictates of the public conscience’. This development in human rights concepts,
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
and 75(1) of the Additional Protocol I and in the preamble and in article 4(1) of the
Additional Protocol II to the Geneva Conventions of 1949, and also in many important resolutions.
7
At the same time, in case law, the reference to ‘considerations of humanity’ is
recurrent. Dating back as far as the Naulilaa case in 1928 the arbitral tribunal there
applied the principle of humanity to limit the area of application of reprisals: “[la
représaille] est limitée par les expériences de l’humanité et les règles de la bonne
foi, applicable dans les rapports d’État à État”.
8
Likewise in the jurisprudence of the International Court of Justice (ICJ), which
constitutes the archetypal body that exercises judicial functions at international
level, one can find references to ‘considerations of humanity’. This is possible
because the ICJ has universal jurisdiction ratione materiae, which means that it has
no limitations over its subject matter jurisdiction. In this regard, the Court is able to
interpret and develop norms which belong to different branches of international law,
including international human rights law. Moreover, the ICJ is one of the main
organs of the United Nations which represents a model for the progressive development of international jurisprudence. The ICJ has played a very important role in the
development of the protection and the application of human rights in its jurisprudence
9
since the beginning of its work, through precisely the ‘elementary considerations of humanity’.
10
Undeniably, the contribution of the Court in the field of
bound by the principles of the law of nations, resulting from the usages established among civilized peoples, the laws of humanity, and the dictates of public conscience. This provision thus
guarantees that international customary law will still apply to States no longer bound by the
Geneva Conventions as treaty law. And for quite some time, of course, the status of the Geneva
Conventions as customary law has been confirmed by the ICJ and hardly ever contested”. See
Meron (2006), p. 19. In this regard see also Abi Saab (1984), p. 269 and the four Geneva
Conventions: Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, 12 August 1949, Art. 63, 75 UNTS 31; Convention for the Amelioration of the
Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, 12 August
1949, Art. 62, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, 12 August
1949, Art. 142, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time
of War, 12 August 1949, Art. 158, 75 UNTS 287.
7 See amongst others, Declaration on the prohibition of the use of nuclear and thermo-nuclear
weapons, UN Doc. A/RES/1653 (XVI), 24 November 1961, Preamble; Final Act of the International
Conference on Human Rights, Res, XXIII, para. 2, at 18, UN Sales No. E.68. XIV.2 (1968).
8 AT, Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises
du sud de l’Afrique (Portugal contre Allemagne), Award, 31 July 1928.
9 On the role of the ICJ in the development of human rights see among others, Schwelb (1972),
Rodley (1989), Schwebel (1992, 1996), Higgins (1998), Duxbury (2000), Grimheden (2001),
Zyberi (2007), Bedi (2007), Zyberi (2008), pp. 65–258, and Zyberi (2010), Ghandhi (2011),
pp. 527–555, Simma (2012), and Gall (2014).
10 In this regard it is interesting to recall a dissenting opinion of Judge Weeramantry in the Nuclear
Weapons case, which refers to the close relationship between considerations of humanity and
human rights. In particular, he recognised the role of human rights in shaping “considerations of
humanity” and “dictates of the public conscience”: “The enormous developments in the field of
human rights in the post-war years, commencing with the Universal Declaration of Human Rights
in 1948, must necessarily make their impact on assessments of such concepts as ‘considerations of
humanity’ and ‘dictates of the public conscience’. This development in human rights concepts,
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…