424
international human rights is linked to the development and the adoption of numerous regional and international treaties in the post-war years. Without a doubt, after
the atrocities committed during the Second World War and the Nazi holocaust there
was a special urgency to create international standards and instruments to protect
individuals.
‘Considerations of humanity’ have been emphasised by the ICJ in various cases.
The reference to ‘considerations of humanity’ is even present in the first case that
was brought before the ICJ, namely the Corfu Channel case,
11
whose judgment was
issued on 9 April 1949. It was specifically related to the impact of certain improper
human activities at sea committed in peacetime that violated fundamental rights.
12
In that case, the Court did not base its judgment on the Hague Convention VIII of
1907 because article 7 made clear that it was intended to apply in time of war, but
on ‘certain well-recognized principles’, including ‘elementary considerations of
humanity, even more exacting in peace than in war’. Doing so, the Court implicitly
admitted that certain provisions contained in the Hague Convention VIII of 1907
were declaratory of a general principle of international law and consequently it
affirmed that the Convention reflected rules of customary international law.
13
both in their formulation and in their universal acceptance, is more substantial than the developments in this field for centuries before. The public conscience of the global community has thus
been greatly strengthened and sensitized to ‘considerations of humanity’ and ‘dictates of public
conscience’. Since the vast structure of internationally accepted human rights norms and standards
has become part of common global consciousness today in a manner unknown before World War
II, its principles tend to be invoked immediately and automatically whenever a question arises of
humanitarian standards”. See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, 8 July 1996, Dissenting Opinion of Judge Weeramantry, ICJ Reports 1996, p. 493.
11 ICJ, Corfu Channel case (United Kingdom v. Albania), Merits, Judgment, 9 April 1949. In addition to the “considerations of humanity” used in the Court’s judgment, Judge Álvarez, who had
taken part in the trial, in his separate opinion also referred to acts contrary to the “sentiments of
humanity” that could amount to “international delinquencies”. In this regard see Corfu Channel
case, Separate Opinion by Judge Alvarez, ICJ Reports 1949, p. 45.
12 In the Corfu Channel case, the United Kingdom instituted proceedings against Albania concerning severe damage to two British warships which struck mines in Albanian territorial waters while
the ships were passing through the Corfu Channel and the significant loss of lives of personnel of
the Royal Navy. The ICJ gave three judgments, the first of which rejected Albania’s preliminary
objections, the second held Albania responsible on the merits, and the third on compensation
awarded damages to the United Kingdom. The Corfu Channel Case (Merits) of 1949 held Albania
responsible for the mine explosions of 22 October 1946. The UK alleged that the minefield was
deliberately and recently laid by either Albania or by a third State with Albania’s complicity or that
Albania had knowledge of the laying of mines in its territorial waters in the Strait of Corfu and that,
in either event, the Albanian Government did not notify the existence of these mines as required by
articles 3 and 4 of the Hague Convention VIII of 18 October 1907 in accordance with the general
principles of international law and humanity. So the point was that a specific obligation to notify
the presence of a minefield was contained in the Hague Convention VIII of 18 October 1907. The
ICJ held that the laying of the minefield “could not have been accomplished without the knowledge
of the Albanian government” (Corfu Channel case, Judgment, p. 22). Albania was under an obligation to notify users of the Corfu Channel of the danger posed by the minefield. Albania could have
warned the approaching British warships in time, but failed to do so.
13 As Ragazzi argues “The International Court did not employ the expression ‘obligation erga
omnes’. However, by referring to ‘elementary considerations of humanity’, which are binding on
F. Delfino
international human rights is linked to the development and the adoption of numerous regional and international treaties in the post-war years. Without a doubt, after
the atrocities committed during the Second World War and the Nazi holocaust there
was a special urgency to create international standards and instruments to protect
individuals.
‘Considerations of humanity’ have been emphasised by the ICJ in various cases.
The reference to ‘considerations of humanity’ is even present in the first case that
was brought before the ICJ, namely the Corfu Channel case,
11
whose judgment was
issued on 9 April 1949. It was specifically related to the impact of certain improper
human activities at sea committed in peacetime that violated fundamental rights.
12
In that case, the Court did not base its judgment on the Hague Convention VIII of
1907 because article 7 made clear that it was intended to apply in time of war, but
on ‘certain well-recognized principles’, including ‘elementary considerations of
humanity, even more exacting in peace than in war’. Doing so, the Court implicitly
admitted that certain provisions contained in the Hague Convention VIII of 1907
were declaratory of a general principle of international law and consequently it
affirmed that the Convention reflected rules of customary international law.
13
both in their formulation and in their universal acceptance, is more substantial than the developments in this field for centuries before. The public conscience of the global community has thus
been greatly strengthened and sensitized to ‘considerations of humanity’ and ‘dictates of public
conscience’. Since the vast structure of internationally accepted human rights norms and standards
has become part of common global consciousness today in a manner unknown before World War
II, its principles tend to be invoked immediately and automatically whenever a question arises of
humanitarian standards”. See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, 8 July 1996, Dissenting Opinion of Judge Weeramantry, ICJ Reports 1996, p. 493.
11 ICJ, Corfu Channel case (United Kingdom v. Albania), Merits, Judgment, 9 April 1949. In addition to the “considerations of humanity” used in the Court’s judgment, Judge Álvarez, who had
taken part in the trial, in his separate opinion also referred to acts contrary to the “sentiments of
humanity” that could amount to “international delinquencies”. In this regard see Corfu Channel
case, Separate Opinion by Judge Alvarez, ICJ Reports 1949, p. 45.
12 In the Corfu Channel case, the United Kingdom instituted proceedings against Albania concerning severe damage to two British warships which struck mines in Albanian territorial waters while
the ships were passing through the Corfu Channel and the significant loss of lives of personnel of
the Royal Navy. The ICJ gave three judgments, the first of which rejected Albania’s preliminary
objections, the second held Albania responsible on the merits, and the third on compensation
awarded damages to the United Kingdom. The Corfu Channel Case (Merits) of 1949 held Albania
responsible for the mine explosions of 22 October 1946. The UK alleged that the minefield was
deliberately and recently laid by either Albania or by a third State with Albania’s complicity or that
Albania had knowledge of the laying of mines in its territorial waters in the Strait of Corfu and that,
in either event, the Albanian Government did not notify the existence of these mines as required by
articles 3 and 4 of the Hague Convention VIII of 18 October 1907 in accordance with the general
principles of international law and humanity. So the point was that a specific obligation to notify
the presence of a minefield was contained in the Hague Convention VIII of 18 October 1907. The
ICJ held that the laying of the minefield “could not have been accomplished without the knowledge
of the Albanian government” (Corfu Channel case, Judgment, p. 22). Albania was under an obligation to notify users of the Corfu Channel of the danger posed by the minefield. Albania could have
warned the approaching British warships in time, but failed to do so.
13 As Ragazzi argues “The International Court did not employ the expression ‘obligation erga
omnes’. However, by referring to ‘elementary considerations of humanity’, which are binding on
F. Delfino