425
Therefore, in the ICJ’s decision in the Corfu Channel case, ‘considerations of
humanity’ seem to amount to a source of international law distinct from the law of
the treaties. The ‘elementary considerations of humanity’ invoked by the Court
contain a common set of human values that achieved the status of customary international law. And as Shivi R. S. Bedi wrote, commenting on the Corfu Channel
case, “one cannot deny the fact that ‘elementary considerations of humanity’ are the
core of every principle and concept of human rights”.
14
The ICJ made reference to ‘considerations of humanity’ also in important subsequent cases regarding questions of international humanitarian law. Indeed, many
rules of humanitarian law applicable to armed conflict are so fundamental in respect
to the human person. As a matter of fact, the goal of the law of armed conflict is to
balance military necessities against considerations of humanity.
15
In the Military
and Paramilitary Activities in and against Nicaragua case, the ICJ considered that
“the conduct of the United States may be judged according to the fundamental general principles of humanitarian law”, and that certain rules stated in common article
3 “constitute a minimum yardstick, in addition to the more elaborate rules which are
also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’”.
16
Moreover, in the Nicaragua case, the ICJ held that “even if two norms belonging to
two sources of international law appear identical in content, and even if the States in
question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence”.
17
It made clear
that also in this case the Court referred to the principle of humanity as a source of
law distinct from the law of treaty. This means that certain human rights principles
that became part of customary international law are to be observed as obligations
that a State has under customary international law in addition to the obligations
accepted by a State under the relevant international human rights instruments.
Furthermore, in the Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, the Court stated that “elementary considerations of humanity […] are to
be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international
customary law”.
18
Specifically, the International Committee of the Red Cross
Commentary on the Additional Protocol refers to the common ground of human
all States in all circumstances, it relied on a concept which is functionally equivalent to the concept
of obligations erga omnes”. In this regard see Ragazzi (1997), pp. 85–86.
14 Bedi (2007), p. 107.
15 In this regard see for example the Commentary on Additional Protocol I to the Geneva
Conventions which affirms that: “The entire law of armed conflict is, of course, the result of an
equitable balance between the necessities of war and humanitarian requirements”. Sandoz et al.
(1987), p. 683.
16 ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua.
v. United States of America), Merits, Judgment, 27 June 1986, para. 218.
17 Ibidem, para. 178.
18 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, para. 79.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…
Therefore, in the ICJ’s decision in the Corfu Channel case, ‘considerations of
humanity’ seem to amount to a source of international law distinct from the law of
the treaties. The ‘elementary considerations of humanity’ invoked by the Court
contain a common set of human values that achieved the status of customary international law. And as Shivi R. S. Bedi wrote, commenting on the Corfu Channel
case, “one cannot deny the fact that ‘elementary considerations of humanity’ are the
core of every principle and concept of human rights”.
14
The ICJ made reference to ‘considerations of humanity’ also in important subsequent cases regarding questions of international humanitarian law. Indeed, many
rules of humanitarian law applicable to armed conflict are so fundamental in respect
to the human person. As a matter of fact, the goal of the law of armed conflict is to
balance military necessities against considerations of humanity.
15
In the Military
and Paramilitary Activities in and against Nicaragua case, the ICJ considered that
“the conduct of the United States may be judged according to the fundamental general principles of humanitarian law”, and that certain rules stated in common article
3 “constitute a minimum yardstick, in addition to the more elaborate rules which are
also to apply to international conflicts; and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called ‘elementary considerations of humanity’”.
16
Moreover, in the Nicaragua case, the ICJ held that “even if two norms belonging to
two sources of international law appear identical in content, and even if the States in
question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence”.
17
It made clear
that also in this case the Court referred to the principle of humanity as a source of
law distinct from the law of treaty. This means that certain human rights principles
that became part of customary international law are to be observed as obligations
that a State has under customary international law in addition to the obligations
accepted by a State under the relevant international human rights instruments.
Furthermore, in the Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons, the Court stated that “elementary considerations of humanity […] are to
be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international
customary law”.
18
Specifically, the International Committee of the Red Cross
Commentary on the Additional Protocol refers to the common ground of human
all States in all circumstances, it relied on a concept which is functionally equivalent to the concept
of obligations erga omnes”. In this regard see Ragazzi (1997), pp. 85–86.
14 Bedi (2007), p. 107.
15 In this regard see for example the Commentary on Additional Protocol I to the Geneva
Conventions which affirms that: “The entire law of armed conflict is, of course, the result of an
equitable balance between the necessities of war and humanitarian requirements”. Sandoz et al.
(1987), p. 683.
16 ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua.
v. United States of America), Merits, Judgment, 27 June 1986, para. 218.
17 Ibidem, para. 178.
18 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, para. 79.
‘Considerations of Humanity’ in the Jurisprudence of ITLOS and UNCLOS Arbitral…