construction of the international law for humankind (335-439)

PART V

CONSTRUCTION OF THE INTERNATIONAL LAW FORHUMANKIND

CHAPTER XII

CONCEPTUAL CONSTRUCTIONS : JUS COGENS ANDOBLIGATIONS ERGA OMNES

I. Introduction : Fundamental Values of the InternationalCommunity

The new jus gentium of our days, the International Law forhumankind, already counts on some conceptual achievements. Thefact that the concepts both of the jus cogens and of the obligations(and rights) erga omnes already integrate the conceptual universe ofInternational Law discloses the reassuring and necessary opening ofthis latter, in the last decades, to certain superior and fundamentalvalues. This significant evolution of the recognition and assertion ofnorms of jus cogens and obligations erga omnes of protection is tobe fostered, seeking to secure their full practical application, to thebenefit of all human beings. In this way the universalist vision of thefounding fathers of the droit des gens is being duly rescued. Otherconcepts have also found expression in the emerging InternationalLaw for humankind, such as, for example, those of common heritageof mankind and common concern of mankind ; and others emergewith the new jus gentium of this beginning of the twenty-first cen-tury, such as that of universal jurisdiction. These new conceptionsimpose themselves in our days, and, of their faithful observance, willdepend to a large extent the future evolution of contemporaryInternational Law.

This latter does not emanate from the inscrutable “will” of theStates, but rather, in my view, from human conscience. General orcustomary International Law emanates not so much from the practiceof States (not devoid of ambiguities and contradictions), but ratherfrom the opinio juris communis of all the subjects of InternationalLaw (States, international organizations, human beings, peoples, and

335

1182. Inter-American Court of Human Rights (IACtHR), Advisory OpinionNo. 18, on The Juridical Condition and the Rights of the UndocumentedMigrants (of 17.9.2003), paras. 98-99, and Concurring Opinion of JudgeA. A. Cançado Trindade, paras. 65-67.

humankind as a whole). Above the will stands the conscience. Thefact that, despite all the sufferings of past generations, there persistin our days new forms of exploitation of man by man — illustratedby the increasing disparities among and within nations, amidstchronic and growing poverty, uprootedness, social exclusion andmarginalization — does not mean that “regulation is lacking” or thatLaw does not exist to remedy or reduce such man-made imbalances.It rather means that Law is being ostensibly and flagrantly violated,from day to day, to the detriment of millions of human beings.

The current process of the necessary humanization of Inter-national Law stands in reaction to that state of affairs. It bears inmind the universality and unity of the human kind, which inspired,more than four and a half centuries ago, the historical process of for-mation of the droit des gens. In rescuing the universalist visionwhich marked the origins of the most lucid doctrine of InternationalLaw, the aforementioned process of humanization contributes to theconstruction of the new jus gentium of the twenty-first century,oriented by the general principles of law. This process is enhancedby its own conceptual achievements, such as, to start with, theacknowledgment and recognition of jus cogens and the consequentobligations erga omnes of protection, followed by other conceptsdisclosing likewise a universalist perspective of the law of nations.

II. International Jus Cogens (Peremptory Norms of GeneralInternational Law)

1. Emergence and content of jus cogens

The emergence and assertion of jus cogens in contemporaryInternational Law fulfil the necessity of a minimum of verticaliza-tion in the international legal order, erected upon pillars in which thejuridical and the ethical are merged. The evolution of the concept ofjus cogens transcends nowadays the ambit of both the law of treatiesand the law of the international responsibility of the States, so as toreach general International Law and the very foundations of theinternational legal order 1182.

336 A. A. Cançado Trindade

1183. More than three decades earlier, the expression “jus cogens” was uti-lized by Judge Schücking, in his well-known Separate Opinion in the OscarChinn case (United Kingdom v. Belgium) ; Permanent Court of InternationalJustice (PCIJ), Series A/B, No. 63, 1934, pp. 148-150, esp. p. 149. One yearlater, in his course at the Hague Academy of International Law, Alfred Verdrossalso utilized the expression “jus cogens”, and referred himself to the aforemen-tioned Separate Opinion of Judge Schücking ; cf. A. Verdross, “Les principesgénéraux du droit dans la jurisprudence internationale”, 52 RCADI (1935),pp. 206 and 243.

1184. Cf. A. D. McNair, “Treaties Producing Effects ‘Erga Omnes’ ”, inScritti di Diritto Internazionale in Onore di T. Perassi, Vol. II, Milan, Giuffrè,1957, pp. 23-36.

1185. It may be addded that, during the travaux préparatoires of theConvention undertaken by the UN International Law Commission (ILC), thenotion of “community interest” was made present : at first utilized by J.-M.Yepes in 1950, the idea was later to appear in the first report by J. L. Brierly (thefirst rapporteur on the subject), and in the first report by H. Lauterpacht (thesecond rapporteur), the became absent from the reports by G. Fitzmaurice (thethird rapporteur), and reappeared at last in the second report by H. Waldock(the fourth and last rapporteur on the matter) ; S. Rosenne, “Bilateralismand Community Interest in the Codified Law of Treaties”, in Transnational Lawin a Changing Society — Essays in Honour of Ph. C. Jessup (ed. W. Fried-mann, L. Henkin and O. Lissitzyn), New York, London, Columbia UniversityPress, 1972, pp. 207, 212-219 and 226-227 ; and cf. Ph. Cahier, “Le problèmedes effets des traités à l’égard des Etats tiers”, 143 RCADI (1974), pp. 589-736.

1186. For an historical account of the concept, going back to the old Romanlaw, but reappearing mainly as from the nineteenth century, cf. J. Sztucki, JusCogens and the Vienna Convention on the Law of Treaties — A CriticalAppraisal, Vienna, Springer-Verlag, 1974, pp. 6-11 and 97-108.

1187. The term, as such, appeared for the first time in the third report byG. Fitzmaurice, and was again to appear in the second report by H. Waldock ;J. Sztucki, op. cit. supra footnote 1186, pp. 104-105 and 108. On the criteria forthe determination of the rules of International Law which could constitute juscogens, cf. I. M. Sinclair, “Vienna Conference on the Law of Treaties”, 19

Jus cogens was definitively incorporated into the conceptual uni-verse of contemporary International Law as from the inclusion,among the bases of invalidity and termination of treaties, of theperemptory norms of general International Law, in Articles 53 and64 of the Vienna Convention of 1969 on the Law of Treaties 1183. TheConvention set forth the concept of jus cogens, without therebyadopting the thesis — defended in the past by A. McNair 1184 — thata treaty could generate a regime of objective character erga omnes inderogation of the classic principle pacta tertiis nec nocent nec pro-sunt 1185. The concept seems to have been recognized by the ViennaConvention of 1969 as a whole ; if this latter did not adopt the notionof treaties establishing “legal regimes of objective character”, on theother hand it set forth the concept of jus cogens 1186, i.e., of peremp-tory norms of general International Law 1187. The provisions on jus

General Course on Public International Law 337

International and Comparative Law Quarterly (1970), pp. 66-69 ; I. M. Sinclair,The Vienna Convention on the Law of Treaties, Manchester, University Press,Oceana, 1973, pp. 124-129, and cf. pp. 129-131.

1188. Cf., e.g., Ch. L. Rozakis, The Concept of Jus Cogens in the Law ofTreaties, Amsterdam, North Holland Publ. Co., 1976, pp. 1-194 ; Ch. DeVisscher “Positivisme et jus cogens”, 75 Revue générale de droit internationalpublic (1971), pp. 5-11 ; M. Virally, “Réflexions sur le jus cogens”, 12 Annuairefrançais de droit international (1966), pp. 5-29 ; A. Verdross, “Jus dispositivumand Jus Cogens in International Law”, 60 American Journal of InternationalLaw (AJIL) (1966), pp. 55-63 ; J. A. Barberis, “La liberté de traiter des Etats etle jus cogens”, 30 Zeitschrift für ausländisches öffentliches Recht undVölkerrecht (ZfaoRuV) (1970), pp. 19-45 ; U. Scheuner, “Conflict of TreatyProvisions with a Peremptory Norm of International Law”, 27 and 29 ZfaoRuV(1967 and 1969), pp. 520-532 and 28-38, respectively ; H. Mosler, “Ius cogensim Völkerrecht”, 25 Schweizerisches Jahrbuch für internationales Recht (1968),pp. 1-40 ; K. Marek, “Contribution à l’étude du jus cogens en droit interna-tional”, in Recueil d’études de droit international en hommage à P. Guggen-heim, Geneva, IUHEI, 1968, pp. 426-459 ; M. Schweitzer, “Ius cogens imVölkerrecht”, 15 Archiv des Völkerrechts (1971), pp. 197-223 ; G. Gaja, “JusCogens beyond the Vienna Convention”, 172 RCADI (1981), pp. 279-313 ;L. Alexidze, “Legal Nature of Jus Cogens in Contemporary International Law”,in ibid., pp. 227-268 ; and other sources referred to in footnotes 1192, 1205,1211, 1212, 1216, 1218, 1224 and 1238.

1189. I. M. Sinclair, “Vienna Conference . . .”, op. cit. supra footnote 1187,pp. 66-69 ; I. M. Sinclair, The Vienna Convention . . ., op. cit. supra foot-note 1187, pp. 124-129.

cogens became the object of analysis of a wide specialized biblio-graphy 1188.

The notion of jus cogens seems to have been recognized by theVienna Convention as a whole, thus transcending the old exclusivelybilateralist approach in its application. Even before the ViennaConference on the Law of Treaties of 1968-1969, in the debates of1963 and 1966 of the VI Committee of the UN General Assembly,it became clear that the majority of the jusinternationalists ofthe developing countries and of the countries of Eastern Europeattributed great importance to the concept of jus cogens, the sameoccurring during the Conference, in which there was not much oppo-sition to the concept, although the Delegations mainly of the Westerncountries cautiously insisted on the need for some criteria for thedetermination of the rules of International Law which constituted juscogens 1189.

As to the evolving question of the discernible contents of juscogens, it may be recalled that a comment of the UN InternationalLaw Commission (ILC), in its travaux préparatoires on the law oftreaties, suggested, as being incompatible with the rules of juscogens, treaties which contemplated the illicit use of force (contrary


1190. Cit. in I. M. Sinclair, The Vienna Convention . . ., op. cit. supra foot-note 1187, pp. 121-122, and cf. pp. 130-131 ; cf. also accounts in S. P. A. Ferrer,“Los conceptos de ius cogens y ius dispositivum y la labor de la Comisión deDerecho Internacional”, 21 Revista Española de Derecho Internacional (1968),pp. 763-780 ; E. Schwelb, “Some Aspects of International Ius Cogens asFormulated by the International Law Commission”, 61 AJIL (1967), pp. 946-975.

1191. ICJ, Advisory Opinion of 28 May 1951, ICJ Reports 1951, p. 23.1192. Cf. United Nations, United Nations Conference on the Law of Treaties

between States and International Organizations or between InternationalOrganizations (Vienna, 1986) — Official Records, Vol. I, New York, UnitedNations, 1995, pp. 187-188 (intervention by the Deputy Head of the Delegationof Brazil, A. A. Cançado Trindade).

1193. A. A. Cançado Trindade, “The Voluntarist Conception of InternationalLaw : A Re-Assessment”, 59 Revue de droit international de sciences diploma-tiques et politiques, Geneva (1981), pp. 201-240.

to the principles of the UN Charter), or any other criminal act underInternational Law (slave trade, piracy, genocide) 1190. And already inan Advisory Opinion of 1951, on the Reservations to the Conventionon the Prevention and Punishment of the Crime of Genocide, theICJ pointed out that the humanitarian principles underlying thatConvention were recognizedly “binding on States, even without anyconventional obligation” 1191.

One and a half decades later, the concept of jus cogens was againset forth in the Vienna Convention on the Law of Treaties betweenStates and International Organizations or between InternationalOrganizations (1986) ; in my intervention in the United NationsConference which adopted it (debates of 12 March 1986 in Vienna),I saw fit to warn as to the manifest incompatibility with the conceptof jus cogens of the voluntarist conception of International Law 1192,which appeared incapable to explain even the formation of rules ofgeneral International Law and the incidence in the process of forma-tion and evolution of contemporary International Law of elementsindependent of the “free will” of the States 1193. With the assertion ofjus cogens in the two Vienna Conventions on the Law of Treaties(1969 and 1986), the next step consisted in determining its incidencebeyond the law of treaties.

2. Evolving scope of jus cogens

On my part, I have always sustained that it is an ineluctable con-sequence of the affirmation and the very existence of peremptorynorms of International Law their not being limited to the conven-tional norms, to the law of treaties, and their being extended to every


1194. Cf. A. A. Cançado Trindade, Tratado de Direito Internacional dosDireitos Humanos, Vol. II, Porto Alegre, Brazil, S.A. Fabris Ed., 1999, pp. 415-416 ; IACtHR, Advisory Opinion No. 18, on The Juridical Condition and theRights of the Undocumented Migrants (of 17.9.2003), Concurring Opinion ofJudge A. A. Cançado Trindade, paras. 68-73.

1195. For the extension of jus cogens to all possible juridical acts, cf., e.g.,E. Suy, “The Concept of Jus Cogens in Public International Law”, in Papers andProceedings of the Conference on International Law (Langonissi, Greece, 3-8.4.1966), Geneva, CEIP, 1967, pp. 17-77.

and any juridical act 1194. Recent developments point out in the samesense, that is, that the domain of the jus cogens, beyond the law oftreaties, encompasses likewise general International Law 1195. In myConcurring Opinion in the Advisory Opinion No. 18 (of 17 Sep-tember 2003) of the Inter-American Court of Human Rights(IACtHR), on The Juridical Condition and the Rights of Undocu-mented Migrants, I sustained my understanding that the jus cogens isnot a closed juridical category, but rather one in evolution andexpansion (paras. 65-73). In sum,

“the domain of the jus cogens, beyond the law of treaties,encompasses likewise general International Law. Moreover, thejus cogens, in my understanding, is an open category, whichexpands itself to the extent that the universal juridical con-science (material source of all Law) awakens for the necessityto protect the rights inherent to each human being in every andany situation. . . . The absolute prohibition of the practices of torture, offorced disappearance of persons, and of summary and extra-legal executions, leads us decidedly into the terra nova of theinternational jus cogens.” (Paras. 68-69.)

And I concluded, in this respect, in the same aforementionedConcurring Opinion, that

“The concept of jus cogens in fact is not limited to the lawof treaties, and is likewise proper to the law of the internationalresponsibility of the States. The Articles on the Responsibilityof the States, adopted by the International Law Commission ofthe United Nations in 2001, bear witness of this fact. . . . In myunderstanding, it is in this central chapter of International Law,that of the international responsibility (perhaps more than in thechapter on the law of treaties), that the jus cogens reveals itsreal, wide and profound dimension, encompassing all juridical


1196. Cf. E. de Wet, “The Prohibition of Torture as an International Norm ofJus Cogens and Its Implications for National and Customary Law”, 15 EuropeanJournal of International Law (2004) pp. 98-99.

1197. A. A. Cançado Trindade, Tratado de Direito Internacional . . ., Vol. II,op. cit. supra footnote 1194, p. 415.

1198. Cf. OAS/GA, Asamblea General de la OEA — XV Período Ordinariode Sesiones (Cartagena, Colombia), Actas y Documentos, Vol. II, Part II,Washington DC, OAS General Secretariat, 1985, p. 113.

1199. Cf. OAS/PC, Informe del Presidente del Grupo de Trabajo Encargadode Analizar el Proyecto de Convención Interamericana sobre DesapariciónForzada de Personas, OAS doc. OEA/Ser.G/CP/CAJP-925/93/rev.1, of 25.1.1994, pp. 3-23.

1200. A. A. Cançado Trindade, Tratado de Direito Internacional dos DireitosHumanos, Vol. II, op. cit. supra footnote 1194, pp. 345-358.

acts (including the unilateral ones), and having an incidence(including beyond the domain of State responsibility) on thevery foundations of an International Law truly universal.”(Para. 70.)

Besides this horizontal expansion, jus cogens is also expanding ina vertical dimension, of the interaction between the international andnational legal orders in the present domain of protection. The effectof jus cogens, in this second (vertical) level, has been in the sense ofinvalidating every and any legislative, administrative or judicialmeasure that, at the level of the domestic law of the States, attemptsto authorize or tolerate torture 1196. Jus cogens has further beeninvoked to secure the absolute prohibition of violation of funda-mental rights of the human person 1197.

Jus cogens was thus expressly referred to — in connection withsuperior values shared by the international community — in thetravaux préparatoires of the 1985 Inter-American Convention toPrevent and Punish Torture 1198. The absolute prohibition of forceddisappearance of persons was insisted upon in the preparatory workof the 1994 Inter-American Convention on Forced Disappearance ofPersons 1199. This reassuring development has led to the emergenceof a true international legal regime against torture, forced disappear-ances of persons, extra-legal and arbitrary and summary executions,and illegal and arbitrary detentions 1200.

As far as international case-law is concerned, two internationaltribunals which, in recent years, have considerably contributed to thedevelopment of the material content of the international jus cogenshave been the IACtHR and the ad hoc International CriminalTribunal for the former Yugoslavia (ICTFY). In conformity with the


1201. Paragraphs 97-101 ; and cf., for a recent general study, e.g., A. A.Cançado Trindade, “The Case-Law of the Inter-American Court of HumanRights : An Overview”, in Studi di Diritto Internazionale in Onore di GaetanoArangio-Ruiz, Vol. III, Naples, Ed. Scientifica, 2004, pp. 1873-1898.

1202. Cf., e.g., F. Harhoff, “La consécration de la notion de jus cogens dansla jurisprudence des tribunaux pénaux internationaux”, in Actualité de lajurisprudence pénale internationale à l’heure de la mise en place de la Courpénale internationale (eds. P. Tavernier and C. Renaut), Brussels, Bruylant,2004, pp. 65-80.

1203. Paras. 137-139, 144 and 160, and cf. paras. 151 and 153-154.1204. On this last point, cf. the Judgment of the European Court of Human

Rights (ECtHR) in the Soering v. United Kingdom case (1989, paras. 144 and148). And, on the practice under the UN Covenant on Civil and Political Rights,cf. F. Pocar, “Patto Internazionale sui Diritti Civili e Politici ed Estradizione”, inDiritti dell’Uomo, Estradizione ed Espulsione — Atti del Convegno di Ferrara(1999) per Salutare G. Battaglini (ed. F. Salerno), Padua, Cedam, 2003, pp. 89-90.

Judgments of the IACtHR in the cases Cantoral Benavides v. Peru(18 August 2000), Maritza Urrutia v. Guatemala (27 November2003), Brothers Gómez Paquiyauri v. Peru (08 July 2004), andTibi v. Ecuador (07 September 2004), the understanding is sustainedthat torture, inhuman treatment and extra-judicial executions are inbreach of the jus cogens ; furthermore, in accordance with the exten-sive reasoning of the IACtHR in its historical Advisory OpinionNo. 18 on the Juridical Condition and Rights of UndocumentedMigrants (17 September 2003), the understanding is advanced thatthe fundamental principle of equality and non-discrimination hasentered into the domain of the jus cogens 1201.

And pursuant to the decisions of the ICTFY (Trial Chambers), forexample, in the cases Furundzija (10 December 1998), Jelisic(14 December 1999), Kupreskic and Others (14 January 2000),Kunarac (22 February 2001) and Krstic (2 August 2001), the under-standing is maintained that genocide, torture and attacks againstcivilians in armed conflicts are in breach of the jus cogens 1202 ; theICTFY (Trial Chamber II) reiterated its position, as to the prohibi-tion — of conventional and customary law — of torture as beingof jus cogens, in the Simic case (Judgment of 17 October 2002,para. 34). In the Furundzija case, the ICTFY (Trial Chamber) sus-tained that the absolute prohibition of torture, under conventional andcustomary International Law — having the character of jus cogens,and generating obligations erga omnes 1203 —, was so absolute that ithad incidence not only on actual, but also potential, violations 1204.

This jurisprudential assertion of prohibitions of jus cogens hastaken place in pursuance of the superior and fundamental values to


1205. J. Crawford, The International Law Commission’s Articles on StateResponsibility — Introduction, Text and Commentaries, Cambridge, UniversityPress, 2002, p. 188, and cf. pp. 246 and 127-128.

1206. In its Advisory Opinion of 21.6.1971 on Namibia, the ICJ in factreferred itself to a situation which it characterized as “illegal erga omnes” ; ICJReports 1971, p. 56, para. 126.

1207. IACtHR, case Blake v. Guatemala (Merits), Judgment of 24.1.1998,Separate Opinion of Judge A. A. Cançado Trindade, para. 25, and cf. paras. 23-24.

1208. ICJ Reports 1996, p. 616, para. 31. 1209. ICJ, Advisory Opinion of 28 May 1951, ICJ Reports 1951, p. 23.

be protected, shared by the international community as a whole,from which no derogation or diversion is allowed. The significantjurisprudential contributions, in recent years, particularly of theIACtHR and the ICTFY on the matter at issue, are oriented in thecorrect direction, but there still remains of course a long way to go inthe gradual determination of the material content of the jus cogens.

The concept of jus cogens is in fact not limited to the law oftreaties, and is likewise proper to the law of the international respon-sibility of the States. The Articles on the Responsibility of the States,adopted by the ILC of the United Nations in 2001, bear witness ofthis fact. Among the passages of such Articles and their commentswhich refer expressly to jus cogens, there is one in which it isaffirmed that “various tribunals, national and international, haveaffirmed the idea of peremptory norms in contexts not limited to thevalidity of treaties” 1205.

To the international objective responsibility of the States corre-sponds necessarily the notion of objective illegality 1206 (one of theelements underlying the concept of jus cogens). In our days, no onewould dare to deny the objective illegality of acts of genocide, ofsystematic practices of torture, of summary and extra-legal execu-tions, and of forced disappearance of persons — practices whichrepresent crimes against humanity — condemned by the universaljuridical conscience 1207, parallel to the application of treaties.

In its Judgment of 11 July 1996, in the case concerning theApplication of the Convention an the Prevention and Punishment ofthe Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), theICJ affirmed that the rights and obligations set forth in thatConvention were “rights and duties erga omnes” 1208. And, already inits Advisory Opinion of 1951 on the Reservations to the Conventionagainst Genocide, the ICJ pointed out that the humanitarian princi-ples underlying that Convention were recognizedly “binding onStates, even without any conventional obligation” 1209.


1210. Cf. J. Allain, “The Jus Cogens Nature of Non-Refoulement”, 13 Inter-national Journal of Refugee Law (2002), pp. 538-558.

1211. J. A. Pastor Ridruejo, “La Convención Europea de los Derechos delHombre y el ‘Jus Cogens’ Internacional”, in Estudios de Derecho Internacional— Homenaje al Profesor Miaja de la Muela, Vol. I, Madrid, Ed. Tecnos, 1979,pp. 581-590.

1212. A. Gómez Robledo, El Jus Cogens Internacional (Estudio HistóricoCrítico), Mexico, UNAM, 1982, pp. 20-21, 222-223 and 226, and cf. p. 140 ;and cf. also R. St. J. Macdonald, “Fundamental Norms in ContemporaryInternational Law”, 25 Annuaire canadien de droit international (1987),pp. 133-134, 140-142 and 148.

Just as, in the ambit of the International Law of Refugees, thebasic principle of non-refoulement was recognized as being of juscogens 1210, in the domain of the International Law of Human Rightsthe character of jus cogens of the fundamental principle of equalityand non-discrimination was likewise recognized. The objectiveillegality is not limited to the aforementioned acts and practices.As jus cogens is not a closed category (supra), I understand, further-more, that no one would dare to deny that, for example, slave work,and the persistent denial of the most elementary guarantees of thedue process, of law would likewise affront the universal juridicalconscience, and effectively collide with, and are in breach of, theperemptory norms of the jus cogens. All this doctrinal evolutionpoints to the direction of the crystallization of the obligations ergaomnes of protection ; without the consolidation of such obligationsone will advance very little in the struggle against the violations ofhuman rights.

Manifestations of international jus cogens mark presence in thevery manner whereby human rights treaties have been interpretedand applied : the restrictions, foreseen in them, to the human rightsthey set forth, are restrictively interpreted, safeguarding the rule oflaw, and demonstrating that human rights do not belong to thedomain of jus dispositivum, and cannot be considered as simply“negotiable” 1211 ; on the contrary, they permeate the internationallegal order itself. In sum and conclusion on the point under exami-nation, the emergence and assertion of jus cogens evoke the notionsof international public order and of a hierarchy of legal norms, aswell as the prevalence of the jus necessarium over the jus volun-tarium ; jus cogens presents itself as the juridical expression ofthe very international community as a whole, which, at last, takesconscience of itself, and of the fundamental principles and valueswhich guide it 1212.


1213. Cf. Chap. III, supra.1214. G. M. Danilenko, “International Jus Cogens : Issues of Law-Making”,

2 European Journal of International Law (1991), p. 45, and cf. pp. 48-49 and59-65 on the possibility of the incidence of jus cogens in the elaboration itself ofdrafts of international instruments.

1215. M. A. D’Estéfano Pisani, Derecho de Tratados, 2nd ed., Havana, Cuba,Edit. Pueblo y Educación, 1986 (reprint), pp. 97 and 165-166.

3. Jus cogens as a pillar of the new jus gentium, the InternationalLaw for humankind

Jus cogens, nowadays established well beyond the law of treaties,is a conceptual construction which occupies a central position in thenew jus gentium, the International Law for humankind. It has metwith judicial recognition of contemporary international tribunals,and in greater depth in the case-law of the IACtHR and of theICTFY (cf. supra). Jus cogens appears indeed as a pillar of the newjus gentium, the International Law for humankind. Jus cogens, iden-tified with general principles of law of material order 1213, serves thesuperior interests of the international community as a whole 1214 ;such interests, in turn, find expression in the peremptory norms ofInternational Law (jus cogens), emanating from the universal juri-dical conscience in each historical moment, and paving the way forthe construction of a new jus gentium, the International Law forhumankind. Jus cogens exists indeed for the benefit of humanbeings, and ultimately of humankind.

Throughout the years, this has been acknowledged in differentparts of the world and distinct cultural milieux, pointing to the con-struction of a universalist International Law, the new jus gentium ofour times. Thus, to the late Cuban jurist M. A. D’Estéfano Pisani, forexample, the concept of jus cogens, rooted in natural law, reflects thejuridical achievements of humankind ; it warns States as to the needto abide by fundamental principles and peremptory norms, deprivingof legitimacy any act or situation (ensuing from the law of treaties orcustomary law) incompatible with them 1215. In a similar line of rea-soning, the Chinese jurist Li Haopei criticized positivists for havingattempted to base International Law on a mere assumption, Stateconsent, which was nothing but a “layer of loose sand”, for, if itwere really so, International Law would cease to be effective when-ever States withdrew their consent. He further criticized the attitudeof positivists of intentionally ignoring or belittling the value ofgeneral principles of law, and held that peremptory norms of


1216. Li Haopei, “Jus Cogens and International Law”, in Selected Articlesfrom Chinese Yearbook of International Law, Beijing, China, Chinese Society ofInternational Law, 1983, pp. 47-48, 57, 59, 61-64 and 74.

1217. Such as, e.g., bona fides and pacta sunt servanda.1218. R. Kolb, Théorie du jus cogens international, Paris, PUF, 2001, pp. 98-

100, 105, 110 and 112.1219. Cf. Chap. III, supra.1220. And always bearing in mind that the protection of fundamental rights

places us precisely in the domain of jus cogens.

International Law have emerged to confer an ethical and universaldimension on International Law and to serve the common interestsof the international community as a whole and, ultimately, of allmankind 1216.

It can hardly be denied that general principles of law, proper toany legal system, at either national or international level 1217, doenjoy universal acceptance or recognition. Such principles guide alllegal norms, including those endowed with a peremptory character ;it is thus not surprising that one trend of juridical thinking has iden-tified them with the domain of jus cogens 1218, standing above thewill of States and of other subjects of International Law. Emanating,in my view, from human conscience, they rescue International Lawfrom the pitfalls of State voluntarism and unilateralism, incom-patible with the foundations of a true international legal order.

Those principles reflect the idea of an objective justice, are con-substantial with the national or international legal system itself,embodying, as they do, superior values, which can fulfil the aspira-tions of humankind as a whole 1219. Their continued validity isbeyond question, and their relevance becomes evident in the con-struction, in our days, of a new jus gentium, the International Lawfor humankind. The consolidation of erga omnes obligations of pro-tection, ensuing from peremptory norms of International Law, over-comes the pattern erected in the past upon the autonomy of the willof the State, which can no longer be invoked in view of the existenceof norms of jus cogens. States are nowadays faced with a dilemmawhich should have been overcome a long time ago : either theyreturn to the old voluntarist conception of International Law, aban-doning the hope in the primacy of Law over power politics, or theyretake and realize the ideal of construction of a more cohesive andinstitutionalized international community in the light of the impera-tives of the rule of law and the realization of justice, moving reso-lutely from jus dispositivum to jus cogens 1220.


1221. ICJ, Judgment of 5 February 1970, ICJ Reports 1970, p. 32, paras. 33-34 (emphasis added).

III. Obligations Erga Omnes of Protection

1. Emergence and scope of the obligations

It is widely recognized, in our days, that the peremptory norms ofjus cogens effectively bring about obligations erga omnes. In a well-known obiter dictum in its Judgment in the case concerningBarcelona Traction (Second Phase, 1970), the ICJ determined thatthere are certain international obligations erga omnes, obligations ofa State vis-à-vis the international community as a whole, which areof the interest of all the States ;

“such obligations derive, for example, in contemporaryInternational Law, from the outlawing of acts of aggression,and of genocide, and also from the principles and rules con-cerning the basic rights of the human person, including protec-tion from slavery and racial discrimination. Some of the corre-sponding rights of protection have entered into the body ofgeneral International Law . . . ; others are conferred by inter-national instruments of a universal or quasi-universal charac-ter.” 1221

The prohibitions mentioned in this obiter dictum are not exhaustive.To them new prohibitions have been added in the more recent case-law of some contemporary international tribunals (infra), clearlyindicating that jus cogens is not a closed category.

In the construction of the international legal order of the new cen-tury, we witness, with the gradual erosion of reciprocity, the emer-gence pari passu of superior considerations of ordre public, reflectedin the conceptions of the peremptory norms of general InternationalLaw (the jus cogens) and of the obligations erga omnes of protection(owed to everyone, and to the international community as a whole).Jus cogens, in bringing about obligations erga omnes, characterizesthem as being endowed with a necessarily objective character, andthereby encompassing all the addressees of the legal norms (omnes),both those who integrate the organs of the public power as well asprivate individuals.

In my understanding, the concrete and specific purpose of thedevelopment of the legal regime of the obligations erga omnes of


1222. That general obligation is set forth, e.g., in Article 1 (1) of theAmerican Convention on Human Rights as well as in Article 1 of the GenevaConventions of International Humanitarian Law and in Article 1 of theAdditional Protocol I (of 1977) to the Geneva Conventions ; cf. footnotes 1232and 1233, infra.

1223. Including with a reference to them in the tenth Advisory Opinion (of1989) of the IACtHR, on the Interpretation of the American Declaration on theRights and Duties of Man (para. 38).

1224. Cf. M. Ragazzi, The Concept of International Obligations Erga Omnes,Oxford, Clarendon Press, 1997, pp. 12-13 ; C. Annacker, “The Legal Regime ofErga Omnes Obligations in International Law”, 46 Austrian Journal of Publicand International Law (1994), pp. 132-133, and cf. 131-166.

protection can be well served by the identification of, and compli-ance with, the general obligation of guarantee of the exercise of therights of the human person — set forth in treaties on human rightsprotection as well as Humanitarian Law 1222 — that is, the obligationto respect, and to ensure respect for, the norms of protection, in allcircumstances. It can contribute to the consolidation of the obliga-tions erga omnes of protection of the rights of the human personin any circumstances, in times both of peace and of armed conflict.It appears somewhat surprising that neither doctrine, nor case-law,has developed this point sufficiently and satisfactorily up to now.

It is about time, at this beginning of the twenty-first century, todevelop systematically the contents, scope and juridical effects orconsequences of the obligations erga omnes of protection in thepresent domain of protection, bearing in mind the great potential ofapplication of the underlying notion of collective guarantee, respon-sible for some advances already achieved in this domain. The con-cept of obligations erga omnes has already marked presence in theinternational case-law 1223, as illustrated, in so far as the ICJ is con-cerned, by its Judgments in the cases of the Barcelona Traction(1970), of the Nuclear Tests (1974), of Nicaragua versus UnitedStates (1986), of East Timor (1995), and of Bosnia-Herzegovina ver-sus Yugoslavia (1996), and by the arguments of the parties in thecases of the Northern Cameroons (1963) and of South West Africa(1966), as well as by its Advisory Opinion on Namibia (1971) andthe (written and oral) arguments pertaining to the two AdvisoryOpinions on Nuclear Weapons (1994-1995) 1224.

Nevertheless, in spite of the distinct references to the existence ofobligations erga omnes in the case-law of the ICJ, this latter has notyet extracted the consequences of the affirmation of the existence ofsuch obligations, nor of their violations, and has not defined their


1225. A. A. Cançado Trindade, “O Caso do Timor-Leste (1999) : O Direito deAutodeterminação do Povo Timorense”, 1 Revista de Derecho de la UniversidadCatólica del Uruguay (2000), pp. 73-74.

1226. Cf. ICJ, East Timor (Portugal v. Australia), ICJ Reports 1995, pp. 90-106.

1227. B. Simma, “From Bilateralism to Community Interest in InternationalLaw”, 250 RCADI (1994), p. 298.

1228. S. Rosenne, “Decolonisation in the International Court of Justice”, 8African Journal of International and Comparative Law (1996), pp. 567, 571 and576. For further criticisms, cf. J. Dugard, “1966 and All That — The South WestAfrica Judgment Revisited in the East Timor Case”, in ibid., pp. 551, 557-558and 560-563.

legal regime either. The ICJ had a unique occasion to do it in theEast Timor (Portugal v. Australia) case, (Judgment of 30 June1995), having regrettably wasted such opportunity, in relating theerga omnes obligations (in respect of the right of self-determinationof peoples) to something antithetical to them : the consent of a thirdState (Indonesia) as basis of the exercise of its jurisdiction in con-tentious matters.

In fact, nothing could be more incompatible with the very exis-tence of the erga omnes obligations than the positivist-voluntaristconception of International Law and the emphasis on State consentas the basis of the exercise of international jurisdiction 1225. Pursuinga bilateralist and voluntarist approach 1226, the ICJ thus failed, unfor-tunately, to extract the consequences of the existence of such obliga-tions erga omnes. Shortly after the ICJ decision in the East Timorcase, B. Simma remarked critically that “it is ironic that the veryCourt that spelled out the concept in the first place has now sub-jected it to the procedural rigours of traditional bilateralism” 1227. Noless critical was S. Rosenne, in commenting that in the cas d’espècethe ICJ “paid no overt attention to the situation in East Timor itself,although it was certainly aware of it” ; to him, with the advent ofobligations erga omnes,

“it seems that something needs to be done to bring internationalprocedural law into line with that . . .

International judicial procedure, although it has developedvery remarkably especially since 1945, is still cast in a nine-teenth century mould, and the strict bilateralism of internationallitigation is one of its hall-marks.” 1228

More recently, in its Advisory Opinion of 9 July 2004 on theLegal Consequences of the Construction of a Wall in the Occupied


1229. ICJ Reports 2004, p. 172, para. 88.1230. ICJ Reports 2004, pp. 199-200, paras. 155 and 159. 1231. On the meaning of the obligations erga omnes partes, opposable to all

States Parties in certaing treaties or to a given community of States, cf. M.Ragazzi, op. cit. supra footnote 1224, pp. 201-202 ; and cf. C. Annacker, op. cit.supra footnote 1224, p. 135.

1232. Cf., e.g., American Convention on Human Rights, Art. 1 (1) ; UNCovenant on Civil and Political Rights, Art. 2 (1) ; UN Convention on the Rightsof the Child, Art. 2 (1).

1233. Article 1 common to the four Geneva Conventions on InternationalHumanitarian Law of 1949, and Article 1 of the Additional Protocol I of 1977 tothe Geneva Conventions of 1949.

Palestinian Territory, the ICJ asserted the right erga omnes ofpeoples to self-determination 1229, and added that

“the obligations violated by Israel include certain obligationserga omnes. . . . The obligations erga omnes violated by Israelare the obligation to respect the right of the Palestinian peopleto self-determination, and certain of its obligations under Inter-national Humanitarian Law.

. . . All States are under an obligation not to recognize theillegal situation resulting from the construction of the wall inthe Occupied Palestinian Territory . . . In addition, all the StatesParties to the Geneva Convention Relative to the Protection ofCivilian Persons in Time of War of . . . 1949 are under an obli-gation, while respecting the United Nations Charter and Inter-national Law, to ensure compliance by Israel with InternationalHumanitarian Law as embodied in that Convention.” 1230

Even if, on the one hand, one has not yet succeeded to reach theopposability of an obligation of protection to the international com-munity as a whole, on the other hand the International Law ofHuman Rights nowadays provides elements for the consolidation ofthe opposability of obligations of protection to all the States Partiesto human rights treaties (obligations erga omnes partes 1231). Thus,several treaties, of human rights protection 1232 as well as ofInternational Humanitarian Law 1233, provide for the general obliga-tion of the States Parties to guarantee the exercise of the rights setforth therein and their observance.

Thus, parallel to the obligations of all the States Parties to thosetreaties to protect the rights enshrined therein, and to guarantee theirfree and full exercise to all the individuals under their respectivejurisdictions, there exists the obligation of the States Parties inter se


1234. Cf. IDI, 63 Annuaire de l’Institut de droit international (1989-II),pp. 286 and 288-289.

1235. Cf. the arguments of Ireland before the ECtHR, in the Ireland v. UnitedKingdom case, in ECtHR, Ireland v. United Kingdom case (1976-1978),Pleadings, Oral Arguments and Documents, Strasbourg, 1981, Vol. 23-II, pp. 21-23 and 27, and Vol. 23-III, pp. 17-19 and 21-26.

1236. Irrespective of a State Party being involved or not in a given armedconflict ; L. Condorelli and L. Boisson de Chazournes, “Quelques remarques àpropos de l’obligation des Etats de ‘respecter et faire respecter’ le droit interna-tional humanitaire ‘en toutes circonstances’ ”, in Etudes et essais sur le droitinternational humanitaire et sur les principes de la Croix-Rouge en l’honneur deJean Pictet (ed. C. Swinarski), Geneva, The Hague, CICR, Nijhoff, 1984, pp. 29and 32-33.

1237. Cf. S. Leckie, “The Inter-State Complaint Procedure in InternationalHuman Rights Law : Hopeful Prospects or Wishful Thinking ?”, 10 HumanRights Quarterly (1988), pp. 249-301.

to secure the integrity and effectiveness of such treaties. That generalduty of protection (the collective guarantee) is of direct interest ofeach State Party, and of all of them jointly (obligation erga omnespartes).

Endeavours to develop the legal regime of obligations erga omnes(with the determination of their contents, scope and juridical effectsor consequences of their violation) can surely count, in my view, onthe potentialities of application of treaty law in the domain of pro-tection of the rights inherent to the human person, and in particularof application of the collective guarantee underlying all humanrights treaties, and responsible for some considerable advancesalready achieved in this domain. As correctly pointed out by theInstitut de Droit International, in a resolution adopted at the sessionof Santiago of Compostela of 1989, such obligation is applicableerga omnes, as each State has a legal interest in the safeguard ofhuman rights (Art. 1) 1234. This general obligation of protection (thecollective guarantee) is of direct interest of each State Party, and ofall of them jointly (obligation erga omnes partes). And this is validin times of peace 1235 as well as of armed conflict 1236.

Some human rights treaties, moreover, establish a mechanism ofpetitions or communications which comprises, parallel to the indi-vidual petitions, also the inter-State petitions ; these latter constitutea mechanism par excellence of action of collective guarantee. Thefact that they have not been used frequently 1237 suggests that theStates Parties have not yet disclosed their determination to constructthe international ordre public based upon the respect for humanrights. But they could — and should — do so in the future, with


1238. K. Zemanek, “New Trends in the Enforcement of Erga OmnesObligations”, 4 Max Planck Yearbook of United Nations Law (2000), p. 6.

1239. Y. Dinstein, “The Erga Omnes Applicability of Human Rights”, 30Archiv des Völkerrechts (1992), pp. 16 and 22, and cf. 16-37 ; and cf.M. Ragazzi, op. cit. supra footnote 1224, pp. 135 and 213 ; M. Byers, op. cit.infra footnote 1244, pp. 234-235.

their growing awareness of the need to achieve greater cohesion andinstitutionalization in the international legal order, above all in thepresent domain of protection.

Obligations erga omnes are nowadays by no means limited to thedomain of the international protection of the rights inherent to thehuman person. They also mark their presence in other domains ofcontemporary International Law, such as, for example, in environ-mental protection and in disarmament and arms control. As perti-nently recalled by K. Zemanek, the 1987 (amended) MontrealProtocol on Substances that Deplete the Ozone Layer, as well as the1992 Framework Convention on Climate Change and its 1997 KyotoProtocol, establish obligations which

“are not created for the benefit of individual ContractingParties but in the interest of all of them, as a community. . . .Arms control and disarmament treaties are in some way simi-lar, because they do not establish reciprocal rights and obliga-tions between the Parties. . . . Instruments such as the Non-Proliferation Treaty (NPT, 1968), the Biological WeaponsConvention (1972), the Chemical Weapons Convention (CWC,1993), or the Comprehensive Nuclear Test-Ban Treaty (CTBT,1996) are salient examples of this particular type of erga omnesobligations.” 1238

It has been, however, particularly in the domain of the interna-tional safeguard of basic human rights, that obligations erga omneshave been most discussed by contemporary doctrine thus far. In anycase, there could hardly be more elaborate examples of mechanismsfor application of the obligations erga omnes of protection (at leastin the relations of the States Parties inter se) than the methods ofsupervision foreseen in the human rights treaties themselves, for theexercise of the collective guarantee of the protected rights 1239. Inother words, the mechanisms for application of the obligations ergaomnes partes of protection already exist, and what is urgentlyneeded is to develop their legal regime, with special attention to the


1240. Cf., earlier, IACtHR, case Blake v. Guatemala (Merits), Judgment of24.1.1998, Separate Opinion of Judge A. A. Cançado Trindade, para. 26, and cf.paras. 27-30.

positive obligations and the juridical consequences of the violationsof such obligations.

2. Horizontal and vertical dimensions of the obligations

As I had occasion to hold in my Concurring Opinion in theIACtHR’s Advisory Opinion No. 18, on the Juridical Condition andRights of Undocumented Migrants (of 17 September 2003), obliga-tions erga omnes have two dimensions, namely : (a) a horizontaldimension, in the sense that they are owed to the international com-munity as a whole 1240, to all subjects of International Law (supra) ;and (b) a vertical dimension, in the sense that they bind everyone,both the organs and agents of the State, of public power, as well asthe individuals themselves (including in inter-individual relations,where grave breaches of International Law and of human rights canoccur and have indeed occurred). For the conformation of this verti-cal dimension, the advent and evolution of the International Law ofHuman Righs have contributed decisively.

Obligations erga omnes of protection, pertaining, in a horizontaldimension, to the protection of the human beings due to the interna-tional community as a whole, in the framework of conventionalInternational Law bind all the States Parties to human rights treaties(obligations erga omnes partes), and in the ambit of general Inter-national Law bind all States which compose the organized interna-tional community, whether or not they are Parties to those treaties(obligations erga omnes lato sensu). In a vertical dimension, theobligations erga omnes of protection bind both the organs and agentsof (State) public power, and the individuals themselves (in the inter-individual relations).

For the conformation of this vertical dimension have decisivelycontributed the advent and the evolution of the International Lawof Human Rights. But it is surprising that, until now, these distincthorizontal and vertical dimensions of the obligations erga omnes ofprotection have passed virtually unnoticed from contemporary legaldoctrine. Nevertheless, I see them clearly shaped in the legal regimeitself of the American Convention on Human Rights. Thus, forexample, as to the vertical dimension, the general obligation, set


1241. Cf., in this respect, in general, the resolution adopted by the Institut deDroit International (IDI) at the session of Santiago de Compostela of 1989(Art. 1), in IDI, 63 Annuaire de l’Institut de droit international (1989-II),pp. 286 and 288-289.

1242. As I pointed out in my Concurring Opinion (para. 3) in the case of theCommunity of Peace of San José of Apartadó (Provisional Measures ofProtection of 18.6.2002) before the IACtHR.

1243. Cf. A. A. Cançado Trindade, “The International Law of Human Rightsat the Dawn of the XXIst Century”, 3 Cursos Euromediterráneos Bancaja deDerecho Internacional, Castellón (1999), pp. 207-215.

1244. On the relationship between jus cogens and erga omnes obligations ofprotection, cf. : M. Ragazzi, The Concept of International Obligations ErgaOmnes, op. cit. supra footnote 1224, pp. 135, 201-202 and 213 ; Y. Dinstein,“The Erga Omnes Applicability . . .”, op. cit. supra footnote 1239, pp. 16-37 ;

forth in Article 1 (1) of the American Convention, to respect andto ensure respect for the free exercise of the rights protected by it,generates effects erga omnes, encompassing the relations of theindividual both with the public (State) power as well as with otherindividuals (particuliers) 1241.

In their turn, the obligations erga omnes partes, in their horizon-tal dimension, find expression also in Article 45 of the AmericanConvention, which foresees the mechanism (virtually unexplored sofar), of inter-State complaints or petitions. This mechanism 1242 con-stitutes not only a mechanism par excellence of action of collectiveguarantee, but also a true embryo of actio popularis in InternationalLaw, in the framework of the American Convention. In any case,these dimensions, both horizontal and vertical, reveal the wide scopeof the obligations erga omnes of protection.

The crystallization of the obligations erga omnes of protection ofthe human person represents, in reality, the overcoming of a patternof conduct erected on the alleged autonomy of the will of the State,from which International Law sought gradually to liberate itself ingiving expression to the concept of jus cogens 1243. By definition, allthe norms of jus cogens generate necessarily obligations erga omnes.While jus cogens is a concept of material law, the obligations ergaomnes refer to the structure of their performance on the part of allthe entities and all the individuals bound by them. In their turn, notall the obligations erga omnes necessarily refer to norms of juscogens.

One ought to secure a follow-up to the endeavours of greater doc-trinal and jurisprudencial development of the peremptory norms ofInternational Law (jus cogens) and of the corresponding obligationserga omnes of protection of the human being 1244, moved above all


A. J. J. de Hoogh, “The Relationship between Jus Cogens, Obligations Erga Omnesand International Crimes : Peremptory Norms in Perspective”, 42 AustrianJournal of Public and International Law (1991), pp. 183-214 ; C. Annacker,“The Legal Regime of Erga Omnes Obligations . . .”, op. cit. supra foot-note 1224, pp. 131-166 ; M. Byers, “Conceptualising the Relationship betweenJus Cogens and Erga Omnes Rules”, 66 Nordic Journal of International Law(1997), pp. 211-239, esp. pp. 234-235 and 239 ; J. Juste Ruiz, “Las Obligaciones‘Erga Omnes’ en Derecho Internacional Público”, in Estudios de DerechoInternacional — Homenaje al Profesor Miaja de la Muela, Vol. I, Madrid, Tecnos,1979, p. 228.

1245. IACtHR, case Blake v. Guatemala (Merits), Judgment of 24.1.1998,Series C, No. 36, Separate Opinion of Judge A. A. Cançado Trindade, para. 28 ;IACtHR, case Blake v. Guatemala (Reparations), Judgment of 22.1.1999,Series C, No. 48, Separate Opinion of Judge A. A. Cançado Trindade,para. 40.

1246. Cf., in this sense, the resolution adopted by the Institut de DroitInternational (IDI) at the session of Santiago de Compostela of 1989 (Art. 1), inIDI, 63 Annuaire de l’Institut de Droit International (1989-II), pp. 286 and 288-289.

1247. Cf., to this effect, e.g., my Separate Opinions in the cases of LasPalmeras (Preliminary Objections, 2000, paras. 13-14), and of the Massacre ofMapiripán (Merits, 2005, paras. 2-3 and 5), both concerning Colombia, and inmy Concurring Opinions in the case of the Community of Peace of San José ofApartadó (Provisional Measures of Protection, 18.6.2002, paras. 2-9) and in thecase of the Communities of the Jiguamiandó and of the Curbaradó (ProvisionalMeasures of Protection, 6.3.2003, paras. 4-6), concerning Colombia, and in thecase of the Prison of Urso Branco (Provisional Measures of Protection,7.7.2004, paras. 2-3 and 6-9), concerning Brazil.

by the opinio juris as a manifestation of the universal juridical con-science, to the benefit of all human beings 1245. By means of this con-ceptual development one will advance in the overcoming of theobstacles of the dogmas of the past and in the creation of a trueinternational ordre public based upon the respect for, and observanceof, human rights. Such development will contribute, thus, to agreater cohesion of the organized international community (the civi-tas maxima gentium), centred on the human person.

The general obligation, set forth in Article 1 (1) of the AmericanConvention, to respect and to ensure respect for the free exercise ofthe rights protected by it, has a character erga omnes 1246. I have seenit fit to point this out in several of my Separate and ConcurringOpinions in the Inter-American Court, outlining that this is endowedwith particular relevance at both conceptual and operative levels 1247.In my understanding, the obligations erga omnes partes are not to beminimized at the conceptual level, as, by means of the exercise ofcollective guarantee, such obligations can pave the way for the crys-tallization, in the future, of the obligations erga omnes lato sensu,owed to the international community as a whole. And, at the opera-


1248. Cf., on this point, e.g., D. Spielmann, L’effet potentiel de la Conventioneuropéenne des droits de l’homme entre personnes privées, Brussels, Bruylant,Nemesis, 1995, pp. 17-89 ; A. Clapham, Human Rights in the Private Sphere,Oxford, Clarendon Press, 1996 (re-ed.), pp. 1-356 ; E. A. Alkema, “The Third-Party Applicability or ‘Drittwirkung’ of the European Convention on HumanRights”, in Protecting Human Rights : The European Dimension — Studies inHonour of G.J. Wiarda (eds. F. Matscher and H. Petzold), Cologne, Berlin, C.Heymanns, 1988, pp. 33-45 ; J. De Meyer, “The Right to Respect for Private andFamily Life, Home and Communications in Relations between Individuals, andthe Resulting Obligations for States Parties to the Convention”, in Privacy andHuman Rights (ed. A. H. Robertson), Manchester, University Press, 1973,pp. 255-275.

tive level, obligations erga omnes partes under human rights treatiesassume special importance, in face of the current diversification ofthe sources of violations of the rights enshrined in the Convention,which requires the clear recognition of the effects of the conven-tional obligations vis-à-vis third parties (the Drittwirkung), encom-passing also inter-individual relations 1248.

The State is bound by the corpus juris of the international protec-tion of human rights, which protects every human person ergaomnes, in any condition or circumstance. The State cannot availitself of the fact of not being a Party to a given treaty of humanrights to evade the obligation to respect, and to ensure respect for,fundamental human rights, acknowledged also in generalInternational Law, and belonging to the domain of jus cogens, thustranscending the ambit of the law of treaties.

IV. Obligations Erga Omnes and the Emergence of Actio Popularis

The aforementioned inter-State petitions under certain humanrights treaties may, furthermore, prove to be the embryo of a futureactio popularis in the present domain of protection of the humanperson. Although those petitions may disclose some resemblancewith petitions lodged by individuals under certain human rightstreaties, the rationale of the latter appears somewhat distinct fromthe former. Thus, individual complaints, even when interposed onbehalf of the members of a whole community or human collectivity,seem to be closer to a form of class action than to actio popularis,however desirable the emergence of this latter may admittedly be,for the construction of a true international ordre public on the basisof full respect for the rights of all human beings.

Be that as it may, the general duty to respect, and to ensurerespect for, the protected rights, is of the utmost importance in the


1249. F. Kalshoven, “The Undertaking to Respect and Ensure Respect in AllCircumstances : From Tiny Seed to Ripening Fruit”, 2 Yearbook of InternationalHumanitarian Law (1999), p. 27, and cf. pp. 48, 54-55 and 60.

1250. Such as, e.g., the UN Covenant on Civil and Political Rights, the UNConvention on the Rights of the Child, the American Convention on HumanRights ; cf. footnote 1232, supra.

1251. ICTFY (Trial Chamber), case of A. Kupreskic and Others (case No. IT/95/16/T), Judgment of 14.1.2000, para. 517.

present context. It may be recalled that that duty, as formulated incommon Article 1 of the four Geneva Conventions on InternationalHumanitarian Law, was originally meant to “expand the bindingeffect” of the State’s acceptance of the Conventions “to the entirepopulation” 1249. That general duty, also enshrined in some humanrights treaties 1250, was to disclose a considerable potential for pro-tection : it soon formed the object of a vast case-law (mainly of theIACtHR and the ICTFY) which gave precision to its wide scope,also vis-à-vis third parties, in inter-individual relations, on the basisof the objective international responsibility of the State.

The theoretical construction of positive obligations of States (torespect, and ensure respect for, the protected rights) has lent supportto this development. The whole jurisprudence constante of theIACtHR on the matter has oriented itself in this direction. TheICTFY (Trial Chamber), in the case of A. Kupreskic and Others(2000), for example, pointed out that

“as a consequence of their absolute character, these norms ofInternational Humanitarian Law do not pose synallagmatic obli-gations, i.e., obligations of a State vis-à-vis another State.Rather . . . they lay down obligations towards the internationalcommunity as a whole, with the consequence that each andevery member of the international community has a ‘legalinterest’ in their observance and consequently a legal entitle-ment to demand respect for such obligations.” 1251

This refers to what I have termed the horizontal dimension of ergaomnes obligations, which, in a vertical dimension, bind everyone,those who hold public office as well as private individuals (supra).In fact, the rights protected under Humanitarian Law and humanrights treaties are indeed applied and opposable erga omnes, whichin certain circumstances may enhance the access to justice andfoster the conception of an international ordre public in the presentdomain of protection ; the mechanism of inter-State petitions under


1252. A. A. Cançado Trindade, The Application of the Rule of Exhaustion ofLocal Remedies in International Law, Cambridge, University Press, 1983, p. 17.

1253. Cf., in this sense, F. Voeffray, L’actio popularis ou la défense de l’in-térêt collectif devant les juridictions internationales, Paris, Geneva, PUF,IUHEI, 2004, pp. 16, 229, 235-236, 322, 366-368 and 384.

certain human rights treaties bears witness of considerations of suchordre public.

As for the mechanism of individual petitions, although it is thealleged wrong suffered by individuals that provides the materialbasis for their right of individual petition, there is also a generalinterest of States Parties to human rights treaties (providing for thatmechanism) in seeing to it that such right of individual petition isendowed with effectiveness. In this sense, in relation to theEuropean Convention on Human Rights, for example, I wrote, in abook published over two decades ago, that

“in the general framework of the Convention, the right of indi-vidual petition, possessing a judicial character, rests upon theobjective character of the engagements undertaken by the HighContracting Parties to the Convention, as its exercise con-tributes also to the fulfilment of the general interest in havingthe Convention respected” 1252.

There is here a convergence between the individual and the col-lective interests, and this brings us closer to the actio popularis,which seems to emerge or flourish from the very concept of obliga-tions erga omnes. If it is conceded that actio popularis, as in Romanlaw, admits that the complainant is seeking to safeguard not only thecollective interest but also his own (affected) individual interest,there is epistemologically nothing that would render its applicationnot viable in International Law. On the contrary, it would become asuitable remedy to uphold predominantly collective or commoninterests ; it would, in this way, also foster the access to internationaljustice, the control of international legality (for example, protectingcommon spaces beyond national jurisdictions), and the protection ofwhole human communities 1253.

The shortcomings of the South West Africa cases (1966) are surelyovercome in our days ; they were proper of a mentality which regret-tably hindered for some time the development of International Law,but which has been discarded by universal juridical conscience.Examples of possible application could be found in the domains of


1254. In this sense, cf. F. Voeffray, L’actio popularis . . ., op. cit. supra foot-note 1253, pp. 157-158, 168, 176-179, 209, 245 and 261.

1255. Cf. ibid., pp. 282 and 386.1256. Cf. IACtHR, case of the Indigenous People of Sarayaku v. Ecuador

(Provisional Measures of Protection, Resolution of 17.6.2005), ConcurringOpinion of Judge A. A. Cançado Trindade, paras. 3-33).

human rights protection, of application of International HumanitarianLaw, of environmental protection (particularly in relation to the so-called “global commons”). In the domain of the safeguard of humanrights, the objective character of the obligations of protection, thecharacter of ordre public of the operation of the mechanisms ofprotection, the convergence on individual and collective interests incertain cases, are altogether elements bringing us closer to the actiopopularis, as from the concept of obligations erga omnes 1254. Actiopopularis would be called for, in certain cases of violations ofInternational Law, to secure the protection of members of wholehuman collectivities 1255. It would have a scope broader than that ofclass actions 1256.

In sum, it is nowadays widely acknowledged that the general dutyto ensure respect for the protected rights, wide in scope, is applica-ble erga omnes, comprising all measures necessary to secure theexercise or enjoyment of those rights. Ultimately, from the perspec-tive here advocated, all human rights and Humanitarian Law obliga-tions are applicable erga omnes. The rights inherent to the humanperson are surely opposable erga omnes. When the legal regime ofobligations erga omnes (encompassing the juridical consequences oftheir violation) consolidates itself beyond question, within a morecoherent international community, the actio popularis at interna-tional level may hopefully also be acknowledged without uncertain-ties. And it may become a legal means to secure compliance withobligations erga omnes lato sensu (and not only erga omnes partes).But this will ultimately depend on the conscientization of thepressing need to construct a more institutionalized internationalcommunity.

V. Concluding Observations

In its development in the last decades, jus cogens has evolved —and ought to certainly keep on evolving — well beyond the law oftreaties. It has had its scope widened. Thus, the absolute prohibitionof grave violations of fundamental human rights (starting with the


1257. C. Tomuschat, “Obligations Arising for States without or against TheirWill”, 241 RCADI (1993), p. 365.

fundamental right to life) extends itself, in my view, well beyond thelaw of treaties, incorporated, as it is, likewise, in contemporary cus-tomary International Law. Such prohibition gives prominence to theobligations erga omnes, owed to the international community as awhole. These latter clearly transcend the individual consent of theStates 1257, definitively burying the positivist-voluntarist conceptionof International Law. Obligations erga omnes of protection can befostered and enhanced by the general obligation to respect andensure respect for the rights of the human person, underlying treatieson human rights protection and on Humanitarian Law.

As to its material content, international jus cogens, in my under-standing, is an open category, which expands itself to the extent thatthe universal juridical conscience (the material source of all Law)awakens for the necessity to protect the rights inherent to eachhuman being in every and any situation. It heralds the advent ofa new international legal order committed to the prevalence ofsuperior common values, and to moral and juridical imperatives,such as that of the protection of the human being in any circum-stances, in times of peace as well as of armed conflict.

For more than three decades, the concept of obligations ergaomnes has marked presence in international case-law ; however, suchcase-law has not yet extracted the juridical consequences of the affir-mation of the existence of such obligations, nor of their violations,and has not defined sufficiently their legal regime either. But if, onthe one hand, one has not yet succeeded in reaching the opposabilityof an erga omnes obligation of protection, owed to the internationalcommunity as a whole, on the other hand the International Law ofHuman Rights provides nowadays elements conducive to the con-solidation of the opposability of obligations of protection to allthe States Parties to human rights treaties (obligations erga omnespartes).

In the consideration of the evolving jus cogens, there has beengeneral acknowledgment of its expanding material content. Theabsolute prohibition of grave violations of fundamental human rights— starting with the rights to life and to the integrity of the person —extends itself, in my view, well beyond the law of treaties. Suchabsolute prohibition, likewise consolidated in contemporary custom-


1258. Pursuant to, e.g., the holdings to that effect in the recent case-law ofthe IACtHR, particularly its Advisory Opinion No. 18, of 2003 (cf. supra).

1259. Cf. A. A. Cançado Trindade, El Acceso Directo del Individuo a losTribunales Internacionales de Derechos Humanos, Bilbao, Universidad deDeusto, 2001, pp. 29-96 ; M. El Kouhene, Les garanties fondamentales de lapersonne en droit humanitaire et droits de l’homme, Dordrecht, Nijhoff, 1986,pp. 97, 145, 148, 161 and 241.

1260. Cf. Chaps. VIII-XI, supra. 1261. To me, it is impossible here not to take into account the other subjects

of International Law, including the human person.

ary International Law (indeed in general International Law as awhole), gives prominence to the obligations erga omnes of protec-tion, owed to the international community. These obligations clearlytranscend the individual consent of States, and herald the adventof a new international legal order, committed to the prevalenceof superior common values. The material content of jus cogensalso comprises today the principle of equality and non-discrimina-tion 1258, as well as the access (lato sensu) to justice and the guar-antees of the due process of law, taken necessarily together, andgenerating obligations erga omnes 1259.

Erga omnes obligations are owed to the international communityas a whole, which, in my view, comprises all States as well as othersubjects of International Law. One cannot possibly approach thoseobligations from a strictly inter-State perspective or dimension,which would no longer reflect the new structure of the contemporaryinternational legal order. The current phenomenon of the expansionof the international legal personality and capacity 1260 is a response toa true need of the international community of our days. Not onlyStates, but all other subjects of International Law 1261, are bound byerga omnes obligations (as evidenced by the current and unfortunatediversification of the sources of violations — on the part of State aswell as non-State agents — of the rights of the human person), owedto the international community as a whole.

The task before us is essentially that of the determination of thelegal regime of obligations erga omnes, with particular attention tothe positive obligations of States and the juridical consequences ofviolations of erga omnes obligations. Although jus cogens generatesalways obligations erga omnes but not all such obligations are gen-erated by jus cogens, the two concepts are ineluctably intertwined.Obligations erga omnes have been taking shape in areas of directconcern to humankind as a whole, such as human rights protection,environmental protection, disarmament and arms control, to name a


1262. In his assertion, “une obligation universelle c’est ce à quoi tout hommeest tenu, par là même qu’il est homme” ; C. Wolff, Principes du droit de lanature et des gens, Vol. I, Amsterdam, Ed. M. Michel Rey, 1758 (reprint), p. 59,and cf. pp. 1-2.

few. Jus cogens and obligations and rights erga omnes can be prop-erly addressed in the context of the considerable transformations ofInternational Law in the last decades — which have conferred uponit a necessary and inescapable ethical dimension — and of the cur-rent historical process — as I perceive and sustain — of humaniza-tion of International Law.

Ultimately, the beneficiaries of the compliance with, and due per-formance of, obligations erga omnes are all human beings (ratherthan the States). And not only States, but all other subjects ofInternational Law, are bound by erga omnes obligations, which areowed not only to States, but also to the international community as awhole, as well as to human beings. Here, again, it clearly appearsthat the purely inter-State dimension of International Law has longbeen surpassed. There is pressing need today — as I see it — toovercome the strictly inter-State approach in addressing obligationsand rights erga omnes.

Even if an inter-State approach is still — however inadequately— adopted, one cannot elude taking into account the human personas subject of International Law. This being so, it seems to me thatthe rights and duties of all subjects of International Law (includinghuman beings, the ultimate beneficiaries of compliance with ergaomnes obligations) should be taken into account in the determinationof the legal regime of obligations erga omnes, and in particular ofthe juridical consequences of violations of such obligations. As itbecomes accepted that individuals also have rights erga omnes andthat obligations erga omnes are incumbent upon them, there remainsno cogent reason for proceeding to the determination of the juridicalconsequences of violations of those obligations on a strictly inter-State basis.

There appears to be, in fact, nothing new under the sun. Alreadyin the mid-eighteenth century, in his Institutiones Juris Naturae etGentium (originally published in 1750), C. Wolff sustained the exis-tence of universal obligations, wherefrom there ensued a universallaw (droit universel). He further referred to the “universal justice”,which was that which “rend au prochain son droit par rapport àtoutes les actions, en tant qu’elles regardent les autres” 1262.


1263. Set forth in the 1949 Geneva Conventions on International Humani-tarian Law (and the 1977 Additional Protocol I) as well as in several humanrights treaties (cf. footnotes 1222, 1232 and 1233, supra).

1264. In my Separate Opinion in the case of Las Palmeras concerningColombia (Preliminary Objections, Judgment of 4.2.2000), as well as in myConcurring Opinions in the Provisional Measures of Protection ordered by theInter-American Court in the cases of the Community of Peace of San José ofApartadó (of 18.6.2002, pertaining to Colombia), of the Communities of theJiguamiandó and of the Curbaradó (of 6.3.2003, also against Colombia), of theIndigenous People Kankuamo (of 5.7.2004, pertaining likewise to Colombia), ofthe Indigenous People of Sarayaku (of 6.7.2004, filed against Ecuador), of thePrison of Urso Branco (of 7.7.2004, concerning Brazil), and of the TelevisionBroadcasting Company “Globovisión” (of 4.9.2004, pertaining to Venezuela).

Over two and a half centuries later, obligations erga omnes (intheir horizontal and vertical dimensions), as well as jus cogens, aretheoretical constructions of the jus gentium of our days, the Inter-national Law for humankind. In my personal experience of servingfor more than a decade as Judge of an international human rights tri-bunal (and of being its President for half a decade), I can reportmany instances in which the Court has been faced with situationswhich disclosed an unfortunate diversification of the sources of viola-tions — on the part of State as well as non-State agents — of therights of the human person. This required a clear recognition of theeffects of the conventional obligations also vis-à-vis third parties (theDrittwirkung), including individuals (identified and unidentified ones).

Hence the importance of the general obligation of States torespect, and to ensure respect for, the protected rights, in all circum-stances 1263. It is my view that this general duty can assist in the vin-dication of compliance with erga omnes obligations, as, by means ofthe collective guarantee of humanitarian treaties, one may at leastsecure compliance with the general duty of protection of humanbeings (obligation erga omnes partes). One cannot overlook the pos-sibilities of action, particularly under human rights treaties, to thateffect. In the case-law of the IACtHR, I have on successive occa-sions, insisted on this particular point 1264. Jus cogens, in generatingobligations erga omnes, endows them with a necessarily objectivecharacter, encompassing all the addressees of the legal norms(omnes) — States, international organizations, peoples and individu-als, and humankind ; and, as to individuals, both the ones who holdoffices of the public power as well as those who act in their privatecapacity.

In my understanding, obligations erga omnes incorporate commonand superior interests, as well as fundamental values. Compliance


with them is required not only of States, but also of other subjects ofInternational Law (including international organizations as well aspeoples and individuals). Related to jus cogens, such obligationsbind everyone. Furthermore, the acknowledgment of grave breachesof erga omnes obligations is certainly necessary, as it has been pre-cisely the absolute prohibition of grave violations of InternationalLaw and of fundamental human rights that have given prominence tothe obligations erga omnes of protection ; these latter, owed to theinternational community, and transcending the individual consent ofStates, appear instrumental in the construction of the InternationalLaw for humankind.


1265. E.g., against ozone layer depletion, environmental deterioration, armsrace and trade, social marginalization and exclusion, among others.

CHAPTER XIII

CONCEPTUAL CONSTRUCTIONS : COMMON HERITAGE OFMANKIND AND COMMON CONCERN OF MANKIND

I. Introduction

The challenges facing humankind today could hardly be faced onthe basis of the traditional postulates of reciprocity or mutual inter-ests on a strictly inter-State dimension. The protection of present andfuture generations 1265 and the very survival of humankind, requireproper responses with the mobilization of all subjects of Inter-national Law. To face such challenges, newly emerged and inter-related concepts have been propounded, such as common heritageof mankind, common concern of mankind, global commons, sus-tainable development, intergenerational equity. The akin con-cepts, specifically, of common heritage and of common concern ofmankind disclose a spatial and temporal dimensions, and call forspecial attention and world-wide co-operation, with the correspond-ing rights and duties pertaining to present and future generations,bearing in mind the needs and aspirations of humankind.

II. The Content and Significance of the Concept of CommonHeritage of Mankind

The construction of the concept of common heritage of mankindin distinct domains of Public International Law (infra) emerged fromthe acknowledgment of common interests, in pursuance of the com-mon good, of mankind. The concept stretched over time, comprising,as beneficiaires, present as well as future generations. Explanatorytheories of the concept — such as those of res communis (peacefulutilization by all, freedom of access and equitable sharing by all, onbehalf of all), of the international public domain (utilization by allwith gestion under public law, not open to private appropriation), of

365

1266. A. Ch. Kiss, “La notion de patrimoine commun de l’humanité”, 175RCADI (1982), pp. 113 and 229-231. Moreover, the temporal dimensionassumes particular importance in the construction of this new concept, takinginto account also future generations :

“c’est cet élargissement du cercle des bénéficiaires aux générations à venirqui donne ses véritables dimensions au concept de patrimoine commun del’humanité” ; ibid., pp. 240 and 243.

public trust (protection and control of a common good for transmis-sion of one generation into another, on behalf of the whole interna-tional community, with States as “trustees” of natural resources inthe general interest) — disclosed as a common denominator theidentification of common interests, distinct from, and standing above,interests of individual States, as well as the utilization and control ofresources on behalf of humankind, in a temporal dimension.

The concept at issue was soon to find expression, in the secondhalf of the twentieth century, in domains such as those of theInternational Law of Outer Space, the Law of the Sea, the Inter-national Law of Bioethics, International Environmental Law (infra).In his thoughtful Hague Academy lectures of 1982 on the subject,Alexandre-Charles Kiss argued that, under the concept of commonheritage of mankind, there existed a universal solidarity not only inspace (among peoples) but also in time (among successive genera-tions), and added :

“Cette législation internationale qui consacre certainsintérêts supérieurs en cherchant à protéger les êtres humainsau-delà des objectifs immédiats des Etats — et même parfoiscontre eux — n’est pas isolé dans le droit international con-temporain. . . .

Cette notion d’intérêt commun de l’humanité est aussi lefondement du patrimoine commun de l’humanité . . . Aucunedes dispositions conventionnelles imposant des obligations auxEtats dans ces domaines n’a de contrepartie immédiate.” 1266

Thus, each generation is at a time user and guardian of our com-mon natural and cultural heritage, and should thus leave it to futuregenerations in no worse condition than it received it. Hence the prin-ciple of intergenerational equity (conservation of options, of qualityand of access), lucidly developed by E. Brown Weiss, as well as theneed to protect systems of sustainability of life, ecological processes,environmental conditions and cultural resources necessary for the


1267. Cf., in particular, E. Brown Weiss, In Fairness to Future Generations :International Law, Common Patrimony and Intergenerational Equity, Tokyo,Dobbs Ferry New York, UNU, Transnational Publs., 1989, pp. 1-291.

1268. On the basis of this understanding,“on peut jouir des bénéfices de la nature et de ses ressources mais ondoit en assurer la transmission à l’humanité à venir. On peut rappeler à cetégard la célèbre formule : nous ne sommes pas les héritiers de nos ancêtres,mais les débiteurs de nos enfants et de nos petits-enfants” ; A. Ch. Kiss,“La nature, patrimoine commun de l’humanité”, 91 Naturopa (1999),p. 11.

1269. The 1967 Outer Space Treaty, a framework treaty on the matter, settingforth basic principles on the exploration and use of outer space, was preceded bythe 1963 Declaration of Legal Principles Governing the Activities of States inthe Exploration and Use of Outer Space, where the notion of common interestcan already be found.

survival of humankind, and the need to preserve a healthy humanenvironment 1267.

Underlying the concept of common heritage of mankind, onefinds not only the notion of common good or interest (bien commun)of humankind, by also an expansion of the circle of beneficiaires(encompassing future generations). Here, the idea of solidarity atuniversal level is manifest, in its spatial and temporal dimen-sions 1268. It is generally recognized that certain basic principles haveoriented the construction of the new concept of common heritage ofmankind, namely : the principles of non-appropriation and of exclu-sion of State sovereignty, of peaceful uses and purposes, of freedomof access and scientific investigation, and of rational gestion of theresources (of the heritage) and equitable sharing to the benefit of allmankind.

1. In the domain of the International Law of Outer Space

The concept of common heritage of mankind was initiallyasserted in the domain of the International Law of Outer Space, forexample, in the 1979 Agreement Governing the Activities of Stateson the Moon and Other Celestial Bodies (Art. 11 (1) ). TheAgreement, also known as the Moon Treaty, in fact proclaims themoon and its resources as the common heritage of mankind (Art. 11(1) ). Elements of the concept had also been enshrined into theearlier 1967 Treaty on Principles Governing the Activities of Statesin the Exploration and Use of Outer Space, Including the Moonand Other Celestial Bodies 1269, which determined the whole of outer


1270. In the light of International Law and the UN Charter (Art. 3). 1271. Cf., e.g., D. Tan, “Toward a New Regime for the Protection of Outer

Space as the ‘Province of All Mankind’”, 25 Yale Journal of International Law(2000), pp. 162-163.

1272. M. Lachs, The Law of Outer Space, Leiden, Sijthoff, 1972, pp. 113,123 and 137-138.

1273. J. E. S. Fawcett, Outer Space — New Challenges to Law and Policy,Oxford, Clarendon Press, 1984, pp. 3-4, and cf. p. 6.

1274. Already two decades ago, J. E. S. Fawcett warned that the beginning ofthe engagement of private enterprises in space activities appeared “ambiguous aswell as competitive” ; ibid., p. 119, and cf. p. 116.

1275. Cf. E. W. Ploman, Space, Earth and Communication, London, F. PinterPubls., 1984, pp. 160-165.

1276. Cf., e.g., [Various Authors,] Ethics, Law, Science, Technology andInternational Cooperation (Proceedings of the Córdoba Seminar of 1984),Córdoba, Council of Advanced International Studies, 1987, pp. 29-188.

space as being “the province of all mankind” (Art. 1 (1) ) 1270, “notsubject to national appropriation by claim of sovereignty” (Art. 2).

Although expert writing has not been conclusive as to whethercommon heritage of mankind and “province of all mankind” are orare not to be equated 1271, the fact remains that both formulationshave jointly contributed to the general awareness prevailing now-adays that respect for the principles underlying them and for the outerspace environment is beneficial to the whole of humankind. In fact,in the course of the last decades, the law-making process in thedomain of the Law of Outer Space has determined the rights and obli-gations — some of these latter of general character, erga omnes —of the States engaged in activities in the outer space 1272 ; this law-making process was from the start inspired by the conscience of theexistence of superior common interests 1273.

The intense normative activity in the formation of the legalregime of the outer space, mainly of COPUOS and its LegalSubcommittee, in the decades of the seventies and eighties and at thebeginning of the nineties, has, however, more recently, experienceda certain slowing down, parallel to the tendency of a commercializa-tion of certain uses of outer space 1274, and amidst the necessity of anadequate regulation of specific areas of the legal regime of outerspace 1275. Yet, the understanding had already been formed that thescientific-technological advances ought necessarily to revert to thebenefit of humankind as a whole 1276. In this line of thinking, thecrystallization is nowadays undeniable, in the domain of the Inter-national Law of Outer Space, of the general principles of non-appro-priation, of peaceful uses and purposes, and of the extension of the


1277. R. G. Steinhardt, “Outer Space”, in The United Nations and Interna-tional Law (ed. Chr. C. Joyner), Cambridge, University Press/ASIL, 1999(reprint), pp. 338-341 and 344-349.

1278. United Nations, Committee on the Peaceful Uses of Outer Space(COPUOS), Report of the Legal Subcommittee (XL Session, Vienna, April2001), UN doc. A/AC.105/763, of 24.4.2001, p. 10.

1279. In conformity with Article 44 of the ITU Constitution.1280. United Nations, COPUOS, Report of the Legal Subcommittee (XXXIX

Session, Vienna, March/April 2000), UN doc. A/AC.105/738, of 20.4.2000,Annex III, pp. 21-22.

1281. Para. 4 ; resolution reproduced in UN doc. A/RES/55/122, of27.2.2001, p. 2.

1282. Para. 4 ; resolution reproduced in UN doc. A/RES/56/51, of 15.2.2002,p. 2.

benefits of space exploration to the whole of humankind 1277.The concepts of common heritage of mankind and of “province ofall mankind” have surely contributed to this general awareness.

The 1972 Convention on International Liability for DamageCaused by Space Objects recognized, in its preamble, the “commoninterest of all mankind” in furthering the exploration and use ofouter space for peaceful purposes. In its turn, the 1968 Agreement onthe Rescue of Astronauts, the Return of Astronauts and the Return ofObjects Launched into Outer Space invoked “sentiments of human-ity” in its preamble ; earlier, the 1967 Outer Space Treaty concep-tualized astronauts as “envoys of mankind in outer space” (Art. 5).And the 1976 Convention on Registration of Objects Launched intoOuter Space also recognized in its preamble the “common interestof all mankind” in furthering the use of outer space for peacefulpurposes.

In recent years, the question of the character and utilization ofthe geostationary orbit was object of attention of the LegalSubcommittee of the Committee on the Peaceful Uses of OuterSpace (COPUOS), which, in 2000-2001, reached a consensus amongparticipating Delegations, in the light of the principle of equity 1278.The understanding was in the sense that the access to the geostation-ary orbit ought to take place in an equitable way (the orbits of satel-lite and the spectrum of radio frequency being “limited naturalresources” 1279) ; thus, the country which had already attained suchaccess ought to take “all the practicable measures” to render itpossible for other countries (including developing countries) alsoto have it 1280.

The UN General Assembly, in its resolutions 55/122, of8 December 2000 1281, and 56/51, of 10 December 2001 1282, both on


1283. Paras. 44 and 48, respectively.1284. Such as the consideration, by the UN International Law Commission,

in the fifties, of the idea of reserving the seabed and ocean floor and theirresources for the use of the international community, as well as the proposal ofseveral Delegations, at the I UN Conference on the Law of the Sea (1958), thatthe continental shelf should be exploited in the interests and for the benefit ofmakind as a whole ; United Nations, Office of Legal Affairs, The Law of the Sea— Concept of the Common Heritage of Mankind . . ., op. cit. infra foot-note 1288, pp. 1-2, and cf. p. 8.

the international co-operation in the peaceful uses of outer space,took note “with satisfaction” of the consensus referred to reached bythe Legal Subcommittee, and endorsed by COPUOS, on the questionof the character and utilization of the geoestationary orbit. Thus,both COPUOS and the International Telecommunication Union(ITU) contributed to reaching the recognition that the geostationaryorbit is a limited natural resource, and that all countries ought to beable to count on the possibility of access to that orbit, for it not to beregarded as a privilege for a given number of satellites which arealready placed in it.

The aforementioned UN General Assembly resolutions 55/122and 56/51 stated in their preambles (second considerandum) thebelief in “the common interest of mankind in promoting and expand-ing the exploration and use of outer space for peaceful purposes”, aswell as in “continuing efforts to extend to all States the benefitsderived therefrom”. The two resolutions supported the expansion ofthe scope of international cooperation relating to “the social, eco-nomic, ethical and human dimension in space science and techno-logy applications” 1283.

2. In the domain of the Law of the Sea

Over the last two decades, it became generally reckoned that, ofthe expressions the concept of common heritage of mankind hasfound in distinct domains of International Law (supra), the mostelaborate has been the one in the Law of the Sea, endowed as it iswith an institutionalized framework (infra). The saga of such a con-cept — enshrined in the 1982 Montego Bay Convention (Art. 136)—, in the domain of the Law of the Sea, goes back to the 1967address by Ambassador Arvid Pardo, of Malta, at the UN GeneralAssembly. The Maltese proposal — which had antecedents in theLaw of the Sea 1284 — resulted in the adoption, three years later, of the


1285. Cf. UN General Assembly resolution 2749, of 17.12.1970. 1286. Part XI, esp. Arts. 136-145 and 311 (6).1287. Cf. ibid., pp. 28, 95, 126, 219, 387 and 431.1288. United Nations, Office of Legal Affairs, The Law of the Sea — Concept

of the Common Heritage of Mankind (Legislative History of Articles 133 to 150and 311 (6) of the U.N. Convention on the Law of the Sea), New York, UnitedNations, 1996, p. 1, and cf. p. 3.

1289. Cf. ibid., pp. 92-93.

General Assembly’s declaration that the seabed and ocean floor, andthe subsoil thereof, beyond the limits of national jurisdiction, as wellas the resources of the so-called Area, were the common heritage ofmankind 1285. In 1975 the concept was incorporated into the InformalSingle Negotiating Text of the Third UN Conference of the Law ofthe Sea (UNCLOS), and was at last enshrined into the 1982 UNConvention on the Law of the Sea 1286.

A well-documented account of the legislative history of the con-cept of common heritage of mankind, published in 1996 by the UNOffice of Legal Affairs (Division for Ocean Affairs and the Law ofthe Sea), discloses the intense common search (aiming at universal-ity) of general principles concerning the peaceful and equitable usesof the seabed and the ocean floor, and the subsoil thereof, beyondthe areas of national jurisdiction 1287. The aforementioned accountacknowledged difficulties in tracing back all the antecedents, at doc-trinal level, of the concept at issue :

“It is difficult to say exactly when the concept of the com-mon heritage of mankind first arose in human consciousness.The idea, in one form or another, could probably be traced toancient times. . . . Suffice it to point out that in the 1830s aLatin American jurist, Andrés Bello, argued that those thingswhich could not be held by one nation without detriment to theothers ought to be considered by the international communityas ‘common patrimony’. In 1898, A. G. de Lapradelle, a Frenchjurist, advanced the idea that the oceans should be ‘le patri-moine de l’humanité’.” 1288

As advanced in the course of the III UNCLOS (1973-1982), theconcept of common heritage of mankind can be associated with thecreation of an international regime for the regulation and manage-ment of the seabed and ocean floor beyond the limits of nationaljurisdiction on behalf of the entire international community 1289. Asoriginally propounded in the present domain, the new concept


1290. G. de Lacharrière, “La réforme du droit de la mer et le rôle de laConférence des Nations Unies”, in Le nouveau droit international de la mer(eds. D. Bardonnet and M. Virally), Paris, Pedone, 1983, p. 31.

1291. M. Bennouna, “Les droits d’exploitation des ressources minérales desocéans”, in Le nouveau droit . . ., op. cit. supra footnote 1290, pp. 122-123 and128-129.

1292. C. Douay, “Le droit de la mer et la préservation du mileu marin”, in Lenouveau droit . . ., op. cit. supra footnote 1290, pp. 238-240.

sought the overcoming of unilateralisms, and heralded the advent ofa new outlook and paradigm of International Law itself, turningattention to humankind as a whole (endowed with international sub-jectivity) as well as to the imperative of international distributivejustice. It was not surprising that, in this new outlook, theInternational Seabed Authority, created by the 1982 Montego BayConvention and endowed with international legal personality(Art. 176), had been conceived so as to operate to the benefit ofhumankind as a whole.

The insertion, into the Montego Bay Convention, of the conceptof common heritage of mankind, was not meant only to provide theframework for clauses concerning the structure of the futureAuthority, its financing, transfers of technology, and the like ; it wentmuch further than that, in giving expression to a basic principle ori-enting the new conventional regime, opposable also to States whichwere not to ratify the 1982 Convention 1290, on behalf of mankind. Ithad in mind the seabed and its subsoil beyond the limits of nationaljurisdiction precisely because they were the ones most exposed tothe ambitions of some States ; their resources — as common heritageof mankind — were meant to belong to humankind, forming part ofa truly universal regime 1291. After all, the principle of liberty ofexploitation (of the traditional International Law of the Sea) appearedno longer satisfactory, calling for the common heritage of mankind.This latter set forth the component principles of non-appropriation(of resources) and peaceful utilization and exploration in the interestof mankind as a whole ; as originally conceived, the new universalregime was to be endowed with a mechanism of its own 1292.

But as progress, in this and other areas of International Law, hasnot taken place in a linear way, the International Seabed Authorityexperienced vicissitudes even after the Montego Bay Conventionwas concluded — as illustrated by the Agreement of 1994 for theImplementation of Part XI of the Convention referred to. TheAgreement of 1994 much emptied the concept of common heritage


1293. J. A. Pastor Ridruejo, “Le droit international à la veille du vingt etunième siècle : normes, faits et valeurs. Cours général de droit internationalpublic”, 274 RCADI (1998), pp. 264-265.

1294. Cf., e.g., J. M. Pureza, O Património Comum da Humanidade : Rumo aum Direito Internacional da Solidariedade ?, Porto, Ed. Afrontamento, 1998,p. 247, and cf. p. 242.

1295. Cf. S. Paquerot, Le statut des ressources vitales en droit international— Essai sur le concept de patrimoine commun de l’humanité, Brussels,Bruylant, 2002, pp. 85-103.

1296. Cf., for an account, e.g., E. D. Brown, “The 1994 Agreement on theImplementation of Part XI of the U.N. Convention on the Law of the Sea :Breakthrough to Universality ?”, 19 Marine Policy (1995), n. 1, pp. 5-20.

of mankind of its original content, largely depriving it of a great partof its purpose of distributive justice, and bringing it closer to the oldnotion of Roman law of res communis omnium. With that, the func-tion of the International Seabed Authority appeared weakened.

It is not surprising that the 1994 Agreement has been receivedwith a critical spirit by part of the more enlightened legal doctrine,which characterized it as a “step backwards”, for representing a vic-tory of the pretensions of a very reduced number of States endowedwith technological capacity to explore on their own the resources ofthe international seabed, over the aspirations of the great majority ofStates, which sought the establishment of a new international eco-nomic order, with more distributive justice and solidarity 1293. Itappeared as tipping the balance in favour of technologicallyadvanced States, whose interests prevailed over the ideal of an equi-table distribution of benefits bearing in mind the needs of the inter-national community as a whole 1294.

The ideal of universal solidarity, coupled with social responsibil-ity, as emerged around the res communis humanitatis, was regret-tably set aside in favour of the old so-called “free” and “liberal”competition 1295. This corresponded to the distorted view of “univer-sality” of the regime of the 1982 Law of the Sea Conventionespoused by the technologically advanced States 1296, which was pre-cisely what the concept of common heritage of mankind purported toovercome. Although technologically advanced States reinterpretedthe concept of common heritage of mankind as implying freedom ofaccess to the Area for all participating States for seabed mining (onan equal footing under a licensing system), the fact remains that theconcept entered into the vocabulary of the law of the sea implyingdistributive justice and international cooperation with preferentialtreatment for the poorer countries ; this was the understanding


1297. M. C. W. Pinto, “ ‘Common Heritage of Mankind’ : From Metaphor toMyth, and the Consequences of Constructive Ambiguity”, in Theory ofInternational Law at the Threshold of the 21st Century — Essays in Honour ofK. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 256 and 265-266.

1298. Ibid., p. 267.1299. On the occasion, the Group of 77 warned of the risk of destruction of

the whole negotiatory process, and stood against what it regarded as the “ille-gality” of unilateral national legislations contrary to the concept of common heri-tage of mankind, seen as endowed with an imperative character ; cf. account ofJ.-P. Lévy, La Conférence des Nations Unies sur le droit de la mer — histoired’une négociation singulière, Paris, Pedone, 1983, pp. 98-99.

1300. C. C. Joyner, “Legal Implications of the Concept of the CommonHeritage of Mankind”, 35 International and Comparative Law Quarterly (1986),p. 199.

1301. The triumphalism of the heralds of the so-called “free market” led toexagerations, such as that of suggesting a “requiem” for the new internationaleconomic order ; T. W. Wälde, A Requiem for the “New International EconomicOrder” — The Rise and Fall of Paradigms in International Economic Law,Dundee, Univesity of Dundee (Discussion Paper DP8), 1997, pp. 1-57.

espoused by most participants at the III UNCLOS 1297. As pointedout by M. C. W. Pinto,

“It was an inspiring vision offered to a world at a time whenit seemed feasible to establish a ‘new international economicorder’ founded on distributive justice and cooperation thatwould replace an old order of exploitative relationships basedessentially on power disparities and competition.” 1298

From the beginning, when it emerged in the ambit of the law ofthe sea, the concept of common heritage of mankind overcame someresistance. In fact, those who participated in the prolonged negotia-tory process of the Montego Bay Convention of 1982 did not fail toexpress their concern with the threats of a breaking down — mainlyin the ninth session, in 1980, of the III UNCLOS — of the consen-sus formed as to the concept of common heritage of mankind 1299.But the concept survived, and found expression in the 1982 Law ofthe Sea Convention. After the adoption of the Convention, it wasregarded by some as a rather “philosophical” concept, with “thepotential to emerge and crystallize as a legal norm” 1300.

It is generally recognized nowadays that the formation of the con-cept of common heritage of mankind has been influenced by themovement in favour of the establishment of a new international eco-nomic order, which gained ground mainly in the seventies 1301. In myview, the ideal of construction of an international legal order withmore distributive justice and solidarity at universal scale is bound to


1302. International Seabed Authority, Deep Seabed Mineral Development,Bio-Prospecting and the Protection of Biological Diversity in the Deep Seabedand on the High Seas, April 2002, pp. 1-14.

1303. In the “Area” — such as defined in Article 1 of the Montego BayConvention of 1982 — which encompasses the marine and ocean floors andtheir subsoil beyond the limits of national jurisdiction.

1304. And also in the terms of Article 143 (1) of the Montego BayConvention.

1305. K. Baslar, The Concept of the Common Heritage of Mankind inInternational Law, The Hague, Nijhoff, 1998, p. 242, and cf. pp. 222-229.

1306. J.-A. Carrillo-Salcedo, “Contribution de la notion d’humanité au ren-forcement de la dimension idéologique du droit international”, in K. VasakAmicorum Liber — Les droits de l’homme à l’aube du XXIe siècle, Brussels,Bruylant, 1999, pp. 115-126 ; B. Conforti, “Humanité et renouveau de la pro-

keep on evolving, to the extent that the human spirit is refined inapproaching and fostering the equitable application of internationalnorms, to States which are juridically equal but remain factuallymarked by profound inequalities, if not iniquities. Just as advancesdo not take place in a linear form, nor do the steps backwards appearirreversible. The ideal of common “heritage” or “concern” ofmankind is surely alive, having managed to permeate the very evo-lution of some domains of International Law in the last decades.This is illustrated, for example, by a recent document (of 2002)issued by the International Seabed Authority on the protection of thebiological biodiversity in the deep seabed 1302, which insists onmarine scientific research 1303 to be undertaken to the benefit ofmankind as a whole, pursuant to the concept of common heritage ofmankind 1304.

Another illustration lies in the treatment which continues to bedispensed to the concept of common heritage of mankind, bothbefore and after the Agreement of 1994 referred to. Even those whoappeared somewhat complacent as to the circumstances of the cele-bration of the aforementioned Agreeement recognized and antici-pated that the normative content of the provisions on common heri-tage of mankind appeared as “important precedents” to “force Stateswhich have never felt any obligation to share” the wealth that theycontrol in order to promote international distributive justice 1305.

At doctrinal level, underlying the concept of common heritage ofmankind subsists the belief that the advances in International Laware linked to the recognition of the necessity of interdependence,solidarity and assertion of ethical values in the conduction of inter-national relations 1306. As pertinently remarked by J. A. CarrilloSalcedo, the concept of common heritage of mankind,


duction normative”, in Humanité et droit international — Mélanges R.-J. Dupuy,Paris, Pedone, 1991, pp. 113-120 ; G. Abi-Saab, “‘Humanité’ et ‘communautéinternationale’ dans la dialectique du droit international”, in ibid., pp. 10-12 ;R.-J. Dupuy, “Droit de la mer et communauté internationale”, Mélanges offertsà P. Reuter — Le droit international : unité et diversité, Paris, Pedone, 1981,pp. 223 and 229-230.

1307. J.-A. Carrillo Salcedo, “Le concept de patrimoine commun del’humanité”, in Ouvertures en droit international — Hommage à R.-J. Dupuy,Paris, SFDI, Pedone, 2000, p. 62.

1308. J.-F. Mattei, “Introduction”, in Ethical Eye : The Human Genome (ed.J.-F. Mattei), Strasbourg, Council of Europe, 2001, pp. 11-13.

1309. Cf., e.g., Council of Europe, Law and Moral Dilemmas Affecting Lifeand Death (Proceedings of the Glasgow Colloquy on European Law of 1990),Strasbourg, C.E., 1992, pp. 11-34.

1310. Endorsed one year later by the UN General Assembly itself (resolutionA/RES/53/152), coinciding with the cinquentenary of the 1948 UniversalDeclaration of Human Rights.

“qui appartient à l’imaginaire des nations, . . . pourra servir, àl’avenir, de fondement à des constructions juridiques qui recon-naîtront et organiseront la destination universelle des biens,empêcheront leur exploitation au seul profit des riches et despuissants et permetront la répartition plus équitable de leursfruits” 1307.

The realization of the ideal to which the common heritage ofmankind gives expression, leaves no room for distortions of thatconcept. The universality it originally aimed at was motivated byinternational distributive justice, in the light of equity, rather than bythe subsequent search for profit.

3. In the domain of the International Law of Bioethics

The concept of common heritage of mankind has likewise foundexpression in the evolving International Law of Bioethics. As fromthe mid-twentieth century, human genetics emerged in the scientificdevelopments of the epoch to establish itself as a new disciplinetouching upon the essence and foundation of humanity, raisingissues concerning both life and death and the finite nature of humanbeings 1308, for which Law has not yet provided clear and conclusiveanswers 1309. On 11 November 1997 the XXIX General Conferenceof UNESCO adopted the Universal Declaration on the HumanGenome and Human Rights 1310, Article 1 of which provides that

“The human genome underlies the fundamental unity of allmembers of the human family, as well as the recognition of


1311. H. Gros Espiell, “Genética y Derechos Humanos — El Anteproyecto deDeclaración de la UNESCO sobre la Protección del Genoma Humano”, in Scrittiin Onore di G. Gerin, Milan, CEDAM, 1996, pp. 217 and 221-222.

their inherent dignity and diversity. In a symbolic sense, it isthe heritage of humanity.”

The provision was intended to draw attention to the rights andduties of every human being over his “genetic heritage”, and tostress that any improvement in the knowledge of the human genomeshould result in the benefit, without discrimination, of humankind asa whole ; the protection of the human genome was thus turned to thesafeguard of the integrity of the human species as such and of thedignity of all individuals as its members 1311. In the present domain,at regional level, reference can also be made to the 1996 Council ofEurope’s Convention on Human Rights and Biomedicine, which, inits preamble, asserts the dignity of the individual as such and in hisbelonging to the human species, and the need to secure that advancesin biology and medicine benefit humankind as a whole, encompass-ing present and future generations.

In the preparatory work of the 1997 UNESCO UniversalDeclaration on the Human Genome and Human Rights, theInternational Bioethics Committee of UNESCO was engaged in thedrafting of a clear and strong provision on the concept of the com-mon heritage of mankind to be set forth in Article 1 ; subsequently,however, the concept was — according to an account of its finaldrafting — unfortunately “watered down by government representa-tives”, by considering the human genome only “in a symbolic sense”to be the “heritage of humanity”. According to that account,

“Indeed, the International Bioethics Committee had em-braced the ‘common heritage of humanity’ concept, but certaingovernment representatives designated to study and approvethe Committee’s final draft declaration understood the commonheritage concept as mandating possible appropriation by inter-national conglomerates and thus a risk to State sovereignty.Others disliked the community aspect. Ironically, other mem-bers of the Bioethics Committee, fearful of possible Statesovereignty, preferred to protect the human genome at the levelof the individual. Finally, the French translation of heritage as‘patrimony’ also created difficulties since it would be seen as


1312. B. M. Knoppers, “The Human Genome : Individual Property orCommon Heritage ?”, in Ethical Eye : The Human Genome (ed. J.-F. Mattei),Strasbourg, Council of Europe, 2001, p. 115.

1313. That is, it applies the concept of human genome to the genome of anindividual as well as to the genomes of all human beings altogether.

1314. G. B. Kutukdjian, “Le génome humain : patrimoine commun de l’hu-manité”, in Personne humaine et droit international — H. Gros EspiellAmicorum Liber, Vol. I, Brussels, Bruylant, 1997, p. 609, and cf. pp. 606-607.

1315. UNESCO, Birth of the Universal Declaration on the Human Genomeand Human Rights, Paris, UNESCO, 1999, pp. 3 and 99-100.

having an economic meaning. Hence, the adoption of theexpression ‘symbolic of the heritage of humanity’. ” 1312

Be that as it may, despite such vicissitudes of the drafting of theaforementioned Declaration, this latter characterizes the humangenome as constitutive of the singularity of human beings 1313 andaffirms the responsibility of the international community as a wholefor the preservation of the human species ; by resorting to the conceptof common “heritage of humanity”, the 1997 Universal Declaration

“se situe dans le prolongement de la prise de conscience accruedu destin commun de l’humanité et des responsabilités qui endécoulent . . . Dans la Déclaration, la mise en œuvre de lanotion de patrimoine commun vise à assurer la protection laplus large du génome humain contre les atteintes susceptiblesde mettre en danger la pérennité même de l’humanité. Enfin, lanotion de patrimoine recouvre les connaissances accumuléespar l’homme sur lui-même, comme formant un potentiel deprogrès pour l’humanité.” 1314

UNESCO itself has clarified that the basic idea underlying thereference to the common “heritage of humanity” in Article 1 of itsUniversal Declaration on the Human Genome and Human Rights isthat research on the human genome and the applications flowingtherefrom — which may affect both individuals and the humanspecies — are the responsibility of the international community as awhole, an ethical imperative of humankind. Human dignity is thecardinal principle orienting the safeguard of the integrity of the indi-vidual and the human species through the protection of the humangenome 1315.

It should not pass unnoticed that Article 3 of the 1997 UniversalDeclaration, in referring to the “mutations” undergone by the humangenome in each individual’s natural and social environment, and


1316. That is, the false assumption that an individual would be genetically“programmed” from the beginning of his existence.

1317. As pointed out in this connection, “we are all made from the same matter,but we are still very, very different. . . . Our main difference in category . . . is meta-biological, metaphysical and spiritual” ; J. Reich, “At the Frontiers of Humanity”, inEthical Eye: The Human Genome (ed. J.-F. Mattei), Strasbourg, Council of Europe,2001, p. 127.

The 1997 Universal Declaration thus refutes the strictly genetic conception ofhumankind and the mistaken view that an individual would amount to the sumtotal of his genes ; J.-F. Mattei, “Conclusion”, in ibid., pp. 131 and 135.

1318. The notion of cultural heritage of mankind can be found, e.g., in theConventions for the Protection of Cultural Property in the Event of ArmedConflict (1954) and for the Protection of the World Cultural and NaturalHeritage (1972) (cf. infra).

living conditions (including health, nutrition and education), standsagainst “genetic determinism” 1316. It may well be that we are hereapproaching the frontiers of humanity 1317. The present and emergingdomain of International Law gives pride of place to the individual assuch and to his belonging to the human species. The principle of thedignity of the human person as subject of International Law occupiesa central position herein. Its outlook is essentially universalist,ineluctably transcending a strictly inter-State dimension. It disclosesa conception of the human being, in the societas gentium and ulti-mately in the universe itself, which appears remindful of the originalfoundations of the droit des gens.

4. In the domain of International Environmental Law

It is widely acknowledged nowadays that international life hasbeen dramatically marked by the pressures of two major challengesof our times, namely, the necessities and requirements of protectionof the human person as well as of the environment. Environmentalissues, such as, inter alia, climate change and biological diversity,have disclosed a truly global dimension, transcending the strictlyinter-State level and requiring a universal approach. It is thus notsurprising to find reiterated references to “mankind” in various inter-national instruments on preservation of the environment and on sus-tainable development, and on protection of the cultural heritage 1318

— on behalf of present and future generations —, indicating thatcontemporary International Law can no longer be adequatelyapproached from an exclusively State-oriented perspective, and alsosignificantly heralding the advent of a new International Law forhumankind.


1319. E.g., preambles of the 1971 Treaty on the Prohibition of the Empla-cement of Nuclear Weapons and Other Weapons of Mass Destruction on theSea-bed and the Ocean Floor and in the Subsoil Thereof ; the 1972 Conventionon the Prohibition of the Development, Production and Stockpiling ofBacteriological (Biological) and Toxin Weapons and on Their Destruction ; the1977 Convention on the Prohibition of Military or Any Other Hostile Use ofEnvironmental Modification Techniques ; the 1972 Convention on the Pre-vention of Marine Pollution by Dumping of Wastes and Other Matter ; the 1974Convention for the Prevention of Marine Pollution from Land-Based Sources ;the 1972 Convention for the Prevention of Marine Pollution by Dumping fromShips and Aircraft ; the 1972 UNESCO Convention for the Protection of theWorld Cultural and Natural Heritage.

1320. E.g., the 1985 Vienna Convention for the Protection of the OzoneLayer, preamble and Article 2 ; the 1987 Montreal Protocol on Substances thatDeplete the Ozone Layer, preamble ; Article 1 of the three aforementionedmarine pollution Conventions.

1321. Cf. N. J. Schrijver, “Permanent Sovereignty over Natural Resourcesversus the Common Heritage of Mankind : Complementary or ContradictoryPrinciples of International Economic Law ?”, in International Law andDevelopment (eds. P. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff,Kluwer, 1988, pp. 95-96, 98 and 101.

The 1972 Stockholm Declaration on the Human Environmentexpressly refers to the “common good of mankind” (Principle 18).Rules on the protection of the environment are adopted, and obliga-tions to that effect are undertaken, in the common superior interestof mankind. This has been expressly acknowledged in some treatiesin the field of the environment 1319 ; it is further implicit in referencesto “human health” in some environmental law treaties 1320. Suchacknowledgment, in addition to that also found in the InternationalLaw of the Outer Space and the Law of the Sea 1321 (supra), calls fora reconsideration of the basic postulates of International Law bear-ing in mind the superior common interests of humankind.

Despite semantic variations in international instruments on envi-ronmental protection when referring to mankind, a common denom-inator underlying them all appears to be the common interests ofhumankind. There seems to be occurring lately, in the presentdomain of International Environmental Law, an evolution from thenotion of common heritage of mankind (as emerged in the contextsof the Law of the Sea and Space Law) to that of common concern ofmankind. The UN General Assembly resolution 43/53, of 1988,introduced the recognition that climate change was a “common con-cern” of mankind, since (in the wording of its first operative para-graph) climate was “an essential condition which sustains life onearth”.

Such essential or fundamental condition is inextricably linked to


1322. UNEP, doc. UNEP/ELIU/WG.1/1/2, pp. 1-2, para. 4, and cf. pp. 4-5,paras. 8-9.

1323. Second considerandum.1324. Preamble, sixth considerandum.1325. Preamble, seventh considerandum, and Article 6 (1).

the new idea of “commonness”. The newly proposed notion isinspired in considerations of international ordre public. It appears asa derivative of the earlier “common heritage” approach, meant toshift emphasis from the sharing of benefits from exploitation ofenvironmental wealths to fair or equitable sharing of burdens inenvironmental protection, and the needed concerted actions to thateffect with a social and a temporal dimensions. It could hardly bedoubted, as UNEP itself has acknowledged, that environmental pro-tection is “decisively linked” to the “human rights issue” 1322.

References to the common heritage of mankind are likewisefound in other instruments of the present domain of InternationalLaw. Thus, for example, the 1966 UNESCO Declaration onPrinciples of International Cultural Co-operation proclaims that “allcultures form part of the common heritage of mankind” (Art. 1 (3) ).The constitutive charter of UNESCO itself advances the notion ofuniversal heritage (formed by books, works of art, and other monu-ments of historical or scientific interest — Article 1 (2) (c) ). In itsturn, the 1954 Hague Convention for the Protection of CulturalProperty in the Event of Armed Conflict warns in its preamble that

“damage to cultural property belonging to any people what-soever means damage to the cultural heritage of all mankind,since each people makes its contribution to the culture of theworld” 1323.

And the 1972 UNESCO Convention for the Protection of theWorld Cultural and Natural Heritage states in its preamble that“parts of the cultural or natural heritage are of outstanding interestand therefore need to be preserved as part of the world heritage ofmankind as a whole” 1324 ; the Convention sets forth the responsibil-ity and duty of the “international community as a whole” in thepresent domain 1325. Most parts of the cultural or natural heritage are,however, under the jurisdictions of the States ; as exclusion of theirsovereignty does not occur in this specific area, international co-operation grows here in importance, so that the cultural and naturalheritage can be preserved and transmitted to future generations. On


1326. Preamble, eighth considerandum. The 2001 Declaration stated that“culture should be regarded as the set of distinctive spiritual, material, intellec-tual and emotional features of a society or a social group”, and that “it encom-passes, in addition to art and literature, lifestyles, ways of living together, valuesystems, traditions and beliefs” ; preamble, fifth considerandum.

1327. Article 1. It determined that “the defence of cultural diversity is anethical imperative, inseparable from respect for human dignity” (Art. 4). More-over, it supported the “pre-eminence of public policy”, as “market forces alonecannot guarantee the preservation and promotion of cultural diversity” (Art. 11).

1328. In which it stated it was “deeply concerned and appalled by the Talibanedict of 26.2.2001, ordering the destruction of all statues and non-Islamicshrines of Afghanistan”, a destruction which would be “an irreparable loss forhumanity as a whole” ; preamble, fourth and sixth consideranda.

1329. Preamble, second considerandum.1330. R. O’Keefe, “World Cultural Heritage : Obligations to the International

Community as a Whole ?”, 53 International and Comparative Law Quarterly(2004), pp. 190 and 196-197, and cf. pp. 208-209.

2 November 2001, the General Conference of UNESCO adopted theUniversal Declaration on Cultural Diversity, expressing the aspira-tion to “greater solidarity on the basis of recognition of culturaldiversity, of awareness of the unity of humankind” 1326. TheUNESCO Declaration erects cultural diversity — or “plurality of theidentities of the groups and societies making up humankind” — as“common heritage of humanity” 1327.

The universal concern with the needed preservation of the worldcultural heritage became manifest in the case of the destruction ofthe Buddhas of Bamiyan in March 2001. Even before the confirma-tion of the demolition of the Buddhas, the UN General Assemblyadopted resolution 55/243 (of 9 March 2001) 1328 warning as to “theneed to respect the common heritage of humankind” 1329. After thedemolition of the Buddhas, the General Assembly of the StatesParties to the 1972 UNESCO Convention for the Protection of theWorld Cultural and Natural Heritage, likewise, adopted another reso-lution, on 31 October 2001, condemning the “wilful destruction ofthe cultural heritage of Afghanistan by the Taliban forces” as a crime“against the common heritage of humanity”. These manifestationsacknowledged the “universal interest” in the preservation of theworld cultural heritage in the light of the 1972 UNESCOConvention, generating obligations erga omnes partes of protec-tion 1330.

Later on, the General Conference of UNESCO adopted, on17 October 2003, the Declaration concerning the Intentional Destruc-tion of Cultural Heritage, in which it characterized such “intentionaldestruction” as


1331. Operative part, Sect. II, para. 2.1332. Preamble, first and second consideranda. The Declaration further

called upon States to “take all appropriate measures to prevent, avoid, stopand suppress acts of intentional destruction of cultural heritage, wherever suchheritage is located” ; operative part, Sect. III, para. 1.

1333. Invoking to this effect the international instruments of human rights.1334. Preamble and Article 2 (1).1335. UNESCO, International Coordination Committee for the Safeguarding

of the Cultural Heritage of Iraq, Final Report (1st plenary session, Paris,24-25 May 2004), p. 2, and cf. pp. 3-7 and 10-11.

1336. Namely, “five civilizations, five religions in five thousand years ofhuman experiences, . . . history, poetry, arts, literature, . . . and intangible cul-ture” ; UNESCO, op. cit. supra footnote 1335, p. 2.

1337. Ibid., pp. 12-13.

“a violation of International Law or an unjustifiable offence tothe principles of humanity and dictates of public conscience, inthe latter case in so far as such acts are not already governed byfundamental principles of International Law” 1331.

The 2003 UNESCO Declaration further expressed “serious con-cern about the growing number of acts of intentional destructionof cultural heritage”, and recalled “the tragic destruction of theBuddhas of Bamiyan that affected the international community as awhole” 1332.

On its part, the UNESCO Convention for the Safeguarding of theIntangible Cultural Heritage, also adopted in 2003, sought the pro-tection of the intangible cultural heritage 1333, and conceptualized thislatter as “the practices, representations, expressions, knowledge,skills . . . that communities, groups and, in some cases, individualsrecognize as part of their cultural heritage” 1334. Subsequently,the Executive Board of UNESCO approved (at its 167th session) theestablishment of the International Co-ordination Committee for theSafeguarding of the Cultural Heritage of Iraq, which held its firstplenary session at UNESCO headquarters in Paris on 24-25 May2004. Its final report began by recalling “the tragic conditions of theIraqi cultural heritage since beginning of the embargo and especiallysince April 2003”, and stressed the need to safeguard that heritagefor the “sake of the whole humanity” 1335.

The report next warned that the long history of Iraq’s intangibleheritage 1336 was being “threatened by destruction and lootingbecause of the recent war and more than ten years of embargo, andwill be lost if no prompt action is taken to safeguard it” 1337. Theaforementioned report concluded by stressing the “important role of


1338. Op. cit. supra footnote 1335, p. 13. 1339. Cf. ibid., pp. 14-17.1340. Cf. operative paragraph 1, and sections B and C ; and cf. UNESCO-

PRESS, Press Release No. 2004/47, of 29.5.2004, p. 1. In the same line of con-cern, and with regard to the recent invasion and occupation of Iraq, the UNSecretary-General (K. Annan), while deploring, in April 2003, “the catastrophiclosses to Iraq’s cultural heritage” that had just occurred, expressed the determi-nation to join forces with UNESCO in preventing trade in “stolen Iraqi objects”,and further noted that “Iraq’s cultural treasures bear witness to an invaluablelegacy for all humanity, and their loss is a wound inflicted on all humankind” ;United Nations/Secretary-General, Press Release of 15.4.2003, p. 1.

1341. Preamble, ninth considerandum.1342. Cf., e.g., UNESCO, General Conference, document 33-C/23, of

4.8.2005, pp. 1-16, and Annexes ; and cf. G. Gagné (ed.), La diversité culturelle :vers une Convention internationale effective ?, Montreal, Quebec, Ed. Fides,2005, pp. 7-164.

1343. Preamble, consideranda 1, 2 and 7 of the Convention of 2005.

intangible heritage” not only in “rebuilding societies” but also “as amain source of cultural diversity, and as a cornerstone in the identityof groups, communities and individuals” 1338. The GeneralConference of UNESCO had, accordingly — it recalled — adoptedthe aforementioned 2003 Convention for the Safeguarding of theIntangible Cultural Heritage. The report finally formulated recom-mendations and identified responsibilities 1339.

Shortly afterwards, the Committee held the I Cultural Forum forIraq on 26-27 May 2004, wherein it was further recalled that all warscause devastation that destroy the soul and desfigure the memory ofthe cultural identity of a people ; in the case of the armed attack onIraq (2003) and the chaos following it, eight thousand years ofhuman history were now hanging in the balance. The Forum’s finaldocument, adopted by UNESCO in the form of an “Appeal” on27 May 2004, expressed the determination to preserve the (tangibleand intangible) cultural heritage of Iraq 1340. On its part, the UNSecurity Council, in resolution 1546 (2004), of 8 June 2004, interalia stressed the need for all parties “to respect and protect Iraq’sarchaeological, historical, cultural, and religious heritage” 1341.

The recent 2005 UNESCO Convention on the Protection andPromotion of the Diversity of Cultural Expressions, adopted (on20 October 2005) after prolonged debates 1342, reiterated the concep-tion of cultural diversity as common heritage of mankind, ponderingthat “culture takes diverse forms across time and space” and thisdiversity is incorporated “in the uniqueness and plurality of the iden-tities and cultural expressions of the peoples and societies making uphumanity” 1343. The Convention added that cultural diversity can


1344. Article 2 (1) of the Convention of 2005.1345. A. Blanc Altemir, El Patrimonio Común de la Humanidad — Hacia un

Régimen Jurídico Internacional para Su Gestión, Barcelona, Bosch, 1992,pp. 167-172 and 246-247.

only be protected and promoted by means of the safeguard of humanrights 1344.

The projection of the notion of common heritage of mankind tocultural and natural heritage acknowledges the configuration of thegeneral interest of humankind in its protection and conservation.These latter grow in importance, given the fact that most parts of thecorresponding heritage remain under the respective State jurisdic-tions (with no exclusion of sovereignty), there being thus an evengreater need to secure that they are preserved and duly transmitted,as common heritage, to the future generations 1345. Furthermore, theuniversal juridical conscence has evolved towards the clear recogni-tion of the relevance of cultural diversity to the universality ofhuman rights, and vice versa, as well as towards the humanization ofInternational Law, and the configuration of a new jus gentium atthis beginning of the twenty-first century, of an International Lawfor humankind. And the aforementioned triad of the UNESCOConventions of 1972, 2003 and 2005 affords, in my perception, oneof the many contemporary manifestations of the awakening ofhuman conscience to this effect.

III. The Contentand Significance of the Concept of Common

Concern of Mankind

1. The emergence of the new concept

The two concepts of common heritage and of common concern ofmankind transcend the level of strictly inter-State relations, focusingon the needs and aspirations of humankind as a whole, encompass-ing present and future generations. Conflicting interpretations andcontroversies surrounding the earlier concept of common heritage ofmankind (in such distinct domains as the Law of the Sea and SpaceLaw) have led to the subsequent adoption of a derivative concept,that of common concern of mankind (in, for example, InternationalEnvironmental Law). The emphasis of this latter falls upon concertedactions in equitable sharing of burdens (in environmental protec-


1346. Cf. UNEP, The Meeting of the Group of Legal Experts to Examine theConcept of the Common Concern of Mankind in Relation to Global Environ-mental Issues (ed. D. J. Attard — Malta, 13-15 December 1990), Nairobi,Kenya, UNEP, 1991, pp. 19-47.

1347. Co-rapporteurs, A. A. Cançado Trindade and D. J. Attard.1348. Cf. “Report on the Proceedings of the Meeting, Prepared by Co-

Rapporteurs A. A. Cançado Trindade and D. J. Attard”, in The Meeting of theGroup of Legal Experts to Examine the Concept of the Common Concern ofMankind . . ., op. cit supra footnote 1346, pp. 21-23, and cf. pp. 19-26.

1349. Ibid., p. 20.

tion), rather than on the pursuance of benefits from exploitation ofnatural resources 1346.

At a time when the outcome of the 1992 UN Conference onEnvironment and Development (UNCED, Rio de Janeiro) could notyet be predicted, a Group of Legal Experts was convened by theUnited Nations Environmental Program (UNEP), in Malta, on 13-15 December 1990, in order to lay down the normative basis for theongoing negotiating process preparatory to the 1992 UN WorldConference. The report of the Group 1347, stressing the need to relatepreventive to corrective measures, pondered that corrective measureswere being approached from an intra-generational perspective,while preventive measures were so from an inter-generational per-spective. In addition, there was special emphasis on the need, in thepresent domain, to balance the rights of States with the interests ofthe international community, an issue which brought to the fore theequitable sharing of burdens (costs and benefits) in environmentalprotection 1348.

The aforementioned UNEP Malta Meeting of 1990, in focusingthe debates on the origin, contents, rationale and implications of theconcept of common concern of mankind, recalled that

“in the past the notion of international concern had been resortedto in the practice of UN organs in dealing with cases pertaining tothe protection of human rights and self-determination of peoples,thus operating a reduction of the domain of domestic jurisdictionof States. . . . The present concept of common concern of mankind,which found expression in UN General Assembly Resolution43/53 of December 1988, wherein climate change was so charac-terized, went much further, disclosing a pronounced temporal andsocial dimension . . ., and focusing on issues which were trulyfundamental to all mankind.” 1349

Being devoid of proprietary connotations, and of controversies on


1350. Op. cit. supra footnote 1346, pp. 24-25.1351. Cf. “Report of the II Meeting of the UNEP Group of Legal Experts to

Examine the Implications of the ‘Common Concern of Mankind Concept’ inRelation to Global Environmental Issues (Geneva, 20-22 March 1991)”, repro-duced in A. A. Cançado Trindade, Direitos Humanos e Meio Ambiente : Paralelodos Sistemas de Proteção Internacional, Porto Alegre, Brazil, S.A. Fabris Ed.,1993, pp. 282-283.

1352. Ibid., p. 284.1353. Co-rapporteurs, A. A. Cançado Trindade and A. Malhotra.

exploitation of resources, the more recent concept of common con-cern of mankind appeared more suitable to address global environ-mental issues, with due emphasis on the element of protection. Theconstitutive elements of common concern were, besides the sharingof burdens of environmental protection (supra), the engagement ofall countries and all societies and of all peoples within countries andsocieties, and the long-term temporal dimension, encompassingpresent as well as future generations. Lastly, the 1990 Malta Meet-ing acknowledged the relevance of the human rights framework alsofor environmental protection, with emphasis on social dimensionand participation, once again transcending the strict and purelyinter-State dimension 1350.

The UNEP Group of Experts reconvened shortly later, in Geneva,on 20-22 March 1991. By then a “growing interest of States” in theconcept of common concern of mankind particularly “within thecontext of negotiations on legal instruments on climate change andconservation and sustainable use of biological diversity” could beidentified. It was, however, stressed on the occasion that “the com-mon concern concept was not meant to substitute the concept ofcommon heritage” 1351. It was agreed on the occasion that

“more attention by the international community would berequired with respect to environmental protection of globalcommons. The provision of a life of dignity to all in a clean,safe and healthy environment should be a matter of commonconcern of mankind” 1352.

The last meeting of the UNEP Group of Experts, before the hold-ing of UNCED in Rio de Janeiro in 1992, took place in Beijing, on12-14 August 1991. The summary report of the Group 1353 indicatedthat

“the recently emerged concept of common concern of mankindwas sufficiently flexible to warrant its general acceptance as


1354. UNEP, Beijing Symposium on Developing Countries and InternationalEnvironmental Law (Beijing, China, 12-14 August 1991), Nairobi, UNEP, 1992,p. 4. On this last point, the report added that “the environmental problems ofdeveloping countries were often a reflection of the inadequacy of development” ;it accordingly propounded an “equitable sharing of burdens”, with the “mainresponsibility for cleaning up the environment” being incumbent upon thosecountries primarily responsible for the “current emission of pollutants into theenvironment”, namely, the developed countries. Lastly, the Beijing reportacknowledged the “linkages between the domain of environmental protectionand that of human rights” ; ibid., pp. 4 and 6-8. On such linkages, cf. A. Ch. Kissand A. A. Cançado Trindade, “Two Major Challenges of Our Time : HumanRights and the Environment”, in Human Rights, Sustainable Development andEnvironment (Brasilia Seminar of 1992, ed. A. A. Cançado Trindade), 2nd ed.,Brasilia, San José, Costa Rica, IIDH, BID, 1995, pp. 289-290.

1355. K. Baslar, The Concept of the Common Heritage of Mankind . . .,op. cit. supra footnote 1305, pp. 277-279, and cf. pp. 107-108 ; the authorfurther points out that the concept of common heritage of mankind and the prin-ciple of permanent sovereignty over natural resources are not contradictory, but

providing a broad basis for the consideration of global environ-mental issues. . . . The concept of common concern of mankindshould relate both to environment and to development.” 1354

At last, the UN Framework Convention on Climate Change andthe Convention on Biological Diversity, adopted by UNCED inRio de Janeiro in 1992, lent express support, in their respectivepreambles, to the new concept of common concern of mankind.The former set forth, among its principles, that the parties shouldprotect the climate systems for “the benefit of present and futuregenerations of humankind”, on “the basis of equity” and in accord-ance with their “common but differentiated responsibilities andrespective capabilities” (Art. 3 (1) ).

2. The contribution of the new concept

While the concept of common concern of mankind has lately beenutilized in the particular domain of International Environmental Law,the concept of common heritage of mankind has been invoked, for alonger time, bearing in mind distinct objects (as perspicatiouslypointed out by K. Baslar and J. M. Pureza), namely : resources inareas beyond national jurisdiction (sharing of benefits), or preser-vation of the global environment (sharing of burdens or responsi-bilities), or natural resources and cultural heritages situated withinthe jurisdiction of States (functional concept of trusteeship ofresources) 1355. As it is hard to have a uniform theoretical framework


rather complementary to each other, as the former starts where the latter ends(ibid., pp. 135 and 138). And cf. also J. M. Pureza, O Património Comum daHumanidade . . ., op. cit. supra footnote 1294, pp. 286-288, and cf. pp. 258-263.

1356. UNEP, The Meeting of the Group of Legal Experts to Examine theConcept of the Common Concern of Mankind . . ., op. cit. supra footnote 1346,pp. 20-22.

1357. Cf. E. Brown Weiss, In Fairness to Future Generations . . ., op. cit.supra footnote 1267, pp. 1-291 ; E. Agius and S. Busuttil et al. (eds.), FutureGenerations and International Law, London, Earthscan Publ., 1998, pp. 3-197.

1358. Already in 1959, the UN Declaration on the Rights of the Child, e.g.,stated in its preamble (fifth considerandum) that “mankind owes to the child thebest it has to give”.

applicable to all such situations, resort has been made to the term“concern” instead of “heritage” in the ambit of International Envi-ronmental Law ; yet, both concepts share the same notion of com-monness and they both invoke mankind, pursuant to the same uni-versalist outlook.

The more recent concept of “common concern of mankind” hasdeliberately avoided proprietary connotations, already referred to,and has proved particularly suitable to address global environmentalissues (for example, depletion of the ozone layer and global climatechanges). The term common (notion of commonness), in both con-cepts, has brought to the fore the notion of obligations erga omnes,engaging all countries and societies, and all peoples within them ; theterm concern has suggested a primary focus on the causes of prob-lems and conflicts, the preventive character of regimes of protectionand the general obligation of due diligence ; and the term mankind,again in both concepts, has disclosed the long-term temporal dimen-sion (encompassing present as well as future generations) 1356.

In fact, the interests of future generations, and the responsibilitiestowards these latter, nowadays not only attract increasing attentionon the part of expert writing 1357, but also recognizedly underlie someinternational conventions, such as, for example, the 1992 UN Frame-work Convention on Climate Change, the 1997 Kyoto Protocol tothe UN Framework Convention on Climate Change, the 1985 ViennaConvention for the Protection of the Ozone Layer, the 1987Montreal Protocol on Substances that Deplete the Ozone Layer 1358.In addition, the General Conference of UNESCO adopted, on 12 No-vember 1997, the Declaration on the Responsibilities of the PresentGenerations towards Future Generations, so as “to ensure that thepresent generations are fully aware of their responsibilities towardsfuture generations”, on the basis of a spirit of intra-generational and


1359. Preamble, fifth, sixth, ninth, tenth and eleventh consideranda ; andArticle 1 ; cf. also Articles 2, 7 and 8. The Declaration acknowledged the currentthreats to “the very existence of humankind and its environment” ; preamble,fourth considerandum.

1360. Cf. Chap. XI, infra.

inter-generational “solidarity for the perpetuation of humankind” 1359.The 1997 Declaration added, inter alia, that “the present generationsshould strive to ensure the maintenance and perpetuation of human-kind with due respect for the dignity of the human person” (Art. 3).

3. The co-existence between common heritage and common concernof mankind, and their legacy to International Law

The concept of common concern of mankind, however, has by nomeans superseded that of common heritage of mankind. The twoseem to coexist in contemporary International Law. Both areinvoked in international treaties and practice. The concept of com-mon concern of mankind, as I well recall from the debates of theUNEP Group of Experts (Malta, 1990 ; Geneva, 1991 ; and Beijing,1991) on the matter, purported to rid itself of the controversiesaround the element of exploitation of resources (for example, of theseabed and ocean floors beyond national jurisdiction), associatedwith, and often surrounding, the earlier expression of “commonheritage of mankind”. It was never meant to replace this latter.

In fact, as both concepts — those of common heritage and ofcommon concern of mankind — emerged and entered into the lexi-con of contemporary Public International Law, they have contributeddecisively, each in its own way, to conceiving and propoundinghumankind as titulaire of rights 1360, a conception which has under-gone a significant evolution in recent years. Common heritage andcommon concern of mankind, despite their differences of approach,are akin concepts, which nowadays co-exist. This is, in a way, to beexpected, since, as already pointed out, it would be unlikely that onesole concept could be uniformly applied always, in any contextwhatsoever, even when one or more of its constitutive principles orelements would be missing. The concept of common concern ofmankind has given its contribution to the survival of the basic ratio-nale underlying the earlier concept of common heritage of mankind,when this latter appeared weakened or undermined by the storm ofso-called “free-market” voluntarism in the mid-nineties.


1361. Cf. J. M. Pureza, O Património Comum da Humanidade . . ., op. cit.supra footnote 1294, pp. 95-98, 101-102, 117-118 and 286-288 ; K. Baslar, TheConcept of the Common Heritage of Mankind . . ., op. cit. supra footnote 1305,pp. 8-11, 20-23, 26, 71, 354, 357, 367-368 and 379-380.

Furthermore, even if the concept of common concern of mankindmight appear somewhat abstract when compared with that of com-mon heritage of mankind, there is nothing that epistemologicallywould impede the former to be endowed, like the latter, with theacknowledgment of concrete legal obligations, and institutions ormechanisms to instrumentalize compliance with such obligations.This would bring common concern closer to common heritage ofmankind. In my view, there is here no antagonism between the twoconcepts, which can in fact reinforce each other. After all, they sharea common quest for the prevalence of superior common valuesshared by the international community as a whole, over the interestsof an individual State or a small group of States, the technologicallymore advanced ones. Both concepts have been constructed torespond to the needs and aspirations of humankind.

In the co-existence between common heritage and common con-cern of mankind, there is another aspect of significance at concep-tual level, which could not pass unnoticed here. Both concepts haveflourished in the same line of international legal thinking, with natu-ral law roots. In their respective substantial doctoral theses on thecommon heritage of mankind, José Manuel Pureza and KemalBaslar converge in rightly situating the matter in the realm ofnatural law, as an emanation of the universal juridical conscience,moving it away from legal positivism and protecting the Stateagainst its own weaknesses and shortsightedness 1361. The natural laworigin of the both concepts of common heritage of mankind andcommon concern of mankind bears witness of the overcoming of theclassic inter-State dimension of International Law and heralds theadvent of a universalist outlook of International Law. Such univer-salist approach is one which legal positivism has appeared incapableof conceiving or promoting, as its outlook is ineluctably fragmentedinto sovereign units.

The conceptions of common heritage and of common concern ofmankind embody universal solidarity and social responsibility(rather than competitiveness), emanate from human conscience(rather than from the free “will” of States), reflect basic values of theinternational community as a whole (rather than State interests), and


1362. Cf. Chap. I, supra.1363. Cf. A. A. Cançado Trindade, “The Contribution of International Human

Rights Law to Environmental Protection, with Special Reference to GlobalEnvironmental Change”, in Environmental Change and International Law : NewChallenges and Dimensions (ed. E. Brown Weiss), Tokyo, UNU Press, 1992,pp. 244-312.

strengthen the notion of an international ordre public (rather than afragmented contractual vision). They do so in order to face the newglobal challenges to the international community as a whole, andindeed to all humankind, and to provide adequate and satisfactoryresponses to them, which the systems of positive law by themselvessimply cannot do.

Furthermore, they disclose the shortsightedness of legal posi-tivism, liberal mercantilism and political “realism”. They rescue thethinking of the founding fathers of International Law 1362, and, underthe influence of the impact of the International Law of HumanRights 1363, bear witness of the revival of natural law (apprehendedby sound human reason) and of the ideal of civitas maxima gentium.They further bear witness of the reassuring evolution of InternationalLaw from a State-centric international legal system into a trueInternational Law for humankind, as the new jus gentium of ourtimes.

There will of course always be those who, out of their professed“realism”, will argue that, as such concepts of common heritage andof common concern of mankind have not yet reached their plenitude,they are utopian, and will never serve their purpose. Those scepticsare, however, oblivious of the fact that those concepts, against“realist” projections of a few years ago, have become part of contem-porary conventional International Law. Those sceptics are equallyoblivious of the strength of ideas, so brilliantly portrayed by StefanZweig. In his biography of Erasmus of Rotterdam (1467-1536),S. Zweig, one of the more lucid writers of the twentieth century, singled out, in the precious legacy of the great humanist, the toler-ance — and I would here add distributive justice — and the end,without violence, to the conflicts which divide human beings andpeoples. Although the ideal of Erasmus has not been accomplisheduntil now, it is not thereby devoid of value. In the penetratingwords of S. Zweig,

“An idea which does not come to be materialized is, for thatreason, invincible, since it is no longer possible to prove its


1364. S. Zweig, Triunfo y Tragedia de Erasmo de Rotterdam, 5th ed.,Barcelona, Ed. Juventud, 1986, pp. 205-207 ; S. Zweig, Erasme — Grandeur etdécadence d’une idée, Paris, Grasset, 2002 (re-ed.), pp. 183-185.

1365. Cf. Chap. XI, supra.1366. Cf. C.-A. Colliard, “Espace extra-atmosphérique et grands fonds

marins”, Humanité et droit international — Mélanges R.-J. Dupuy, Paris,Pedone, 1991, p. 104.

1367. Containing the Declaration of Principles governing the Seabed and theOcean Floor, and the Subsoil Thereof, beyond the Limits of NationalJurisdiction, approved by 108 votes to zero, with 14 abstentions.

falseness ; . . . only the ideals which have not become worn-outand committed by the realization continue acting in each gen-eration as an element of moral impulse. Only the ideas whichhave not been complied with return eternally. . . . WhatErasmus . . . left to us as legacy . . . was not anything else butthe . . . very old wish of all the religions and myths of a futureand continued humanization of humanity and of a triumph ofreason . . ., that renews faithfully, in the heart of humankind,the idea of a future age of a higher human feeling.” 1364

IV. Concluding Observations

It is not at all surprising that, even in a classic domain ofInternational Law such as that of regulation of spaces, humankindhas also emerged as a subject of International Law 1365, initiallythrough the acknowledgment, in the domains of the law of OuterSpace and of the Law of the Sea, of the concept of common heritageof mankind (cf. supra). Announced by successive UN GeneralAssembly resolutions 1366 (the most significant one having beenGeneral Assembly resolution 2749 (XXV) of 17 December1970 1367), the concept entered into conventional International Lawby consensus, enshrined as it was in such treaties as the 1979 Treatyon Outer Space Including the Moon and Other Celestial Bodies andthe 1982 Law of the Sea Convention.

The basic principles are always present, informing and conform-ing the international instruments at issue, and orienting their inter-pretation and application : be it the International Seabed Area (prin-ciples of non-appropriation, sharing of benefits of deep seabedmining, peaceful uses, international management through theAuthority, and protection of the seas for future generations), be it theouter space and celestial bodies (principles of non-appropriation,peaceful uses, freedom of access and of scientific research), what is


1368. Part XI, especially Articles 136-145 and 311 (6).1369. J. A. Pastor Ridruejo, “Le droit international à la veille du vingt et

unième siècle . . .”, op. cit. supra footnote 1293, pp. 264-265.1370. Framework Convention on Climate Change (of 1992), preamble and

Article 3 (1) ; Convention on Biological Diversity (of 1992), preamble ; andcf. Protocol (of 1991) on Environmental Protection to the Antarctic Treaty,preamble.

here envisaged are not the interests of individual States, but ratherthe general concern to secure the benefits for all humankind, in aspirit of conservation of resources and their transmission, in noworse condition, to future generations. A deeper awareness of thetemporal dimension of International Law is here manifest.

The rationale of the concept of common heritage of mankind isclear, inspired in human solidarity, and oriented by the principles ofnon-appropriation, peaceful uses and purposes and rational utiliza-tion, and equitable sharing of benefits by all. This last principle, thatof the equitable sharing of benefits, is the one which, in practice,was to become the bone of contention in controversies betweendeveloping and developed countries as to the proper implementationof the concept of common concern of mankind. Thus, despite itsconceptual clarity, the concept of common heritage of mankind, asset forth in the 1982 UN Convention on the Law of the Sea 1368,suffered a setback with the renegotiation — under pressure of theUnited States — of Part XI of the Convention of Montego Bay,modified by the Agreement of 1994, which favoured the technologi-cally more advanced States in the exploitation of resources of theseabed and ocean floor beyond the limits of national jurisdiction 1369.But the concept at issue has survived.

Yet, it is not surprising that one of the terms of the concept ofcommon heritage of mankind — that of “heritage” — has, in theambit of International Environmental Law, been replaced by anotherterm, leading to the distinct formulation of common concern ofmankind. The intention was to make this latter devoid of the conno-tation of exploitation and sharing of resources or benefits 1370. Sixconstitutive elements of the concept of common concern of mankindhave been identified, namely : first, the concentration of the concept— devoid of proprietary connotations — in truly fundamental ques-tions for all humankind, pursuant to the notion of commonness ;second, the necessary engagement, in the treatment of such questionsof common interest, of all countries, all societies and all the socialsegments within the countries and the societies ; third — as already


1371. As from the 1966 UNESCO Declaration of Principles of InternationalCultural Co-operation.

1372. Cf. H. Gros Espiell, “The Common Heritage of Humanity and theHuman Genome”, 3 Law and the Human Genome Review (1995), pp. 89-101,esp. pp. 97-100 ; M. Bedjaoui, “Le génome humain comme patrimoine communde l’humanité, ou la génétique de la peur à l’espérance”, Federico MayorAmicorum Liber, Vol. II, Brussels, Bruylant, 1995, pp. 913-915, and cf. pp. 905-912.

1373. Cf. A. Ch. Kiss, “The Common Heritage of Mankind : Utopia orReality ?”, 40 International Journal (1985), p. 440.

pointed out (cf. supra) — the long-term temporal dimension (under-lying the term humanity), to encompass both the present and thefuture generations ; fourth, the emphasis on the element of protec-tion, on the basis of considerations of humanity and of ordre public,transcending reciprocity ; fifth, the attention primarily to the causesof the problems (both for their prevention and for the responses to begiven) ; and sixth, the equitable sharing of responsibilities as aninstrumental principle in the application of the concept of commonconcern of mankind.

It should not pass unnoticed — and it should perhaps be stressed— that, in this conceptual construction, what was kept in mind wasnot the sharing of resources or benefits, but rather of responsibilities.Despite its formulation, in such a way as to overcome the controver-sies around the element of exploitation of resources which had sur-rounded the parallel concept of common heritage of mankind, therehas persisted a varying terminology in international legal instru-ments. As to its object, the concept of common heritage of mankindhas appeared as a particularly rich and multifaceted one. It was ini-tially applied as to material resources (so as to avoid State or groupappropriations and save them for mankind), then also to cultures 1371,and more recently expanded in also applying in bioethics to thehuman genome 1372. In retrospect, the oscillations of the concept ofcommon heritage of mankind seem to suggest that the concept atissue has perhaps been misunderstood. It was assumed that itreferred to the sharing, or partition, of benefits or resources (cf.supra), when it would have been more adequate to have linked itclearly and expressly to the conservation, or transmission, of the“common heritage” from one generation to another.

Perhaps it would have been more fruitful if the concept of com-mon concern had preceded that of common heritage, taking thelatter as a materialization of the former 1373. As precisely the oppositeoccurred, the concept of “common concern” has at least succeeded,


in a way, in “saving” that of “common heritage” of the misunder-standings that were to surround it. The concept of common concernof mankind came to stress universally shared values. This conceptualdevelopment — which certainly requires further elaboration —serves as a warning of the obstacles to be overcome in the construc-tion, in a larger dimension (not only spatial but also temporal) andpursuant to the same universalist outlook, of the new InternationalLaw for humankind, at this beginning of the twenty-first century.


1374. The project of Kant (cf. I. Kant, Sobre la Paz Perpetua [1795], 4th ed.,Madrid, Tecnos, 1994, pp. 3-69) at least sought to establish a link between inter-State and the internal constitution of each State. On the insufficiencies of theclassic endeavours to abolish wars sic et simpliciter, cf. G. del Vecchio, ElDerecho Internacional y el Problema de la Paz (Spanish edition of the originalIl Diritto Internazionale e il Problema della Pace), Barcelona, Bosch, 1959,pp. 51-52, 62-64, 67 and 121-123.

1375. Cf. ibid., pp. 52, 63-64 and 151 ; A. A. Cançado Trindade, O DireitoInternacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar,2002, p. 1062.

1376. Cf., generally, D. Uribe Vargas, El Derecho a la Paz, Bogotá,Universidad Nacional de Colombia, 1996, pp. 1-250 ; D. Uribe Vargas, “ElDerecho a la Paz”, in Derecho Internacional y Derechos Humanos/Droit inter-

CHAPTER XIV

CONCEPTUAL CONSTRUCTIONS : THE RIGHT TO PEACEAND THE RIGHT TO DEVELOPMENT

I. The Formulation of the Right to Peacein International Law

The search for peace, and the construction of the right to peace,have historical roots that become notorious with the projects of per-petual peace of the eighteenth century, such as those of Saint-Pierre(1712) and of I. Kant (1795). Yet, such projects proved incapable todate of accomplishing their common ideal, precisely for laying tooheavy an emphasis, in their endeavours to restrict and abolish wars,specifically on inter-State relations, overlooking the bases for peacewithin each State 1374 and the role of non-State entities. It may appearsomewhat surprising that the search for peace has not yet sufficientlyrelated domestic and international levels, this latter going beyond astrictly inter-State dimension. Recent attempts to elaborate on theright to peace have, however, displayed a growing awareness that itsrealization is ineluctably linked to the achievement of social justicewithin and between nations 1375.

1. Elements of the right to peace in International Law

The conceptual construction of the right to peace in InternationalLaw has antecedents in successive initiatives taken, in distinct con-texts at international level, throughout the twentieth century 1376.

397

national et droits de l’homme (eds. D. Bardonnet and A. A. Cançado Trindade),The Hague, San José, Costa Rica, IIDH, Hague Academy of International Law(1995 External Session), 1996, pp. 177-195.

1377. Endeavouring to overcome the dangerous system of the equilibrium offorces by condemning war as a means of settlement of disputes and an instru-ment of foreign policy, and heralding the new system of collective security andthe emergence of the right to peace ; J. Zourek, L’interdiction de l’emploi de laforce en droit international, Leiden, Geneva, Sijthoff, Institut H.-Dunant, 1974,pp. 39-48.

1378. The relevant UN provisions, together with the 1928 General Treaty forthe Renunciation of War, became major sources — the legal nature of which wasunchallenged by States — of limitations of resort to force by States ;I. Brownlie, International Law and the Use of Force by States, Oxford,Clarendon Press, 1963 (reprint 1981), pp. 83 and 91.

1379. UN General Assembly resolution 2625 (XXV), of 24.10.1970.1380. UN General Assembly resolution 2374 (XXV), of 16.12.1970. 1381. UN General Assembly resolution 3314 (XXIX), of 14.12.1974.1382. UN General Assembly resolution 33/73, “Declaration on the

Preparation of Society to Live in Peace”, of 15.12.1978 ; UN General Assemblyresolution 39/11, “Declaration on the Right of Peoples to Peace”, of 12.11.1984 ;cf. also UN General Assembly resolution 34/88, of 1979.

1383. Arts. 26 and 15, respectively.1384. For example, references to the right to peace and disarmament can be

found in the 1982 World Charter for Nature (preamble, para. 4 (c), andPrinciples 5 and 20).

Elements provided by Public International Law of relevance for theacknowledgment of the right to peace can be found in the 1928General Treaty for the Renunciation of War (the so-called Briand-Kellogg Pact) 1377 ; in Articles 1 and 2 (4) of the United NationsCharter 1378, complemented by the 1970 UN Declaration on Prin-ciples of International Law concerning Friendly Relations and Co-operation among States 1379, the 1970 Declaration on the Streng-thening of International Security 1380, and the 1974 Definition ofAggression 1381 ; in the Code of Offences against the Peace andSecurity of Mankind, drafted by the UN International LawCommission ; and in resolutions of the UN General Assembly per-taining to the right to peace 1382, relating it to disarmament.

The 1974 Charter on Economic Rights and Duties of States in factacknowledged the States’ duty to co-exist in peace and to achievedisarmament 1383. Other international instruments have done thesame 1384. It has been argued that the right to peace entails as a corol-lary the right to disarmament ; attention has in this respect beendrawn to the fact that limitations to, or violations of, the rights of thehuman person have often been associated with the outbreak of con-flicts, the process of militarization and the expenditure on arms(especially nuclear weapons and other weapons of mass destruc-


1385. A. A. Tikhonov, “The Inter-relationship between the Right to Life andthe Right to Peace ; Nuclear Weapons and Other Weapons of Mass-Destructionand the Right to Life”, The Right to Life in International Law (ed. B. G.Ramcharan), Dordrecht, Nijhoff, Kluwer, 1985, pp. 97-113 ; Ph. Alston, “Peace,Disarmament and Human Rights”, Armement, développement, droits del’homme, désarmement (colloque à l’UNESCO, 1982) (ed. G. Fischer), Paris,Brussels, Bruylant, 1984, pp. 325-330.

1386. Cf. Chap. XVII, RCADI, Vol. 317 (2005).1387. Cf., e.g., inter alia, F. Mayor, The New Page, Paris, Aldershot,

UNESCO, Dartmouth, 1995, pp. 1-10 and 59-67 ; J. Symonides and K. Singh,“Constructing a Culture of Peace : Challenges and Perspectives — An Intro-ductory Note”, in From a Culture of Violence to a Culture of Peace, Paris,UNESCO, 1996, pp. 9-30.

1388. The Group was composed of A. Aguiar, M. Bedjaoui, R. Ben Achour,A. A. Cançado Trindade, A. Eide, H. Gros Espiell, G. Guerin, I. Nguema,R. Ranjeva, E. Roucounas, J. Symonides, K. Vasak (rapporteur) and C. Zanghi.

1389. Seventh considerandum.1390. A. A. Cançado Trindade, “The Right to Peace and the Conditions for

Peace”, 21 Diálogo — The Human Right to Peace : Seed for a Possible Future,UNESCO, Paris (June 1997) pp. 20-21.

tion) 1385, which have often led to arbitrary deprivation of human lifein large scale. International Law, moved ultimately by the universaljuridical conscience, has reacted to that, in prohibiting the threat oruse of all weapons of mass destruction, including nuclearweapons 1386.

2. Recent developments in the formulation of the right to peace

The antecedents of the right to peace also comprise the long-standing tradition of UNESCO of sponsoring studies to foster a cul-ture of peace 1387. Within the framework of such tradition, UNESCOlaunched the initiative, in 1997, of the formulation of the humanright to peace. To that end, the then Director-General of UNESCO(F. Mayor) convened a Group of Legal Experts (acting in their indi-vidual capacity) 1388 which, at the end of their meetings of LasPalmas Island (February 1997) and Oslo (June 1997), produced theDraft Declaration on the Human Right to Peace. Its preamble 1389

read that

“Peace, a common good of humanity, is a universal and fun-damental value to which all individuals and all peoples, and inparticular the youth of the world, aspire.”

The right to peace was duly inserted into the framework of humanrights 1390, which was taken into account to assert peace as a rightand a duty. It was asserted as a right inherent in all human beings,


1391. UNESCO, General Conference (29th Session, Paris), Report by theDirector-General on the Human Right to Peace, document 29 C/59, of29.10.1997, p. 5.

1392. Operative part I, para. 4.1393. Considerandum 12 of preamble, and operative part I, para. 1. It further

recalled the responsibilities of present generations towards future generations, toleave them a better world, with respect for International Law and human rights ;considerandum 14 of preamble.

1394. UNESCO, Executive Board, Report by the Director-General on theResults of the International Consultation of Governmental Experts on theHuman Right to Peace (Final Report), document 154 EX/40, of 17.4.1998,p. 10.

1395. Cf. ibid., pp. 2 and 10.1396. Cf. A. Aguiar, “Perfiles Eticos y Normativos del Derecho Humano a la

Paz”, in B. Boutros-Ghali Amicorum Discipulorumque Liber — Paix, Dévelop-pement, Démocratie, Vol. II, Brussels, Bruylant, 1998, pp. 884-894, and cf.pp. 878-884.

embodying demands of the human person and of peoples to the ulti-mate benefit of humankind. The Draft Declaration called upon allsubjects of International Law (States, international organizations andindividuals) to promote and implement that right as the foundationof a genuine culture of peace. The document was prepared as a con-tribution of UNESCO to the 50th anniversary (in 1998) of theUniversal Declaration of Human Rights.

After the Las Palmas and Oslo meetings, UNESCO launched con-sultations with member States, 42 of which having replied to a letterof the Director-General up to the end of October 1997 1391. The DraftDeclaration became the object of much attention when revised bygovernmental experts from 117 member States, at UNESCO head-quarters in Paris, in March 1998. The document, as submitted tothem, affirmed that “violence in all its forms is intrinsically incom-patible with the right of every human being to peace” 1392, and addedcategorically that peace ought to be based upon “the intellectual andmoral solidarity of mankind” 1393. At the end of the debates, threemain positions of the participants were discernible : those fully insupport of the recognition of the right to peace as a human right,those who regarded it rather as a “moral right”, and those to whomit was an “aspiration” of human beings 1394.

The main difficulty, as acknowledged by the Report of the Parismeeting, was its official recognition as a legal right 1395. While therewas general agreement in regarding peace as a universal value and acommon good of humankind, some governmental representativesexpressed difficulties in reckoning the existence of a true humanright to peace and its legal consequences 1396. Thus, at the close of


1397. Cf. Chap. XVII, RCADI, Vol. 317 (2005).1398. In fact, as early as in 1968 the Final Act of the I World Conference on

Human Rights of the United Nations (held in Teheran) contained several refer-ences to the relationship between the observance of human rights and the main-tenance of peace ; cf. United Nations, Final Act of the International Conferenceon Human Rights (1968), UN doc. A/CONF.32/41, New York, United Nations,1968, pp. 4, 6, 9, 14 and 36. And the UN General Assembly, on its turn has con-stantly been attentive to address the requirements of survival of humankind as awhole.

1399. Cf. Chap. XXVI, RCADI, Vol. 317 (2005).

the twentieth century, it so appeared that some governments werenot yet prepared to assume legal obligations ensuing from the for-mulated right to peace . . .

This was surely regrettable, though perhaps not so surprising,given the turmoiled world in which we live. States seem to be over-sensitive, perhaps more than human beings, particularly when whatthey realize to be at stake is not the well-being of the human beingsthey represent and are supposed to protect, but rather what theyregard — in their often incongruous practice — as being their ownvital interests, in the perception of power-holders. Be that as it may,the aforementioned UNESCO exercise of formulation of the rightto peace is rightly oriented towards an International Law forhumankind.

It is a conceptual construction which is helpful to the formation ofa new jus gentium, responsive to the needs and aspirations of humanbeings and peoples. Other relevant elements to the attainment ofpeace can be found in the domain of disarmament 1397. In recentyears the recognition of the right to peace has been fostered by theadvent and evolution of the International Law of Human Rights 1398

and of International Environmental Law ; the conception of sustain-able development, as endorsed by the 1992 UN Conference onEnvironment and Development, for example, points to the ineluc-table relationship between the rights to peace and to development.

II. The Formulation of the Right to Developmentin International Law

Somewhat distinctly, the conceptual construction of the right todevelopment has attained, at this beginning of the twenty-firstcentury, a degree of consensus reflected in international instru-ments (such as the final documents of the recent UN WorldConferences) 1399 which does not yet appear to have been achieved to


1400. Right to economic self-determination, permanent sovereignty over naturalwealth and resources, principles of non-reciprocal and preferential treatmentfor developing countries and of participatory equality of developing countries ininternational economic relations and in the benefits from science and technology.

1401. Cf., e.g., M. Virally, “Vers un droit international du développement”,11 Annuaire français de droit international (1965), pp. 3-12 ; H. Gros Espiell,Derecho Internacional del Desarrollo, Valladolid, Universidad de Valladolid,1975, pp. 11-47 ; P. Buirette-Maurau, La participation du tiers-monde à l’élabo-ration du droit international, Paris, LGDJ, 1983, pp. 131-137, 160-167 and 185-202 ; M. Bulajic, Principles of International Development Law, Dordrecht,Nijhoff, 1986, pp. 39-77 ; A. Pellet, Le droit international du développement,2nd ed., Paris, PUF, 1987, pp. 3-124.

1402. Adopted by the UN General Assembly resolution 41/128, of 4.12.1986,with 146 votes in favour, 1 against and 8 abstentions, and containing a preamblewith 17 paragraphs and 10 Articles in its operative part.

1403. Finding inspiration in such provisions as Article 28 of the 1948Universal Declaration of Human Rights and Article 1 of both UN Covenants onHuman Rights.

1404. Cf., e.g., M. M. Kenig-Witkowska, “The UN Declaration on the Rightto Development in the Light of Its Travaux Préparatoires”, in International Lawand Development (eds. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff,

the same extent by the parallel construction of the right to peace.Yet, the two appear ineluctably intertwined, and both the rights topeace and to development have in recent years drawn attention, inthe domain of International Law, to the needs of humankind.

1. Elements of the right to development in International Law

From the international legal thinking of the second half of thetwentieth century a distinction emanates between the InternationalLaw of development and the right to development. The former, withits various components 1400, emerged as an objective internationalnormative system regulating the relations among juridically equalbut economically unequal States, and aimed at the transformationof those relations on the basis of international co-operation (UNCharter, Arts. 55-56) and considerations of equity, so as to redressimbalances among States and to give them all — particularly thedeveloping countries — equal opportunities to attain develop-ment 1401. This trend of the International Law of development waserected upon a predominantly inter-State basis.

Distinctly, the right to development, as proclaimed in the 1986UN Declaration on the Right to Development 1402, addressed the mat-ter from the perspective of human beings and peoples 1403, withoutexcluding States from its construction. It appeared, as propoundedby the 1986 Declaration 1404, as a subjective human right, embodying


1988, pp. 381-388 ; G. Abi-Saab, “Le droit au développement”, 44 Annuairesuisse de droit international (1988), pp. 9-24 ; A. A. Cançado Trindade,“Environment and Development : Formulation and Implementation of the Rightto Development as a Human Right”, 3 Asian Yearbook of International Law(1994), pp. 15-40 ; J. Álvarez Vitta, Derecho al Desarrollo, Lima, Cult. CuzcoEd., 1988, pp. 8-108. And cf., even before the 1986 Declaration, K. M’Baye,“Le droit au développement comme un droit de l’homme”, 5 Revue des droits del’homme/Human Rights Journal (1972), pp. 505-534 ; J. A. Carrillo Salcedo, “ElDerecho al Desarrollo como Derecho de la Persona Humana”, 25 RevistaEspañola de Derecho Internacional (1972), pp. 119-125.

1405. Such as, e.g., the 1974 Charter of Economic Rights and Duties ofStates, the 1974 Declaration (and Programme of Action) on the Establishment ofa New International Economic Order, and relevant UN General Assembly reso-lutions ; cf., e.g., J. Castañeda, “La Charte des droits et devoirs économiques desEtats”, 20 Annuaire français de droit international (1974), pp. 31-77 ; P. J. I.M. de Waart, “Permanent Sovereignty over Natural Resources as a Cornerstonefor International Economic Rights and Duties”, 24 Netherlands InternationalLaw Review (1977), pp. 304-322 ; A. Eide, “Maldevelopment and ‘the Right toDevelopment’ : A Critical Note with a Constructive Intent”, in Le droit audéveloppement au plan international (colloque de l’Académie de droit interna-tional de La Haye, 1979), The Hague, Sijthoff, Nijhoff, 1980, pp. 400-410.

1406. Art. 2 (1), and preamble. 1407. Mainly States but also human beings — cf. Arts. 3 (1) and (3), 4 (1),

2 (2) and 8.

demands of the human person and of peoples which ought to berespected, to the benefit, ultimately, of humankind. The aforemen-tioned Declaration contained elements already embodied, mutatismutandis, both in the International Law of Human Rights and insources of International Development Law 1405. Not surprisingly, theconceptual construction of the right to development went wellbeyond the strictly inter-State dimension.

This new and significant trend was in a way heralded, at norma-tive level, by the 1981 African Charter on Human and Peoples’Rights, in providing for the right of all peoples to their economic,social and cultural development (Art. 22). Five years later, the 1986UN Declaration on the Right to Development not only placed thehuman person as the “central subject of development” 1406, but alsoqualified the right to development as an inalienable human right of“every human person and all peoples”, by virtue of which they are“entitled to participate in, and contribute to, and enjoy economic,social, cultural and political development”, in which all humanrights “can be fully realized” (Art. 1). It is clear from the 1986 UNDeclaration that the active subjects or beneficiaries of the right todevelopment are the human beings and peoples, and the passive sub-jects are those responsible for the realization of that right 1407, withspecial emphasis on the obligations conferred upon the States, indi-


1408. Arts. 3 (1), 4, 8 and 10. On the identification of obstacles to overcome,cf. Arts. 5 and 6 (3) and Preamble.

1409. Art. 1 (1).1410. Arts 6 (2) and 9 (1), and Preamble.1411. Moreover, it has contributed to focus on the promotion and protection

of the rights pertaining at a time to individuals and to members of human col-lectivities as well as on the priority search for solutions to generalized gross andflagrant violations of human rights.

1412. Thus, a denial of the right to development is bound to entail adverseconsequences for the exercise of civil and political as well as economic, socialand cultural rights.

vidually and collectively. The measures envisaged for that realiza-tion extend to both national and international levels 1408. The majorsignificance of this trend lies in the recognition or assertion of theright to development as an “inalienable human right” 1409.

The 1986 UN Declaration on the Right to Development saw it fitto underline that, in order to promote development, equal and urgentattention should be given to the implementation of civil, political,economic, social and cultural rights (given their indivisibility andinterdependence), and the observance of certain human rights cannotthus justify denial of others ; likewise, all aspects of the right todevelopment are indivisible and interdependent and each of them isto be considered in the context of that right as a whole 1410. Therecognition of the right to development as a human right by the UNDeclaration can only come to reinforce other previously formulatedhuman rights 1411.

In fact, in the context of development initiatives, the right todevelopment reinforces existing rights, and renders it unwarranted toinvoke so-called requirements of material development in order totry to justify restrictions to the exercise of guaranteed human rights.The right to development was meant to enhance, never to restrict,pre-existing rights. This is so, given the complementary nature of allhuman rights. All aspects of the right to development, in their turn,are likewise interdependent and to be taken into account in the con-text of the whole 1412. The formulation of the right to developmentcould only have been undertaken in the light of the conceptual unityand indivisibility of all human rights. It was at last understood thateconomic development was not an end in itself, but rather a meansto achieve wider social objectives as imperatives of social justice.The right to development as a human right has emerged and crystal-lized to serve this purpose.

In this framework, economic, social and cultural rights became


1413. UN doc. E/CN.4/AC.45/1994/L.4/Rev.1, of 14.10.1994, pp. 1-26.1414. Inter alia, decolonization, erradication of chronic poverty, imperatives

of social justice, safeguard of human rights, disarmament, environmental sus-tainability, reshaping of the world scenario in the post-cold war era.

1415. Which counted on five thematic rapporteurs (as distinct aspects of thesubject), namely, G. Abi-Saab, A. A. Cançado Trindade, V. Kartashkin, A. Pelletand D. Türk.

1416. UN Centre for Human Rights, The Realization of the Right to Develop-ment, New York, United Nations, 1991, pp. 25, 33-38, 44-47 and 53.

deserving of special attention ; as warned in the work of the UNWorking Group on the Right to Development, the State cannotsimply abandon its responsibility in this domain to the forces ofthe market. There is urgent need to put an end to the tendency toseparate economic development from social development, macro-economic policies (aiming at economic growth) from the socialobjectives of development ; the concepts contained in the 1986Declaration on the Right to Development should be incorporatedinto the policies and programmes of all agencies and organs of theUnited Nations system, including the Bretton Woods institutions(World Bank and International Monetary Fund) 1413.

2. Crystallization of the right to development as a human right

The crystallization of the right to development as a human right isto a large extent due to the universalist perspective pursued by theUnited Nations, prompted by the fundamental changes undergone,and challenges 1414 faced, by the international community. When, in1990, the UN Global Consultation on the Right to Development as aHuman Right was held at the UN Palais des Nations in Geneva, theright to development appeared, as I well remember, already incorpo-rated in the lexicon of International Law. An aspect which was par-ticularly emphasized in the UN Global Consultation 1415 was the rele-vance of participation of all individuals (and particularly of thosecoming from the most vulnerable sectors of societies) and the much-needed equality in the distribution or sharing of the benefits ofdevelopment 1416. In my intervention at that UN Global Consultation,while referring to the temporal dimension of the right to develop-ment, I saw it fit to alert inter alia that

“the requirements of material development could not beinvoked to justify restrictions to the exercise of guaranteedhuman rights ; this is so given the interaction between


1417. A. A. Cançado Trindade, Legal Dimensions of the Right toDevelopment as a Human Right : Some Conceptual Aspects, UN doc. HR/RD/1990/CONF.36, of 1990 (UN Global Consultations on the Right to Developmentas a Human Right), pp. 1-17, esp. p. 43. And, for a detailed account of the afore-said UN Global Consultation, cf. A. A. Cançado Trindade, Direito dasOrganizações Internacionais, 3rd ed., Belo Horizonte, Belo Horizonte, Brazil,Ed. Del Rey, 2003, pp. 409-442.

1418. Cf. Chap. XXVI, RCADI, Vol. 317 (2005).1419. On the creation of the post of United Nations High Commissioner for

Human Rights.1420. For the implementation of this right one could thus consider the uti-

lization of mechanisms developed in the field of human rights, such as, e.g., thereporting system, the monitoring (by a working group or a special rapporteur) ofsituations manifestly resulting from the condition of underdevelopment (directlyaffecting the realization of the right to development), the undertaking of in-depth studies (identifying problems concerning some economic and socialrights, for example, pertaining to health, housing, education). A. A. CançadoTrindade, Legal Dimensions of the Right to Development . . ., UN doc. HR/RD/1990/CONF.36, of 1990, op. cit. supra footnote 1417, pp. 1-17.

human rights and development . . . and the [1986] Declaration’swarning that all aspects of the right to development are alsoindivisible and interdependent and to be taken into account inthe context of the whole” 1417.

In fact, in the decade following that of the formulation of the1986 Declaration, the right to development found significantendorsements in the final documents adopted by the UN WorldConferences of the nineties 1418, which have brought it into the con-ceptual universe of contemporary International Law. In any case, thisseemed to have been the understanding of the UN General Assemblydecision 48/141 (of 20 December 1993) 1419, which, in its preamble,reaffirmed inter alia that “the right to development is a universal andinalienable right which is a fundamental part of the rights of thehuman person”. The implementation of the right to development as ahuman right can be considered appropriately within the universe ofInternational Human Rights Law, as the UN Declaration itself refersin its preamble to the relevant instruments of the United Nations andits specialized agencies 1420.

3. The conceptual construction of human development

It is significant that, four years after the formulation of the right todevelopment as a human right in the 1986 UN Declaration on thematter, the United Nations Development Programme (UNDP) startedworking on the elaboration of the concept of human development, in


1421. It comprised three key components — longevity (life expectancy),knowledge (education) and income (decent living standards) — so as to providea more comprehensive measurement of human progress ; cf. UNDP, HumanDevelopment Report 1990, New York, UNDP, 1990, pp. 1-113. The UNDPstarted from the premises that human beings ought to be at the centre of alldevelopment, and that human development is “a process of enlarging people’schoices” ; ibid., pp. iii, 1, 6 and 11.

1422. Cf. PNUD, Desarrollo Humano : Informe 1991, Bogotá, PNUD, TercerMundo Ed., 1991, pp. 51-57, and cf. pp. 17-235. The UNDP next called for theestablishment of a network — at international level — of social security forthose in need, and of global consultations conducive to a new “internationalcovenant” on human development placing people in the centre of national poli-cies and international co-operation for development ; cf. PNUD, DesarrolloHumano : Informe 1992, Bogotá, PNUD, 1992, pp. 25, 30 and 35, and cf. pp. 21and 85-112.

1423. Human development, besides not limiting itself to certain social sectors(such as education or health), stresses the necessity to develop human capaci-ties ; freedom itself — in a democracy — constitutes a vital component ofhuman development. In the understanding of UNDP, the sources of informationshould not be limited to the “negative aspects” (such as human rights viola-tions), but should also encompass the responses and achievements of each coun-try in this area. Human development and freedom and political participation areclosely related, but in this wide outlook one is equally to consider the situationof economic and social rights (cf. ibid., pp. 39, 69-72, 77 and 83-84, and cf.p. 64).

the framework of a reassessment of the guidelines of the three pre-vious United Nations Decades for Development. The turning pointwas its first Human Development Report, of 1990, which, question-ing the propriety of statistical indicators such as the gross nationalproduct (GNP) to measure development adequately, turned attentionto other aspects through the adoption of a new index, called humandevelopment index (HDI) 1421.

It was asserted that any measure of development should not belimited to the search for economic growth (GNP) only, but should bemuch more comprehensive, combining indicators of education,health and income. It was soon realized that to the new HDI indexother indicators of human progress should be added, such as humanfreedom and the advances in the cultural domain : hence the pro-posed new index of political freedom, so as to evaluate the situationof this latter in the light of human rights 1422. The concept of humandevelopment propounded by the UNDP was directly linked also tothe issue of the observance of human rights 1423. In the fourth HumanDevelopment Report, of 1993, the UNDP centred attention on thebasic theme of people’s participation, warning that

“although the achievements in human development have beensignificant during the past three decades, the reality is continu-


1424. UNDP, Human Development Report 1993, New York, Oxford, OxfordUniversity Press, 1993, p. 1. The UNDP pondered that the new motivation in ourtimes ought to be the rebuilding of societies around genuine human needs andthe fight against “global poverty”, as “poverty anywhere is a threat to prosperityeverywhere” ; ibid., pp. 1 and 8-9. Here, again, poverty was seen as a“formidable barrier to participation, whether within or between nations” ; ibid.,pp. 27 and 21.

1425. Ibid., p. 3.1426. As recent UN World Conferences have rightly done ; cf. Chap. XXVI,

infra.1427. Cf. ibid., pp. 1-8.1428. Democratic practices cannot in fact be confined within national bor-

ders ; they are to be followed at international level by all countries, and interna-tional financial agencies, in assuming responsibility to prevent economic reces-sion and unemployment and their negative impact upon economic, social andcultural rights. For a study, cf., e.g., A. A. Cançado Trindade, “Democracia yDerechos Humanos : Desarrollos Recientes, con Atención Especial al ContinenteAmericano”, Federico Mayor Amicorum Liber — Solidarité, Egalité, Liberté,Brussels, Bruylant, 1995, pp. 371-390.

1429. UNDP, Human Development Report 1994, New York, Oxford, OxfordUniversity Press, 1994, pp. 22 and 24, and cf. pp. 22-40.

ing exclusion. More than a billion of the world’s people stilllanguish in absolute poverty, and the poorest fifth find that therichest fifth enjoy more than 150 times their income.” 1424

Earlier UNDP Reports concentrated on the components of devel-opment of the people (investing in human capabilities) and for thepeople (ensuring that economic growth is distributed widely andfairly), whereas the 1993 Report approached developmnent by thepeople (giving everyone a chance to participate) 1425. The implica-tions of placing people at the centre of politico-economicchanges 1426 are considerable, and do challenge traditional concepts :one moves, for example, from national to people’s security (food,health, employment, safe environment), from old models of devel-opment to new models of sustainable human development, from out-moded forms of international co-operation to new forms of interna-tional cooperation directly focused on people’s needs 1427. The newemphasis placed on people’s empowerment and the strengthening ofdemocracy has a direct bearing on human rights protection 1428.

Subsequently, the UNDP came to focus on the new dimensions ofhuman security as a universal concern, no longer related to the terri-tory of nation-States, but rather to people, to their needs in daily life(for example, protection from the threats of hunger, disease, unem-ployment, crime, social conflicts, political repression, environmentalhazards) 1429. It further pointed out that the paradigm of the concept


1430. Op. cit. supra footnote 1429, pp. 13 and 17.1431. Ibid., pp. 122-123. People are regarded “not merely as the beneficiaries

of economic growth but also as the real agents of every change in society —whether economic, political, social or cultural. To establish the supremacy ofpeople in the process of development — as the classical writers always did — isnot to denigrate economic growth. It is to rediscover its real purpose” ; ibid.,p. 124. And cf., generally, A. A. Cançado Trindade, “Human Development andHuman Rights in the International Agenda of the XXIst Century”, inCompilation — Human Development and Human Rights Forum (August 2000),San José, Costa Rica, UNDP/Inter-American Court of Human Rights, 2001,pp. 23-38.

1432. A. A. Cançado Trindade, “Human Development and Human Rights inthe International Agenda of the XXIst Century”, in op. cit. supra footnote 1431,pp. 23-38.

of sustainable human development values the quality of human lifeas an end in itself, rather than wrongfully seeing human beings asmerely the means of producing material goods 1430. Human develop-ment challenges for the twenty-first century, in the view of theUNDP, include providing basic services to all deprived people,accelerating job-led growth, reducing population growth, andmaking global compacts for fighting poverty and improving thephysical environment. Empowering people, the UNDP argued, “is asure way to link growth and human development”, and this latterdiscloses a “holistic development paradigm” embracing “both pro-ductivity and equity, both economic and social development”,placing people at the centre of its concerns 1431.

4. Lessons from the crystallization of the right to development

The links between human development and human rights hardlyrequire any demonstration 1432. Development is now seen as encom-passing social justice and the strengthening of democratic institu-tions (public participation). Within this framework, the centrality ofpeople in all development strategies or process is beyond question.Likewise, the whole construction of the right of development in theframework of inter-State relations has yielded to the formulation ofthe right to development as a human right. Here, again, the anthro-pocentric framework has come to prevail. The wide acknowledg-ment of the right to development has contributed to the earnedcentrality of human beings, of humankind, in contemporaryInternational Law.

The 1990 UN Global Consultation on the Right to Development(supra) drew attention to the need for “greater transparency in nego-


1433. UN Centre for Human Rights, The Realization of the Right to Develop-ment, New York, United Nations, 1991, pp. 50-51.

1434. Ibid., p. 48.

tiations and agreements between States and international financialand aid institutions” and for democratization of intergovernmentalfinancial agencies 1433. Its final report significantly warned that “pre-vailing models of development have been dominated by financialrather than human considerations” ; these models

“largely ignore the social, cultural and political aspects ofhuman rights and human development, limiting the humandimension to questions of productivity. They foster greaterinequalities of power and control of resources among groupsand lead to social tensions and conflicts. . . . The growing bur-den of indebtedness and structural adjustment falls heaviest onthe poorest and weakest sectors of society and has clear humanrights implications. . . . The prevailing terms of trade, monetarypolicy, and certain conditions tied to bilateral and multilateralaid, which are all perpetuated by the non-democratic decision-making processes of international economic, financial and tradeinstitutions, also frustrate the full realization of the right todevelopment as a human right.” 1434

The 1986 Declaration, the follow-up endeavours of the UNWorking Group on the Right to Development, and the final docu-ments of the recent UN World Conferences convened in the ninetieshave been attentive to conditions of life, and, more particularly, tothe condition of vulnerable groups, in special need of protection.Given the current phenomenon of aggravation of poverty, whichaffects a considerable part of humankind, International Law cannotbe indifferent to the current search for new models of developmentconducive to the eradication of poverty and the attainment of sus-tainable development. There still remains a long way to go in orderto achieve the full realization of the right to development, butits conceptual construction as a human right has succeeded in intro-ducing ethical considerations in the conduct and assessment of thecontemporary practice of International Law. In humanizing the con-ception and process of development itself, the right to developmenthas brought about the need to devise some form of its institutional-ized implementation in the years to come.


1435. A. A. Cançado Trindade, Tratado de Direito Internacional dos DireitosHumanos, Vol. II, Porto Alegre, Brazil, S.A. Fabris Ed., 1999, pp. 412-420.

The experience in International Human Rights Law and inInternational Development Law can assist in that purpose, as it hasnot been confined to meeting basic human needs, but has in factgone much further, towards empowerment, in the civil, political,economic, social and cultural domains. Meeting basic needs andachieving people’s empowerment go hand in hand. The concern withliving conditions everywhere has come at last to permeate the present-day international legal system, corresponding to a new ethos of ourtimes. The international agenda of this beginning of the twenty-firstcentury has, with the crystallization of the right to development as ahuman right, continued to expand considerably, besides rescuing thecentral position of human beings in the universe of the law ofnations, pursuant to a necessarily anthropocentric outlook, whichpoints towards the emergence of the new jus gentium, the Inter-national Law for humankind 1435.


CHAPTER XV

CONCEPTUAL CONSTRUCTIONS : RESPONSIBILITY FORINTERNATIONAL CRIMES AND UNIVERSAL JURISDICTION

I. Introduction

Recent international case-law in the domain of human rights pro-tection has brought to the fore the recurrent theme of the comple-mentarity between the international responsibility of the State andthe international criminal responsibility of the individual. The sub-ject at issue has gained momentum in the light of recent develop-ments in the law on the international responsibility of the State aswell as in International Criminal Law. The co-existence and comple-mentarity of the international responsibility of States and the inter-national criminal responsibility of individuals is related to the cur-rent trend towards the criminalization of grave violations of humanrights, as well as the relationship between State responsibilityand the struggle against impunity and the endeavours towards therealization of justice. The conceptualization of the crime of State, itsconfiguration and the relationship of that notion with the superiorinterests of the international community, deserve closer attentionfrom contemporary international legal doctrine, as much as thejuridical consequences of the crime of State, and the principle ofuniversal jurisdiction.

II. The International Responsibility of the State and of theIndividual : Recent Developments

The complementarity of the international responsibility of theState and of the individual for grave violations of human rights hasclearly ensued from successive cases of massacres recently lodgedwith the Inter-American Court of Human Rights (IACtHR) — suchas the cases of Myrna Mack Chang (2003) and of the Massacre ofPlan de Sánchez (2004) concerning Guatemala, of the 19 Tradesmen(2004) and of the Massacre of Mapiripán (2005) concerningColombia, and of the Moiwana Community v. Suriname (2005).Such cases cannot pass unnoticed in the examination of the theme of

412

1436. Paras. 138-139, 150, 154 and 157 of the Judgment. 1437. Para. 215 of the Judgment.1438. Cf. paras. 174-181 of the Judgment ; and cf. also, on the matter, CEH,

Guatemala, Memoria del Silencio — Informe de la Comisión para el Esclare-cimiento Histórico, Vol. VI, Annex I, Guatemala, 1999, pp. 242 and 244.

the co-existence and complementarity of the international responsi-bility of States and the international criminal responsibility of indi-viduals.

In its Judgment on the merits and reparations in the case of MyrnaMack Chang v. Guatemala, of 25 November 2003, the IACtHRestablished that the violation of the right to life of Myrna MackChang occurred in aggravating circumstances, as it resulted from “acovered-up operation of military intelligence undertaken by thePresidencial Office (Estado Mayor) and tolerated by several authori-ties and institutions”, amidst “a pattern of selective extrajudicialexecutions launched and tolerated by the State itself”, and a “climateof impunity” 1436. Moreover, the Court established that the afore-mentioned operation of military intelligence of the PresidencialOffice (Estado Mayor)

“sought the hiding of the facts and the impunity of thoseresponsible for them, and, to that end, under the tolerance ofthe State, resorted to all types of measures, among which werefound hostilities, threats and murders of those who collaboratedwith justice”,

affecting the independence of the Judiciary 1437. That this case wasone of aggravated international responsibility of the State wasfurther evidenced by the aforementioned facts and the abusive invo-cation of the so-called “secret of State” leading to an obstructionof justice 1438.

In the case of the Massacre of Plan de Sánchez (2004), theIACtHR established Guatemala’s responsibility for grave humanrights violations under the American Convention on Human Rights.As demonstrated in the case, the crimes committed in the course ofthe execution, by military operations, of a State policy of “tierraarrasada”, including the massacre of Plan de Sánchez perpetratedon 18 July 1982, were intended to destroy wholly or in part themembers of indigenous Maya communities. The respondent Stateaccepted its international responsibility under the AmericanConvention for the grave human rights violations resulting from the


1439. Para. 51 of the Judgment.1440. 95 per cent of them had been perpetrated between 1978 and 1984 (with

violence intensified in 1981-1983), and in this period 90 per cent had been exe-cuted in areas inhabited predominantly by the Maya people. The acts of extremeviolence, in the assessment of that Commission, disclosed the characteristics of“acts of genocide” — specifically against members of the peoples maya-ixil,maya-achi, maya-k’iche’, maya-chuj and maya-q’anjob’al, in four regions of thecountry ; Comisión para el Esclarecimiento Histórico, Guatemala — Memoriadel Silencio, Vol. III, Guatemala, CEH, 1999, pp. 316-318, 358, 375-376, 393,416 and 417-423.

1441. Ibid., p. 422.1442. In my lengthy Separate Opinion in that case, I dwelt upon the legal

subjectivity of peoples in International Law, the reaction of the universal juridi-cal conscience to the projection of suffering in time, the duties of the livingtowards their dead in the origins and development of International Law, and thereparations for damages to what I deemed fit to term the “project of life as wellas of post-life”, bearing in mind the cultural manifestations of the victimizedmembers of the Moiwana Community (paras. 1-93 of my Separate Opinion).

massacre of Plan de Sánchez. In its Judgment on the merits of thecase, of 29 April 2004, the IACtHR determined that those violations“gravely affected the members of the maya-achí people in their iden-tity and values”, and, in so far as they occurred within a “pattern ofmassacres”, they had “an aggravated impact” in the establishment ofthe international responsibility of the State 1439.

In turn, earlier on, the Guatemalan Commission for the HistoricalClarification, in its report Guatemala — Memoria del Silencio, hadestablished the occurrence of 626 massacres committed by the forcesof the State during the armed conflict, mainly the Army, supportedby paramilitary structures 1440. In the view of the Guatemalan TruthCommission, the grave and massive human rights violations engagedboth the individual responsibility of the “intellectual or materialauthors” of the “acts of genocide” as well as the “responsibility ofthe State”, as most of those acts were the product of a State “policypreestablished by a superior command to its material authors” 1441.

In the recent case of the massacre of the Moiwana Community, theIACtHR ordered (Judgment of 15 June 2005) distinct measures ofreparations to the surviving, and forcefully displaced, members ofthat Surinamese community, so as also to preserve their culturalidentity 1442. And in the likewise recent case of the Massacre ofMapiripán (Judgment of 15 September 2005), Colombia acceptedinternational responsibility before the Court, specifically for the actsof its own agents, but the IACtHR when further, in determining theresponsibility of the State for the deaths of 49 persons perpetrated bythe so-called paramilitary (as “third parties”), who counted in the cas


1443. Paras. 96.30-39, 96.43 and 116 of the Judgment.1444. Cf. G. Abi-Saab, “The Concept of ‘International Crimes’ and Its Place

in Contemporary International Law”, in International Crimes of State — ACritical Analysis of the ILC’s Draft Article 19 on State Responsibility (eds. J. H. H.Weiler, A. Cassese and M. Spinedi), Berlin, W. de Gruyter, 1989, pp. 141-150 ;B. Graefrath, “International Crimes — A Specific Regime of InternationalResponsibility of States and Its Legal Consequences”, in ibid., pp. 161-169 ;P.-M. Dupuy, “Implications of the Institutionalization of International Crimes ofStates”, in ibid., pp. 170-185 ; M. Gounelle, “Quelques remarques sur la notionde ‘crime international’ et sur l’évolution de la responsabilité internationale del’Etat”, Mélanges offerts à P. Reuter — Le droit international : unité et diversité,Paris, Pedone, 1981, pp. 315-326 ; L. C. Green, “Crimes under the I.L.C. 1991Draft Code”, 24 Israel Yearbook on Human Rights (1994), pp. 19-39 ; S. R.Ratner and J. S. Abrams, Accountability for Human Rights Atrocities in Interna-tional Law, Oxford, Clarendon Press, 1997, pp. 11, 13-15 and 22-23.

1445. Comprising the establishment by the UN Security Council of the adhoc Tribunals for former Yugoslavia in 1993, and for Rwanda in 1994, and theadoption of the 1998 Rome Statute of the permanent International CriminalCourt.

1446. Attention is to be drawn to the superior universal values which under-lie the whole theme of the creation of an international criminal jurisdiction, witha permanent basis. It may be recalled that the 1998 Rome Statute of the ICCsucceeded in setting forth general principles of criminal law, notwithstandingthe conceptual differences between the Delegations of countries of droit civiland those of countries of common law.

d’espèce on the tolerance, acquiescence or collaboration of thearmed forces of the State 1443.

III. State Responsibility, the Criminalization of Grave Violations ofHuman Rights and the Realization of Justice

The process of criminalization of grave violations of humanrights and of International Humanitarian Law 1444 has effectivelyaccompanied pari passu the evolution of contemporary InternationalLaw itself : the establishment of an international criminal juris-diction 1445 is regarded in our days as an element which strengthensInternational Law itself, overcoming a basic lack and its insufficien-cies of the past as to the incapacity to judge and punish thoseresponsible for grave violations of human rights and of InternationalHumanitarian Law. In fact, the travaux préparatoires of the Statuteof Rome of 1998 on the International Criminal Court (ICC) led tothe prompt acknowledgment, in the ambit of its application 1446, ofthe international criminal responsibility of the individual for themost serious international crimes.

Such initiative has given a new impetus to the struggle of theinternational community against impunity, as a violation per se of


1447. W. A. Schabas, “Sentencing by International Tribunals : A HumanRights Approach”, 7 Duke Journal of Comparative and International Law(1997), pp. 461-517.

1448. Cf., on the matter, e.g., D. Thiam, “Responsabilité internationale del’individu en matière criminelle”, in International Law on the Eve of the Twenty-First Century — Views from the International Law Commission/Le droit inter-national à l’aube du XXe siècle — Réflexions de codificateurs, New York,United Nations, 1997, pp. 329-337. Furthermore, the criminalization of graveviolations of human rights and of International Humanitarian Law has foundexpression in the establishment, in our time, of the principle of universal juris-diction ; cf. A. A. Cançado Trindade, Tratado de Direito Internacional dosDireitos Humanos, Porto Alegre, Brazil, S.A. Fabris Ed., Vol. III, 1st ed., 2003,p. 413, and ibid., Vol. II, 1st ed., 1999, pp. 385-400 and 404-412.

1449. Since “impunity fosters chronic recidivism of human rights violations,and total defenselessness of victims and their relatives” (IACtHR, Series C,No. 37, para. 173).

1450. Under Article 1 (1) of the American Convention on Human Rights.1451. Those considerations by the IACtHR were reiterated by it in new obiter

dicta in the Judgments on reparations in the cases Loayza Tamayo (1998,para. 170), Castillo Páez (1998, para. 107), Blake (1999, para. 64), VillagránMorales y Otros (2001, para. 100), Cesti Hurtado (2001, para. 63), CantoralBenavides (2001, para. 69), Bámaca Velásquez (2002, para. 64), Trujillo Oroza(2002, para. 97), to which other obiter dicta in the same sense may be addedin its recent Judgments in the cases Juan Humberto Sánchez (2003, para. 143)and Bulacio (2003, para. 120).

human rights 1447 ; by means of the affirmation and crystallization ofthe international criminal responsibility of the individual for interna-tional crimes, it has thus sought to prevent future crimes 1448. In theambit of the inter-American system of human rights, in the casePaniagua Morales and Others v. Guatemala (Judgment of 8 March1998), the IACtHR had the occasion to formulate a clear warning asto the duty of the State to fight impunity 1449. The IACtHR affirmedthe duty of the State 1450 to “organize the public power to guaranteeto persons subject to its jurisdiction the free and full exercise ofhuman rights”, a duty which — the Court significantly added —“applies irrespectively of whether those responsible for the viola-tions of those rights are agents of the public power, private individ-uals, or groups of them” (para. 174). The recognition of the State’sduty to fight impunity 1451 nowadays finds expression in the jurispru-dence constante of the IACtHR.

While an international tribunal of human rights (such as theEuropean and Inter-American Courts, and, in the future, the AfricanCourt) cannot determine the international criminal responsibility ofthe individual, and an international criminal tribunal (such as the adhoc International Criminal Tribunals for the former Yugoslavia(ICTFY) and for Rwanda (ICTR), and the ICC) cannot determine the


1452. M. Gounelle, “Quelques remarques sur la notion de ‘crime interna-tional’ . . .”, op. cit. supra footnote 1444, pp. 317-318.

1453. H. Lauterpacht, op. cit. infra footnote 1464, pp. 355-357.1454. Cf. H. Kelsen, Principles of International Law, New York, Rinehart &

Co. Inc., 1952, pp. 9, 11-13, 97-100, 104-105, 107 and 114-117.1455. Ibid., pp. 122-123.

responsibility of the State, impunity is most likely bound to persist,being only partially santioned by one and the other. The internationalresponsibility of the State contains elements of both civil and penalnature, in the present stage of evolution of International Law. Suchresponsibility of the State is neither exclusively civil (as suggests theduty of reparation for damages), nor exclusively penal (as suggeststhe legitimacy of a sanction). It appears as a collective responsibilityof the State, parallel to the international criminal responsibility ofthe individual.

Reparations can be endowed with a sanctioning or repressivecharacter 1452, so as to secure the realization of justice and put an endto impunity (cf. infra). The fulfilment of the exemplary or dissuasivepurposes can — and must — be sought by means not only of indem-nizations, but also of other (non pecuniary) forms of reparation.One ought to, moreover, keep in mind that, while the reparation(material and moral) benefits directly the injured party, the sanction(or repressive action against the transgressing State), in turn, benefitsthe international community itself as a whole ; not to admit thatwould amount to consent that the State responsible for the violationsubtracts itself from the Law 1453.

Already by the mid-twentieth century there was doctrinal supportfor the co-existence of the international responsibility both of indi-viduals (physical persons) and of States (juridical persons), asInternational Law binds them all (as their subjects). In the caseof the States, their responsibility is collective, and H. Kelsen, forexample, admitted that a State, in incurring into a grave violationof International Law, commits a delict or a crime 1454. In warningthat the individual responsible for such violation acted in the name ofthe State, H. Kelsen also admitted that the responsibility of the Statecan be both objective and absolute, as, in given circumstances, itcan also have as basis the fault or culpa 1455.

In fact, even if one admits the principle of the objective or abso-lute responsibility of the State (as did the IACtHR in the case of“The Last Temptation of Christ”, concerning Chile, Judgment of


1456. Cf., in this sense, H. Lauterpacht, op. cit. supra footnote 1464, pp. 359-361 and 364.

5 February 2001), this does not mean that the responsibility basedon fault or guilt is entirely dismissed in every and any hypothesis orcircumstance. There are cases — such as the aforementioned casesof Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the19 Tradesmen, of the Massacre of Mapiripán, of the MoiwanaCommunity — in which the intention of the State to cause thedamage or its negligence in avoiding it can be demonstrated ; thefault or guilt (intent) becomes, here, on the indispensable basis of theresponsibility of the State 1456, aggravated by this circumstance.

IV. Complementarity between the International Responsibilityof States and the International Criminal Responsibility

of Individuals

The international responsibility of the State and the internationalcriminal responsibility of the individual do not exclude, but rathercomplement, each other. This is so because a public agent operateson behalf of the State, and both the State and its agent answer for theacts or omissions imputable to both. The international tribunals ofhuman rights pronounce on the international responsibility of theState, and the ad hoc international criminal tribunals (for the formerYugoslavia and for Rwanda) and the ICC on that of the individualsat issue. Neither the former, nor the latter, encompass the totality ofthe matter in its present stage of evolution. Yet, there does not appearto be any juridical impediment for the concomitant determination ofthe international responsibility of the State and the internationalcriminal responsibility of the individuals — despite the insufficientdevelopment of the matter, reflected in the persistent compartmen-talized approach to the international responsibility of the State andthe international criminal responsibility of individuals.

The evolution of the law on international responsibility should notyield to the rigid compartmentalization between civil and criminalresponsibility found in the national legal systems. Nothing seems toimpede that it contains elements of one and the other, both conform-ing the international responsibility. This latter is endowed with aspecificity of its own. A State can be internationally responsible for


1457. Cf. J. Barboza, “International Criminal Law”, 278 RCADI (1999),pp. 82 and 96.

1458. Cf., e.g., G. Arangio-Ruiz, Diritto Internazionale e PersonalitàGiuridica, Bologna, Coop. Libr. Univ., 1972, pp. 9-19 ; J. A. Barberis, LosSujetos del Derecho Internacional Actual, Madrid, Tecnos, 1984, pp. 26-35.

a crime, imputable both to its agents who committed it, and to theState itself as juridical person of International Law. To deny thiswould be to create an obstacle to the development of InternationalLaw in the present domain of the international responsibility.

Even those who sustain that criminal responsibility falls onlyupon the individuals who commit the crimes and not upon the col-lective persons (the States), as societas delinquere non potest, admit,nevertheless, the existence and evolution nowadays of forms ofcriminal responsibility of juridical persons in the domestic law ofdistinct countries 1457. The engagement of the criminal responsibilityof the juridical person (for example, in environmental protection)results from the very capacity to act and the necessity to preservesuperior social and common values. The State, juridical person(although of abstract quality) and subject of International Law, hasrights and duties governed by this latter ; its conduct is directly andeffectively foreseen and regulated by the law of nations (droit desgens) 1458. The State, as well as its agents, ought, thus, to be account-able for the consequences of their acts or omissions.

In a situation such as the one aforementioned, the determinationof the international criminal responsibility of the individual is not,thus, sufficient, as the State, in whose name its agents committed acrime, contributed itself, as a juridical person of International Law, tothe perpetration or occurrence of such crime. In the recent casesof Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the19 Tradesmen, of the Massacre of Mapiripán, of the MoiwanaCommunity, the crimes of State were materialized both by the exe-cution (planned as from the highest rank of the public power) of thecrimes, as well as by the subsequent cover-up of the facts, the pro-longed obstruction of justice, and the impunity of those responsiblefor it, thus generating an aggravated responsibility. At conceptuallevel, it is surely difficult not to admit the occurrence of a crime ofState in general International Law, above all in so far as there isintention (fault or guilt), or tolerance, acquiescence, negligence,action or omission, on the part of the State in relation to graveviolations of human rights and of International Humanitarian Law


1459. In this sense, L. Recaséns Siches, Tratado General de Filosofía delDerecho, 16th ed., Mexico, Ed. Porrúa, 2002, p. 272.

1460. The criminal one resulted from acts which objectively breachedunequivocal laws, and which were demonstrable before a tribunal ; the politicalone resulted from actions of the governors, of the State, of which the governedones were co-responsible, as “every person is co-responsible of how he is gov-erned” ; the moral one resulted from the actions of each individual, having byjudge the conscience itself ; and the metaphysical one, whereby “there is a soli-darity between men . . . which makes each one responsible for . . . the crimeswhich take place in their presence or with their knowledge”. K. Jaspers, ElProblema de la Culpa, Barcelona, Ed. Paidós, Universidad Autónoma deBarcelona, 1965 (re-ed. in Spanish, 1998), pp. 53-54.

perpetrated by its agents, in pursuance of a State policy. In suchcircumstances, societas delinquere potest.

In the domain of Law, every person constitutes a centre or unityof imputation. In the case of the physical person, one is before theconcrete and living unit of each human being, while the juridicalperson, which is a creation or construction of Law, also constitutes acentre or unit of imputation for conducts attributed to individualswho act on their own behalf, and for the consequences for which thejuridical person itself, as well as its agents, ought to be accountable.In sum, the juridical personality of a collective entity (such as theState) is a construction of the Law, and constitutes a unit of imputa-tion of its conducts, undertaken by the individuals who composesuch collective entity and act on its behalf ; thus, both the juridicalperson as well as those individuals ought to be accountable for theconsequences of their acts or omissions 1459, particularly when theybring about grave violations of human rights and of InternationalHumanitarian Law. In my view, the international responsibility ofthe State and the international criminal responsibility of the individ-ual do not exclude each other, but, quite on the contrary, they appearcomplementary to each other and ineluctably intertwined.

V. Some Considerations on the Crime of State Revisited

1. Configuration of the crime of State

This leads me to the consideration of the typology of culpability,and, in the framework of this latter, of the configuration of the crimeof State. In his masterly monograph The Problem of Guilt, the jus-philosopher Karl Jaspers distinguished four types of culpability,namely, the criminal, political, moral and metaphysical ones 1460.


1461. Namely : the criminal one leading to sanction or punishment ; thepolitical one to responsibility ; the moral one to regret and renovation ; and themetaphysical one to “a transformation of the human conscience of himselfbefore God” ; op. cit. supra footnote 1460, p. 57.

1462. Ibid., p. 131.1463. P. Ricœur, La mémoire, l’histoire, l’oubli, Paris, Ed. du Seuil, 2000,

pp. 423, 434 and 609. Such political culpability

“résulte de l’appartenance de fait des citoyens au corps politique au nomduquel les crimes ont été commis. . . . Cette sorte de culpabilité engage lesmembres de la communauté politique indépendamment de leurs actes indi-viduels ou de . . . leur degré d’acquiescement à la politique de l’Etat. Qui abénéficié des bienfaits de l’ordre public doit d’une certaine façon répondredes maux créés par l’Etat dont il fait partie” ; ibid., pp. 615 and 620.

1464. H. Lauterpacht, “Règles générales du droit de la paix”, 62 RCADI(1937), pp. 339 and 349-350.

After addressing the distinct consequences of those modalities ofculpability 1461, K. Jaspers persuasively concluded that “there arecrimes of State, which are always and at the same time crimes ofgiven individuals” ; if such crimes were always judged by the inter-national community, he added,

“Humanity would be united in an ethos comprehensible toall. What we have ourselves suffered would no longer berepeated . . .” 1462

In the same line of thinking, another jusphilosopher, Paul Ricœur, inhis essay La mémoire, l’histoire, l’oubli, in evoking the thought ofK. Jaspers, referred likewise to the culpability for State policiesof criminal responsibility, and expressly utilized the term “crimeof State” 1463.

Also in the more lucid doctrine of International Law one can findelements conducive to the configuration of the crime of State. Thus,already in 1937, Hersch Lauterpacht warned that the traditionalrespect for State sovereignty hindered the development of the law ofthe international responsibility, particularly where it marked morepresence, namely, as to the consequences of responsibility. Thus, thetraditional theory limited responsibility only to the reparation fordamages (material and moral), without it being possible for States,as a result of their sovereignty, to be punished. This vision, however,in exempting the State from the consequences of its own violationsof the Law, appeared entirely arbitrary, limiting the action of justiceat international level 1464. This being so, argued that author withvehemence and against the then prevailing doctrine,


1465. Op. cit. supra footnote 1464, pp. 350-352.1466. C. Th. Eustathiades, “Les sujets du droit international et la responsabi-

lité internationale — nouvelles tendances”, 84 RCADI (1953), pp. 415, 417, 448,604 and 607-608.

1467. Ibid., p. 603.

“la violation du droit international peut être telle qu’elle néces-site, dans l’intérêt de la justice, une expression de désapproba-tion dépassant la réparation matérielle. . . . Abolir ces aspectsde la responsabilité entre les Etats serait adopter, du fait de leursouveraineté, un principe qui répugne à la justice et qui porteen lui-même un encouragement à l’illégalité. Ce serait per-mettre aux individus, associés sous la forme d’Etat, d’acquérir,quant aux actes criminels commis . . ., un degré d’immunitéqu’ils ne possèdent pas agissant isolément ; c’est une immunitécouvrant des actes qui, parce qu’ils sont collectifs et aidés parla puissance presque infinie de l’Etat moderne, jouissent d’unpouvoir de destruction virtuellement illimité.

C’est la personnification courante de l’Etat, impliquant unedistinction artificielle entre l’association et les membres qui lacomposent, qui a contribué a suggérer ce principe anarchiqued’irresponsabilité morale et juridique. . . . Il ne peut guère yavoir d’espoir pour le droit international et la morale si l’indi-vidu, agissant comme l’organe de l’Etat peut, en violant le droitinternational, s’abriter effectivement derrière l’Etat imperson-nel et métaphysique ; et si l’Etat, en cette capacité, peut éviterle châtiment en invoquant l’injustice de la punition collec-tive.” 1465

As well pointed out by C. Th. Eustathiades in a substantial andpioneering study half a century ago, States and individuals aresubjects of International Law, and one cannot pretend that the inter-national criminal responsibility of the individual replaces or “elimi-nates” that of the State ; the responsibility of this latter can also beengaged by an international delict, bringing about sanctions inInternational Law which have a “repressive function” 1466. The indi-vidual and the State responsibility can perfectly cumulate 1467.

In our days, the consolidation of the specificity of crimes againsthumanity seems to point into the same direction. Such crimes, pur-porting to humiliate and “dehumanize” the victims and thus affectinghumanity itself, are particularly grave, and are not committed by


1468. Y. Jurovics, Réflexions sur la spécificité du crime contre l’humanité,Paris, LGDJ, 2002, pp. 14-15, 21-23, 52-53, 72-73, 92-93, 132-133, 183, 192,198-199, 228-229, 279, 283, 329, 331, 335, 360-361, 375-376, 405 and 439, andcf. pp. 440.

1469. Cf. J. Verhaegen, Le droit international pénal de Nuremberg : acquis etrégressions, Brussels, Bruylant, 2003, pp. 10-11, 22, 51-53, 62 and 86.

1470. Cf., e.g., R. Besné Mañero, El Crímen Internacional — NuevosAspectos de la Responsabilidad Internacional de los Estados, Bilbao,Universidad de Deusto, 1999, pp. 78-79, 186, 215, 218, 221 y 230-231.

1471. Armenia, Soviet Rusia, the Holocaust, Cambodia, former Yugoslavia,Rwanda.

1472. B. Bruneteau, Le siècle des génocides — Violences, massacres et pro-cessus génocidaires de l’Arménie au Rwanda, Paris, A. Colin Ed., 2004, pp. 222and 233.

individuals acting in isolation or on their own. On the contrary, moreoften than not, they are perpetrated collectively, they pursue dis-criminatory and criminal policies, in a complex, organized andcoldly planified way 1468 ; as they, thus, quite often amount to Statepolicies, they are true crimes of State, surrounded by attempts tosecure impunity and by obstructions of justice. The 1998 RomeStatute of the ICC lists a series of acts, amounting to crimes againsthumanity, when “committed as part of a widespread or systematicattack directed against any civilian population, with knowledge ofthe attack” (Art. 7).

To the extent that such acts conform systematic practices of graveviolations of human rights as part of a State policy, they are truecrimes of State (crimes d’Etat) 1469. The determination of the respon-sibility of the State for them fulfils a legitimate concern of the inter-national community as a whole 1470. Furthermore, the succession ofgenocides perpetrated along the twentieth century 1471 stands as aserious warning that massive violations of the rights of the humanperson have been accompanied by a State policy of “dehumaniza-tion” of the victims, so as to pretend to act in pursuance of analleged “right of the State to persecute or to massacre” 1472 ; or, inother words, to perpetrate a true crime of State.

These are not “abstractions”, as part of the legal doctrine insistson portraying them, so as to elude consideration of the matter. It iswell known that many crimes of the kind have been surroundedby public campaigns of propaganda or “dehumanization” of thevictims, added to other strategies, depriving them of their homes,their property, their agriculture of subsistence, their nationality, theircultural identity, their modus vivendi itself — for the final perpetra-tion of crimes of State. Moreover, it should not pass unnoticed that


1473. For the historical example of denazification, cf., e.g., J. H. Herz, “AnHistorical Perspective”, in State Crimes — Punishment or Pardon (1988Conference Papers), Queenstown, Maryland, Aspen Institute, 1989, pp. 11-22.

1474. Cf., e.g., J. Barboza, “International Criminal Law”, op. cit. supra foot-note 1457, p. 97 ; J. Quigley, “The International Law Commission’s Crime-Delict Distinction : A Toothless Tiger ?”, 66 Revue de droit international desciences diplomatiques et politiques, Geneva (1988), pp. 119-120.

1475. A. Pellet, “Can a State Commit a Crime ? Definitely, Yes !”, 10European Journal of International Law (1999), pp. 426-427 ; C. Tomuschat,“International Crimes by States : An Endangered Species ?”, in InternationalLaw : Theory and Practice — Essays in Honour of Eric Suy (ed. K. Wellens),The Hague, M. Nijhoff, 1998, pp. 253 and 265.

reiterated and considerable difficulties have been encountered whenit comes to “demobilizing”, or putting an end to, the mounted Stateapparatus of extermination 1473 of various kinds (whether it be com-posed of secret police, so-called “intelligence” services, deathsquads, so-called paramilitary, police battalions, or whatever).

2. The crime of State in relation to the fundamental or superiorinterests of the international community

There is another aspect to be singled out in relation to the con-figuration of the crime of State, linked to the protection of the fun-damental or superior interests of the international community itselfas a whole 1474. Thus, from this perspective, the crime of State appearsas a grave violation of peremptory International Law (jus cogens),which affects directly its principles and foundations, and which con-cerns the international community as a whole, not having to be dealtwith by analogy with categories of domestic criminal law. In anycase, the concept of crime of State ought to be studied in depth, andnot to be avoided.

The crime of State appears, in sum, as a particularly grave viola-tion of International Law bringing about an aggravated responsibil-ity (amidst aggravating circumstances, thus evoking a category ofcriminal law) ; the gravity of the violation affects directly the funda-mental values of the international community as a whole 1475. Thedetractors of the concept of crime of State, instead of keeping inmind such values, were to relate that concept to a mistaken analogywith criminal law in the sense that it is endowed with in domesticlaw.

It was necessary to wait for years for new doctrinal developmentsto pave the way for a certain “criminalization” of the relationship of


1476. The ILC itself, in its commentary on the matter, compared the adoptionof the formulation which recognized the distinction between the two concepts(international crimes and delicts) in the codification of the law on the interna-tional responsibility of the State with the setting forth of the category of juscogens in the law of treaties ; United Nations, Yearbook of the International LawCommission (YILC) (1976-II), Part II, para. 73, p. 122. With the proposedArticle 19 of the aforementioned Draft of the ILC, two regimes of responsibilitywould be formed : one for non-compliance of obligations of fundamental impor-tance to the international community as a whole, and another for non-compli-ance with of obligations of minor or less general importance.

1477. Cf. comments and examples in ibid., pp. 95-122.1478. Cf. comments in J. Crawford, The International Law Commission’s

Articles on State Responsibility, Cambridge, University Press, 2002, pp. 242-253.

responsibility, reducing the space occupied earlier by State volun-tarism. A former rapporteur of the UN International Law Commission(ILC) on the theme of the International Responsibility of the State,Roberto Ago, established, beyond the previous theoretical schemes, agradation of violations of the State obligations, therefrom emerging,in 1976, his well-known proposal of Article 19 of the Draft on theResponsibility of the States, incorporating the concept of “inter-national” crime and distinguishing it from “international delict” 1476.The acts of “particularly serious nature” would correspond to “inter-national crimes” affecting the fundamental values of the inter-national community, and the others — not revealing the same degreeof gravity — would amount to “international delicts” 1477. A newvision of the law on international responsibility began to emerge,taking into account the basic values and the needs of the interna-tional community as a whole.

Nevertheless, the advances in this area have taken place not in asteady way, but rather — as often so occurs — moving back andforth, like a pendulum. The fact that the final Draft Articles on theResponsibility of the States, adopted by the ILC in 2001, enteredinto details on the so-called “countermeasures” (which reflect whatthere is of most primitive in International Law, that is, the use ofreprisals in a new version), and discarded and filed, somewhatlightly, the concept of international crime or “crime of State”, is areflection of the world in which we live. Ubi societas, ibi jus. Therelatively summary treatment dedicated by the Articles on theResponsibility of the States (2001) of the ILC to the grave violations— and their consequences — of obligations under peremptory normsof general International Law (essentially in Articles 40-41) 1478,reveals the insufficient conceptual development of the matter until


1479. The establishment of such regime was precisely the purpose of theaforementioned Article 19 of the Draft Articles on the Responsibility of the Stateof the ILC ; G. Abi-Saab, “The Uses of Article 19”, 10 European Journal ofInternational Law (1999), pp. 339-351.

1480. Ibid., pp. 350-351.1481. A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos

Humanos, Porto Alegre, Brazil, S.A. Fabris Ed., Vol. I, 2nd ed., 2003, p. 244 ;ibid., Vol. III, 1st ed., 2003, p. 415.

our days, in an international community which is still in search of agreater degree of cohesion and solidarity.

As well recalled by G. Abi-Saab, an analogy with domestic crimi-nal law was not what Roberto Ago had in mind in advancing in1976 the concept of international crime or crime of State in the well-known Article 19 of the Draft Articles on the Responsibility of theState of the ILC. The distorted analogy with domestic criminal lawignores the specificity of the crime of State in International Law, andregrettably minimizes the recognition of the fundamental or superiorinterests of the international community, the emergence — in itswide dimension — of jus cogens in the domain of the internationalresponsibility of the States, and the necessity to establish an aggra-vated regime of the international responsibility of the State 1479. Andthe main purpose of this regime is precisely

“to defend the normative integrity of the legal system itselfagainst patterns of behaviour which go against its most funda-mental principles and thus undermine its regular functioningand credibility. . . . It can legitimately be feared that settingaside the dual regime of responsibility would be widely per-ceived as a reversal of the evolution of general InternationalLaw from a community-oriented system back to a purely inter-subjective one.” 1480

The reaction to the grave and systematic violations of humanrights and of International Humanitarian Law came to constitute inour days a legitimate concern of the international community as awhole 1481. This takes place even more forcefully when the victimsare vulnerable and defenceless (as in the aforementioned cases),and when the structure of public power is distorted and comes to beutilized to breach the rights inherent to the human person. As from themoment when the international community starts to profess certainfundamental and superior values, one has to accept the consequenceof the establishment of a special regime of aggravated responsibility


1482. G. Abi-Saab, “The Concept of ‘International Crimes’ and Its Place inContemporary International Law”, in International Crimes of State . . ., op. cit.supra footnote 1444, pp. 144-145.

1483. I. Sinclair, “State Responsibility : Lex Ferenda and Crimes of State”, inInternational Crimes of State . . ., op. cit. supra footnote 1444, p. 242.

1484. Roberto Ago, “Le délit international”, 68 RCADI (1939), pp. 424 and 426.1485. Ibid., pp. 428-429.

(corresponding to the crime of State) whenever there is an attemptagainst those values or a violation of the norms which protectthem 1482. One ought to definitively rescue the outlook of the matterwhich bears in mind the fundamental or superior interests of theinternational community, which has led to the configuration of thecrime of State, endowed with a specificity of its own in Interna-tional Law.

VI. Juridical Consequences of the Crime of State

The aggravated responsibility is, precisely, that which corre-sponds to a crime of State. The crime of State becomes evident whenthe State’s intention (fault or culpa) to cause the damage, or its neg-ligence to avoid, can be demonstrated, as in the aforementionedrecent cases of Myrna Mack Chang, of the Massacre of Plan deSánchez, of the 19 Tradesmen, of the Massacre of Mapiripán, and ofthe massacre of the Community Moiwana ; the responsibility of theState is aggravated by that circumstance. The well-known Article 19of the Draft on the Responsibility of the State (1976) of the ILC(supra), in providing on “international crimes”, had in mind pre-cisely the establishment of an aggravated degree of responsibility,for given violations of International Law 1483. It did not intend at anymoment al all to suggest an analogy with categories of domesticcriminal law. Once accepted the aggravated responsibility, one oughtto determine its juridical consequences.

Already in 1939, well before being rapporteur of the ILC on theInternational Responsibility of the States, Roberto Ago pondered thatone same material fact can be apprehended by distinct rules of asame legal order, attributing to it legal circumstances also distinct,generating the obligation to repair or legitimating the application ofa sanction 1484. Thus, either the obligation of reparation, or the appli-cation of a sanction, or both at the same time can be conformed ; toR. Ago, “sanction and reparation can thus subsist one beside theother, with effects of the same delict” 1485. A same legal fact can,


1486. F. V. García Amador, “State Responsibility — Some New Problems”,94 RCADI (1958), pp. 396-398.

1487. Ibid., p. 409.

thus, generate distinct consequences, such as reparation and sanc-tion. For a particularly grave wrongfulness (for example, a graveviolation of human rights or of International Humanitarian Law), thecompensatory reparation (for the victim or her relatives) may not besufficient, the punitive reparation (for example, investigation of thefacts and punishment of those responsible for them) being alsonecessary. Both may appear necessary for the realization of justice.

In 1958, the Cuban jurist F. V. García Amador, rapporteur of theILC on the Responsibility of the States, observed that certain formsof reparation have a clear and distinctly punitive purpose (punitivedamages/dommages-intérêts punitifs), implying the imputation ofresponsibility of a penal character to the State for violation of certaininternational obligations — in particular, grave violations of funda-mental human rights, similar to the crimes against humanity 1486.Thus, the duty itself “to provide reparation” (with a connotation ini-tially of civil law) varies in accordance with “the character and roleof the reparation” in given cases ; in this way, the reparation notalways assumes the same form, and not always has the same pur-pose, and, in so far as punitive damages are concerned (cf. infra), itcontains a penal element of responsibility 1487.

The whole chapter of the reparations for violations of humanrights requires a greater conceptual and jurisprudential development,as from the recognition of the close relationship between the right toreparation and the right to justice. Such development is imperative,particularly in face of the grave and systematic violations of humanrights, which, in turn, require a firm disapproval of the illicit conductof the State, and reparations of a dissuasive character, so as to guar-antee the non-repetition of the harmful facts, bearing in mind boththe expectations of the relatives of the victim as well as the superiorneeds and interests of the social milieu.

In fact, one cannot deny the close link between the reparation andthe struggle against impunity, as well as the guarantee of non-repeti-tion of the harmful facts, always and necessarily from the perspec-tive of the victims. The true reparatio, linked to the realization ofjustice, requires the overcoming of the hindering of the duties ofinvestigation and sanction of those responsible for the facts, and the


1488. The ample terms of Article 63 (1) of the American Convention onHuman Rights, e.g., have in fact opened to the IACtHR a wide horizon in thematter of reparations.

1489. Cf., e.g., inter alia, R. W. Hodgin and E. Veitch, “Punitive DamagesReassessed”, 21 International and Comparative Law Quarterly (1972), pp. 119-132 ; and cf. examples of (national and international) practice in D. Shelton,Remedies in International Human Rights Law, Oxford, University Press, 2000,pp. 74-75 and 288-289. And there are those who behold a tendency to a clearrecognition of punitive damages in international law ; cf., e.g., N. H. B.Jorgensen, “A Reappraisal of Punitive Damages in International Law”, 68British Year Book of International Law (1997), pp. 247-266. And, for a projectof doctrinal construction, cf. G. Arangio-Ruiz, “Second Report on StateResponsibility”, in United Nations, YILC (1989-II), Part I, pp. 31-35, 40-43 and47-54.

1490. And bringing about the risk of a “commercialization” of justice.

end to the impunity. That is, reparations can perfectly be endowedwith a character both compensatory and sanctioning, with the purposeof putting an end to impunity and of securing the realization of jus-tice — this being perfectly in accordance with the current stage ofevolution of International Law 1488.

Reparations with exemplary or dissuasive purposes, correspond-ing to an aggravated responsibility, can assist in the guarantee ofnon-repetition of the harmful facts, and in the struggle againstimpunity. In my several years of experience as Judge of the IACtHR,I have been able to verify that the States have less difficulty in com-plying with pecuniary reparations than with reparations pertaining tothe duty of investigating and sanctioning those responsible for theviolations of human rights, that is, ultimately, to the realization ofjustice. Non-pecuniary reparations are often much more importantthan what one could prima facie assume, even for putting an end tothe violations and removing their consequences, in the terms ofArticle 63 (1) of the American Convention.

Although the figure of the “punitive damages” is not strange tothe comparative national case-law, nor to the international arbitralcase-law 1489, it is not my purpose here to invoke it in the sense inwhich it has been utilized — in other contexts — of exemplary repa-ration of a necessarily pecuniary character (implying considerableamounts 1490). Far from it. In the present context of protection,endowed with a specificity of its own, other forms of reparation, ofnon-pecuniary character, have been commonly identified as “obliga-tions of doing”, once again suggesting a reductionist analogy withsolutions proper of civil law. These forms of reparation can be per-fectly considered as endowed with a character at a time compen-


1491. Whether those reparations are termed “exemplary”, or else “punitivedamages”, their basic purpose remains the same, in recognizing the gravity ofthe facts, sanctioning the State at issue for the grave violations incurred, recog-nizing and alleviating the great suffering of the survivors, and seeking the guar-antee of non-repetition of the breaches ; in providing adequate redress, they pur-port to reconstruct the harmed social milieu. IACtHR, case of the Massacre ofPlan de Sánchez (Reparations, 2004), Separate Opinion of Judge A. A. CançadoTrindade, para. 25.

1492. To these effects were the reparations ordered by the IACtHR in thecase of Myrna Mack Chang concerning Guatemala (Judgment of 25.11.2003).

1493. From the rich case-law of the IACtHR in the matter of reparations, forexample, some significant examples may be recalled. In the case of Aloeboetoev. Suriname (Judgment of 10.9.1993), the Court ordered the reopening of aschool and the creation of a foundation to assist the beneficiaries. In the case ofVillagrán Morales and Others v. Guatemala (case of the “Street Children”,Judgment of 26.5.2001), the IACtHR ordered the designation of an educativecentre with a name referring to the victims of the case ; likewise, in the case ofTrujillo Oroza v. Bolivia (Judgment of 27.2.2002), the Court again ordered thedesignation of an educative centre with the name of the victim. In the case ofCantoral Benavides v. Peru (Judgment of 3.12.2001), the IACtHR ordered theState to provide a scholarship of university studies to the victim. In the case ofBarrios Altos concening Peru (Judgment of 30.11.2001), the IACtHR orderedreparations in educative services and the payment of expenses of health services.And in the case of Durand and Ugarte v. Peru (Judgment of 3.12.2001), theCourt again ordered the payment of expenses of health assistance or services andpsychological support.

1494. M. Jourdain : “ . . . Il y a plus de quarante ans que je dis de la prosesans que j’en susse rien, et je vous suis le plus obligé du monde de m’avoirappris cela”. Molière, Œuvres complètes (Le bourgeois gentilhomme, 1670,Act II, Scene V), Paris, Ed. Seuil, 1962, p. 515.

satory and sanctioning 1491 (containing elements of both civil andpenal nature).

They have exemplary or dissuasive purposes, in the sense of pre-serving the memory of the violations occurred, of providing satisfac-tion (a sense of realization of justice) to the relatives of the victim,and of contributing to guaranteeing the non-repetition of those viola-tions (also by means of the education and in-training in humanrights) 1492. “Punitive damages” can also be conceived in this sense,resembling “obligations of doing” of both compensatory as wellas sanctioning character (thus overcoming the dichotomy betweencivil and penal, proper of the regime of responsibility in domesticlaw).

Reparations of the kind have effectively a character at a timecompensatory and sanctioning ; thus understood, “punitive damages”in reality have already been applied, for a long time, in the domain ofthe international protection of human rights 1493 — a practice remind-ful of the evocation of the expression of the well-known character ofMolière, Monsieur Jourdain, qui parlait la prose sans le savoir 1494.


1495. It ought not to pass unnoticed that, e.g., the Declaration adopted by theUnited Nations World Conference against Racism, Racial Discrimination,Xenophobia and Related Intolerance (Durban, 2001), in foreseeing measures ofreparation, compensation, indemnization and of other kinds for the humansufferings and the “tragedies of the past” (paras. 98-106), and the correspond-ing Programme of Action, in providing for reparations and indemnizations(paras. 165-166), utilize a language which discloses affinities with the concep-tion of “punitive damages” lato sensu.

1496. N. H. B. Jorgensen, The Responsibility of States for InternationalCrimes, Oxford, University Press, 2003, pp. 231 and 280.

1497. Such as, e.g., those of Peru, Guatemala, Chile, Argentina, amongothers.

1498. G. Citroni, L’Orrore Rivelato — L’Esperienza della Commissione dellaVerità e Riconciliazione in Perù : 1980-2000, Milan, Giuffrè, 2004, pp. 1-163.

1499. Cf., e.g., Comisión de la Verdad y Reconciliación (CVR), InformeFinal — Conclusiones Generales, Lima, Peru, CVR, 2003, pp. 11-20, 30 and 34-43, and cf. pp. 24 and 26-29 ; and for a recent evaluation, cf. Defensoría delPueblo (DP), A Dos Años de la Comisión de la Verdad y Reconciliación, Lima,Peru, DP, Informe Defensorial No. 97, 2005, pp. 17-333.

1500. Para. 4.2.7 of the Report.1501. Informe Final de la Comisión de la Verdad y Reconciliación, Lima,

27.8.2003, pp. 133-134.

In contemporary International Law in evolution, “punitive damages”lato sensu 1495 (beyond the purely pecuniary outlook inadequatelyattributed to them) can appear as an appropriate response or reactionof the international legal order against the crime of State 1496.

Truth Commission reports published in recent years 1497 disclosethe systematic occurrence of crimes of State, resulting from the exe-cution of State policies, devised at the highest level, of torturing,murdering, and forcefully disappearing persons 1498. They warnagainst responding to crimes committed by non-State entities(including terrorist groups) with crimes perpetrated by the Stateitself : the results are invariably the disruption of the rule of law(Etat de droit), social decomposition, killings of innocent people,impunity and corruption 1499.

In those reports, there is provision for punitive damages, of theaforementioned kind ; for example, in its Final Report (adopted on27 August 2003), the Commission on Truth and Reconciliation ofPeru, in referring to “reconciliation by means of the education invalues” 1500, recommended a series of educational measures andcourses of “humanistic formation”, so as to achieve “the most inte-gral formation of the person” 1501. Such measures, conceived as aform of reparation, disclosed a wider dimension, being also measuresof prevention against violence and abuses victimizing the humanperson, and revealing a temporal dimension. They bear witness of


1502. Although widely applied in traditional International Law, for factsoccurred in the State’s territory, the principle is not an absolute one, co-existingwith the other principles.

1503. When the alleged wrongs were committed by nationals of the State atissue.

1504. For facts attributed to non-nationals of the State, perpetrated outsidethe State’s territory, whenever the victims are its nationals.

1505. For facts occurred outside the State’s territory, irrespective of thenationality of the authors, when the alleged wrongs affect the State’s interests orthe exercise of its prerogatives.

1506. The nationality of the perpetrators, and the State territory where thealleged wrongs were committed, become thus immaterial.

1507. M. Itsouhou Mbadinga, “Le recours à la compétence universelle pourla répression des crimes internationaux : étude de quelques cas”, 81 Revue dedroit international de sciences diplomatiques et politiques (2003), pp. 286-287 ;A. Remiro Brotons, “La Responsabilidad Penal Internacional por CrímenesInternacionales y el Principio de Jurisdicción Universal”, in Creación de unaJurisdicción Penal Internacional (ed. C. Escobar Hernández), Madrid, EscuelaDiplomática (Colección No. 4), 2000, pp. 204-205.

the acknowledgment that, in the mid- and long run, many of thechallenges to human rights protection can be faced with efficacyonly through education.

VII. The Principle of Universal Jurisdiction

The study of responsibility for grave violations of internationallaw necessarily encompasses the principle of universal jurisdiction.This latter has a long history, which dates back to the thinking of thefounding fathers of the law of nations. Throughout the history of thediscipline, jurisdictional powers have been asserted and exercised onthe basis mainly of certain basic principles, namely, those of terri-toriality 1502, of nationality or active personality 1503, of passive per-sonality 1504, and of protection 1505 ; in addition, that of universaljurisdiction, with its variations in history, has been resorted to forsanctioning mainly grave violations of International HumanitarianLaw and International Human Rights Law 1506. There is an interplayamong such principles, in the struggle against impunity.

The assertion of the principle of universal jurisdiction for sanc-tioning those grave violations discloses the understanding that theselatter affect not only the victims and their communities, but the inter-national community as a whole 1507. Attentive and responsive to thegravity of the crimes perpetrated, the principle of universal jurisdic-tion bears witness of shared core values of the international commu-nity as a whole, pursuant to a universalist approach on the basis of


1508. M. Ch. Bassiouni, “The History of Universal Jurisdiction and Its Placein International Law”, in Universal Jurisdiction — National Courts and theProsecution of Serious Crimes under International Law (ed. S. Macedo),Philadelphia, Univ. of Pennsylvania Press, 2004, pp. 42-43.

1509. Cf., nowadays, on the repression of piracy on the high seas or in anyother place outside the jurisdiction of any State, the 1982 UN Convention on theLaw of the Sea, Arts. 100-101.

1510. Both the 1928 Bustamante Code and the 1940 Montevideo Treaty onInternational Penal Law, for example, provided universal jurisdiction over slavetrading ; cf. Amnesty International, Universal Jurisdiction : The Duty of States toEnact and Implement Legislation (Chap. II : The History of Universal Juris-diction), London, A.I., 2001, pp. 2, 10-11, 18 and 28, and cf. pp. 32-33.

1511. Cf., e.g., the 1973 Convention on the Prevention and Punishment ofCrimes against Internationally Protected Persons Including Diplomatic Agents,the 1979 International Convention against the Taking of Hostages, the 1988Convention for the Suppression of Unlawful Acts against the Safety of MaritimeNavigation. And cf. also, in the same line, the 1970 Hague Convention for theSuppression of Unlawful Seizure of Aircraft, the 1971 Montreal Convention forthe Suppression of Unlawful Acts against the Safety of Civil Aviation.

1512. For a comparative study, cf., e.g., [Various Authors,] El Principio deJusticia Universal, Madrid, Ed. Colex, 2001, pp. 103-158 ; and, for a case-study,cf., e.g., J. Lagos Erazo, El ‘Caso Pinochet’ ante las Cortes Británicas,Santiago, Edit. Jur. de Chile, 1999, pp. 17-336.

1513. Cf. the 1998 Rome Statute of the ICC, preamble, para. 10, andArts. 12-14).

concepts of natural law 1508. It is a principle proper to the Inter-national Law for humankind.

The principle of universal jurisdiction was initially admitted incases of piracy 1509, and later in cases of war crimes, as well as slavetrading 1510 ; in relation to such crimes it became regarded as part ofthe jus gentium. The duty aut dedere aut judicare (to extradite or toexercise jurisdiction) came to be further applied in crimes againstinternationally protected persons 1511. The international practice onthe matter is not wholly uniform, presenting variations, from certainnational jurisdictions which also seek to base themselves on the prin-ciple of universal jurisdiction 1512, to contemporary international tri-bunals — such as the ad hoc ICTFY and ICTR, and the ICC —which envisage to operate on the basis of that principle in a comple-mentary way with national jurisdictions (principle of complementar-ity) 1513.

Yet, a clear evolution can here be perceived : as from the 1948Convention against Genocide (providing for territorial jurisdiction,with competence of the forum commissi delicti), a step forward wastaken, a quarter of a century later, by the 1973 UN Conventionagainst Apartheid, moving from territoriality to an optional exerciseof universal jurisdiction ; and one decade later, yet another step for-


1514. A. Peyró Llopis, La compétence universelle en matière de crimescontre l’humanité, Brussels, Bruylant, 2003, pp. 17, 23, 25 and 28 ; for the sug-gestion that the principle of universal jurisdiction would be a corollary of theobligations erga omnes, cf. ibid., pp. 43-44.

1515. Cf., e.g, C. Swinarski, A Norma e a Guerra, Porto Alegre, Brazil, S.A.Fabris Ed., 1991, pp. 43-44.

1516. Cf. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentaryon the Additional Protocols of 08 June 1977 to the Geneva Conventions of12 August 1949, Geneva, ICRC, Nijhoff, 1987, pp. 989-1004.

1517. Ibid., pp. 2-4, 9, 34, 38 and 130-131. 1518. To this end, the 1968 Convention on the Non-Applicability of Statutory

Limitations to War Crimes and Crimes against Humanity, e.g., recognizes theneed “to secure its universal application” (preamble, seventh considerandum).

1519. The principle of universal jurisdiction thus gives concrete expression tocommon or fundamental values of the international community as a whole ; thefundamental principle of the dignity of the human person requires the absoluteprohibition of grave violations of International Law, as well as the fight against

ward was taken, by the 1984 UN Convention against Torture, whichsets forth the duty to try those responsible for acts of torture, thusenhancing the principle aut dedere aut judicare 1514.

On their turn, the 1949 Geneva Conventions on InternationalHumanitarian Law, in acknowledging grave breaches of their corpusjuris (I Convention, Art. 49 ; II Convention, Art. 50 ; III Convention,Art. 129 ; IV Convention, Art. 146) and the corresponding neededuniversal repression of such breaches 1515, contributed to the afore-mentioned evolution. The need for such repression of those breacheswas reasserted by Protocol I of 1977 (Art. 85) 1516 to the GenevaConventions, in the same line of evolution of the matter.

The opinio juris communis on universal jurisdiction is still in theprocess of formation, which is a steady process, with the decay ofthe static oulook of the legal positivism of the past ; that processadvances in face of crimes which affect the “essence of humanity”and call for repression and justice, in an international legal orderdetermined to ensure a minimum of ordre public 1517. Universal juris-diction responds to the universal need to sanction and prohibit graveviolations of International Law, of International Humanitarian Law,and International Human Rights Law, and to fight impunity 1518 any-where, irrespective of territorial or national links with the crimesperpetrated. On the basis of concepts of natural law, the principle ofuniversal jurisdiction thus acknowledges that those grave violationsdo affect the international community as a whole, and therefore oneought to go well beyond the classic principles of territoriality andnationality in their sanction and erradication, and in the pursuance ofvalues shared by the international community as a whole 1519.


impunity of such breaches which affect humankind as a whole. [VariousAuthors,] Crimes internationaux et juridictions internationales (eds. A. Casseseand M. Delmas-Marty), Paris, PUF, 2002, pp. 21, 63, 71, 198, 256 and 260-261,and cf. pp. 24, 26 and 259-261.

1520. Para. 62.1521. Para. 42.1522. Paras. 27-28.

In this respect, the ICTFY stressed the significance of theadvances of the principle of universal jurisdiction in the D. Tadiccase ; in its decision of 2 October 1995 on the cas d’espèce, theICTFY (Appeals Chamber) pondered that

“one cannot but rejoice at the thought that, universal jurisdic-tion being nowadays acknowledged in the case of internationalcrimes, a person suspected of such offences may finally bebrought before an international judicial body . . .” 1520.

Earlier on, in the same D. Tadic case, the ICTFY (Trial Chamber), inits decision of 10 August 1995, stated that

“the crimes which the International Tribunal has been calledupon to try are not crimes of a purely domestic nature. They arereally crimes which are universal in nature, well recognized inInternational Law as serious breaches of InternationalHumanitarian Law, and transcending the interest of any oneState. . . . In such circumstances, the sovereign rights of Statescannot and should not take precedence over the right of theinternational community to act appropriately as they affect thewhole of mankind and shock the conscience of all nations ofthe world. There can therefore be no objection to an inter-national tribunal properly constituted trying these crimes onbehalf of the international community.” 1521

Yet another reference to the “collective conscience” was made by theICTFY (Trial Chamber), in its Judgment of 29 November 1996, inthe Erdemovic case, where it added that crimes against humanity arecharacterized essentially by the concept of “humanity as victim” 1522.

The principle of universal jurisdiction, in sum, entails the non-applicability of statutory limitations in relation to crimes whichaffect humanity itself, thus transcending the traditional principle ofterritoriality of criminal law ; universal jurisdiction is in a wayshared by all States, and any of them can prosecute those respon-sible for such crimes, as member of the international community.


1523. [Various Authors,] Crímen Internacional y Jurisdicción Universal (ElCaso Pinochet) (eds. M. García Arán and D. López Garrido et al.), Valencia, Ed.Tirant lo Blanch, 2000, pp. 52, 64-65, 67, 71-72, 76 and 85.

1524. Para. 41.1525. Para. 117.

Thus, in the struggle against impunity, it is the entire internationalcommunity itself that responds and takes action, and the principle ofuniversal jurisdiction prevails over norms of domestic law, to avoidthe application of these latter leading to impunity 1523.

In the struggle against impunity, the IACtHR was the first inter-national tribunal to declare null and void — lacking legal effects —provisions of domestic law (laws of self-amnesty) incompatible withthe American Convention on Human Rights, in its Judgment of14 March 2001 in the case of Barrios Altos, concerning Peru. TheIACtHR stated that

“all amnesty provisions, provisions on prescription and theestablishment of measures designed to eliminate responsibilityare inadmissible, because they are intended to prevent theinvestigation and punishment of those responsible for serioushuman rights violations such as torture, extra-judicial,summary or arbitrary execution and forced disappearance, allof them prohibited because they violate non-derogable rightsrecognized by International Human Rights Law” 1524.

Subsequently, in the same line of reasoning, in its Judgment of18 September 2003 in the Bulacio v. Argentina case, the IACtHRadded that

“In accordance with the conventional obligations assumedby the States, no provision or institute of domestic law, amongwhich the prescription, could be opposed to the compliancewith the decisions of the Court as to the investigation and sanc-tion of those responsible for violations of human rights. If itwere otherwise, the rights set forth in the American Convention[on Human Rights] would be deprived of an effective protec-tion. This understanding of the Court is in conformity with theletter and the spirit of the Convention, as well as the generalprinciples of law ; one of those principles is that of pacta suntservanda, which requires that to the provisions of a treaty theeffet utile is secured at the level of the domestic law of theStates Parties.” 1525


1526. As in the cases of Myrna Mack Chang (2003) and of the Massacre ofPlan de Sánchez (2004) concerning Guatemala, of the 19 Tradesmen (2004) andof the Massacre of Mapiripán (2005) concerning Colombia, and of the MoiwanaCommunity v. Suriname (2005), recently decided by the IACtHR.

VIII. Concluding Observations

The reaction to the grave and systematic violations of humanrights and of International Humanitarian Law constitutes nowadays alegitimate concern of the international community as a whole ; suchreaction imposes itself even more forcefully when the victims arevulnerable and defenceless 1526, and the structure of public power isdeformed and put at the service of the repression and not of thesearch for the common good. The international criminal responsibil-ity of the individual does not exempt that of the State ; the two kindsof responsibility co-exist, an acknowledgment of this being of cru-cial importance to the eradication of impunity. Both the State and itsagents are direct addressees of norms of contemporary InternationalLaw ; the conduct of both is foreseen and regulated by this latter ;thus, both the State and its agents are to be held accountable for theconsequences of their acts and omissions.

All of us who have had the experience and responsibility to workwith dedication in the international contentieux of human rightsknow that the crimes of State effectively do exist, and we know whatthat means. The international criminal responsibility of the individ-ual does not exempt that of the State. We are still in the beginning ofa long process of evolution in this area, in which the recent estab-lishment of the ICC constitutes a point of major relevance in thestruggle against impunity, but not the culminating point in what per-tains to the international responsibility of the States. This latter fallsoutside the ambit of competence of the ICC.

The determination of the international responsibility of the Statesis rather of the competence of the international tribunals of humanrights, which, in their turn, cannot determine the international crimi-nal responsibility of individuals. This compartmentalized conceptionof international responsibility — of States and of individuals —leads, in one case and the other, to the eradication of impunity onlyin a partial way. For such eradication to be total, integral, one oughtto affirm and determine, concomitantly, the responsibility both of theState and of the individual (the State agent), complementary as theyare.


The crime of State is much more than a possibility, it is a reality,as disclosed by the facts, for example, of the aforementioned recentcases of Myrna Mack Chang, of the Massacre of Plan de Sánchez, ofthe 19 Tradesmen, of the Massacre of Mapiripán, and of theMoiwana Community. The contemporary doctrine of InternationalLaw should not keep on attempting to elude the question. If theexpression “crime of State” may appear to many internationallawyers (apparently petrified by the spectre of State sovereignty)objectionable for suggesting an inadequate analogy with juridicalcategories of domestic criminal law, this does not mean that thecrime of State does not exist. The facts of the aforementioned recentcases provide clear evidence that it does indeed exist. Even if onekeeps on searching for it another denomination, this does not therebymean that the crime of State ceases to exist.

While it keeps on intending to elude the question, the contempo-rary doctrine of International Law will be succumbing to the spectreof State sovereignty, and withholding the evolution itself of the lawof nations in the present domain in our days. While it keeps on deny-ing the existence of the crime of State, it will be depriving thehuman person, ultimate titulaire of the rights inherent to her — andwhich precede, and are superior to, the State — of the safeguard andthe exercise of such rights, starting with the right to justice ; it will,moreover, be depriving the human person of the proper reparationsfor the violations of those rights.

While the existence of the crime of State keeps on being deniedby the contemporary doctrine of International Law, this latter will bedepriving the State — hostage of a deformed structure of repressionand impunity — of its proper end, the realization of the commongood. While it keeps on denying the existence of the crime of State,it will be depriving Law itself of its ultimate end, precisely the reali-zation of justice. While it keeps on intending to elude the question,the treatment dispensed to the central chapter of the law on the inter-national responsibility of the State will keep on being juridicallyunconvincing and conceptually incomplete. It will thereby be regret-tably postponing the construction and consolidation of a true rule oflaw, and, in the framework of this latter, of a true right to the Law,that is, the right to a legal order which effectively safeguards thefundamental rights of the human person.

The current acknowledgment of the universal need to prohibitand sanction grave violations of human rights and International


Humanitarian Law has brought about a revitalization of the principleof universal jurisdiction. This is occurring on the basis of conceptsof natural law, taking up the struggle against impunity well beyondthe confines of the classical principles of territoriality and national-ity. This is yet another development disclosing common and superiorvalues shared by the international community as a whole, andheralding the advent of a new jus gentium, the International Law forhumankind.
