This document provides an overview of the International Court of Justice (ICJ) and analyzes its role in developing international law and human rights. It discusses several key contributions of the ICJ: 1) It has interpreted international humanitarian law instruments, like the Geneva Conventions, to have broader application than originally intended. 2) Through advisory opinions, it has found violations of human rights in cases like the construction of the Israeli wall and affirmed the extraterritorial application of human rights treaties. 3) Notable cases like Diallo demonstrated the ICJ's willingness to adjudicate human rights matters and protect individual rights independently of states' interests. 4) The ICJ has established important principles

1. 1
PRINCIPLES OF INTERNATIONAL LAW
INTRODUCTION
Part A of this paper begins with a brief overview of the International Court of
Justice (ICJ) and the law governing it. In Part B, the author will endeavour to
answer the question by evaluating the development of specific areas in
international law by the ICJ. Part C contains an analysis of the inherent nature of
the ICJ whilst Part D deals with the enforcement of ICJ judgments before
concluding whether the ICJ is capable of being a credible champion of human
rights (HR).
PART A
LAW
The ICJ is the principal judicial organ of the United Nations (UN). Unlike national
courts, the ICJ does not have automatic jurisdiction.
JURISDICTION
The ICJ’s jurisdiction can be split into two distinct parts:
1) Capacity to decide disputes between states
2) Capacity to give advisory opinions when requested so to do by particular
qualified entities.
PARTIES TO THE ICJ
Article 34 of the Statute of the ICJ declares that only states may be parties in
cases before the ICJ. Article 93 of the UN Charter provides that all UN members
are ipso facto parties to the Statute of the ICJ.
ARTICLE 36(1) STATUTE OF THE ICJ
The jurisdiction of the ICJ comprises of all cases that the parties refer to it and all
matters specially provided for in the Charter of the UN or in treaties and
conventions in force.
ARTICLE 36(2) STATUTE OF THE ICJ

2. 2
The states parties to the present Statute may at any time declare that they
recognise as compulsory ipso facto and without special agreement, in relation to
any other state accepting the same obligation, the jurisdiction of the ICJ in all
legal disputes concerning:
a) The interpretation of a treaty;
b) Any question of international law;
c) The existence of any fact which, if established, would constitute a breach
of an international obligation;
d) The nature or extent of the reparation to be made for the breach of an
international obligation.
In the instance that these declarations are conditional, the ICJ will only have
jurisdiction under Article 36(2) to the extent that both the declarations of the
two parties in dispute cover the same issue or issues.
PART B
ICJ’S CONTRIBUTION TO THE DEVELOPMENT OF HR LAW
Firstly, in Corfu Channel1 and later the Nicaragua2, the ICJ interpreted common
Article 3 of the Geneva Convention to cover both internal and international
armed conflicts. The significance of this is that common Article 3 was set up with
the intention to create a minimum humanitarian standard applicable exclusively
to internal armed conflicts. However, the ICJ expanded its applicability to cover
international armed conflicts3
.
In 1996, the United Nations General Assembly (UNGA) requested an advisory
opinion (AO) on the legality of the use and threat of nuclear weapons under
Article 6 International Covenant on Civil and Political Rights (ICCPR)4. Although
the ICJ did not take a stand on the issue, Bruno Simma opines that although the
1 (United Kingdom of Great Britain and Northern Ireland v. Albania) (1949) < http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&k=cd&case=1> accessed 25th April 2014
2 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), 1984 ICJ REP. 392 June 27, 1986
3 Fabian O. Raimondo, ‘The International Court of Justice as a Guardian of the Unity of
Humanitarian Law’, (2007) Leiden Journal of International Law, 20, 593-611, p598-599
4 Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, Advisory
Opinion of 8 July 1996, General List No. 95)

3. 3
reply to the question was not particularly ground breaking, what is remarkable
is that for the first time the ICJ is squarely facing and developing a view on the
human rights question5.
In the Palestine Wall AO6, the ICJ found that the construction of a barrier by
Israel outside its internationally recognised borders to be a violation of HR. On
top of that, the ICJ also concluded that HR instruments are applicable ‘in respect
of acts done by a State in the exercise of its jurisdiction outside its own
territory’ 7 . This extraterritorial applicability of HR instruments was later
affirmed in the case of Congo v Uganda8. In addition, this case also marks the first
time in the ICJ’s history that a finding of human rights and humanitarian law
violations were included in the dispositive9.
Lastly, in Diallo10 whose noteworthiness stems from the fact that although
allegations of violations under international economic law were prioritised over
Diallo’s human rights in Guinea’s original application, once the Court declined
jurisdiction on the economic law claims, ‘the human rights aspects rose like a
phoenix from the ashes of the case’ and was given precedence in the final
judgment of the Court11.
This demonstrates the willingness of the ICJ to adjudicate on HR matters, even in
the instance where the parties to the case had not prioritised it in the original
application. This marks a stark contrast from the coy approach the ICJ adopted in
its earlier days.
5 Bruno Simma, ‘Mainstreaming Human Rights: The Contribution of the International Court of
Justice’, J Int. Disp. Settlement (2012) 3(1): 7-29, 19
6 Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ICJ Reports, 2004 <http://www.icj-
cij.org/icjwww/idocket/imwp/imwpframe.htm> accessed 30th April 2014
7 ibid, paragraph111
8 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda),
Judgment, ICJ Rep 2005, 168
9 ibid 5, 19
10 Case Concerning Ahmadou Sadio Diallo, Republic of Guinea v Democratic Republic of the
Congo, General List No 103
11 Ibid 5, 21

4. 4
Another reason why Diallo’s case is noteworthy is because when assessing
Diallo’s individual human rights, the ICJ made no attempt of reconciling it with
the rights of Diallo’s home state. The author opines that this is a milestone as it
indicates the willingness of the ICJ to decide on the individual’s HR, instead of
making it subservient to the rights of the home states.12
PART C
THE DEVELOPMENT OF SPECIFIC AREAS OF INTERNATIONAL LAW
EXTRATERRITORIAL APPLICATION OF HR TREATIES
From the aforementioned Congo v Uganda and the Wall AO, the ICJ in the
Namibia AO13 stated ‘the lack of any title to administer a territory does not
release a state from its obligations under international law as the basis of State
liability for acts affecting other States is the physical control of the territory’14.
Ralph Wilde submits that the significance of this is that it established the basic
underpinning of extraterritorial applicability, namely, that state responsibility
should not be limited to situations where a State enjoys title. Secondly, the
requirement of ‘physical control over territory’ as a basis of determining when
should obligations arise has been adopted by the ECHR in its interpretation of
the meaning of ‘jurisdiction’.15
These decisions foreground approaches adopted by human rights treaty bodies
(HRTB) themselves, so it can be said that the ground-breaking decision on the
extraterritorial application of HR law came from the ICJ, not from a HRTB.16
12 ibid 5, 21
13 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970) Advisory Opinion of 21
June 1971, [1971] ICJ Rep. 16, at 57
14 Ibid, para118.
15 Ralph Wilde, ‘Human Rights Beyond Borders at the World Court: The Significance of the
International Court of Justice's Jurisprudence on the Extraterritorial Application of International
Human Rights Law Treaties’, (2013) Chinese Journal of International Law, 12(3): 639-677, 663
16 Ibid, page664

5. 5
In addition, before the ICJ ruled on these issues, the extraterritorial applicability
of the term ‘jurisdiction’ when used in HR treaties was limited to affirmation by
the UNHRC and the Convention on the Rights of a Child (CRC), whose
interpretations could be rejected, as they are non-judicial and non-binding17.
One can draw inspiration from the ECHR case of Bankovic18 to illustrate a
potential problem with the applicability of HR treaties. This is where a particular
action taken by a State in the territory of another State would not be governed by
the Convention obligations of the first State if the second State is not party to the
Convention, even if it falls within the extraterritorial jurisdiction of the treaty.
This loophole proved costly in the ECHR as it decided that the application was
inadmissible as the act was committed outside the jurisdiction of the ECHR19.
However, when a similar situation presented itself before the ICJ in the Palestine
Wall AO, the ICJ rejected the view of the ECHR in Bankovic and held Israel
accountable for its breaches of its HR obligations20.
PROVISIONAL MEASURES
In the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)21, the ICJ
only awarded provisional measures to ‘prevent the commission of genocide’22
while refusing to do so in matters outside its jurisdiction. The ICJ justified this
refusal by claiming that the purpose of provisional measures are only to protect
the rights that are subject to the dispute23.
In LaGrand24, two German brothers were subjected to capital punishment in the
United States (US). Germany alleges that the US had been in breach of its
17 Ibid 15, pages664-666
18 Bankovic and Others v Belgium and Others, App. No. 52207/99, Eur. Ct. H.R. (2001)
19 ibid 15, page671-672
20 ibid 15, page673
21 General List No. 91
22 ibid, paragraph 52
23 Rosalyn Higgins, ‘The International Court of Justice and Human Rights’, in Themes and
Theories- Selected Essays, Speeches and Writings in International Law (Oxford 2009) Volume 1,
page 651
24(Germany v. United States of America), ICJ, 27 June 2001

6. 6
obligations to inform the brothers of their right to consular notifications without
delay25. Pending the judgment of the ICJ, the US had executed one of the LaGrand
brothers. As a result of this, the ICJ ruled that its provisional measures constitute
legally binding obligations under international law26.
This is significant because the ICJ here departed from its inter-State nature and
provided a remedy (albeit a provisional one) to a named individual.
STATE’S IMMUNITY
In the Arrest Warrant27 case, the ICJ held that the issuance of the arrest warrant
for the former Foreign Minister of Congo on the grounds of crimes against
humanity to be in breach of Belgium’s international obligations towards Congo28.
This was later affirmed in the Jurisdictional Immunities of The State29 case that
involved war crimes and crimes against humanity perpetrated by the Third
Reich’s armed forces during the Second World War30. In its decision, although
the ICJ admitted that there ‘was a serious violation of the international law of
armed conflict’,31 it concluded that ‘a State is not deprived of immunity by reason
of the fact that it is accused of serious violations of international human rights
law or the international law of armed conflict’.32
The ICJ went on to state that ‘immunity is governed by international law and is
not a mere matter of comity’33. Subsequently, the ICJ submitted that jus cogens is
a substantive rule while State’s immunity is procedural in character. The
consequence of this distinction is that in the event jus cogens is violated, it does
not affect the operation of State’s immunity34.
25 Article 36(1)(b) of the Vienna Convention of Consular Relations
26 ibid 24, paragraph115
27 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), ICJ REP 3, 14 February 2002
28 ibid, paragraph70
29 (Germany v. Italy: Greece intervening), 2012 <http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&case=143&p3=4> accessed 1st May 2014
30 ibid 5, 25
31 ibid 29, paragraph 52
32 ibid 29, paragraph 91
33 ibid 29, paragraph 53
34 ibid 29, paragraph 97

7. 7
An unfavourable effect of the Jurisdictional Immunities of the State case is that it
impedes the provision of reparation to the victims of crimes. Judge Yusuf opines
that ‘state immunity should not be used as a screen to avoid reparations to which
victims of crimes are entitled’35, while Judge Trindade similarly stressed the
point that State immunity should not be blindly upheld in a manner that may
lead to a denial of justice for the victims of international crimes.36 These
dissenting opinions are not without merit as the Italian and Greek nationals were
left uncompensated for their suffering. Judge Lauterpacht argues that
international crimes committed by States should not go unpunished in the name
of realpolitik, comity, dignity of States, or good relations between nations, in
complete disregard for justice and other considerations.37.38
PART D
THE INHERENT NATURE OF THE ICJ
CONSENT BASED JURISDICTION
Right out of the starting block, the ICJ’s credibility to champion HR is held
hostage to the parties’ wishes to include or exclude HR claims in their litigation.39
This problem was evidenced in the Armed Activities on the Territory of the
Congo40, where the most horrendous post-Second World War genocide had
occurred. However, the ICJ had no jurisdiction to prosecute Rwanda as Rwanda
had excluded by way of reservation the legal effect of the Genocide Convention.
Situations like this leave the victim-States without any recourse in the event the
other State has a reservation against the ICJ’s jurisdiction41.
35 ibid 29, Dissenting Opinion of Judge Yusuf, paragraph 50
36 ibid 29, Dissenting Opinion of Judge Trindade, paragraph 212
37 Hersch Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951)
28 British Yearbook of International Law 220, at 231
38 Onder Bakircioglu, ‘Germany v Italy: The Triumph of Sovereign Immunity over Human Rights
Law’ (2012) International Human Rights Law Review, Volume 1, Issue 1, pages 93-109
39 ibid 5, page18
40 (Democratic Republic of the Congo v Uganda) (2005) <http://www.icj-
cij.org/docket/index.php?p1=3&p2=3&k=51&case=116&> accessed 29th April 2014
41 ibid 5, page20

8. 8
On the other hand, due to the consent-based jurisdiction, the ICJ views HR
violations as a matter of State responsibility, or ‘law by states for states’ 42. This
means the individual victim will remain invisible before the eyes of the ICJ. So in
the instance where the State decides to espouse their claims, the spirit of
Mavrommatis will prevail and essentially characterise the case43. This places the
ICJ in a structurally deficient position compared to the HRTB in promoting HR44.
However, the author submits that this has not prevented the ICJ from awarding
individual remedies to victims as seen in the cases of LaGrand and Diallo.
On top of that, Bruno Simma opines that due to the ICJ’s consent based
jurisdiction, it might be problematic if it assumes a bigger role in the field of HR.
This, he submits, is due to States ‘all too often behaving like foxes guarding the
well-being of chickens in human rights matters’, thus making them reluctant to
submit before the ICJ’s adjudication. For example, a State might receive an
unpleasant surprise when it wholly consents to the ICJ’s jurisdiction with the
expectation of traditional litigation cases, only to find out that other States are
submitting applications for it to uphold its HR obligations45.
This factor might prove irrelevant for HRTB, but not for the ICJ as it has
adjudicatory obligations in other areas of law as well, so it cannot afford to take
the risk of losing its clients. However, the ICJ did not balk when deciding the
Questions Concerning the Obligation to Prosecute or Extradite46 case that dealt
with the 1984 UN Convention Against Torture (CAT). The position of Belgium as
an applicant in this case is unique as it was a non-injured State as none of its
citizens were victims of torture. Instead, claimed as a ‘specially affected’47 State
as non-performance of the CAT obligations will affect its rights as a party to the
CAT48.
42 Robert McCorquodale, ‘Impact on State Responsibility, in: Menno T. Kamminga and Martin
Scheinin, ‘The Impact of Human Rights Law on General International Law’ (OUP 2009), 235, 236.
43 ibid 5, page16
44 ibid 15, page649
45 ibid 5, pages27-28
46(Belgium v Senegal) <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=144>
accessed 2nd May 2014
47 Article 42 of the ILC's 1981 Draft Articles
48 ibid 5, page24

9. 9
The result of this case is interesting as the ICJ had allowed a party which had not
been injured by the respondents to submit a claim before it, and might be a
precursor to what is to come where non-injured States can uphold other States
to its Treaty obligations through the ‘specially affected’ state argument.
THE ICJ AS A GENERALIST INTERNATIONAL COURT
As mentioned above, the ICJ views HR issues as a matter of State responsibility.
This arguably affects the ICJ’s willingness to go into detail when applying the law
to the facts in HR cases. Judge Higgins concurs with this view and expresses her
reservations towards the quality of the ICJ’s substantive determination in
applying the law to the facts49. This situation is contrasted with those of the
HRTB whose function is to examine in detail the conduct of States parties to each
of the HR treaties.
In spite of these comments about the value of the ICJ in applying HR law when a
HRTB already performs the function, it is argued that the potential role of the ICJ
on the issue of the meaning and interpretation of the law (distinct from its
application of the law to the facts) is of a different character50. This is because
questions of the law requires considerable intellectual deliberation, something
which the ICJ is in no worse position than the specialist bodies to deal with.51
Ralph Wilde argues that the ICJ differs from specialist tribunals in the potential
breadth of applicable law at its disposal52. Furthermore, the ICJ as a generalist
body also has a long-standing practice of applying different areas of laws
simultaneously, thus setting it apart from the Treaty-specific HRTB. This is vital
as States are bound by multiple HR treaties, and besides the reviews by the
UNHRC, the ICJ is in a unique position as it has jurisdiction to adjudicate on all
HR treaties. Consequently, the author opines that the ICJ adds value in this
instance to the championing of HR as it is able to examine the entire legal
49 ibid 4, Separate Opinion of Judge Higgins, paragraph9
50 ibid 28, page649
51 ibid 28, page651-652
52 ibid 28, page652

10. 10
picture, and not merely a subset of it to offer a complete application of HR to the
parties to the case.53
Another way the ICJ is championing human rights is when the ICJ adopts
decisions or interpretations of treaty bodies, and vice versa which improves
consistency, thus strengthening the protection of HR.5455
However, the question that begs to be answered is whether the ICJ is merely
following the decisions of HRTB or is it making its own inroads into the field of
HR? The answer to this was provided in Part C of this paper where it was
established that the ICJ had developed two areas of international law, namely,
the extraterritorial applicability of HR obligations and provisional measures.
Martin Scheinin forwards an interesting proposition in which the ICJ can play a
complimentary role with the HRTB. This is because it is ultimately the UNGA
who considers the annual reports of these bodies56, and in the instance of non-
compliance of decisions, the UNGA can request for an advisory opinion from the
ICJ. This in a sense makes the ICJ a sort of ‘appeal court’ for the HRTB to
strengthen the HR decisions57. This for example was demonstrated in the Wall
AO case where the ICJ affirmed the UNHRC’s interpretation of ICCPR Article 2.58
JUDICIAL CONSERVATISM
Firstly, the author considers the ICJ’s decision in the Bosnia-Herzegovina v
Yugoslavia case, which Judge Higgins argues is evidence of judicial conservatism
in the field of HR. The case here concerned the continuing obligation to the
Genocide Convention after a State party to that Convention disintegrates. In
coming to its decision, the ICJ ignored the UNHCR’s continuing obligation
53 ibid 28, page677
54 Sandesh Sivakumaran, ‘The International Court of Justice and Human Rights’, in: Sarah Joseph
and Adam McBeth, ‘Research Handbook on International Human Rights Law’ (Edward Elgar
Press 2010), 299, pages303-305.
55 ibid 15, page651
56 Article 45 ICCPR
57 Martin Scheinin, The ICJ and the Individual', 9 Int'l Comm. L. Rev. 123 2007, page135
58 ibid 6, paragraphs110-111

11. 11
argument and contemporary State practice of that time59 at opted not to decide
on whether previous Convention obligations extend to the new territory
formed.60
More recently, in the Nuclear Weapons AO, the ICJ again opted to not take a
stand on the legality of the threat and use of nuclear weapons61.
PART D
ENFORCEMENT OF THE ICJ DECISIONS
Article 94(1) of the Charter of the ICJ sets out that every UN member undertakes
to comply with the decision of the ICJ in any case which it is party. According to
Shabtai Rosenne, the reason why this provision is absent in the Statute of the ICJ
is because non-compliance may give rise to new political tensions62. To avoid
this, the post-adjudication responsibility was mandated to the Security Council
(SC)63. However, the problem that stems from this is that the SC appears to have
discretion as to whether it shall act to enforce at all, and if so, what concrete
measures it decides to take.
This problem manifested in the Nicaragua case, where Nicaragua sought for
recourse from the SC under Article 94(2) for the non-compliance of the ICJ
judgment dated 27th June 1986. Subsequently when it was put to the vote, it was
not adopted owing to the negative veto of a SC Permanent Member, the United
States of America (US).
Those who abstained from voting, (France, Thailand and UK) did not object to
the validity of the ICJ’s decision but instead, abstained due to purely political
considerations of the ramifications of the ICJ’s decision.64. It is to note that here it
59 Menno Kamminga, ‘State Succession in Respect of Human Rights Treaties’, (1996) 7 EJIL 469,
page482
60 ibid 23, pages645-646
61 ibid 23, pages643-644
62 Shabtai Rosenne, ‘The Law and Practice of the International Court 1920–1996’, (1997) 249
63 Article 94(2) UN Charter
64 Attila Tanzi, ‘Problems of Enforcement of Decisions of the International Court of Justice and the
Law of the United Nations’, (1995) 6 EJIL 1-572, pages6-7

12. 12
was also decided that a party to the dispute decided upon by the ICJ is eligible to
vote on the draft resolution under Article 94(2). 65
PART E
CONCLUSION
The author in this essay has provided a comprehensive view on both decisions of
the ICJ and also the areas of HR law it has developed. With regards to the
approach to cases, this author submits that if there was ever a time where the ICJ
was hesitant towards HR aspects of a case, this element has disappeared now as
proven in the case of Diallo66.
The ICJ has also successfully contributed to the development of international law
to protect HR as seen in its decisions in Palestine Wall AO and Namibia that
expanded the obligations under HR instruments’ to apply extraterritorially.
Furthermore, the ICJ can also award internationally binding provisional
measures on HR grounds to protect rights of individuals. However, the
effectiveness of this is still restrained by the jurisdiction conferred to the ICJ by
the States.
The inherent nature of the ICJ as a generalist international adjudicatory body has
not prevented it from commanding the respect of the ‘droits de l'hommistes’ in
the way it has handled HR cases. Additionally, it is submitted that even with
HRTB, the ICJ can adopt a role in ‘mainstreaming’ HR law into general
international law thus making it more readily acceptable to international law
generalists. Bruno Simma opines that the ICJ is arguably more suited to do this
than the HRTB whose readings are too often ‘marked by a dearth of proper legal
analysis compensated by an overdose of wishful thinking’.67Also, as a generalist
court, the ICJ has its disposal the ability to apply multiple treaties to its cases.
On the other hand, the problem with the inherent nature of the ICJ is its consent-
based jurisdiction that was exposed in Congo v Rwanda. Additionally, there are
65 ibid, page16
66 ibid 5, page26
67 ibid 5, page28

13. 13
also worries that it might put off some States if the ICJ adopts a bigger role in the
promotion of HR. Nonetheless, the ICJ allowed Belgium’s application as a
‘specially-affected’ State that demonstrates it willingness to allow more claims.
However, it has also been shown in the past that when the opportunity had
presented itself, the ICJ had not taken the opportunity to develop the law to
protect HR as seen in the Nuclear Weapons AO and Bosnia-Herzegovina v
Yugoslavia.
Despite all of the above, ‘the grim reality stands that some of the worst abuses of
HR may go unpunished due to the shield of State’s immunity’68. On top of that,
the possibility for a situation whereby a Permanent Member of the UNSC being
able to veto a SC’s resolution to enforce the judgment of the ICJ casts a dark cloud
on the aspiration of the ICJ to be a credible champion of HR.
Considering all the arguments above, this author in conclusion submits that
although the ICJ’s role in contemporary legal discourse has been revived and its
contribution to international HR law cannot be ignored, the ICJ will never truly
be a complete champion of HR as long as States are allowed to invoke the
argument of immunity and political factors continue to meddle with the
enforcement of its decisions.
68 ibid 38, page107