The International Court of Justice and the Rights of Peoples and Minorities
in Christian Tams and James Sloan (eds.), The Development of International Law by the International Court of Justice (Oxford University Press, 2013), pp. 327-352
25 Pages Posted: 27 Feb 2017
Date Written: 2013
This chapter provides a tentative assessment of the extent to which international law in these areas has been shaped by the PCIJ’s and ICJ’s findings. That evaluation is based on a comparison of the legal findings of the PCIJ and the ICJ in these areas with relevant international law standards that have developed subsequently and in tracking the influence of such findings on international law-making processes as well as on the case law of other (quasi-)judicial bodies. Eventually, violations of the rights of peoples and minorities trigger questions of international responsibility, including both individual and shared state responsibility. Although on occasion the stage of attributing responsibility to states for internationally wrongful acts affecting peoples and minorities has not been reached because of jurisdictional hurdles, as the ICJ has correctly observed, states remain responsible for acts attributable to them which are contrary to international law. Divided in two main parts, the chapter focuses on the PCIJ’s and ICJ’s contributions to interpreting and developing the rights of peoples and minorities through their case law. The contribution of the Permanent Court to interpreting and developing the rights of minorities is dealt with in the first part, since it is mainly this court which has dealt with minority issues. This part starts with a discussion of the PCIJ’s role in the system of minorities protection. The discussion then turns to the principles of equal treatment and the prohibition of discrimination, followed by the right of a minority to preserve its specific identity, namely its language, religion, and cultural traditions. The second part deals with the contribution of the ICJ with regard to the rights of peoples. In this part, the right of peoples to self-determination and peoples’ right to natural resources are dealt with first. Subsequently, the discussion turns to the Court’s contribution to interpreting and developing peremptory norms protecting the rights of peoples, namely the prohibition of genocide, of racial discrimination, and of apartheid.
Keywords: Permanent Court of International Justice, International Court of Justice, rights of peoples, rights of minorities
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