Content uploaded by Matthew Zagor
Author content
All content in this area was uploaded by Matthew Zagor on Aug 02, 2017
Content may be subject to copyright.
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
The ICJ and the Evolution of
International Law
The enduring impact of the
Corfu Channel case
Edited by Karine Bannelier,
Theodore Christakis and Sarah Heathcote
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
17 Elementary considerations
of humanity
Matthew Zagor
17.1 Introduction
In reaching its conclusion that an obligation lay upon the Albanian authori-
ties to notify of the existence of a minefi eld in Albanian territorial waters, the
International Court of Justice found:
1
Such obligations are based, not on the Hague Convention of 1907, No.
VIII, which is applicable in time of war, but on certain general and well-
recognized principles, namely: elementary considerations of humanity,
even more exacting in peace than in war; the principle of the freedom of
maritime communication; and every State’s obligation not to allow know-
ingly its territory to be used for acts contrary to the rights of other States.
The statement has become one of the Court’s best-known passages, enjoying
a currency in subsequent domestic, regional and international decisions in
humanitarian, environmental, human rights, refugee, and maritime law, and
forming the basis of what some consider to be a constitutionalist, value-
oriented formulation of international law. By conjuring up ‘elementary
considerations of humanity, even more exacting in peace than in war’, the
Court deliberately echoed the Martens Clause from the 1899 and 1907 Hague
Conventions, extracting and adapting to peacetime one of the core compo-
nents of the clause – the ‘laws of humanity’
2 – and transforming it into what
appears to be a free-standing general principle of international law.
Less commonly cited is the analogous passage in the separate opinion of
Judge Álvarez, in which he referred in kind to acts contrary to the ‘ sentiments
1 Corfu Channel case (United Kingdom v. Albania), Judgment of April 9th 1949, ICJ Reports
1949 , p. 22.
2 Laws and Customs of War on Land (Hague II) , opened for signature 29 July 1899, Preamble
(entered into force 4 September 1900); Laws and Customs of War on Land (Hague IV) ,
opened for signature 18 October 1907, Preamble (entered into force 26 January 1910). The
formulations of the clauses differ slightly in the two Conventions, and in its adoption in
the denunciation clauses of the four Geneva Conventions; see Articles 63, 62, 142 and 158
respectively.
Elementary considerations of humanity 265
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
of humanity’
3 – a term prima facie less objective than ‘elementary considera-
tions’, but nonetheless consistent with the affective and empathetic nature of
any interpretative exercise with humanity at its rhetorical and analytic core.
Although different in their articulation, both ‘elementary considerations’ and
‘sentiments’ of humanity evince a discernible intention to set a tone for the
judicial approach to international law and the judicial role more broadly. For
Judge Álvarez, who before joining the court had promoted a dynamic and
progressive international law emerging out of a ‘universal juridical conscience’,
4
this agenda was explicit: here was an opportunity to present the contours of a
new evolutionary international law, founded upon ‘social interdependence’
and characterized by a purpose, or telos, of realizing ‘social justice’, where acts
contrary to sentiments of humanity could be condemned as ‘international
delinquencies’.
5
The majority decision is not so overt. Nonetheless it remains signifi cant that
the Court relied upon or at least invoked humanity in its very fi rst decision. The
phrase ‘elementary considerations of humanity’, after all, stands as a Jeffersonian-
type statement of normative humanism, a declaration of inter dependence,
presuming a common humanity that may be judicially protected by the applica-
tion of universally applicable norms derivable from humanity’s shared existence.
Those seeking further enlightenment as to the nature and status of the
principle or the process by which the judges reached their conclusion will fi nd
3 Corfu Channel case , op. cit., p. 45 (Judge Álvarez). Emphasis added.
4 A. Álvarez, Exposé de motifs et Déclaration des grands principes du Droit international moderne
(Paris: Éditions Internationales, 1938), pp. 8–9, 16–23, 27, 51, cited in Pulp Mills on the
River Uruguay (Argentina v. Uruguay) (ICJ, General List No. 135, 20 April 2010) [36]
(Judge Trindade) (‘ Pulp Mills ’). Judge Álvarez’s use of ‘juridical consciousness of peoples’ in
the Corfu Channel case is an anomaly; ‘consciousness’ and ‘conscience’ are not identical
notions. The term disappeared from his subsequent judgments, to be replaced by ‘juridical
conscience’. Judge Álvarez’s position on international law had already been expressed in his
individual opinion in the Conditions of Admission of a State to Membership in the United Nations
(Article 4 of the Charter) (Advisory Opinion), ICJ Reports 1948 (Judge Álvarez). He main-
tained his ‘international law as social justice’ agenda throughout his time on the court,
notably in his separate opinion in Anglo-Norwegian Fisheries (United Kingdom v. Norway),
ICJ Reports 1951 , pp. 148–150, in which he elaborated what D.M. Johnston called the ‘law
of social independence’:
the great principles, have their origin in the legal conscience of peoples (the psycholog-
ical factor). This conscience results from social and international life; the requirements
of this social and international life naturally give rise to certain norms considered nec-
essary to govern the conduct of States inter se .
The idea of a juridical conscience discernible by judges in their elaboration of norms has
occasionally been adopted by other judges. See, for instance, the Declaration of President
Bedjaoui in Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), ICJ Reports
1996 , p. 271 (‘ Nuclear Weapons ’); and more recently, Judge Trindade’s opinion in the Pulp
Mills case. See also I. Hussain, Dissenting and Separate Opinions at the World Court
(Dordrecht: Martinus Nijhoff, 1984), pp. 82–125.
5 Corfu Channel case , op. cit., p. 45 (Judge Álvarez).
266 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
little assistance in the main judgment or the arguments put to the Court.
Other than the reference to the inapplicable but clearly inspirational Hague
Convention,
6 the majority fail to refer to precedent, evidence or any familiar
authority to support the effortless assertion that the principle is ‘well recog-
nized’, essentially adopting with minor amendment the equally unelaborated
and categorically confused British memorials and oral argument of Frank
Soskice QC.
7 The Martens Clause itself is notably missing from the decision,
although the ‘laws of humanity’ which the clause insists apply to situations
not covered specifi cally by The Hague Conventions is distinctly echoed in the
formulation adopted by the Court.
8 Nonetheless, the content, scope and status
of the principle are left unexamined, as is the methodology for its future
elaboration and application.
The result is some considerable confusion in the commentary on the case.
Even the concept’s place in the topology of sources remains uncertain,
9
commentators describing it variously as a general principle binding in itself,
10
an equitable principle,
11 a non-binding general principle from which other
norms can be derived, a rule of custom,
12 a soft-law norm sitting outside tradi-
6 The reference is to those provisions raised by the Government of the United Kingdom,
notably Articles 3–4 of the Convention Relative to the Laying of Automatic Submarine Contact
Mines (Hague VIII) , opened for signature 18 October 1907 (entered into force 26 January
1910), which concern the laying of mines and the duty of notifi cation.
7 ‘Memorial submitted by the United Kingdom’, Corfu Channel case (United Kingdom v.
Albania), ICJ Pleadings 19 , p. 21 (‘(4) that the Albanian Government did not notify the
existence of these mines as required by Articles 3 and 4 of The Hague Convention No.
VIII of 1907, by the general principles of international law, and by the ordinary dictates
of humanity’). The categorical confusion arises as a result of the references on one hand to
principles of international law in distinction to ‘dictates of humanity’, and on the other to
an ‘offence’ and ‘crime against humanity’. Similar arguments had been made on behalf of
the United Kingdom to the UN Security Council by Sir Alexander Cadogan. See I. Yung
Chung, Legal Problems Involved in the Corfu Channel Incident (Geneva: E. Droz, 1959), p. 33.
8 The idea that the principle articulated in the Corfu Channel case ‘underlies’ specifi c provi-
sions of relevant treaties was eventually made explicit in the Nicaragua case. See below,
note 79.
9 The issue of sources is addressed more fully in the contribution in this volume by Profes-
sor Akiho Shibata ( Chapter 12 ).
10 Fitzmaurice, in one of the earliest commentaries, described an ‘obligation to act in
accordance with elementary considerations of humanity’ in the context of discussing
‘general principles of good conduct’. See G. Fitzmaurice, ‘The Law and Procedure of the
International Court of Justice: General Principles and Substantive Law’, British Yearbook
of International Law , 27 (1950): 4. See also Lauterpacht, who notes somewhat equivocally
that ‘[i]t is probable that these “general principles of law” include elementary considera-
tions of humanity’.
11 M. Akehurst, ‘Equity and General Principles of Law’, International and Comparative Law
Quarterly , 25 (1976): 806.
12 T. Meron, Human Rights and Humanitarian Norms as Customary International Law (Oxford:
Clarendon Press, 1989); M. Koskenniemi, ‘The Pull of the Mainstream’, Michigan Law
Review , 88 (1990): 1946–1962.
Elementary considerations of humanity 267
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
tional statute sources,
13 or a merely rhetorical device of little if any legal
import.
14 This ambiguity was evident early on. Writing in Recueil des Cours in
1962, Sir Humphrey Waldock, who had appeared for the United Kingdom in
the case, accused the Court of blurring custom and general principle, using
phraseology reminiscent of paragraph (c) of Article 38 of the ICJ Statute (on
general principles of international law) while simultaneously presenting
elementary considerations as part of custom, ‘though again not making itself
clear on the question of the source’.
15 Attempting to resolve this uncertainty,
Waldock relied on a contextual reading of the decision, fi nding it signifi cant
that ‘elementary considerations of humanity’ appears alongside two other
‘well-recognized’ principles belonging to customary law – freedom of mari-
time communication and every State’s obligation not to allow knowingly its
territory to be used for acts contrary to the rights of other States. For Waldock,
this refl ected an understanding of both sources as ‘a single corpus of law’,
where the addition of a general principle provides a ‘fl exible element’ that
‘enables the court to give greater completeness to customary law and in some
limited degree to extend it’.
16
The Court has, of course, built upon the notion of elementary considerations
of humanity in subsequent cases, although not always in an illuminating
fashion. Most commentators trace its trajectory from the Corfu Channel case to
the Nicaragua judgment and Nuclear Weapons Advisory Opinion (a task this
chapter similarly undertakes below). Inevitably, the erga omnes jurisprudence
often appears as a related discourse. The logical step from ‘elementary consid-
erations of humanity’ in 1949 to the rhetorically-related ‘elementary principles
of morality’ identifi ed in the Genocide Convention Reservation Advisory Opinion
two years later
17 lies partly in their shared ‘elementary’ or ‘fundamental’ and
13 F. Francioni, ‘International “Soft Law”: A Contemporary Assessment’, in V. Lowe and M.
Fitzmaurice (eds) Fifty Years of the International Court of Justice: Essays in Honour of Sir
Robert Jennings (Cambridge: Cambridge University Press, 1996), p. 169 (‘it would be
diffi cult to imagine a softer body of law than “elementary considerations of humanity” ’).
For Francioni, the decision ‘reveals an explicit recognition that principles of soft law may
be drawn from an unwritten source’ (p. 169).
14 This, at least, has been said about the Martens Clause, which Cassese describes as a lex
specialis of the broader rule in the Corfu Channel case . Raimondo notes the early scepticism
about whether the principle expressed by the Court possessed either normative character
or assisted in the formation of customary rules. See F.O. Raimondo, ‘The International
Court of Justice as a Guardian of the Unity of Humanitarian Law’, Leiden Journal of
International Law , 20 (2007): 597.
15 H. Waldock, ‘General Course on Public International Law’, Recueil des Cours , 106
(1962): 63. Waldock’s use of the term ‘again’ refers to a discerned tendency to neglect to
identify the source, or to invoke different sources simultaneously as in the Chorzów Factory
case.
16 Ibid, p. 64.
17 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory
Opinion), ICJ Reports 1951 , p. 23.
268 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
thus superior nature,
18 and partly in the shared meta-juridical normativity
found in the idea of ‘inhumane conduct’ inherent to both concepts.
19 Both were
also eventually to engage a specifi c if ill-defi ned idea of the international
community as a touchstone.
20 It is therefore unsurprising that scholars and
judges mention elementary considerations of humanity and erga omnes obliga-
tions in almost the same breath.
21 For Ragazzi, this synergy is apparent in the
Corfu Channel case itself. Notably, the inclusion of elementary considerations
alongside two additional sources is again considered to be instructive: unlike
these more established grounds, no ‘exceptional circumstances’ could be
pleaded against an obligation of notifi cation based on considerations of
humanity: after all, they are ‘even more exacting in peace than in war’. As a
result, the concept of elementary considerations of humanity, Ragazzi argues,
‘is functionally equivalent to the concept of obligations erga omnes ’, 22 opposable
to all States at all times.
The intersection of these two concepts begs further questions about the
nature of the law being espoused, and the concomitant judicial role and method
necessary for its elucidation. And behind these questions lie further assump-
tions – philosophical, cultural and attitudinal – about the legal import of the
idea of ‘humanity’ which lies at the heart of both the Martens Clause and the
Court’s famous statement. This chapter therefore provides a brief history of
humanity as a modern juristic concept, from its birth in the anti-slavery
18 See, for instance, Fragmentation of International Law , Report of the International Law
Commission, 58th session (2006), para. 31:
Some rules of international law are more important than other rules and for this reason
enjoy a superior position or special status in the international legal system. This is
sometimes expressed by the designation of some norms as ‘fundamental’ or as expres-
sive of ‘elementary considerations of humanity’ or ‘intransgressible principles of inter-
national law’.
It can also be argued that ‘general principles’ invariably appeal to both reason and morality,
and can therefore ‘be presented as normatively superior to rules or goals’. See O. Schachter,
International Law in Theory and International Practice (Dordrecht: Martinus Nijhoff, 1991),
p. 49.
19 M. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford: Oxford University
Press, 2002), p. 102. For Ragazzi, elementary considerations of humanity is understood as
‘aimed, as such, at protecting basic values such as human life’ (p. 475) where value
‘denot[es] something that is intrinsically worthy’ (note 80).
20 Barcelona Traction, Light and Power Co. Ltd. (Belgium v. Spain), ICJ Reports 1970 , p. 32
(‘ Barcelona Traction ’). The discussion of the international community is taken up below.
21 See, for instance, V. Gowlland-Debbas, ‘Judicial Insights into the Fundamental Values
and Interests of the International Community’, in A. Sam Muller, D. Raicˇ and J. M.
Thuránszky (eds), The International Court of Justice: Its Future Role after Fifty Years (The
Hague: Kluwer Law International, 1997), p. 346. See also, Pulp Mills , op. cit. (Judge
Trindade).
22 Ragazzi, Concept of International Obligations Erga Omnes , pp. 85–86, further supported by
his analysis of the Nicaragua case. The ILC Report , op. cit., similarly implies an equation
between the ‘intransgressible’ and the ‘elementary’.
Elementary considerations of humanity 269
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
treaties to its formulation in the Martens Clause, its liberation from the contex-
tual shackles of The Hague Conventions in the Corfu Channel case and subse-
quent elaboration in the jurisprudence of both the ICJ and the international
criminal tribunals, to its extension beyond the humanitarian law fi eld. The
aim is to provide a better understanding of why an appeal to considerations of
humanity carries with it such legal and normative gravitas, and how it has
taken centre stage in contemporary conceptualizations of the function of
international law and the role of its principal practitioners.
17.2 Humanity as a normative concept in the age
of reason
The central place of a concept of humanity in international legal thought has a
lengthy pedigree. As Simma has pointed out, the view that ‘mankind as a whole
forms a moral-legal unity’ – which for current purposes is assumed to underpin
a normative notion of humanity – can be traced from the Stoic-Christian
philosophies of law of Cicero, St Augustine and Thomas Aquinas, through the
natural law theories of De Vitoria, Suarez and Wolff, to its modern articulation
in the writings of scholars such as Verdross and even Kelsen.
23 Humanity from
this perspective is a universalistic and ethical idea, assuming a shared social
nature and ‘community’ that stands above the artifi cial divides of nation.
24
The eighteenth century saw humanity as a normative-legal idea endorsed
by the social and political thinkers of the age, not least in the emerging rights
discourse. It found particular favour among the philosophes , featuring promi-
nently in Diderot’s famous entry on Droit Naturel in the Encyclopédie where it
was presented as the basis of a theory of natural law and ‘inalienable natural
rights’.
25 However, its fi rst major substantive transition from theory and
political rhetoric to positive legal reality arose in the context of the anti-
slavery movement in England. ‘Humanity’ had long appeared as a central
23 See B. Simma, ‘The Contribution of Alfred Verdross to the Theory of International law’,
European Journal of International Law , 6 (1995): 38–43. For the shift in the natural law
thinking of De Vitoria and Suarez towards ‘the idea of a law of nature innate to humanity
as a whole, and on which an international legal community extending to all nations was
founded,’ see W. G. Grewe and M. Byers, The Epochs of International Law (Berlin: Walter
de Gruyter, 2000), pp. 141f.
24 See, for instance, Simma, ‘The Contribution of Alfred Verdross’, op. cit., pp. 42–43.
Simma does not use the term ‘humanity’ in this context, preferring expressions such as
‘the normative idea of the moral unity of mankind’ (p. 40).
25 D. Diderot, ‘Volume 5, Encyclopédie ’, in J. Mason and R. Wokler (eds) Diderot, Political Writ-
ings (Cambridge: Cambridge University Press, 1992), p. 20 (‘I have no other truly inalienable
natural rights except those of humanity’). According to Mason and Wokler, Diderot’s law of
nature was based on ‘a rational principle of common humanity which restrained the selfi shness
of individuals and made the establishment of civil society both necessary and possible’ (p. 20).
This view was common to natural law philosophers, especially Samuel von Pufendorf, whose
De Jure Naturae et Gentium was liberally pillaged by Diderot.
270 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
affective trope in the speeches of the main proponents of reform. Thomas
Paine, for instance, in his infl uential pamphlet on ‘African Slavery in America’
in 1772, had argued that slavery was ‘contrary to the natural dictates of reason,
and feelings of Humanity’,
26 famously signing off the pamphlet: ‘These are
the sentiments of Justice and Humanity.’
27 Almost identical language is
found in the parliamentary debates of 1788 that resulted in the Slave Trade
Regulation Act , and the many statutes that followed, including the Abolition
Bill of 1807 which declared the trade to be ‘contrary to the principles of
justice, humanity and sound policy’.
28
Given England’s pivotal role in pursuing the anti-slave trade agenda on the
international stage, it is unsurprising to fi nd in the Declaration against the Slave
Trade , signed at the Congress of Vienna in 1815, echoes of the domestic polit-
ical rhetoric now writ large as a universalistic sentiment: ‘[The] Trade is
repugnant to the principles of humanity and of universal morality . . . at
length, the public voice in all civilized countries calls aloud for its prompt
suppression.’
29 A similar form of words is replicated in the many bilateral
treaties which were to follow.
Slavery was therefore the location of what Clark has termed a ‘normative
shift’ in international society around the idea of shared humanity.
30 Its formu-
lation as a principle linked to universal morality and demanded by the fi ctive
public voice of all nations, not just Christendom, is signifi cant, as is the geopo-
litical imbalance and historical ‘moment’ which brought it into being.
31 The
characterization of an international legal rule as refl ecting what would later in
the Martens Clause be termed the ‘dictates of public conscience’ is as unique as
it is disingenuous. The world society whose normative voice can be heard in
the 1815 Declaration was essentially that of Britain, the emerging hegemon
after the Napoleonic wars, where an organized and politicized public had
demanded international action. Indeed, the ground-breaking treaties which
codifi ed the trade’s prohibition were effectively sponsored and paid for by the
victorious British in exercise of their considerable fi nancial and diplomatic
26 T. Paine, ‘African Slavery in America’, in M. Ishay (ed.) The Human Rights Reader (New
York: Routledge, 1997), p. 133.
27 Ibid.
28 The phrase was eventually dropped from the preamble. Interestingly, the same language
was used to support the trade, with emphasis falling on the ‘sound policy’ element. See
S. Farrell, ‘ “Contrary to the Principles of Justice, Humanity and Sound Policy”: The
Slave Trade, Parliamentary Politics and the Abolition Act 1807’, Parliamentary History ,
26 (2007): 141.
29 ‘Declaration against the Slave Trade’, in Parliamentary Debates from 1803 to the Present
Time , vol. 32 (London: T.C. Hansard, 1816), p. 200.
30 I. Clark, International Legitimacy and World Society (Oxford: Oxford University Press,
2007), p. 173.
31 The Declaration marks the fi rst appearance of the term ‘ nations civilisées ’ in an interna-
tional treaty. As Grewe points out, 1815 marks the end of references in treaties to ‘Chris-
tendom’. See Grewe and Byers, op. cit., p. 445.
Elementary considerations of humanity 271
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
post-war muscle.
32 With little enthusiasm for abolition outside of Britain, the
treaties can hardly be characterized as a refl ection of any ‘spontaneous sharing
of moral conviction’ such as purportedly characterized the domestic move-
ment.
33 Nonetheless, by the end of the century, the practice would be univer-
sally accepted as both immoral and unlawful in what was a remarkable
international institutionalization of a new normative logic.
The adoption by the British of a normative rhetoric of humanity in inter-
national affairs had other less salubrious manifestations. As Crawford demon-
strates, the ‘aggressive humanitarianism’ which characterized British
diplomatic efforts was soon to be applied to the colonial enterprise. Indeed,
the same anti-slavery arguments relied upon to ban the trade were used to
justify international cooperation in the colonization of Africa, as witnessed in
the deliberations at the Berlin West Africa Conference of 1884.
34 A not
dissimilar ethical and universalistic rhetoric of civilized humanity was
employed by the United States to justify intervention in the Americas, where
the principle of humanity created a perceived moral imperative. Thus, for
President McKinley, there was ‘a duty imposed by our obligations to ourselves,
to civilization and humanity, to intervene with force’ in the region. As
Emerson has argued, ‘By justifying their action in Cuba as consistent with the
promotion of civilisation and the betterment of humanity, the U.S. would
essentially convert Latin America into their own moral protectorate.’
35
Nor was normative humanity philosophically uncontentious. The nineteenth
century in particular saw a tension within the very idea of humanity between
reason and sentiment that it retains to this day. At one level, it was understood
that conceiving humanity as unifi ed by a shared rationality, as Di Vitoria had
argued, could have important ramifi cations for the extension of rights.
36
However, such arguments often sat uncomfortably alongside reason, even in the
slavery debate. Thus, Lord John Russell, despite fi nding slavery repugnant to
his ‘feelings’, viewed abolition as ‘delusive’, a feeble attempt to serve the cause
of humanity which would only see the trade taken up by other States.
37 It is an
32 See N. Crawford, Argument and Change in World Politics: Ethics, Decolonization, and Humani-
tarian Intervention (Cambridge: Cambridge University Press, 2002), p. 185 for an overview
of the strategies used by the British to reach agreements with Spain and Portugal, and the
costs involved. Crawford makes the argument that it is crucial to understand the ethical
arguments against slavery used domestically and internationally, not just the material and
economic explanations for its demise.
33 Ibid, p. 184, noting the 800 petitions (and one million signatures) made to Parliament in
1814 alone.
34 Ibid, pp. 201–248.
35 G. Emerson, ‘Seeds of Liberty’, ANU Centre for European Studies , 25 May 2010, p. 14. For
a critique of the tendency for contemporary neo-conservatives to equate America’s
national interests with those of humanity, see C. Reus-Smit, American Power and World
Order (Cambridge: Polity Press, 2004), pp. 48–55.
36 The connection between humanity and human rights law is explored below.
37 W. Jay, Miscellaneous Writings on Slavery (Boston: John P. Pewett, 1853), p. 142.
272 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
argument not dissimilar to the contemporary contention that taking unilateral
greenhouse gas abatement action is bad policy, despite its honourable motiva-
tion.
38 Rationality also clashed with principles of humanity in the torture
debate, with Bentham infamously decrying the torture prohibition as ‘blind
and vulgar humanity’.
39 Again, this argument has unfortunately retained some
currency, with Alan Dershowitz citing Bentham in his crude utilitarian defence
of judicial torture warrants.
40 More profoundly, Proudhon saw the normative
elevation of humanity as a deifi cation of man, and argued that those who employ
the term want to cheat, a phrase picked up by the twentieth-century legal theo-
rist Carl Schmitt, and cited repeatedly since in the literature.
41 Schmitt aptly
captured the long-standing critique of humanity, noting ‘the possibility of deep
inequality when one’s enemy can be portrayed as against and therefore an
“outlaw of humanity” ’.
42
For its nineteenth-century critics, the idea of humanity thus spoke less of
rationality than unsupportable and dangerous sentimentality. In many
respects, however, this was a response to the rhetoric of the age. Appeals to
humanity-grounded norms were invariably accompanied by references to
sentiment. Indeed, the rational and the empathetic went hand-in-hand in
establishing humanity’s position as a normative concept; both aspects were
essential to its norm-creating potential. By itself, rational humanity lacked
normative persuasiveness. This need to engage with a motivation for agency
was apparent to David Hume who noted ‘if the principles of humanity are
38 These arguments have effectively stalled the implementation of effective climate change
legislation in the United States and Australia.
39 W.L. Twining and P.E. Twining, ‘Bentham on Torture’, Northern Ireland Legal Quarterly ,
24 (1973): 347.
40 See A. Dershowitz, ‘The Torture Warrant: A Response to Professor Strauss’, New York
Law School Law Review , 48 (2003): 275–276.
41 Schmitt warned about States that seek to ‘usurp a universal concept against a military
opponent’ by identifying themselves with and misusing the ethical-humanitarian concept
of humanity. See C. Schmitt, The Concept of the Political: Expanded Edition (Chicago: Uni-
versity of Chicago Press, 2007) (trans. G. Schwab). The impact of Schmitt’s ideas on con-
temporary international legal theory is evident, for instance, in M. Koskenniemi, The
Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge:
Cambridge University Press, 2001); and G.J. Simpson, Great Powers and Outlaw States:
Unequal Sovereigns in the International Legal Order (Cambridge: Cambridge University Press,
2004). For a critique of the use of Schmitt both as an inspiration and counter-point, see
D. Chandler, ‘The Revival of Carl Schmitt in International Relations: The Last Refuge of
Critical Theorists’, Millennium: Journal of International Studies , 37 (2008): 27–48.
42 See C. Schmitt, ‘The Legal World Revolution’, Telos , 72 (1987): 88, cited by T. B.
Strong, ‘Foreword: Dimensions of the New Debate around Carl Schmitt’, ibid, p. xxii.
Elementary considerations of humanity 273
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
capable, in many instances, of infl uencing our actions, they must, at all times,
have some authority over our sentiments’.
43
At the core of the notion of sentimental humanity lies empathy. As philos-
opher Charles Taylor and historian Lynn Hunt have separately argued,
empathy was a core ingredient of European Enlightenment thought, moti-
vating an expanded egalitarian idea of humanity which had developed by the
end of the eighteenth century into a cultural trait.
44 Such universal empathy
was evident in the birth of universal human rights law, not least in the idea
that such rights are ‘self-evident’ – a statement of logic that only makes sense
when a shared ethical sentiment of empathy is assumed to characterize the
human condition.
As humanity consolidated its place in both international law and foreign
policy, these same themes were to fi nd repeated articulation: the dynamic
movement between the rhetorical and the norm-generating, the formulation
of a principle against which conduct might be deemed ‘repugnant’ (a term
which in English constitutional practice meant unlawful), responding to the
putative ‘voice’ of international society, the ‘civilizing’ role of the principle,
the tension between its rational and affective components, and suspicion
surrounding its ethically ambivalent and politically expedient use in the
realm of international affairs.
By the end of the nineteenth century, the historical and cultural forces
identifi ed above were to have an impact on a new movement of international
lawyers for whom, as Martti Koskenniemi has argued in his Gentle Civilizer of
Nations , ‘humanity’ had become a guiding principle. Koskenniemi traces the
43 D. Hume, ‘An Inquiry Concerning the Principles of Morals’, cited in L. May, War Crimes
and Just War (Cambridge: Cambridge University Press, 2007), p. 75. A similar argument
has been made more recently by Richard Rorty, see below at note 138. See also, May, op.
cit., p. 89. May has noted the various ways in which ‘humanity’ is understood, arguing
that, in the context of international humanitarian law, it refers primarily to characteristic
attitudes such as ‘compassion and mercy’ rather than a shared quality , such as rationality.
It is not just the rational side of human nature that gives rise to these prohibited
behaviors, but also the sentiment or feeling side . . . Humane treatment in both
humanitarian and human rights law promotes the minimum amount of compassionate
and merciful treatment that humans characteristically do, and should, display towards
fellow human beings.
(p. 89)
44 See L. Hunt, Inventing Human Rights (New York: W. W. Norton, 2007), pp. 35ff;
C. Taylor, Sources of the Self: The Making of Modern Identity (Cambridge, MA: Harvard
University Press, 1989). Although Taylor employs the semantically different term ‘sym-
pathy’, his arguments about the development of sentiment as a touchstone of morality,
manifested in a new egalitarian consciousness and refl ected in literature and the arts, has
striking similarities to Hunt’s account, which sees the trait refl ected in the development
of the epistolary novel and portraiture. Taylor’s sophisticated treatment of the relation-
ship between rationality, sympathy, naturalism and sensualism, throws light on some of
the trends noted in this chapter.
274 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
fi rst manifestation of this professional self-awareness to the manifesto of the
Revue de Droit International in 1868, especially its espousal of the ‘superior
unity of the great human society’, and its depiction of a new ‘science or rather
the conscience of humanity’ as ‘[the] source, the tribunal and the sanction of
positive law’.
45 This ‘science’, practised by a new breed of international
lawyer,
46 was to be based upon the sober refl ections of the ‘civilized conscience’,
which in turn would infl uence public opinion, ultimately forming the basis of
international legal norms.
47
In other words, international lawyers – including judges – saw themselves
as the shapers and arbiters of humanity’s conscience, taking the place of the
absent international legislator, and steadily steering international society
towards its realization of core liberal ideals. It is Victorian (or perhaps more
accurately Whiggish) evolutionary liberalism at its most idealistic and, as
Koskenniemi points out, potentially imperialistic.
48
This is the context within which the Martens Clause should be considered.
It stands as the fi rst manifestation of humanity as a positive normative prin-
ciple in its own right,
49 a precursor to the ICJ’s eventual reifi cation of the
related general principle of international law in the Corfu Channel case. Despite
being drafted to break a diplomatic deadlock and receiving little attention in
its early years,
50 the Clause nonetheless gave expression to the very purpose of
the profession within which the framers of the Convention were engaged, and
to their conceptualization not just of the laws of war, but of international law
itself.
51 Its subsequent history, although riddled with uncertainty in interpre-
45 G. Rolin-Jacquemyns, ‘De l’étude de la législation comparée et de droit international’,
Revue de Droit International , 1 (1869): 225, cited in Koskenniemi, The Gentle Civilizer of
Nations , op. cit., p. 16.
46 As Martineau has commented (drawing upon and extending the work of Kennedy), ‘the
last half of the nineteenth century saw a self-confi dent period of invention and renewal
among international lawyers’. See A. Martineau, ‘The Rhetoric of Fragmentation: Fear
and Faith in International Law’, Leiden Journal of International Law , 22 (2009): 3 (note 7).
47 Koskenniemi, The Gentle Civilizer of Nations , op. cit., pp. 15–16. A similar argument was
made by Grewe: ‘the equation of the international legal community with the community
of civilized nations . . . was essentially a product of British policy and theory concerning
international law.’ See Grewe and Byers, op. cit., p. 446.
48 The evolutionary and idealistic view of Whig history was famously identifi ed by Herbert
Butterfi eld in The Whig Interpretation of History in 1931, and subsequently developed in
the historical and political literature. Victorianism could also, however, be very
pessimistic.
49 Or, as Cassese puts it, ‘an ingenious blend of natural law and positivism’. See A. Cassese,
‘The Martens Clause: Half a Loaf or simply Pie in the Sky?’, European Journal of Interna-
tional Law , 11 (2000): 188–189.
50 For an overview of the drafting history, see Cassese, ibid.
51 As Grewe noted, the clause manifested the clearest expression of the British theory of
international law which identifi ed the international community with the ‘community of
civilised nations’. Grewe and Byers, op. cit., p. 446. However, it should also be noted
that a nascent ‘principle of humanity’ already featured prominently in the early infl uential
work on the laws of war, especially the codes developed by Johann Caspar Bluntschli and
Elementary considerations of humanity 275
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
tation, bears this out.
52 As Cassese observes, ‘In spite of its ambiguous and its
undefi nable purport, [the Martens Clause] has responded to a deeply felt and
widespread demand in the international community.’ It has, claims Cassese,
‘ struck a chord with the sentiments prevailing in the world community ’. 53 This ‘chord,’
presumably, is one discernible by international lawyers, those ‘keepers of the
international juridical conscience’ (to quote Weeramantry) whose faculties are
fi nely tuned to discern the world community’s sentiments.
These same sentiments also underpin the Court’s distillation of elementary
considerations of humanity 50 years after Martens famously penned his
‘inspiring fudge words’.
54 The Court was not, of course, alone in expressing
such attitudes at the time. Acting on behalf of an evolving idea of humanity
characterized the post-war moment, not least among those international
lawyers negotiating the Genocide and Geneva Conventions.
55 It is discernible,
for instance, in the speech of Max Petitpierre, Head of the Swiss Federal
Political Department, who in opening the fi rst Plenary Meeting of the
Conference of the drafters of the Geneva Conventions on 21 April 1949 called
upon delegates to ‘join us on that higher impartial plane of pure humanity
where differences of a political nature should have no place’.
56
Pure humanity – spiritual, transcendent, apolitical and universal – is the
hidden theme evident in much of the commentary on both the Martens Clause
and elementary considerations of humanity, the ‘animating and motivating
principle of the law of war, and indeed all law ’, as Quincy Wright put it in one
Francis Lieber. See D. Schindler, ‘J.C. Bluntschli’s Contribution to the Law of War’, in
M. G. Kohen and L. Cafl isch (eds), Promoting Justice, Human Rights and Confl ict Resolution
through International Law (Leiden: Koninklijke Brill, 2007), p. 444. Lieber’s Code is
replete with references to humanity, including (in Article 29) the infamous recommenda-
tion to pursue what nowadays might be called shock and awe: ‘The more vigorously wars
are pursued, the better it is for humanity. Sharp wars are brief’ (p. 444).
52 Cassese, op. cit., pp. 189–192; T. Meron, ‘The Martens Clause, Principles of Humanity,
and Dictates of Public Conscience’, American Journal of International Law , 94 (2000):
78–89; R. Ticehurst, ‘The Martens Clause and the Laws of Armed Confl ict’, International
Review of the Red Cross , 37 (1997): 126ff.
53 Cassese, op. cit., p. 212. Emphasis added.
54 A. Roberts, ‘Land Warfare: From Hague to Nuremberg’, in M. Howard, G. Andreopou-
los and M.R. Shuman (eds,) The Laws of War: Constraints on Warfare in the Western Worlds
(New Haven CT: Yale University Press, 1996), p. 122.
55 Humanity occupies a central rhetorical position in the discussions surrounding other
major developments including the Nuremberg Charter, the Universal Declaration of
Human Rights, and even the Refugee Convention. The language is apparent in the
travaux of these important documents, as well as in General Assembly discussions.
56 Final Record of the Diplomatic Conference of Geneva (Vol. II Section A) (Berne: Federal Politi-
cal Department, 1949), p. 10. Interestingly, Petitpierre described the Convention of
1864 as representing ‘the spiritual heritage of mankind . . . one of the steps mankind has
climbed in its endeavours to raise the standard of civilization’ (p. 9).
276 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
of the earliest commentaries on the case.
57 It betrays an attitude which may in
part explain the Court’s relative silence in identifying and establishing the
rule. Not unlike the declarations of rights in the eighteenth century, elemen-
tary considerations of humanity are presented as self-evident, in no need of
elaboration, explanation, or support from traditional sources, other than by
oblique reference.
58
The Court’s failure to provide detailed reasons, of course, is not that
unusual,
59 especially in the elucidation of general principles.
60 As Gaja notes,
‘The assertion by the ICJ of a general principle of law . . . is only rarely accom-
panied by an adequate demonstration of its existence in international law.’
61
Such reticence may therefore be a function of the source, providing the neces-
sary judicial fl exibility to gap-fi ll where necessary.
62 Yet for those judges
relying upon the general principle of humanity to reveal, confi rm or develop
specifi c rules of international law, this presents peculiar challenges to judicial
method. In relying upon elementary considerations of humanity in the Corfu
Channel case itself, as Louis Henkin observed, the Court ‘invoked moral
standards based on values other than State consent’.
63 Subsequent cases
relying upon humanity as a self-evident moral principle have similarly
57 Q. Wright, ‘Foreword’, in UN War Crimes Commission, Law Reports of Trials of War
Criminals (London: His Majesty’s Stationery Offi ce, 1949), p. xiii. Emphasis added. The
statement was cited with approval by Judge Weeramantry in his strong dissent in the
Nuclear Weapons Advisory Opinion . See Nuclear Weapons , op. cit., p. 264 (Judge Weera-
mantry). Cassese also uses the term ‘animating’ in his article. See Cassese, op. cit., p. 192.
The natural law resonances are irresistible.
58 See, for instance, Q. Wright, ‘The Corfu Channel case’, American Journal of International
Law , 43 (1949): 494 (‘The opinion is notable for the extent to which the court relied
upon broad principles of law, apparently deemed to be self-evident and stated without
citation of precedent or authority. It is also notable that these principles referred to rights
of humanity . . .’).
59 This tendency was recognized early on. See Waldock, op. cit. In 1976, Kearney demon-
strated that the Court had repeatedly reached its conclusion by stating rather than estab-
lishing those very rules whose existence and content were in controversy. See R. Kearney
‘Sources of Law and the International Court of Justice’, in L. Gross (ed.) The Future of the
International Court of Justice (Dobbs Ferry: Oceana, 1976), p. 610. Kearney notes at p. 653
that the rules are largely treated as ‘self-evident’ (cited by M. Koskenniemi, From Apology
to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University
Press, 2005), p. 397).
60 As J. Kammerhofer and A. de Hoogh point out in ‘All Things to All People? The Inter-
national Court of Justice and its Commentators’, European Journal of International Law , 18
(2007): 979, ‘[t]he problem with “general principles” lies not with their substantive
content, but in how their existence is justifi ed, and how the “source” is traced’.
61 G. Gaja, ‘General Principles of Law’, in Max Planck Encyclopedia of Public International
Law , 2007, para. 20. See also Lauterpacht, op. cit., p. 71: ‘prior judicial or arbitral
authority is not a condition of valid recourse to general principles of law’.
62 That general principles of international law provide an answer to non liquet is well covered
in the literature.
63 L. Henkin, International Law: Politics and Values (Dordrecht: Martinus Nijhoff, 1995),
p. 103.
Elementary considerations of humanity 277
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
resulted in a reframing of the approach to the elucidation of relevant customary
norms.
64
Before examining this case law in more detail, it is worth returning to one last
component of the translation of humanity into the discourse of international law:
the relationship between humanity (either as a general principle or in its Martens
Clause formulation) and various conceptualizations of the ‘international commu-
nity’. As already noted, the replacement of Christendom with humanity in the
early slavery prohibition treaties was signifi cant, not just for its universalization
of international legal norms outside the traditional European club, but also for
purportedly responding to the demands of the so-called ‘public voice’ which was
portrayed as an expression of universal conscience and empathy for humanity.
The notion of an international community, of course, took on more juristic rele-
vance in the twentieth century. Given its roots, it is unsurprising to see it acting
to connect the jurisprudence of elementary considerations of humanity, a prin-
ciple ‘derived from the specifi c nature of the international community’, with erga
omnes obligations, which are owed to ‘the international community as a whole’.
65
In both areas, the courts have pronounced upon the validity of norms inde-
pendently from State practice, ‘seeming to recognize a spontaneous social
process generating general principles of international law’.
66 Indeed, the link
between a creative judicial role, the application of general principles, and the
force of a normative notion of the international community, is irresistible.
Thus, for Lauterpacht, ‘international practice recognizes, and the very exist-
ence of the international community necessitates, a residuary source of law on
which States are entitled to act and by reference to which international courts
are bound to render decisions’.
67 According to this formulation, judicial
64 See also D. Lefkowitz, ‘Sources of International Law’, in S. Besson and J. Tasioulas, (eds) The
Philosophy of International Law (Oxford: Oxford University Press, 2010), pp. 187, 189–190:
Arguably, the claim that correctness as a moral principle currently provides a suffi cient
condition for the legal validity of certain human rights norms, better accounts for
claims made in a number of opinions issued by the ICJ – such as its appeal to elemen-
tary considerations of humanity . . . than do alternative explanations drawing on
custom or general principles of law.
65 See Mosler’s discussion of general principles, notably his second category of ‘principles
and rules derived from the specifi c nature of the international community’, in H. Mosler,
‘The International Society as a Legal Community’, Recueil des Cours , 140 (1974): 148f.
And Barcelona Traction , op. cit., p. 32, for the nature of erga omnes obligations. Note also
Judge Tanaka’s earlier reference, in his dissent in the South West Africa cases, to a law
which ‘cannot be abolished or modifi ed, because it is deeply rooted in the conscience of
mankind’. See South West Africa (Ethiopia v. South Africa; Liberia v. South Africa) (Second
Phase), ICJ Reports 1966 , p. 298 (Judge Tanaka).
66 Gowlland-Debbas, op. cit., p. 344 (‘Drawing on the underlying moral, ethical or
constitutional foundations of the international community, the ICJ has . . . considered
the validity of certain fundamental norms independently from state practice, seeming to
recognize a spontaneous social process generating general principles of international law.’).
67 Lauterpacht, op. cit., pp. 68–69.
278 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
recognition of the international community (by which Lauterpacht meant a
‘deeper community’ transcending values and interests, and characterized by a
‘higher unity’)
68 requires the existence of a source of law that can fi ll legal
gaps. In such a value-oriented model of international law, the principle of
‘elementary considerations of humanity’ is utilizable by judges by reference to
notions such as ‘the dictates of public conscience’ or ‘universal juridical
conscience’ to implement the values of, and simultaneously strengthen and
forge, the so-called international community.
69
Elementary considerations of humanity thus carry considerable historical
and methodological baggage. It stands at the threshold of discussion about
the role of international judiciary, and the nature and function of international
law. The following section will examine some of these underlying tensions by
examining the judicial approach to the principle.
17.3 Norm creating, norm exposing, or norm enhancing?
As noted, jurists and judges have struggled to place elementary considerations
of humanity in the fi rmament of international legal categories or to agree on
its role in the interpretation, elucidation and creation of new international
norms.
70 At one extreme, it has been promoted as a distinct source of interna-
tional law in its own right, whether as manifested alongside ‘dictates of public
conscience’ in the Martens Clause or expressed as a general principle of inter-
national law liberated from its treaty context.
71 For others, such appeals are
merely rhetorical fl ourishes which only have substance, if at all, when accom-
panied by positive law. In between are those who see the principle primarily
as an interpretative device, supporting liberal constructions of treaty provi-
sions, establishing a presumption to be raised in cases of doubt about the
existence of a norm, operating to exclude a contrario arguments when hitherto
unforeseen circumstances arise,
72 or merely endowing existing norms with
68 Lauterpacht’s understanding of ‘community’ is predicated on his concept of international law
as ‘developing and protecting through international action the interests of human personality
as the ultimate purpose of the international society . . . Such international law requires a
deeper community of moral and political outlook.’ Ibid, p. 264. This idea of ‘deeper commu-
nity’ is echoed by Simma and Paulus, who refer to a ‘higher unity’ in international relations.
See B. Simma and A. Paulus, ‘The “International Community”: Facing the Challenge of
Globalization’, European Journal of International Law , 9 (1998): 268.
69 As Judge ad hoc Ecˇer put it, in his dissenting opinion, the role of the Court is ‘to help
strengthen the cohesion of the international community’. See Corfu Channel case , op. cit.,
p. 130 (Judge Ecˇer).
70 See Cassese’s comprehensive overview of the various interpretations of the Martens Clause
in the literature, Cassese, op. cit., pp. 189f. Cassese considers inter alia the work of Binz,
Roling, Strebel, Munch, Sperduti, and in particular Judge Shahabuddeen.
71 Although for some commentators the two limbs of the Martens Clause represent ‘two
new sources of law’. See Cassese, op. cit., p. 191.
72 That is, the view that the absence of a positive prohibition provides an implicit licence.
Elementary considerations of humanity 279
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
what Shaw, citing the Corfu Channel case and the Nuclear Weapons Advisory
Opinion , calls ‘an additional force within the system’.
73
From a judicial perspective, the opinions on the principle’s norm-generative
character are inconsistent. Thus, in the South West Africa cases, the Court
asserted:
Humanitarian considerations may constitute the inspirational basis for
rules of law, just as, for instance, the preambular parts of the United
Nations Charter constitute the moral and political basis for the specifi c
legal provisions thereafter set out. Such considerations do not, however,
in themselves amount to rules of law . . . [I]t is necessary not to confuse
the moral ideal with the legal rules intended to give it effect . . . It is not
permissible to import new [legal incidents] by a process of appeal to the
originating idea – a process that would, ex hypothesi , have no natural
limit.
74
The suggestion that considerations of humanity are a moral and political
ideal, not a legal or even norm-generative principle, would seem to be incom-
patible with its juridical elevation in the Corfu Channel case. 75 The judgment
also relies upon the sticky dichotomy between law and politics, with the ines-
capable implication that some humanitarian concerns will be non-justiciable
– a proposition strongly contested by those, led intellectually by Lauterpacht,
who see no such gaps in international law, and for whom the principle of
humanity is the ultimate ‘gap-fi ller’.
76
Standing in sharp contrast to the somewhat anomalous South West Africa
cases is the Nicaragua case where, in another failure to notify of the existence
and location of mines, the Court repeatedly stated that conventional rules and
obligations are ‘merely’ or ‘no more than’ a refl ection of ‘ fundamental general
principles of humanitarian law’.
77 This phrase, immediately followed by refer-
ence to the Martens Clause (as it appears in the denunciation provisions of the
73 M. Shaw, International Law (Cambridge: Cambridge University Press, 2003), p. 103,
citing the Corfu Channel case and in particular the Nuclear Weapons advisory opinion, op.
cit., pp. 257, 262, where the court insisted that at the heart of the rules and principles of
international humanitarian law lay ‘overriding considerations of humanity’.
74 South West Africa , op. cit., pp. 34–35. Emphasis added.
75 See, for instance, Henkin, op. cit., p. 186; Gowlland-Debbas, op. cit., p. 346. The ‘ideal’
at issue in the South West Africa cases was the ‘sacred trust of civilization’ which appeared
in Article 22 of the League Covenant.
76 It is uncontentious that the Martens Clause fulfi ls this function. See, for instance, Meron,
who notes that it provides ‘an additional argument against a fi nding of non liquet’. See
Meron, ‘The Martens Clause’, op. cit., p. 88.
77 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of
America), ICJ Reports 1986 , pp. 112–114 (‘ Nicaragua’ ).
280 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
Geneva Conventions),
78 echoes the essentialism hinted at in the Corfu Channel
case which the Court here recognized as having expressed ‘ principles underlying
the specifi c provisions of Convention No. VIII of 1907’. These principles,
moreover, were considered to be binding in themselves.
79 As Jørgensen notes,
in concluding that common Article 3 of the Geneva Conventions refl ects
elementary considerations of humanity, ‘[T]he Court’s choice of words . . .
seems to confi rm Fitzmaurice’s early view of considerations of humanity as a
source of law.’
80 According to Jørgensen, ‘The Court seems to have had in
mind principles which are so fundamental that they do not require translation
into customary law in order to be applicable.’
81 Criticism of the Court under-
standably targeted what was considered by Meron to be ‘perfunctory and
conclusory references to the practice of States’.
82
An elaboration of humanity’s norm-creating potential was subsequently
provided by Judges Shahabuddeen and Weeramantry in their dissenting opin-
ions in the Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons . Judge Shahabuddeen found evidence for Fitzmaurice’s suggestion
that ‘considerations of humanity give rise in themselves to obligations of a legal
character’ in the jurisprudence of various courts and tribunals, including in the
Corfu Channel case. 83 His attempt to address many of the problems which such
78 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, adopted 12 August 1949, 75 UNTS 31, art 63 (entered into force 21
October 1950); Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, adopted 12 August 1949, 75 UNTS 85,
art 62 (entered into force 21 October 1950); Convention Relative to the Treatment of
Prisoners of War, adopted 12 August 1949, 75 UNTS 135, art 142 (entered into force 21
October 1950); Convention Relative to the Protection of Civilian Persons in Time of War,
adopted 12 August 1949, 75 UNTS 287, art 158 (entered into force 21 October 1950).
79 The Court referred to a ‘breach of the principles of humanitarian law underlying the spe-
cifi c provisions of Convention No. VIII of 1907’, noting that ‘the conduct of the United
States may be judged according to the fundamental general principles of humanitarian law
. . .’ Nicaragua , op. cit., pp. 112–114. Emphasis added.
80 N.H.B. Jørgensen, The Responsibility of States for International Crimes (Oxford: Oxford Uni-
versity Press, 2003), p. 128. This may be the reason why Judge Jennings in his dissenting
opinion noted that ‘the Court’s view that the common Article 3, laying down a
“minimum yardstick” . . . for armed confl icts of a non-international character are applica-
ble as “elementary considerations of humanity”, is not a matter free from diffi culty’. See
Nicaragua , op. cit., p. 537 (Judge Jennings).
81 Jørgensen, op. cit., p. 128. Jorgensen notes further: ‘Consequently, these principles of
humanitarian law must either be a source of obligations or one of the general principles in
the sense of Article 38, paragraph 1(c) of the ICJ’s Statute.’
82 Meron, Human Rights and Humanitarian Norms , op. cit., p. 42. See also p. 36 (‘The Nicaragua
court completely failed to inquire into whether opinio juris and state practice actually does
support the crystallisation of articles 1 and 3 into custom . . .’).
83 Nuclear Weapons , op. cit., p. 407 (Judge Shahabuddeen), citing G. Fitzmaurice, The Law and
Procedure of the International Court of Justice , vol. 1 (Cambridge: Cambridge University Press,
1986), p. 17 (note 4). The emphasis, it is worth noting, is in the original. Shahabuddeen
also applied the advice from the Court in the Barcelona Traction case that one should test the
soundness of a principle by the consequences which would fl ow from its application.
Elementary considerations of humanity 281
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
a characterization of the general principle generates, however, is only partially
persuasive. For instance, the problems associated with judge-made law, or
‘government by judges’, were countered by insisting that judges are merely
‘evaluating a standard embodied in an existing principle’.
84 And the judge was
guided in evaluating these embodied standards by the views of States them-
selves.
85 Interestingly, Shahabuddeen equated these views with ‘public
conscience’, studiously distinguishing the task of divining such an ephemeral
substance from ascertaining opinio juris , a presumably more arduous task.
86
With respect to the content of principles of humanity and the dictates of
public conscience, Judge Shahabuddeen relied upon an evolutionary picture of
international law, built on certain essential constants:
87
[This is] to be ascertained in the light of changing conditions, inclusive
of changes in the means and methods of warfare and the outlook and
tolerance levels of the international community. The principles would
remain constant, but their practical effect would vary from time to time.
The reference to the ‘tolerance levels of the international community’ is
intriguing. It may be partly understood by reference to the aforementioned
‘dictates of public conscience’ of the Martens Clause, which Judge Shahabud-
deen re-introduced to the principle after its omission in the Corfu Channel case
formulation.
88 It is a crucial consideration. After all, Judge Shahabuddeen
found – on the evidence – that nuclear weapons are unlawful because of their
‘repugnance to the conscience of the international community’.
89 But on what
basis – moral, political, practical – the international community fails to
tolerate something, and how a judge can glean from such intolerance a legal
obligation or prohibition, is left largely unexamined. A judge must somehow
measure this level of tolerance on behalf of the ill-defi ned community (presum-
ably not to be equated with the community of States as this would require
84 Nuclear Weapons , op. cit., p. 409 (Judge Shahabuddeen).
85 For Judge Weeramantry, accusations of judicial activism were similarly allayed by claim-
ing that what is at work is the application of the general principle to specifi c situations,
out of which ‘a rule of greater specifi city emerges’. See Nuclear Weapons , op. cit., p. 493
(Judge Weeramantry).
86 This may also explain why the ‘international community’ he is concerned with is not the
community of States, which would require a closer analysis of state practice. A more
radical approach was called for by Australia’s Minister of Foreign Affairs who argued
before the Court that the dictates of public conscience could outlaw a means of warfare
irrespective of State consent through custom or treaty, thereby keeping the Court in step
with community values not necessarily refl ected in the opinio juris of States. See ‘Public
Sitting’, Nuclear Weapons (Advisory Opinion) [1996] ICJ, 30 October 1995, paras 9–11
(Gareth Evans QC).
87 Nuclear Weapons , op. cit., p. 406 (Judge Shahabuddeen)
88 Ibid, p. 403 (Judge Shahabuddeen).
89 Ibid, p. 386 (Judge Shahabuddeen).
282 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
closer attention to State practice) and translate it into the legal content of
the constant principle of humanity when ‘written rules [have] proved to be
inadequate’.
90 For Shahabuddeen, this is exactly what happened in the Corfu
Channel case. 91
The majority in Nuclear Weapons Advisory Opinion , while not expressly
rejecting elementary considerations of humanity as a freestanding norm-
creating general principle, provided more confusing guidance as to its status.
They affi rmed the view, for instance, that the rules of international humani-
tarian law are ‘fundamental to the respect of the human person and “elemen-
tary considerations of humanity” ’,
92 thus adding to the appearance of
hierarchical essentialism which the considerations conjure. The Martens
Clause, moreover, was depicted as ‘an effective means of addressing the rapid
evolution of military technology’,
93 relevant to the development of humani-
tarian law, although only conventional rules are cited as examples. And while
the Court agreed that these principles apply to nuclear weapons,
94 the use of
which was ‘scarcely reconcilable’ with respect for the ‘requirements’ (an odd
word to use in such circumstances) of the ‘overriding consideration of
humanity’,
95 it nonetheless found there were not ‘suffi cient elements to enable
it to conclude with certainty that the use of nuclear weapons would neces-
sarily be at variance with the principles and rules of law applicable in armed
confl ict in any circumstance’.
96
Lofty as the somewhat muddled humanity-centred rhetoric of the majority
may be, ‘the yardsticks used by the court’, as Meron has noted, ‘were the
principle of distinction and the prohibition of unnecessary suffering, rather
than principles of humanity and the dictates of public conscience’.
97 Humanity
discourse thus acted as a principled smokescreen for what was in effect a
pragmatic and conservative conclusion.
Nonetheless, it is signifi cant that the Court continued to consolidate the prin-
ciple of humanity as a foundational element in the elevation of particular norms.
In this sense, the various decisions and opinions refl ect a movement towards
90 See Meron, ‘The Martens Clause’, op. cit., p. 83.
91 Nuclear Weapons , op. cit., p. 407 (Judge Shahabuddeen). It is a view far from shared by all
commentators. Writing in his academic capacity, Antonio Cassese, who otherwise
admires the judge’s reasoning, insists that the laws of humanity and dictates of the public
conscience have never been treated as distinct sources in the case law. See Cassese, op. cit.,
pp. 202–212.
92 Nuclear Weapons , op. cit., p. 257.
93 Ibid, p. 257.
94 Ibid, p. 260.
95 Ibid, p. 262.
96 Ibid, p. 263.
97 See also Cassese’s critique of the reasoning on the Martens Clause as ‘obscure’, ‘far from
illuminating’ and ‘diffi cult to grasp’, begging more questions than it answers. Cassese,
op. cit., pp. 205–207.
Elementary considerations of humanity 283
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
what Meron has famously described as the ‘humanisation’ of international
humanitarian law, inaugurated at the judicial level by the Corfu Channel case
itself. They also consolidate a simultaneously evolutionary and essentialist char-
acterization of international law. Indeed, the depictions of various layering of
norms in the judgments can become quite dizzying; a ‘standard’, for instance,
can be discerned by judges as ‘embodied’ in ‘constant’ principles which them-
selves ‘underlie’ treaty provisions, some of which are so ‘fundamental’ as to be
intransgressible.
As might be expected, the decisions of the International Criminal Tribunal
on the Former Yugoslavia (ICTY) have been a particularly fertile ground for
an elaboration of the humanization phenomenon, with elementary considera-
tions of humanity featuring prominently alongside the Martens Clause in the
elaboration of new norms and new methodologies for their identifi cation.
Most spectacularly, the seminal Tadic judgment drew upon these sources in
concluding that individual criminal responsibility during non-international
armed confl ict can arise under custom – a conclusion based on reasoning that
in turn refl ected the long-standing agenda of the presiding judge, Antonio
Cassese.
98 Again, the language is essentialist in tone. Although the Court
asserted that not all the rules applicable to international armed confl ict are
applicable to civil wars, it concluded that ‘the general essence of those rules, and
not the detailed regulation they may contain, has become applicable to
internal confl icts’.
99 More specifi cally, the Court found that:
100
elementary considerations of humanity and common sense make it prepos-
terous that the use by States of weapons prohibited in armed confl icts
between themselves be allowed when States try to put down rebellion
by their own nationals on their own territory. What is inhumane, and
consequently proscribed, in international wars, cannot but be inhumane
and inadmissible in civil strife.
Thomas Paine, one can imagine, would have been pleased by this reasoning,
not least the conjoined reference to humanity and common sense – an assump-
tion of a natural convergence of rationality and humanity which, as noted
98 T. Meron, ‘Cassese’s Tadic and the Law of Non-International Armed Confl icts’, in L.C.
Vohrah et al . (eds), Man’s Inhumanity to Man: Essays in Honour of Antonio Cassese (The
Hague: Kluwer Law International, 2003), p. 533. For a history of Cassese’s attempts to
infl uence the direction of the law of non-international armed confl ict leading up to the
decision, see T. Hoffmann, ‘The Gentle Humanizer of Humanitarian Law: Antonio
Cassese and the Creation of the Customary Law of Non-International Armed Confl icts’,
in C. Stahn and L. van den Herik (eds), Future Perspectives on International Criminal Justice
(The Hague: T.M.C. Asser Press, 2010), p. 58. Hoffmann persuasively argues that
Cassese went from progressive scholar to revolutionary judge.
99 Prosecutor v Tadic (ICTY, Case No. IT–94–1–AR72, 2 October 1995), para.126.
Emphasis added.
100 Ibid, para. 119. Emphasis added.
284 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
above, is neither logically necessary nor universally endorsed. As Cassese’s
later refl ections indicate, this commonsensical attitude (or perhaps senti-
ment?) characterized the judicial mindsets of the Tadic judges who were
singularly motivated to overturn the ‘stupid distinction’ between types of
confl ict wars.
101 The result was a decision that rewrote the rules for estab-
lishing customary international law, relaxing the approach to evidence of
State practice and placing unprecedented reliance on sometimes rather thin
opinio juris . That humanity was defi ned by reference to inhumane conduct is
similarly signifi cant. Unnecessary brutality and individual human suffering
are presented as carrying a presumption of illegality, or ‘delinquency’, to use
Judge Álvarez’s earlier evocative term. Such conduct is inherently, even
archetypically prohibited, as Jeremy Waldron might say: it offends against a
principle – or perhaps an ‘essence’ – that purportedly underpins this entire
body of law.
102 It is, of course, a small step from here to the erga omnes
jurisprudence which similarly relies upon obligations absolutely prohibited
‘by nature’.
103
The case law that was to follow in the wake of Tadic pursued a similar
humanity-focused agenda, albeit with signifi cant exceptions.
104 Importantly,
the Appeals Chamber in Celebici found that the rules and values entailed in
common Article 3 of the Geneva Conventions also found expression in inter-
national human rights law. Linked by their mutual considerations of human
101 I am indebted to Tamás Hoffmann for bringing to my attention the 2003 lecture in
which Cassese made these retrospective observations on the decision. See Hoffmann, op.
cit., p. 10. I concur with Hoffmann’s observation that Cassese’s judicial reasoning is
more radical than his academic musings in which humanity is presented as an interpre-
tative rather than norm-generative device. See Cassese, op. cit., pp. 189ff.
102 J. Waldron, ‘Torture and Positive Law’, Columbia Law Review , 105 (2005): 1723. For
Waldron, an archetype, such as the torture prohibition, makes more ‘vivid’ such a
principle. The principle of non-brutality espoused by Waldron is analogous to
humanity law’s fundamental principle that inhumane conduct is inherently prohibited.
As Hoffmann puts it, Cassese’s reasoning results in a position whereby custom prescribes
the prohibition of conduct based on its ‘inherent repulsiveness’. See Hoffman, op. cit.,
p.18.
103 See Barcelona Traction , op. cit., p. 32. Ragazzi has noted the analogous language used by
Judge Jennings in the Nicaragua case that unnotifi ed minelaying is ‘of itself’ unlawful,
noting that ‘the absolute value attached to the prohibition . . . is grounded in the very
essence of the prohibition and the values it protects’. See M. Ragazzi, ‘International
Obligations Erga Omnes : Their Moral Foundation and Criteria of Identifi cation in Light
of Two Japanese Contributions’, in G.S. Goodwin-Gill and S. Talmon (eds), The Reality
of International Law: Essays in Honour of Ian Brownlie (Oxford: Clarendon Press, 1999),
pp. 472–473.
104 The ‘imperatives of humanity’ have not always resulted in an elevation of opinio juris over
State practice, as the Appeal court noted in the Ojdanic decision where the particular
gravity or heinousness of an international crime was not considered suffi cient to establish
its customary nature. See Prosecutor v Ojdanic (ICTY, Caso No. IT–99–37–AR72, 21 May
2003), para. 42.
Elementary considerations of humanity 285
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
dignity, these two bodies of law formed the ‘basis of fundamental minimum
standards of humanity’,
105 containing a common ‘core’ of non-derogable
standards applicable at all times, in all circumstances and to all parties,
and from which no derogation was permitted.
106 The Court thus expressly
joined by way of humanity the general principle with its erga omnes
counterpart.
In cases like Tadic, Celebici, Kupreskic and their successors, humanity law
arguably reached its judicial apotheosis, courtesy of its judge practitioners.
107
International law is undoubtedly changed as a result. However, the humanity-
based reasoning has not met with universal acclaim. In addition to criticism
received from academic commentators,
108 the infl uence of cases such as Tadic
on subsequent positive norm development is chequered. As Hoffmann points
out, one response was the deliberate restriction by negotiators of the Rome
Statute of judicial discretion, and the codifi ed expression of a hierarchy of
applicable sources in Article 21.
109 The reaction of the international legal
fraternity displays an internal struggle between welcoming the commonsen-
sical result and dismay at the mechanism for achieving it. This response to the
ramifi cations of the ‘interpretative turn’ towards what Teitel calls ‘humanity
law’
110 goes to the heart of one of the most pressing dilemmas within the
discipline.
17.4 Immanent humanity unbound
The portrayal of international law as the preeminent vehicle by which to promote
fundamental normative and transformative values ‘demanded’ by humanity
continues to enjoy considerable currency among its practitioners. Theodor
Meron, discussing the nature of those dictates of public conscience by which a
Court can recognize the existence of unwritten norms, has encouraged interna-
105 Celebici (ICTY, Case No. IT–96–3–A, 20 February 2001), para. 149. As Schleutter notes,
the ICRC had used similar language in its commentary on the Additional Protocols. See
B. Schleutter (2006) Constitutionalisation at its Best or at its Worst? Lessons from the Develop-
ment of Customary International Criminal Law , Online. Available at: < http://www.esil-sedi.
eu/english/Paris_Agora_Papers/Schleutter.PDF >.
106 Celebici , op. cit., para. 149.
107 For cases invoking elementary considerations of humanity to establish the customary
character of key norms, see the cases listed by Schleutter, op. cit., p. 5 (note 27), includ-
ing Kupreskic, Celebici , and Halilovic . In Kupreskic , for instance, the Court found a prohibi-
tion on reprisals based inter alia on the imperatives of humanity. However, as Schleutter
points out, these considerations ‘were hardly ever employed on their own to evidence the
customary character of a certain norm’ (p. 5).
108 See Hoffmann, op. cit., note 160 for the many articles rejecting the reasoning with
respect to custom.
109 Ibid, p. 19.
110 R. Teitel, ‘Humanity’s Law: Rule of Law for the New Global Politics’, Cornell Interna-
tional Law Journal , 35 (2002): 355–387.
286 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
tional lawyers to ‘mold public opinion through the infusion of moderating and
humanitarian views to make it worthy of public conscience’.
111 For Meron,
‘[t]his is a challenge that we [international lawyers] cannot ignore’.
112 As seen,
some judges of the ICJ and ICTY have advanced Meron’s humanization of
humanitarian law by jurisprudential use of elementary considerations of
humanity and the dictates of public conscience. ICRC jurists have similarly
engaged in an exercise of identifying ‘fundamental standards of humanity’ to fi ll
protection gaps – a practice assisted and applauded more recently by the (then)
UN Commission on Human Rights, extending the humanity-based identifi ca-
tion program to ‘the protection of persons in all circumstances’.
113 Some scholars
have looked to the cross-fertilization potential of the humanitarian law jurispru-
dence to identify the crystallization of specifi c rights. Guy Goodwin-Gill, for
instance, has employed elementary considerations of humanity and the related
jus cogens jurisprudence to support the existence of a new State obligation to grant
asylum to a person facing breaches of their fundamental rights in their country
of origin, not least because protection of these rights must be ‘even more exacting
in peace than war’.
114 Other scholars have appealed to humanity to found moral
and legal rights of distributive justice, for instance, in the form of specifi c
obligations to alleviate poverty.
115
That human rights discourse makes use of a free-standing principle of
111 Meron, ‘The Martens Clause’, op. cit., p. 85. See also C.G. Weeramantry, Universalising
International Law (Leiden: Martinus Nijhoff, 2004), pp. 149–150, who describes the
great responsibility that falls to the ‘invisible college of international lawyers’ as the
‘keepers of the international juridical conscience’ to further the ‘international rule of law’.
112 Ibid.
113 Commission on Human Rights, Promotion and Protection of Human Rights: Fundamental
Standards of Humanity , UN ESCOR, 62nd session, Agenda Item 17, UN Doc E/
CN.4/2006/87 (3 March 2006) [29]. See also ICRC, Commentary on the Additional Proto-
cols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Norwell: Martinus
Nijhoff, 1987), p. 1340.
114 G.S. Goodwin-Gill, ‘Europe and the Right to be Granted Asylum’ (speech delivered at
Australian National University, 29 September 2010), cited with permission of author.
The right to be granted asylum appeared in René Cassin’s original draft of article 14 of
the Universal Declaration of Human Rights, but met with considerable resistance
amongst negotiators. The ‘right to seek and to enjoy’ asylum which resulted has been
criticized as not imposing a correlative duty on States to give effect to that right. See
Lauterpacht, International Law and Human Rights (New York: F. A. Praeger, 1950),
p. 422. See also G. Goodwin-Gill and J. McAdam, The Refugee in International Law
(Oxford: Oxford University Press, 2010), pp. 358–362.
115 See H. Shue, Basic Rights: Subsistence, Affl uence and US Foreign Policy (Princeton, NJ: Prin-
ceton University Press, 1996), p. 19. ‘Basic rights . . . are everyone’s minimum reasona-
ble demands upon the rest of humanity’ (p.19). See discussion of principles of humanity
and justice in S. van Hooft and W. Vandekerckhove (eds), Questioning Cosmopolitanism
(Studies in Global Justice) (Dordrecht: Springer, 2010).
116 See also I. Brownlie, Principles of Public International Law (Oxford: Clarendon Press,
1998), who noted with respect to the Universal Declaration of Human Rights that
‘some of its provisions either constitute general principles of law or represent elementary
considerations of humanity’ (p. 575).
Elementary considerations of humanity 287
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
humanity should come as no surprise.
116 At a theoretical level, an affective notion
of common shared humanity is often posited as the touchstone principle for
the universality and fundamentality of human rights.
117 The position faces very
real philosophical and practical obstacles. As Raz has persuasively argued,
deriving actual norms from attributes of a shared humanity, such as agency or
autonomy, ‘misconceives the relation between value and rights’.
118 However,
such philosophical objections do not necessarily undermine the methodology
of rights identifi cation which can now be founded upon the fl exible approach
taken by the courts themselves, as seen in the jurisprudence of the ICTY
explored above.
Humanity has also become a yardstick for international lawyers outside
these traditional fi elds, although usually where there are human rights or
humanitarian law elements at stake. Nordquist, for instance, has described
elementary considerations of humanity as underpinning the principle of
humanitarian assistance at sea.
119 Bernard Oxam has gone further, arguing that
‘the Convention [UNCLOS] as a whole seeks to advance the interests of
humanity’.
120 Again, this can be seen in judicial practice, where the principle
of humanity has been used to fi ll gaps where UNCLOS is otherwise silent, an
approach endorsed by ITLOS in the context of the use of force in the arrest of
ships. In concluding that such force must not go beyond what is reasonable
and necessary in the circumstances, the Tribunal noted, ‘[c]onsiderations of
humanity must apply in the law of the sea, as they do in other areas of interna-
tional law’.
121 International environmental lawyers have taken a similar
approach to their discipline, fi nding humanity implicated in principles
making up the explicitly anthropocentric doctrine of sustainable development.
117 See, for instance, J. Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY:
Cornell University Press, 2003). ‘Human rights would appear to have humanity or
human nature as their source’ (p. 13) and ‘the essential insight of human rights is that
the worlds we make for ourselves . . . must conform to relatively universal requirements
that rest on our common humanity’ (p. 123); John Vincent, Human Rights and
International Relations (Cambridge: Cambridge University Press, 1986), p. 13 (‘Human
rights are the rights that everyone has, and everyone equally, by virtue of their very
humanity.’)
118 J. Raz, ‘Human Rights’, in S. Besson and J. Tasioulas (eds), The Philosophy of International
Law (Oxford: Oxford University Press, 2010), p. 324. Raz’s main target is Gewirth’s
theory that humans have rights to ‘the proximate necessary conditions of human action’,
and Griffi n’s theory that rights are protections of our personhood and capacity for agency
which constitute that personhood.
119 M.H. Nordquist, The United Nations Convention on the Law of the Sea 1982: A Commentary
(The Hague: Martinus Nijhoff, 1985), p. 193.
120 B. Oxam, ‘Human Rights and the United Nations Convention on the Law of the Sea’,
Columbia Journal of Transnational Law , 36 (1998): 404.
121 M/V Saiga (No. 2) (St Vincent and the Grenadines v. Guinea) (Judgment) (ITLOS, Case No.
2, 1 July 1999), para. 155.
288 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
Intra- and inter-generational equity, the protection of cultural heritage, and
even the precautionary principle can each be read as founded upon an ‘aware-
ness of the unity of humankind” as Judge Trindade has recently claimed.
122
That ‘elementary considerations of humanity’ codifi ed in the Corfu Channel
case might have import outside the laws of war has long been claimed by
commentators, from Wright’s early view that it is the ‘animating and moti-
vating principle’ of ‘all law’,
123 to Cassese’s assertion that it ‘embraces the
whole body of international law’.
124 Yet it is in the hands of international legal
theorists that an essentialist principle of humanity has become truly unbound.
A volume of the European Journal of International Law , for instance, was recently
dedicated to a discussion of Anne Peters’ argument that humanity has super-
seded sovereignty as the fi rst principle of international law, replacing it as the
Grundnorm or Letztbegründung upon which all other aspects of international
law are ultimately based.
125 As Peters put it:
[T]he normative status of sovereignty is derived from humanity, under-
stood as the legal principle that human rights, interests, needs, and secu-
rity must be respected and promoted, and that this humanistic principle
is also the telos of the international legal system. Humanity is the A and
Ω of sovereignty.
126
This would complete what Peters insists has been a process of ‘humanisation
of sovereignty’
127 in recent times, not least evident in the discourse of humani-
tarian intervention and the theories surrounding the ‘responsibility to protect’.
The result, at the very least, is a ‘presumption’ in favour of humanity,
128 a
conclusion that marries neatly the interpretative function ascribed by Cassese
(in his writings, at least) to the Martens Clause.
The metaphor which forms the title of Peters’ article is itself revealing,
although nowhere commented upon. Drawn from a New Testament reference
122 Moiwana Village v. Suriname (Inter-American Court of Human Rights, Case No. 145, 15
June 2005), para. 23 (Judge Trindade). Judge Trindade borrowed the phrase from the
Preamble and Article 1 of the 2001 Universal Declaration on Cultural Diversity.
123 Wright, ‘Foreword’, op. cit., p. xiii.
124 By contrast, Cassese describes the Martens Clause as a sort of lex specialis vis-à-vis the
general principle. See Cassese, op. cit., p. 213.
125 A. Peters, ‘Humanity as the A and Ω of Sovereignty’, European Journal of International
Law , 20 (2009): 513–544.
126 Ibid, p. 514.
127 Ibid.
128 A not dissimilar attitude was adopted by Justice Higgins in her dissent in the Nuclear
Weapons advisory opinion in which she argued that where there are competing norms,
the ‘judicial lodestar . . . must be those values that international law seeks to promote
and protect. In the present case, it is the physical survival of peoples that we must con-
stantly have in view’. See Nuclear Weapons , op. cit., p. 592 (Judge Higgins).
129 See Book of Revelation, 22:13 (King James Version): ‘I am Alpha and Omega, the
beginning and the end, the fi rst and the last.’
Elementary considerations of humanity 289
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
to the place of Christ in the universe,
129 it evokes a quasi-theological and
Christian natural law of an immanent humanity.
130 For those suspicious of
humanity-law’s implicit Judaeo-Christian and Eurocentric bias, such a refer-
ence is perhaps unfortunate. Nonetheless, as seen, it draws upon a healthy
tradition, from the ‘universal morality’ of the slave trade treaties to Petitpierre’s
‘higher impartial plane of pure humanity’.
Such formulations also sit alongside the now abundant literature positing
the existence of a new constitutional, cosmopolitan international law espoused
by scholars such as Tomuschat, Simma and Slaughter.
131 At the risk of being
reductionist, the constitutionalism project is loosely based on what Habermas
has called the juridifi cation (to use another contentious term) of international
relations
132 through which sovereign power is restrained by law and its core
values. For some, this constitutionalization was the deeper agenda of the
ICTY judges in their invocation of elementary considerations of humanity
and the dictates of public conscience, refl ecting the juristic use of certain
humanizing principles which ‘exist on a hierarchically higher level than other
norms of international law’ and from which other norms can legitimately be
derived.
133 In this sense, it is arguable that in the Corfu Channel, Nicaragua and
Tadic cases, bolstered by the strong dissents in the Nuclear Weapons advisory
opinion, judges helped establish ‘the structural principle of unnecessary
suffering’ as a constitutional norm in the emerging international order.
134
The Corfu Channel case formulation itself, despite its ambiguities and
130 The OED explains that ‘immanent’, in the sense of ‘indwelling, inherent’, is ‘in recent
philosophy applied to the Deity regarded as permanently pervading and sustaining the
universe’. A similar Stoic-Christian view of mankind as forming a moral-legal unity is a
foundational concept in natural law. See, for instance, Simma, ‘The Contribution of
Alfred Verdross’, op. cit.
131 See B. Simma, ‘From Bilateralism to Community Interest in International Law’, Recueil
des Cours , 250 (1994): 221; C. Tomuschat, ‘International Law: Ensuring the Survival of
Mankind on the Eve of a New Century, General Course on Public International Law’,
Recueil des Cours , 281 (1999): 9–438. This development is variously described in the lit-
erature. The diversity of views is found in R. Macdonald and D. Johnston (eds), Towards
World Constitutionalism: Issues in the Legal Ordering of the World Community (Leiden:
Martinus Nijhoff, 2005) and J.L. Dunoff and J.P. Trachtman (eds), Ruling the World?
Constitutionalism, International Law, and Global Governance (Cambridge: Cambridge
University Press, 2009). See discussion of critiques of these trends in J. Cohen, ‘Empire
Versus International Law’, in C. Barry and T. Pogge (eds), Global Institutions and
Responsibilities: Achieving Global Justice (Oxford: Blackwell Publishing, 2005).
132 See L. Blichner and A. Molander, ‘Mapping Juridifi cation’, European Law Journal , 14
(2008): 36–54.
133 See Schleutter, op. cit., p. 5. See also Hoffmann’s analysis of Cassese’s view of post-
World War II international law as ‘idealistic’, refl ecting ‘the need to transform relations
as they now stand and proclaim a duty to do more than merely consecrate things as they
are’ (p. 5, citing A. Cassese, Violence and Law in the Modern Age (Princeton, NJ: Princeton
University Press, 1988, p. 4)).
134 N. Tsagourias, Transnational Constitutionalism: International and European Models
(Cambridge: Cambridge University Press, 2007), p. 78.
290 Matthew Zagor
1
2
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
1
2
2
2
2
2
2
2
2
2
2
3
3
3
3
3
3
3
3
3
3
4
4
4
4
4
4
inconclusiveness, thus fi nds resonance at several universalist levels. Indeed, for
Nicholas Tsagourias, the elementary considerations of humanity expressed by
the ICJ is a ‘normative-ideational’ constitutional principle, encapsulating the
values and goals, and refl ecting the ‘creator spirit’ and raison d’être behind the
international legal order.
135
This elevation of humanity can be seen as merely a continuation (or perhaps
revival) of the same Kantian Victorianism that gave birth to humanity as a
normative legal principle in the fi rst place. After all, many contemporary inter-
national lawyers see themselves as both responding to progress in human civili-
zation, and attempting to shape its direction through the values inherent in the
law. This explains in part why the Martens Clause and the general principle are
described by writers and judges using expressions such as dynamic, evolving,
motivating, animating, essentialist, fundamental, protecting basic values,
intrinsically worthy, and even constitutional. As Koskenniemi has observed,
while realism has injected a certain level of discomfort when we speak in ‘the
(paternalistic) language of the “harmony of interests” ’, nonetheless ‘interna-
tional law remains one of the few bastions of Victorian objectivism, liberalism
and optimism’.
136 And hand-in-glove with this Victorian theme is the affective,
rhetorical aspect of humanity – the ‘sentiment’ which Judge Álvarez espoused,
generated out of ‘universal juridical conscience’ and the ‘demands’ of the inter-
national community. The persuasive impact of humanity is not to be underesti-
mated or too readily delegitimized. As Meron noted with respect to the Martens
Clause formula, its ‘rhetorical and ethical code words’ exert a ‘strong pull toward
normativity’.
137 After all, as Hume (and more recently Richard Rorty) recog-
nized, appeals to common humanity retain that motivating ethical element
which appeals to common rationality lack.
138 In this sense, an effective principle
of humanity both incorporates and necessitates a sentiment of empathy.
Just as the international constitutionalism movement has been the target of
those suspicious of European normative hegemony, so has contemporary
humanity-law met with considerable opposition. Some target the distillation
and reifi cation of a free-standing, norm-generative principle and its unsettling
effect on traditional legal categories. For others, humanity law in the guise of
constitutionalism represents an attempt to universalize a specifi cally European
135 Ibid, p. 76.
136 Koskenniemi, The Gentle Civilizer of Nations , op. cit., p. 360. For an examination of the
systemic continuity between contemporary international constitutionalism and nine-
teenth-century international legal thought, and the centrality to each of a narrative of
progress, see R. Collins, ‘Constitutionalism as Liberal-Juridical Consciousness: Echoes
from International Law’s Past’, Leiden Journal of International Law , 2 (2009): 251–287.
137 Meron, ‘The Martens Clause’, op. cit., p. 89.
138 Referring to the ‘manipulation of sentiment’, Rorty notes: ‘Most people are simply
unable to understand why membership in a biological species is supposed to suffi ce for
membership in a moral community’. See R. Rorty, ‘Human Rights, Rationality and
Sentimentality’, in O. Savic and B. Krug (eds) The Politics of Human Rights (London:
Verso, 1999), p. 75.
Elementary considerations of humanity 291
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
6
7
8
9
0
1
2
3
4
5
legal paradigm. Commentators have also attempted to explain the trend struc-
turally by reference to questions of unity and disunity in the discipline. Thus,
for Martineau, the move towards a teleological international law ‘directed
towards the greater fulfi lment of mankind’ evident in international cosmo-
politanism and constitutionalism is a response to the ‘post-modern anxiety’ of
fragmentation.
139 The most strident criticisms draw upon the tradition of
Proudhon and Bentham. Just as these nineteenth-century thinkers distrusted
the humanity-based rhetoric of their age, so do critics of constitutional cosmo-
politanism – especially as manifested in humanitarian intervention – see it as
one of a related set of ‘deformalised mechanisms by which empire aims to rule
(and to legitimate its rule) rather than ways to limit and orient power by
law’.
140 Koskenniemi’s more recent return to formalism betrays a similar
distrust.
141 Complemented by Schmitt’s portrayal of humanity as an ‘asym-
metrical counter concept’ allowing States to usurp universal concepts against
the inhumane ‘enemy’, these concerns retain their resonance.
Regardless of the ultimate impact of these critiques and caveats, what is
undeniable is that the principle espoused 60 years ago in such laconic terms
foreshadowed debates that go to the heart of the nature and function of the
discipline of international law, and the motivation of its practitioners. For its
adherents, considerations of humanity are truly ‘elementary’,
142 and the
Court’s decision itself a seminal constitutional moment.
143 By linking general
principles of international law to a foundational, essentialist and affective
notion of humanity, the Court injected an ideological and empathetic element
into this rather amorphous source of law. It took general principles, to borrow
the words of Judge Tanaka in his dissent in the South West Africa cases, ‘beyond
the limit of legal positivism’, thus providing them with ‘a supra-national and
supra-positive character’.
144 Contemporary debates are merely commentaries
on the Court’s original formulation of this ‘well-recognized’ principle.
139 See Martineau, op. cit., pp. 5–6, who argues that the ‘constitutionalist vocabulary’ helps
‘soothe the anxiety over fragmentation’, and that the ‘cosmopolitan narrative . . .
respond[s] to perceptions of chaos by further reliance on the universal teleology’. See also
M. Koskenniemi and P. Leino, ‘Fragmentation of International Law? Postmodern Anxie-
ties’, Leiden Journal of International Law , 15 (2002): 553–579.
140 J. Cohen, ‘Empire Versus International Law’, in C. Barry and T. Pogge (eds) Global Insti-
tutions and Responsibilities: Achieving Global Justice (Oxford: Blackwell Publishing, 2005),
p. 160. For Cohen’s view on Schmitt, see p. 162.
141 Koskenniemi, From Apology to Utopia , op. cit.
142 The Oxford English Dictionary defi nes ‘elementary’ as ‘[o]f the nature of an (absolutely or
relatively) ultimate constituent’.
143 The term, common in constitutional history, is used in the cosmopolitan context in
A. Slaughter and W. Burke-White, ‘An International Constitutional Moment’, Harvard
International Law Journal , 43 (2002): 1–22. See discussion and critique in J. Cohen, ‘Sov-
ereignty in the Context of Globalization: A Constitutional Pluralist Perspective’, in
S. Besson and J. Tasioulas (eds), The Philosophy of International Law (Oxford: Oxford
University Press, 2010), pp. 268–272.
144 South West Africa , op. cit., p. 298 (Judge Tanaka).
