Construction of The International Law For Humankind (335-439)

335
PART V
CONSTRUCTION OF THE INTERNATIONAL LAW FOR

HUMANKIND
CHAPTER XII
CONCEPTUAL CONSTRUCTIONS : JUS COGENS AND

OBLIGATIONS ERGA OMNES
I. Introduction : Fundamental Values of the International

Community
The new jus gentium of our days, the International Law for
humankind, already counts on some conceptual achievements. The
fact that the concepts both of the jus cogens and of the obligations
(and rights) erga omnes already integrate the conceptual universe of
International Law discloses the reassuring and necessary opening of
this latter, in the last decades, to certain superior and fundamental
values. This significant evolution of the recognition and assertion of
norms of jus cogens and obligations erga omnes of protection is to
be fostered, seeking to secure their full practical application, to the
benefit of all human beings. In this way the universalist vision of the
founding fathers of the droit des gens is being duly rescued. Other
concepts have also found expression in the emerging International
Law for humankind, such as, for example, those of common heritage
of mankind and common concern of mankind ; and others emerge
with the new jus gentium of this beginning of the twenty-first cen-
tury, such as that of universal jurisdiction. These new conceptions
impose themselves in our days, and, of their faithful observance, will
depend to a large extent the future evolution of contemporary
International Law.
This latter does not emanate from the inscrutable “will” of the
States, but rather, in my view, from human conscience. General or
customary International Law emanates not so much from the practice
of States (not devoid of ambiguities and contradictions), but rather
from the opinio juris communis of all the subjects of International
Law (States, international organizations, human beings, peoples, and
336 A. A. Cançado Trindade
humankind as a whole). Above the will stands the conscience. The

fact that, despite all the sufferings of past generations, there persist
in our days new forms of exploitation of man by man — illustrated
by the increasing disparities among and within nations, amidst
chronic and growing poverty, uprootedness, social exclusion and
marginalization — does not mean that “regulation is lacking” or that
Law does not exist to remedy or reduce such man-made imbalances.
It rather means that Law is being ostensibly and flagrantly violated,
from day to day, to the detriment of millions of human beings.
The current process of the necessary humanization of Inter-
national Law stands in reaction to that state of affairs. It bears in
mind the universality and unity of the human kind, which inspired,
more than four and a half centuries ago, the historical process of for-
mation of the droit des gens. In rescuing the universalist vision
which marked the origins of the most lucid doctrine of International
Law, the aforementioned process of humanization contributes to the
construction of the new jus gentium of the twenty-first century,
oriented by the general principles of law. This process is enhanced
by its own conceptual achievements, such as, to start with, the
acknowledgment and recognition of jus cogens and the consequent
obligations erga omnes of protection, followed by other concepts
disclosing likewise a universalist perspective of the law of nations.
II. International Jus Cogens (Peremptory Norms of General

International Law)
1. Emergence and content of jus cogens

The emergence and assertion of jus cogens in contemporary
International Law fulfil the necessity of a minimum of verticaliza-
tion in the international legal order, erected upon pillars in which the
juridical and the ethical are merged. The evolution of the concept of
jus cogens transcends nowadays the ambit of both the law of treaties
and the law of the international responsibility of the States, so as to
reach general International Law and the very foundations of the
international legal order 1182.
1182. Inter-American Court of Human Rights (IACtHR), Advisory Opinion

No. 18, on The Juridical Condition and the Rights of the Undocumented
Migrants (of 17.9.2003), paras. 98-99, and Concurring Opinion of Judge
A. A. Cançado Trindade, paras. 65-67.
General Course on Public International Law 337
Jus cogens was definitively incorporated into the conceptual uni-

verse of contemporary International Law as from the inclusion,
among the bases of invalidity and termination of treaties, of the
peremptory norms of general International Law, in Articles 53 and
64 of the Vienna Convention of 1969 on the Law of Treaties 1183. The
Convention set forth the concept of jus cogens, without thereby
adopting the thesis — defended in the past by A. McNair 1184 — that
a treaty could generate a regime of objective character erga omnes in
derogation of the classic principle pacta tertiis nec nocent nec pro-
sunt 1185. The concept seems to have been recognized by the Vienna
Convention of 1969 as a whole ; if this latter did not adopt the notion
of treaties establishing “legal regimes of objective character”, on the
other hand it set forth the concept of jus cogens 1186, i.e., of peremp-
tory norms of general International Law 1187. The provisions on jus
1183. More than three decades earlier, the expression “jus cogens” was uti-
lized by Judge Schücking, in his well-known Separate Opinion in the Oscar
Chinn case (United Kingdom v. Belgium) ; Permanent Court of International
Justice (PCIJ), Series A/B, No. 63, 1934, pp. 148-150, esp. p. 149. One year
later, in his course at the Hague Academy of International Law, Alfred Verdross
also utilized the expression “jus cogens”, and referred himself to the aforemen-
tioned Separate Opinion of Judge Schücking ; cf. A. Verdross, “Les principes
généraux du droit dans la jurisprudence internationale”, 52 RCADI (1935),
pp. 206 and 243.
1184. Cf. A. D. McNair, “Treaties Producing Effects ‘Erga Omnes’ ”, in
Scritti di Diritto Internazionale in Onore di T. Perassi, Vol. II, Milan, Giuffrè,
1957, pp. 23-36.
1185. It may be addded that, during the travaux préparatoires of the
Convention undertaken by the UN International Law Commission (ILC), the
notion of “community interest” was made present : at first utilized by J.-M.
Yepes in 1950, the idea was later to appear in the first report by J. L. Brierly (the
first rapporteur on the subject), and in the first report by H. Lauterpacht (the
second rapporteur), the became absent from the reports by G. Fitzmaurice (the
third rapporteur), and reappeared at last in the second report by H. Waldock
(the fourth and last rapporteur on the matter) ; S. Rosenne, “Bilateralism
and Community Interest in the Codified Law of Treaties”, in Transnational Law
in a Changing Society — Essays in Honour of Ph. C. Jessup (ed. W. Fried-
mann, L. Henkin and O. Lissitzyn), New York, London, Columbia University
Press, 1972, pp. 207, 212-219 and 226-227 ; and cf. Ph. Cahier, “Le problème
des effets des traités à l’égard des Etats tiers”, 143 RCADI (1974), pp. 589-
736.
1186. For an historical account of the concept, going back to the old Roman
law, but reappearing mainly as from the nineteenth century, cf. J. Sztucki, Jus
Cogens and the Vienna Convention on the Law of Treaties — A Critical
Appraisal, Vienna, Springer-Verlag, 1974, pp. 6-11 and 97-108.
1187. The term, as such, appeared for the first time in the third report by
G. Fitzmaurice, and was again to appear in the second report by H. Waldock ;
J. Sztucki, op. cit. supra footnote 1186, pp. 104-105 and 108. On the criteria for
the determination of the rules of International Law which could constitute jus
cogens, cf. I. M. Sinclair, “Vienna Conference on the Law of Treaties”, 19
cogens became the object of analysis of a wide specialized biblio-

graphy 1188.
The notion of jus cogens seems to have been recognized by the
Vienna Convention as a whole, thus transcending the old exclusively
bilateralist approach in its application. Even before the Vienna
Conference on the Law of Treaties of 1968-1969, in the debates of
1963 and 1966 of the VI Committee of the UN General Assembly,
it became clear that the majority of the jusinternationalists of
the developing countries and of the countries of Eastern Europe
attributed great importance to the concept of jus cogens, the same
occurring during the Conference, in which there was not much oppo-
sition to the concept, although the Delegations mainly of the Western
countries cautiously insisted on the need for some criteria for the
determination of the rules of International Law which constituted jus
cogens 1189.
As to the evolving question of the discernible contents of jus
cogens, it may be recalled that a comment of the UN International
Law Commission (ILC), in its travaux préparatoires on the law of
treaties, suggested, as being incompatible with the rules of jus
cogens, treaties which contemplated the illicit use of force (contrary
International and Comparative Law Quarterly (1970), pp. 66-69 ; I. M. Sinclair,

The Vienna Convention on the Law of Treaties, Manchester, University Press,
Oceana, 1973, pp. 124-129, and cf. pp. 129-131.
1188. Cf., e.g., Ch. L. Rozakis, The Concept of Jus Cogens in the Law of
Treaties, Amsterdam, North Holland Publ. Co., 1976, pp. 1-194 ; Ch. De
Visscher “Positivisme et jus cogens”, 75 Revue générale de droit international
public (1971), pp. 5-11 ; M. Virally, “Réflexions sur le jus cogens”, 12 Annuaire
français de droit international (1966), pp. 5-29 ; A. Verdross, “Jus dispositivum
and Jus Cogens in International Law”, 60 American Journal of International
Law (AJIL) (1966), pp. 55-63 ; J. A. Barberis, “La liberté de traiter des Etats et
le jus cogens”, 30 Zeitschrift für ausländisches öffentliches Recht und
Völkerrecht (ZfaoRuV) (1970), pp. 19-45 ; U. Scheuner, “Conflict of Treaty
Provisions with a Peremptory Norm of International Law”, 27 and 29 ZfaoRuV
(1967 and 1969), pp. 520-532 and 28-38, respectively ; H. Mosler, “Ius cogens
im Völkerrecht”, 25 Schweizerisches Jahrbuch für internationales Recht (1968),
pp. 1-40 ; K. Marek, “Contribution à l’étude du jus cogens en droit interna-
tional”, in Recueil d’études de droit international en hommage à P. Guggen-
heim, Geneva, IUHEI, 1968, pp. 426-459 ; M. Schweitzer, “Ius cogens im
Völkerrecht”, 15 Archiv des Völkerrechts (1971), pp. 197-223 ; G. Gaja, “Jus
Cogens beyond the Vienna Convention”, 172 RCADI (1981), pp. 279-313 ;
L. Alexidze, “Legal Nature of Jus Cogens in Contemporary International Law”,
in ibid., pp. 227-268 ; and other sources referred to in footnotes 1192, 1205,
1211, 1212, 1216, 1218, 1224 and 1238.
1189. I. M. Sinclair, “Vienna Conference . . .”, op. cit. supra footnote 1187,
pp. 66-69 ; I. M. Sinclair, The Vienna Convention . . ., op. cit. supra foot-
note 1187, pp. 124-129.
to the principles of the UN Charter), or any other criminal act under

International Law (slave trade, piracy, genocide) 1190. And already in
an Advisory Opinion of 1951, on the Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide, the
ICJ pointed out that the humanitarian principles underlying that
Convention were recognizedly “binding on States, even without any
conventional obligation” 1191.
One and a half decades later, the concept of jus cogens was again
set forth in the Vienna Convention on the Law of Treaties between
States and International Organizations or between International
Organizations (1986) ; in my intervention in the United Nations
Conference which adopted it (debates of 12 March 1986 in Vienna),
I saw fit to warn as to the manifest incompatibility with the concept
of jus cogens of the voluntarist conception of International Law 1192,
which appeared incapable to explain even the formation of rules of
general International Law and the incidence in the process of forma-
tion and evolution of contemporary International Law of elements
independent of the “free will” of the States 1193. With the assertion of
jus cogens in the two Vienna Conventions on the Law of Treaties
(1969 and 1986), the next step consisted in determining its incidence
beyond the law of treaties.
2. Evolving scope of jus cogens

On my part, I have always sustained that it is an ineluctable con-
sequence of the affirmation and the very existence of peremptory
norms of International Law their not being limited to the conven-
tional norms, to the law of treaties, and their being extended to every
1190. Cit. in I. M. Sinclair, The Vienna Convention . . ., op. cit. supra foot-
note 1187, pp. 121-122, and cf. pp. 130-131 ; cf. also accounts in S. P. A. Ferrer,
“Los conceptos de ius cogens y ius dispositivum y la labor de la Comisión de
Derecho Internacional”, 21 Revista Española de Derecho Internacional (1968),
pp. 763-780 ; E. Schwelb, “Some Aspects of International Ius Cogens as
Formulated by the International Law Commission”, 61 AJIL (1967), pp. 946-
975.
1191. ICJ, Advisory Opinion of 28 May 1951, ICJ Reports 1951, p. 23.
1192. Cf. United Nations, United Nations Conference on the Law of Treaties
between States and International Organizations or between International
Organizations (Vienna, 1986) — Official Records, Vol. I, New York, United
Nations, 1995, pp. 187-188 (intervention by the Deputy Head of the Delegation
of Brazil, A. A. Cançado Trindade).
1193. A. A. Cançado Trindade, “The Voluntarist Conception of International
Law : A Re-Assessment”, 59 Revue de droit international de sciences diploma-
tiques et politiques, Geneva (1981), pp. 201-240.
and any juridical act 1194. Recent developments point out in the same
sense, that is, that the domain of the jus cogens, beyond the law of
treaties, encompasses likewise general International Law 1195. In my
Concurring Opinion in the Advisory Opinion No. 18 (of 17 Sep-
tember 2003) of the Inter-American Court of Human Rights
(IACtHR), on The Juridical Condition and the Rights of Undocu-
mented Migrants, I sustained my understanding that the jus cogens is
not a closed juridical category, but rather one in evolution and
expansion (paras. 65-73). In sum,
“the domain of the jus cogens, beyond the law of treaties,
encompasses likewise general International Law. Moreover, the
jus cogens, in my understanding, is an open category, which
expands itself to the extent that the universal juridical con-
science (material source of all Law) awakens for the necessity
to protect the rights inherent to each human being in every and
any situation.
. . . The absolute prohibition of the practices of torture, of
forced disappearance of persons, and of summary and extra-
legal executions, leads us decidedly into the terra nova of the
international jus cogens.” (Paras. 68-69.)
And I concluded, in this respect, in the same aforementioned
Concurring Opinion, that
“The concept of jus cogens in fact is not limited to the law
of treaties, and is likewise proper to the law of the international
responsibility of the States. The Articles on the Responsibility
of the States, adopted by the International Law Commission of
the United Nations in 2001, bear witness of this fact. . . . In my
understanding, it is in this central chapter of International Law,
that of the international responsibility (perhaps more than in the
chapter on the law of treaties), that the jus cogens reveals its
real, wide and profound dimension, encompassing all juridical
1194. Cf. A. A. Cançado Trindade, Tratado de Direito Internacional dos

Direitos Humanos, Vol. II, Porto Alegre, Brazil, S.A. Fabris Ed., 1999, pp. 415-
416 ; IACtHR, Advisory Opinion No. 18, on The Juridical Condition and the
Rights of the Undocumented Migrants (of 17.9.2003), Concurring Opinion of
Judge A. A. Cançado Trindade, paras. 68-73.
1195. For the extension of jus cogens to all possible juridical acts, cf., e.g.,
E. Suy, “The Concept of Jus Cogens in Public International Law”, in Papers and
Proceedings of the Conference on International Law (Langonissi, Greece, 3-
8.4.1966), Geneva, CEIP, 1967, pp. 17-77.
acts (including the unilateral ones), and having an incidence

(including beyond the domain of State responsibility) on the
very foundations of an International Law truly universal.”
(Para. 70.)
Besides this horizontal expansion, jus cogens is also expanding in
a vertical dimension, of the interaction between the international and
national legal orders in the present domain of protection. The effect
of jus cogens, in this second (vertical) level, has been in the sense of
invalidating every and any legislative, administrative or judicial
measure that, at the level of the domestic law of the States, attempts
to authorize or tolerate torture 1196. Jus cogens has further been
invoked to secure the absolute prohibition of violation of funda-
mental rights of the human person 1197.
Jus cogens was thus expressly referred to — in connection with
superior values shared by the international community — in the
travaux préparatoires of the 1985 Inter-American Convention to
Prevent and Punish Torture 1198. The absolute prohibition of forced
disappearance of persons was insisted upon in the preparatory work
of the 1994 Inter-American Convention on Forced Disappearance of
Persons 1199. This reassuring development has led to the emergence
of a true international legal regime against torture, forced disappear-
ances of persons, extra-legal and arbitrary and summary executions,
and illegal and arbitrary detentions 1200.
As far as international case-law is concerned, two international
tribunals which, in recent years, have considerably contributed to the
development of the material content of the international jus cogens
have been the IACtHR and the ad hoc International Criminal
Tribunal for the former Yugoslavia (ICTFY). In conformity with the
1196. Cf. E. de Wet, “The Prohibition of Torture as an International Norm of

Jus Cogens and Its Implications for National and Customary Law”, 15 European
Journal of International Law (2004) pp. 98-99.
1197. A. A. Cançado Trindade, Tratado de Direito Internacional . . ., Vol. II,
op. cit. supra footnote 1194, p. 415.
1198. Cf. OAS/GA, Asamblea General de la OEA — XV Período Ordinario
de Sesiones (Cartagena, Colombia), Actas y Documentos, Vol. II, Part II,
Washington DC, OAS General Secretariat, 1985, p. 113.
1199. Cf. OAS/PC, Informe del Presidente del Grupo de Trabajo Encargado
de Analizar el Proyecto de Convención Interamericana sobre Desaparición
Forzada de Personas, OAS doc. OEA/Ser.G/CP/CAJP-925/93/rev.1, of 25.1.
1994, pp. 3-23.
1200. A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
Humanos, Vol. II, op. cit. supra footnote 1194, pp. 345-358.
Judgments of the IACtHR in the cases Cantoral Benavides v. Peru

(18 August 2000), Maritza Urrutia v. Guatemala (27 November
2003), Brothers Gómez Paquiyauri v. Peru (08 July 2004), and
Tibi v. Ecuador (07 September 2004), the understanding is sustained
that torture, inhuman treatment and extra-judicial executions are in
breach of the jus cogens ; furthermore, in accordance with the exten-
sive reasoning of the IACtHR in its historical Advisory Opinion
No. 18 on the Juridical Condition and Rights of Undocumented
Migrants (17 September 2003), the understanding is advanced that
the fundamental principle of equality and non-discrimination has
entered into the domain of the jus cogens 1201.
And pursuant to the decisions of the ICTFY (Trial Chambers), for
example, in the cases Furundzija (10 December 1998), Jelisic
(14 December 1999), Kupreskic and Others (14 January 2000),
Kunarac (22 February 2001) and Krstic (2 August 2001), the under-
standing is maintained that genocide, torture and attacks against
civilians in armed conflicts are in breach of the jus cogens 1202 ; the
ICTFY (Trial Chamber II) reiterated its position, as to the prohibi-
tion — of conventional and customary law — of torture as being
of jus cogens, in the Simic case (Judgment of 17 October 2002,
para. 34). In the Furundzija case, the ICTFY (Trial Chamber) sus-
tained that the absolute prohibition of torture, under conventional and
customary International Law — having the character of jus cogens,
and generating obligations erga omnes 1203 —, was so absolute that it
had incidence not only on actual, but also potential, violations 1204.
This jurisprudential assertion of prohibitions of jus cogens has
taken place in pursuance of the superior and fundamental values to
1201. Paragraphs 97-101 ; and cf., for a recent general study, e.g., A. A.
Cançado Trindade, “The Case-Law of the Inter-American Court of Human
Rights : An Overview”, in Studi di Diritto Internazionale in Onore di Gaetano
Arangio-Ruiz, Vol. III, Naples, Ed. Scientifica, 2004, pp. 1873-1898.
1202. Cf., e.g., F. Harhoff, “La consécration de la notion de jus cogens dans
la jurisprudence des tribunaux pénaux internationaux”, in Actualité de la
jurisprudence pénale internationale à l’heure de la mise en place de la Cour
pénale internationale (eds. P. Tavernier and C. Renaut), Brussels, Bruylant,
2004, pp. 65-80.
1203. Paras. 137-139, 144 and 160, and cf. paras. 151 and 153-154.
1204. On this last point, cf. the Judgment of the European Court of Human
Rights (ECtHR) in the Soering v. United Kingdom case (1989, paras. 144 and
148). And, on the practice under the UN Covenant on Civil and Political Rights,
cf. F. Pocar, “Patto Internazionale sui Diritti Civili e Politici ed Estradizione”, in
Diritti dell’Uomo, Estradizione ed Espulsione — Atti del Convegno di Ferrara
(1999) per Salutare G. Battaglini (ed. F. Salerno), Padua, Cedam, 2003, pp. 89-
90.
be protected, shared by the international community as a whole,

from which no derogation or diversion is allowed. The significant
jurisprudential contributions, in recent years, particularly of the
IACtHR and the ICTFY on the matter at issue, are oriented in the
correct direction, but there still remains of course a long way to go in
the gradual determination of the material content of the jus cogens.
The concept of jus cogens is in fact not limited to the law of
treaties, and is likewise proper to the law of the international respon-
sibility of the States. The Articles on the Responsibility of the States,
adopted by the ILC of the United Nations in 2001, bear witness of
this fact. Among the passages of such Articles and their comments
which refer expressly to jus cogens, there is one in which it is
affirmed that “various tribunals, national and international, have
affirmed the idea of peremptory norms in contexts not limited to the
validity of treaties” 1205.
To the international objective responsibility of the States corre-
sponds necessarily the notion of objective illegality 1206 (one of the
elements underlying the concept of jus cogens). In our days, no one
would dare to deny the objective illegality of acts of genocide, of
systematic practices of torture, of summary and extra-legal execu-
tions, and of forced disappearance of persons — practices which
represent crimes against humanity — condemned by the universal
juridical conscience 1207, parallel to the application of treaties.
In its Judgment of 11 July 1996, in the case concerning the
Application of the Convention an the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), the
ICJ affirmed that the rights and obligations set forth in that
Convention were “rights and duties erga omnes” 1208. And, already in
its Advisory Opinion of 1951 on the Reservations to the Convention
against Genocide, the ICJ pointed out that the humanitarian princi-
ples underlying that Convention were recognizedly “binding on
States, even without any conventional obligation” 1209.
1205. J. Crawford, The International Law Commission’s Articles on State
Responsibility — Introduction, Text and Commentaries, Cambridge, University
Press, 2002, p. 188, and cf. pp. 246 and 127-128.
1206. In its Advisory Opinion of 21.6.1971 on Namibia, the ICJ in fact
referred itself to a situation which it characterized as “illegal erga omnes” ; ICJ
Reports 1971, p. 56, para. 126.
1207. IACtHR, case Blake v. Guatemala (Merits), Judgment of 24.1.1998,
Separate Opinion of Judge A. A. Cançado Trindade, para. 25, and cf. paras. 23-24.
1208. ICJ Reports 1996, p. 616, para. 31.
1209. ICJ, Advisory Opinion of 28 May 1951, ICJ Reports 1951, p. 23.
Just as, in the ambit of the International Law of Refugees, the

basic principle of non-refoulement was recognized as being of jus
cogens 1210, in the domain of the International Law of Human Rights
the character of jus cogens of the fundamental principle of equality
and non-discrimination was likewise recognized. The objective
illegality is not limited to the aforementioned acts and practices.
As jus cogens is not a closed category (supra), I understand, further-
more, that no one would dare to deny that, for example, slave work,
and the persistent denial of the most elementary guarantees of the
due process, of law would likewise affront the universal juridical
conscience, and effectively collide with, and are in breach of, the
peremptory norms of the jus cogens. All this doctrinal evolution
points to the direction of the crystallization of the obligations erga
omnes of protection ; without the consolidation of such obligations
one will advance very little in the struggle against the violations of
human rights.
Manifestations of international jus cogens mark presence in the
very manner whereby human rights treaties have been interpreted
and applied : the restrictions, foreseen in them, to the human rights
they set forth, are restrictively interpreted, safeguarding the rule of
law, and demonstrating that human rights do not belong to the
domain of jus dispositivum, and cannot be considered as simply
“negotiable” 1211 ; on the contrary, they permeate the international
legal order itself. In sum and conclusion on the point under exami-
nation, the emergence and assertion of jus cogens evoke the notions
of international public order and of a hierarchy of legal norms, as
well as the prevalence of the jus necessarium over the jus volun-
tarium ; jus cogens presents itself as the juridical expression of
the very international community as a whole, which, at last, takes
conscience of itself, and of the fundamental principles and values
which guide it 1212.
1210. Cf. J. Allain, “The Jus Cogens Nature of Non-Refoulement”, 13 Inter-

national Journal of Refugee Law (2002), pp. 538-558.
1211. J. A. Pastor Ridruejo, “La Convención Europea de los Derechos del
Hombre y el ‘Jus Cogens’ Internacional”, in Estudios de Derecho Internacional
— Homenaje al Profesor Miaja de la Muela, Vol. I, Madrid, Ed. Tecnos, 1979,
pp. 581-590.
1212. A. Gómez Robledo, El Jus Cogens Internacional (Estudio Histórico
Crítico), Mexico, UNAM, 1982, pp. 20-21, 222-223 and 226, and cf. p. 140 ;
and cf. also R. St. J. Macdonald, “Fundamental Norms in Contemporary
International Law”, 25 Annuaire canadien de droit international (1987),
pp. 133-134, 140-142 and 148.
3. Jus cogens as a pillar of the new jus gentium, the International

Law for humankind
Jus cogens, nowadays established well beyond the law of treaties,

is a conceptual construction which occupies a central position in the
new jus gentium, the International Law for humankind. It has met
with judicial recognition of contemporary international tribunals,
and in greater depth in the case-law of the IACtHR and of the
ICTFY (cf. supra). Jus cogens appears indeed as a pillar of the new
jus gentium, the International Law for humankind. Jus cogens, iden-
tified with general principles of law of material order 1213, serves the
superior interests of the international community as a whole 1214 ;
such interests, in turn, find expression in the peremptory norms of
International Law (jus cogens), emanating from the universal juri-
dical conscience in each historical moment, and paving the way for
the construction of a new jus gentium, the International Law for
humankind. Jus cogens exists indeed for the benefit of human
beings, and ultimately of humankind.
Throughout the years, this has been acknowledged in different
parts of the world and distinct cultural milieux, pointing to the con-
struction of a universalist International Law, the new jus gentium of
our times. Thus, to the late Cuban jurist M. A. D’Estéfano Pisani, for
example, the concept of jus cogens, rooted in natural law, reflects the
juridical achievements of humankind ; it warns States as to the need
to abide by fundamental principles and peremptory norms, depriving
of legitimacy any act or situation (ensuing from the law of treaties or
customary law) incompatible with them 1215. In a similar line of rea-
soning, the Chinese jurist Li Haopei criticized positivists for having
attempted to base International Law on a mere assumption, State
consent, which was nothing but a “layer of loose sand”, for, if it
were really so, International Law would cease to be effective when-
ever States withdrew their consent. He further criticized the attitude
of positivists of intentionally ignoring or belittling the value of
general principles of law, and held that peremptory norms of
1213. Cf. Chap. III, supra.

1214. G. M. Danilenko, “International Jus Cogens : Issues of Law-Making”,
2 European Journal of International Law (1991), p. 45, and cf. pp. 48-49 and
59-65 on the possibility of the incidence of jus cogens in the elaboration itself of
drafts of international instruments.
1215. M. A. D’Estéfano Pisani, Derecho de Tratados, 2nd ed., Havana, Cuba,
Edit. Pueblo y Educación, 1986 (reprint), pp. 97 and 165-166.
International Law have emerged to confer an ethical and universal

dimension on International Law and to serve the common interests
of the international community as a whole and, ultimately, of all
mankind 1216.
It can hardly be denied that general principles of law, proper to
any legal system, at either national or international level 1217, do
enjoy universal acceptance or recognition. Such principles guide all
legal norms, including those endowed with a peremptory character ;
it is thus not surprising that one trend of juridical thinking has iden-
tified them with the domain of jus cogens 1218, standing above the
will of States and of other subjects of International Law. Emanating,
in my view, from human conscience, they rescue International Law
from the pitfalls of State voluntarism and unilateralism, incom-
patible with the foundations of a true international legal order.
Those principles reflect the idea of an objective justice, are con-
substantial with the national or international legal system itself,
embodying, as they do, superior values, which can fulfil the aspira-
tions of humankind as a whole 1219. Their continued validity is
beyond question, and their relevance becomes evident in the con-
struction, in our days, of a new jus gentium, the International Law
for humankind. The consolidation of erga omnes obligations of pro-
tection, ensuing from peremptory norms of International Law, over-
comes the pattern erected in the past upon the autonomy of the will
of the State, which can no longer be invoked in view of the existence
of norms of jus cogens. States are nowadays faced with a dilemma
which should have been overcome a long time ago : either they
return to the old voluntarist conception of International Law, aban-
doning the hope in the primacy of Law over power politics, or they
retake and realize the ideal of construction of a more cohesive and
institutionalized international community in the light of the impera-
tives of the rule of law and the realization of justice, moving reso-
lutely from jus dispositivum to jus cogens 1220.
1216. Li Haopei, “Jus Cogens and International Law”, in Selected Articles

from Chinese Yearbook of International Law, Beijing, China, Chinese Society of
International Law, 1983, pp. 47-48, 57, 59, 61-64 and 74.
1217. Such as, e.g., bona fides and pacta sunt servanda.
1218. R. Kolb, Théorie du jus cogens international, Paris, PUF, 2001, pp. 98-
100, 105, 110 and 112.
1219. Cf. Chap. III, supra.
1220. And always bearing in mind that the protection of fundamental rights
places us precisely in the domain of jus cogens.
III. Obligations Erga Omnes of Protection
1. Emergence and scope of the obligations

It is widely recognized, in our days, that the peremptory norms of
jus cogens effectively bring about obligations erga omnes. In a well-
known obiter dictum in its Judgment in the case concerning
Barcelona Traction (Second Phase, 1970), the ICJ determined that
there are certain international obligations erga omnes, obligations of
a State vis-à-vis the international community as a whole, which are
of the interest of all the States ;
“such obligations derive, for example, in contemporary
International Law, from the outlawing of acts of aggression,
and of genocide, and also from the principles and rules con-
cerning the basic rights of the human person, including protec-
tion from slavery and racial discrimination. Some of the corre-
sponding rights of protection have entered into the body of
general International Law . . . ; others are conferred by inter-
national instruments of a universal or quasi-universal charac-
ter.” 1221
The prohibitions mentioned in this obiter dictum are not exhaustive.
To them new prohibitions have been added in the more recent case-
law of some contemporary international tribunals (infra), clearly
indicating that jus cogens is not a closed category.
In the construction of the international legal order of the new cen-
tury, we witness, with the gradual erosion of reciprocity, the emer-
gence pari passu of superior considerations of ordre public, reflected
in the conceptions of the peremptory norms of general International
Law (the jus cogens) and of the obligations erga omnes of protection
(owed to everyone, and to the international community as a whole).
Jus cogens, in bringing about obligations erga omnes, characterizes
them as being endowed with a necessarily objective character, and
thereby encompassing all the addressees of the legal norms (omnes),
both those who integrate the organs of the public power as well as
private individuals.
In my understanding, the concrete and specific purpose of the
development of the legal regime of the obligations erga omnes of
1221. ICJ, Judgment of 5 February 1970, ICJ Reports 1970, p. 32, paras. 33-
34 (emphasis added).
protection can be well served by the identification of, and compli-

ance with, the general obligation of guarantee of the exercise of the
rights of the human person — set forth in treaties on human rights
protection as well as Humanitarian Law 1222 — that is, the obligation
to respect, and to ensure respect for, the norms of protection, in all
circumstances. It can contribute to the consolidation of the obliga-
tions erga omnes of protection of the rights of the human person
in any circumstances, in times both of peace and of armed conflict.
It appears somewhat surprising that neither doctrine, nor case-law,
has developed this point sufficiently and satisfactorily up to now.
It is about time, at this beginning of the twenty-first century, to
develop systematically the contents, scope and juridical effects or
consequences of the obligations erga omnes of protection in the
present domain of protection, bearing in mind the great potential of
application of the underlying notion of collective guarantee, respon-
sible for some advances already achieved in this domain. The con-
cept of obligations erga omnes has already marked presence in the
international case-law 1223, as illustrated, in so far as the ICJ is con-
cerned, by its Judgments in the cases of the Barcelona Traction
(1970), of the Nuclear Tests (1974), of Nicaragua versus United
States (1986), of East Timor (1995), and of Bosnia-Herzegovina ver-
sus Yugoslavia (1996), and by the arguments of the parties in the
cases of the Northern Cameroons (1963) and of South West Africa
(1966), as well as by its Advisory Opinion on Namibia (1971) and
the (written and oral) arguments pertaining to the two Advisory
Opinions on Nuclear Weapons (1994-1995) 1224.
Nevertheless, in spite of the distinct references to the existence of
obligations erga omnes in the case-law of the ICJ, this latter has not
yet extracted the consequences of the affirmation of the existence of
such obligations, nor of their violations, and has not defined their
1222. That general obligation is set forth, e.g., in Article 1 (1) of the
American Convention on Human Rights as well as in Article 1 of the Geneva
Conventions of International Humanitarian Law and in Article 1 of the
Additional Protocol I (of 1977) to the Geneva Conventions ; cf. footnotes 1232
and 1233, infra.
1223. Including with a reference to them in the tenth Advisory Opinion (of
1989) of the IACtHR, on the Interpretation of the American Declaration on the
Rights and Duties of Man (para. 38).
1224. Cf. M. Ragazzi, The Concept of International Obligations Erga Omnes,
Oxford, Clarendon Press, 1997, pp. 12-13 ; C. Annacker, “The Legal Regime of
Erga Omnes Obligations in International Law”, 46 Austrian Journal of Public
and International Law (1994), pp. 132-133, and cf. 131-166.
legal regime either. The ICJ had a unique occasion to do it in the

East Timor (Portugal v. Australia) case, (Judgment of 30 June
1995), having regrettably wasted such opportunity, in relating the
erga omnes obligations (in respect of the right of self-determination
of peoples) to something antithetical to them : the consent of a third
State (Indonesia) as basis of the exercise of its jurisdiction in con-
tentious matters.
In fact, nothing could be more incompatible with the very exis-
tence of the erga omnes obligations than the positivist-voluntarist
conception of International Law and the emphasis on State consent
as the basis of the exercise of international jurisdiction 1225. Pursuing
a bilateralist and voluntarist approach 1226, the ICJ thus failed, unfor-
tunately, to extract the consequences of the existence of such obliga-
tions erga omnes. Shortly after the ICJ decision in the East Timor
case, B. Simma remarked critically that “it is ironic that the very
Court that spelled out the concept in the first place has now sub-
jected it to the procedural rigours of traditional bilateralism” 1227. No
less critical was S. Rosenne, in commenting that in the cas d’espèce
the ICJ “paid no overt attention to the situation in East Timor itself,
although it was certainly aware of it” ; to him, with the advent of
obligations erga omnes,
“it seems that something needs to be done to bring international
procedural law into line with that . . .
International judicial procedure, although it has developed
very remarkably especially since 1945, is still cast in a nine-
teenth century mould, and the strict bilateralism of international
litigation is one of its hall-marks.” 1228
More recently, in its Advisory Opinion of 9 July 2004 on the
Legal Consequences of the Construction of a Wall in the Occupied
1225. A. A. Cançado Trindade, “O Caso do Timor-Leste (1999) : O Direito de

Autodeterminação do Povo Timorense”, 1 Revista de Derecho de la Universidad
Católica del Uruguay (2000), pp. 73-74.
1226. Cf. ICJ, East Timor (Portugal v. Australia), ICJ Reports 1995, pp. 90-
106.
1227. B. Simma, “From Bilateralism to Community Interest in International
Law”, 250 RCADI (1994), p. 298.
1228. S. Rosenne, “Decolonisation in the International Court of Justice”, 8
African Journal of International and Comparative Law (1996), pp. 567, 571 and
576. For further criticisms, cf. J. Dugard, “1966 and All That — The South West
Africa Judgment Revisited in the East Timor Case”, in ibid., pp. 551, 557-558
and 560-563.
Palestinian Territory, the ICJ asserted the right erga omnes of

peoples to self-determination 1229, and added that
“the obligations violated by Israel include certain obligations
erga omnes. . . . The obligations erga omnes violated by Israel
are the obligation to respect the right of the Palestinian people
to self-determination, and certain of its obligations under Inter-
national Humanitarian Law.
. . . All States are under an obligation not to recognize the
illegal situation resulting from the construction of the wall in
the Occupied Palestinian Territory . . . In addition, all the States
Parties to the Geneva Convention Relative to the Protection of
Civilian Persons in Time of War of . . . 1949 are under an obli-
gation, while respecting the United Nations Charter and Inter-
national Law, to ensure compliance by Israel with International
Humanitarian Law as embodied in that Convention.” 1230
Even if, on the one hand, one has not yet succeeded to reach the
opposability of an obligation of protection to the international com-
munity as a whole, on the other hand the International Law of
Human Rights nowadays provides elements for the consolidation of
the opposability of obligations of protection to all the States Parties
to human rights treaties (obligations erga omnes partes 1231). Thus,
several treaties, of human rights protection 1232 as well as of
International Humanitarian Law 1233, provide for the general obliga-
tion of the States Parties to guarantee the exercise of the rights set
forth therein and their observance.
Thus, parallel to the obligations of all the States Parties to those
treaties to protect the rights enshrined therein, and to guarantee their
free and full exercise to all the individuals under their respective
jurisdictions, there exists the obligation of the States Parties inter se
1229. ICJ Reports 2004, p. 172, para. 88.

1230. ICJ Reports 2004, pp. 199-200, paras. 155 and 159.
1231. On the meaning of the obligations erga omnes partes, opposable to all
States Parties in certaing treaties or to a given community of States, cf. M.
Ragazzi, op. cit. supra footnote 1224, pp. 201-202 ; and cf. C. Annacker, op. cit.
supra footnote 1224, p. 135.
1232. Cf., e.g., American Convention on Human Rights, Art. 1 (1) ; UN
Covenant on Civil and Political Rights, Art. 2 (1) ; UN Convention on the Rights
of the Child, Art. 2 (1).
1233. Article 1 common to the four Geneva Conventions on International
Humanitarian Law of 1949, and Article 1 of the Additional Protocol I of 1977 to
the Geneva Conventions of 1949.
to secure the integrity and effectiveness of such treaties. That general

duty of protection (the collective guarantee) is of direct interest of
each State Party, and of all of them jointly (obligation erga omnes
partes).
Endeavours to develop the legal regime of obligations erga omnes
(with the determination of their contents, scope and juridical effects
or consequences of their violation) can surely count, in my view, on
the potentialities of application of treaty law in the domain of pro-
tection of the rights inherent to the human person, and in particular
of application of the collective guarantee underlying all human
rights treaties, and responsible for some considerable advances
already achieved in this domain. As correctly pointed out by the
Institut de Droit International, in a resolution adopted at the session
of Santiago of Compostela of 1989, such obligation is applicable
erga omnes, as each State has a legal interest in the safeguard of
human rights (Art. 1) 1234. This general obligation of protection (the
collective guarantee) is of direct interest of each State Party, and of
all of them jointly (obligation erga omnes partes). And this is valid
in times of peace 1235 as well as of armed conflict 1236.
Some human rights treaties, moreover, establish a mechanism of
petitions or communications which comprises, parallel to the indi-
vidual petitions, also the inter-State petitions ; these latter constitute
a mechanism par excellence of action of collective guarantee. The
fact that they have not been used frequently 1237 suggests that the
States Parties have not yet disclosed their determination to construct
the international ordre public based upon the respect for human
rights. But they could — and should — do so in the future, with
1234. Cf. IDI, 63 Annuaire de l’Institut de droit international (1989-II),

pp. 286 and 288-289.
1235. Cf. the arguments of Ireland before the ECtHR, in the Ireland v. United
Kingdom case, in ECtHR, Ireland v. United Kingdom case (1976-1978),
Pleadings, Oral Arguments and Documents, Strasbourg, 1981, Vol. 23-II, pp. 21-
23 and 27, and Vol. 23-III, pp. 17-19 and 21-26.
1236. Irrespective of a State Party being involved or not in a given armed
conflict ; L. Condorelli and L. Boisson de Chazournes, “Quelques remarques à
propos de l’obligation des Etats de ‘respecter et faire respecter’ le droit interna-
tional humanitaire ‘en toutes circonstances’ ”, in Etudes et essais sur le droit
international humanitaire et sur les principes de la Croix-Rouge en l’honneur de
Jean Pictet (ed. C. Swinarski), Geneva, The Hague, CICR, Nijhoff, 1984, pp. 29
and 32-33.
1237. Cf. S. Leckie, “The Inter-State Complaint Procedure in International
Human Rights Law : Hopeful Prospects or Wishful Thinking ?”, 10 Human
Rights Quarterly (1988), pp. 249-301.
their growing awareness of the need to achieve greater cohesion and

institutionalization in the international legal order, above all in the
present domain of protection.
Obligations erga omnes are nowadays by no means limited to the
domain of the international protection of the rights inherent to the
human person. They also mark their presence in other domains of
contemporary International Law, such as, for example, in environ-
mental protection and in disarmament and arms control. As perti-
nently recalled by K. Zemanek, the 1987 (amended) Montreal
Protocol on Substances that Deplete the Ozone Layer, as well as the
1992 Framework Convention on Climate Change and its 1997 Kyoto
Protocol, establish obligations which
“are not created for the benefit of individual Contracting
Parties but in the interest of all of them, as a community. . . .
Arms control and disarmament treaties are in some way simi-
lar, because they do not establish reciprocal rights and obliga-
tions between the Parties. . . . Instruments such as the Non-
Proliferation Treaty (NPT, 1968), the Biological Weapons
Convention (1972), the Chemical Weapons Convention (CWC,
1993), or the Comprehensive Nuclear Test-Ban Treaty (CTBT,
1996) are salient examples of this particular type of erga omnes
obligations.” 1238
It has been, however, particularly in the domain of the interna-
tional safeguard of basic human rights, that obligations erga omnes
have been most discussed by contemporary doctrine thus far. In any
case, there could hardly be more elaborate examples of mechanisms
for application of the obligations erga omnes of protection (at least
in the relations of the States Parties inter se) than the methods of
supervision foreseen in the human rights treaties themselves, for the
exercise of the collective guarantee of the protected rights 1239. In
other words, the mechanisms for application of the obligations erga
omnes partes of protection already exist, and what is urgently
needed is to develop their legal regime, with special attention to the
1238. K. Zemanek, “New Trends in the Enforcement of Erga Omnes

Obligations”, 4 Max Planck Yearbook of United Nations Law (2000), p. 6.
1239. Y. Dinstein, “The Erga Omnes Applicability of Human Rights”, 30
Archiv des Völkerrechts (1992), pp. 16 and 22, and cf. 16-37 ; and cf.
M. Ragazzi, op. cit. supra footnote 1224, pp. 135 and 213 ; M. Byers, op. cit.
infra footnote 1244, pp. 234-235.
positive obligations and the juridical consequences of the violations

of such obligations.
2. Horizontal and vertical dimensions of the obligations
As I had occasion to hold in my Concurring Opinion in the

IACtHR’s Advisory Opinion No. 18, on the Juridical Condition and
Rights of Undocumented Migrants (of 17 September 2003), obliga-
tions erga omnes have two dimensions, namely : (a) a horizontal
dimension, in the sense that they are owed to the international com-
munity as a whole 1240, to all subjects of International Law (supra) ;
and (b) a vertical dimension, in the sense that they bind everyone,
both the organs and agents of the State, of public power, as well as
the individuals themselves (including in inter-individual relations,
where grave breaches of International Law and of human rights can
occur and have indeed occurred). For the conformation of this verti-
cal dimension, the advent and evolution of the International Law of
Human Righs have contributed decisively.
Obligations erga omnes of protection, pertaining, in a horizontal
dimension, to the protection of the human beings due to the interna-
tional community as a whole, in the framework of conventional
International Law bind all the States Parties to human rights treaties
(obligations erga omnes partes), and in the ambit of general Inter-
national Law bind all States which compose the organized interna-
tional community, whether or not they are Parties to those treaties
(obligations erga omnes lato sensu). In a vertical dimension, the
obligations erga omnes of protection bind both the organs and agents
of (State) public power, and the individuals themselves (in the inter-
individual relations).
For the conformation of this vertical dimension have decisively
contributed the advent and the evolution of the International Law
of Human Rights. But it is surprising that, until now, these distinct
horizontal and vertical dimensions of the obligations erga omnes of
protection have passed virtually unnoticed from contemporary legal
doctrine. Nevertheless, I see them clearly shaped in the legal regime
itself of the American Convention on Human Rights. Thus, for
example, as to the vertical dimension, the general obligation, set
1240. Cf., earlier, IACtHR, case Blake v. Guatemala (Merits), Judgment of
24.1.1998, Separate Opinion of Judge A. A. Cançado Trindade, para. 26, and cf.
paras. 27-30.
forth in Article 1 (1) of the American Convention, to respect and

to ensure respect for the free exercise of the rights protected by it,
generates effects erga omnes, encompassing the relations of the
individual both with the public (State) power as well as with other
individuals (particuliers) 1241.
In their turn, the obligations erga omnes partes, in their horizon-
tal dimension, find expression also in Article 45 of the American
Convention, which foresees the mechanism (virtually unexplored so
far), of inter-State complaints or petitions. This mechanism 1242 con-
stitutes not only a mechanism par excellence of action of collective
guarantee, but also a true embryo of actio popularis in International
Law, in the framework of the American Convention. In any case,
these dimensions, both horizontal and vertical, reveal the wide scope
of the obligations erga omnes of protection.
The crystallization of the obligations erga omnes of protection of
the human person represents, in reality, the overcoming of a pattern
of conduct erected on the alleged autonomy of the will of the State,
from which International Law sought gradually to liberate itself in
giving expression to the concept of jus cogens 1243. By definition, all
the norms of jus cogens generate necessarily obligations erga omnes.
While jus cogens is a concept of material law, the obligations erga
omnes refer to the structure of their performance on the part of all
the entities and all the individuals bound by them. In their turn, not
all the obligations erga omnes necessarily refer to norms of jus
cogens.
One ought to secure a follow-up to the endeavours of greater doc-
trinal and jurisprudencial development of the peremptory norms of
International Law (jus cogens) and of the corresponding obligations
erga omnes of protection of the human being 1244, moved above all
1241. Cf., in this respect, in general, the resolution adopted by the Institut de
Droit International (IDI) at the session of Santiago de Compostela of 1989
(Art. 1), in IDI, 63 Annuaire de l’Institut de droit international (1989-II),
pp. 286 and 288-289.
1242. As I pointed out in my Concurring Opinion (para. 3) in the case of the
Community of Peace of San José of Apartadó (Provisional Measures of
Protection of 18.6.2002) before the IACtHR.
1243. Cf. A. A. Cançado Trindade, “The International Law of Human Rights
at the Dawn of the XXIst Century”, 3 Cursos Euromediterráneos Bancaja de
Derecho Internacional, Castellón (1999), pp. 207-215.
1244. On the relationship between jus cogens and erga omnes obligations of
protection, cf. : M. Ragazzi, The Concept of International Obligations Erga
Omnes, op. cit. supra footnote 1224, pp. 135, 201-202 and 213 ; Y. Dinstein,
“The Erga Omnes Applicability . . .”, op. cit. supra footnote 1239, pp. 16-37 ;
by the opinio juris as a manifestation of the universal juridical con-

science, to the benefit of all human beings 1245. By means of this con-
ceptual development one will advance in the overcoming of the
obstacles of the dogmas of the past and in the creation of a true
international ordre public based upon the respect for, and observance
of, human rights. Such development will contribute, thus, to a
greater cohesion of the organized international community (the civi-
tas maxima gentium), centred on the human person.
The general obligation, set forth in Article 1 (1) of the American
Convention, to respect and to ensure respect for the free exercise of
the rights protected by it, has a character erga omnes 1246. I have seen
it fit to point this out in several of my Separate and Concurring
Opinions in the Inter-American Court, outlining that this is endowed
with particular relevance at both conceptual and operative levels 1247.
In my understanding, the obligations erga omnes partes are not to be
minimized at the conceptual level, as, by means of the exercise of
collective guarantee, such obligations can pave the way for the crys-
tallization, in the future, of the obligations erga omnes lato sensu,
owed to the international community as a whole. And, at the opera-
A. J. J. de Hoogh, “The Relationship between Jus Cogens, Obligations Erga Omnes

and International Crimes : Peremptory Norms in Perspective”, 42 Austrian
Journal of Public and International Law (1991), pp. 183-214 ; C. Annacker,
“The Legal Regime of Erga Omnes Obligations . . .”, op. cit. supra foot-
note 1224, pp. 131-166 ; M. Byers, “Conceptualising the Relationship between
Jus Cogens and Erga Omnes Rules”, 66 Nordic Journal of International Law
(1997), pp. 211-239, esp. pp. 234-235 and 239 ; J. Juste Ruiz, “Las Obligaciones
‘Erga Omnes’ en Derecho Internacional Público”, in Estudios de Derecho
Internacional — Homenaje al Profesor Miaja de la Muela, Vol. I, Madrid, Tecnos,
1979, p. 228.
1245. IACtHR, case Blake v. Guatemala (Merits), Judgment of 24.1.1998,
Series C, No. 36, Separate Opinion of Judge A. A. Cançado Trindade, para. 28 ;
IACtHR, case Blake v. Guatemala (Reparations), Judgment of 22.1.1999,
Series C, No. 48, Separate Opinion of Judge A. A. Cançado Trindade,
para. 40.
1246. Cf., in this sense, the resolution adopted by the Institut de Droit
International (IDI) at the session of Santiago de Compostela of 1989 (Art. 1), in
IDI, 63 Annuaire de l’Institut de Droit International (1989-II), pp. 286 and 288-
289.
1247. Cf., to this effect, e.g., my Separate Opinions in the cases of Las
Palmeras (Preliminary Objections, 2000, paras. 13-14), and of the Massacre of
Mapiripán (Merits, 2005, paras. 2-3 and 5), both concerning Colombia, and in
my Concurring Opinions in the case of the Community of Peace of San José of
Apartadó (Provisional Measures of Protection, 18.6.2002, paras. 2-9) and in the
case of the Communities of the Jiguamiandó and of the Curbaradó (Provisional
Measures of Protection, 6.3.2003, paras. 4-6), concerning Colombia, and in the
case of the Prison of Urso Branco (Provisional Measures of Protection,
7.7.2004, paras. 2-3 and 6-9), concerning Brazil.
tive level, obligations erga omnes partes under human rights treaties
assume special importance, in face of the current diversification of
the sources of violations of the rights enshrined in the Convention,
which requires the clear recognition of the effects of the conven-
tional obligations vis-à-vis third parties (the Drittwirkung), encom-
passing also inter-individual relations 1248.
The State is bound by the corpus juris of the international protec-
tion of human rights, which protects every human person erga
omnes, in any condition or circumstance. The State cannot avail
itself of the fact of not being a Party to a given treaty of human
rights to evade the obligation to respect, and to ensure respect for,
fundamental human rights, acknowledged also in general
International Law, and belonging to the domain of jus cogens, thus
transcending the ambit of the law of treaties.
IV. Obligations Erga Omnes and the Emergence of Actio Popularis

The aforementioned inter-State petitions under certain human
rights treaties may, furthermore, prove to be the embryo of a future
actio popularis in the present domain of protection of the human
person. Although those petitions may disclose some resemblance
with petitions lodged by individuals under certain human rights
treaties, the rationale of the latter appears somewhat distinct from
the former. Thus, individual complaints, even when interposed on
behalf of the members of a whole community or human collectivity,
seem to be closer to a form of class action than to actio popularis,
however desirable the emergence of this latter may admittedly be,
for the construction of a true international ordre public on the basis
of full respect for the rights of all human beings.
Be that as it may, the general duty to respect, and to ensure
respect for, the protected rights, is of the utmost importance in the
1248. Cf., on this point, e.g., D. Spielmann, L’effet potentiel de la Convention
européenne des droits de l’homme entre personnes privées, Brussels, Bruylant,
Nemesis, 1995, pp. 17-89 ; A. Clapham, Human Rights in the Private Sphere,
Oxford, Clarendon Press, 1996 (re-ed.), pp. 1-356 ; E. A. Alkema, “The Third-
Party Applicability or ‘Drittwirkung’ of the European Convention on Human
Rights”, in Protecting Human Rights : The European Dimension — Studies in
Honour of G.J. Wiarda (eds. F. Matscher and H. Petzold), Cologne, Berlin, C.
Heymanns, 1988, pp. 33-45 ; J. De Meyer, “The Right to Respect for Private and
Family Life, Home and Communications in Relations between Individuals, and
the Resulting Obligations for States Parties to the Convention”, in Privacy and
Human Rights (ed. A. H. Robertson), Manchester, University Press, 1973,
pp. 255-275.
present context. It may be recalled that that duty, as formulated in

common Article 1 of the four Geneva Conventions on International
Humanitarian Law, was originally meant to “expand the binding
effect” of the State’s acceptance of the Conventions “to the entire
population” 1249. That general duty, also enshrined in some human
rights treaties 1250, was to disclose a considerable potential for pro-
tection : it soon formed the object of a vast case-law (mainly of the
IACtHR and the ICTFY) which gave precision to its wide scope,
also vis-à-vis third parties, in inter-individual relations, on the basis
of the objective international responsibility of the State.
The theoretical construction of positive obligations of States (to
respect, and ensure respect for, the protected rights) has lent support
to this development. The whole jurisprudence constante of the
IACtHR on the matter has oriented itself in this direction. The
ICTFY (Trial Chamber), in the case of A. Kupreskic and Others
(2000), for example, pointed out that
“as a consequence of their absolute character, these norms of
International Humanitarian Law do not pose synallagmatic obli-
gations, i.e., obligations of a State vis-à-vis another State.
Rather . . . they lay down obligations towards the international
community as a whole, with the consequence that each and
every member of the international community has a ‘legal
interest’ in their observance and consequently a legal entitle-
ment to demand respect for such obligations.” 1251
This refers to what I have termed the horizontal dimension of erga
omnes obligations, which, in a vertical dimension, bind everyone,
those who hold public office as well as private individuals (supra).
In fact, the rights protected under Humanitarian Law and human
rights treaties are indeed applied and opposable erga omnes, which
in certain circumstances may enhance the access to justice and
foster the conception of an international ordre public in the present
domain of protection ; the mechanism of inter-State petitions under
1249. F. Kalshoven, “The Undertaking to Respect and Ensure Respect in All

Circumstances : From Tiny Seed to Ripening Fruit”, 2 Yearbook of International
Humanitarian Law (1999), p. 27, and cf. pp. 48, 54-55 and 60.
1250. Such as, e.g., the UN Covenant on Civil and Political Rights, the UN
Convention on the Rights of the Child, the American Convention on Human
Rights ; cf. footnote 1232, supra.
1251. ICTFY (Trial Chamber), case of A. Kupreskic and Others (case No. IT/
95/16/T), Judgment of 14.1.2000, para. 517.
certain human rights treaties bears witness of considerations of such

ordre public.
As for the mechanism of individual petitions, although it is the
alleged wrong suffered by individuals that provides the material
basis for their right of individual petition, there is also a general
interest of States Parties to human rights treaties (providing for that
mechanism) in seeing to it that such right of individual petition is
endowed with effectiveness. In this sense, in relation to the
European Convention on Human Rights, for example, I wrote, in a
book published over two decades ago, that
“in the general framework of the Convention, the right of indi-
vidual petition, possessing a judicial character, rests upon the
objective character of the engagements undertaken by the High
Contracting Parties to the Convention, as its exercise con-
tributes also to the fulfilment of the general interest in having
the Convention respected” 1252.
There is here a convergence between the individual and the col-
lective interests, and this brings us closer to the actio popularis,
which seems to emerge or flourish from the very concept of obliga-
tions erga omnes. If it is conceded that actio popularis, as in Roman
law, admits that the complainant is seeking to safeguard not only the
collective interest but also his own (affected) individual interest,
there is epistemologically nothing that would render its application
not viable in International Law. On the contrary, it would become a
suitable remedy to uphold predominantly collective or common
interests ; it would, in this way, also foster the access to international
justice, the control of international legality (for example, protecting
common spaces beyond national jurisdictions), and the protection of
whole human communities 1253.
The shortcomings of the South West Africa cases (1966) are surely
overcome in our days ; they were proper of a mentality which regret-
tably hindered for some time the development of International Law,
but which has been discarded by universal juridical conscience.
Examples of possible application could be found in the domains of
1252. A. A. Cançado Trindade, The Application of the Rule of Exhaustion of

Local Remedies in International Law, Cambridge, University Press, 1983, p. 17.
1253. Cf., in this sense, F. Voeffray, L’actio popularis ou la défense de l’in-
térêt collectif devant les juridictions internationales, Paris, Geneva, PUF,
IUHEI, 2004, pp. 16, 229, 235-236, 322, 366-368 and 384.
human rights protection, of application of International Humanitarian

Law, of environmental protection (particularly in relation to the so-
called “global commons”). In the domain of the safeguard of human
rights, the objective character of the obligations of protection, the
character of ordre public of the operation of the mechanisms of
protection, the convergence on individual and collective interests in
certain cases, are altogether elements bringing us closer to the actio
popularis, as from the concept of obligations erga omnes 1254. Actio
popularis would be called for, in certain cases of violations of
International Law, to secure the protection of members of whole
human collectivities 1255. It would have a scope broader than that of
class actions 1256.
In sum, it is nowadays widely acknowledged that the general duty
to ensure respect for the protected rights, wide in scope, is applica-
ble erga omnes, comprising all measures necessary to secure the
exercise or enjoyment of those rights. Ultimately, from the perspec-
tive here advocated, all human rights and Humanitarian Law obliga-
tions are applicable erga omnes. The rights inherent to the human
person are surely opposable erga omnes. When the legal regime of
obligations erga omnes (encompassing the juridical consequences of
their violation) consolidates itself beyond question, within a more
coherent international community, the actio popularis at interna-
tional level may hopefully also be acknowledged without uncertain-
ties. And it may become a legal means to secure compliance with
obligations erga omnes lato sensu (and not only erga omnes partes).
But this will ultimately depend on the conscientization of the
pressing need to construct a more institutionalized international
community.
V. Concluding Observations
In its development in the last decades, jus cogens has evolved —
and ought to certainly keep on evolving — well beyond the law of
treaties. It has had its scope widened. Thus, the absolute prohibition
of grave violations of fundamental human rights (starting with the
1254. In this sense, cf. F. Voeffray, L’actio popularis . . ., op. cit. supra foot-
note 1253, pp. 157-158, 168, 176-179, 209, 245 and 261.
1255. Cf. ibid., pp. 282 and 386.
1256. Cf. IACtHR, case of the Indigenous People of Sarayaku v. Ecuador
(Provisional Measures of Protection, Resolution of 17.6.2005), Concurring
Opinion of Judge A. A. Cançado Trindade, paras. 3-33).
fundamental right to life) extends itself, in my view, well beyond the

law of treaties, incorporated, as it is, likewise, in contemporary cus-
tomary International Law. Such prohibition gives prominence to the
obligations erga omnes, owed to the international community as a
whole. These latter clearly transcend the individual consent of the
States 1257, definitively burying the positivist-voluntarist conception
of International Law. Obligations erga omnes of protection can be
fostered and enhanced by the general obligation to respect and
ensure respect for the rights of the human person, underlying treaties
on human rights protection and on Humanitarian Law.
As to its material content, international jus cogens, in my under-
standing, is an open category, which expands itself to the extent that
the universal juridical conscience (the material source of all Law)
awakens for the necessity to protect the rights inherent to each
human being in every and any situation. It heralds the advent of
a new international legal order committed to the prevalence of
superior common values, and to moral and juridical imperatives,
such as that of the protection of the human being in any circum-
stances, in times of peace as well as of armed conflict.
For more than three decades, the concept of obligations erga
omnes has marked presence in international case-law ; however, such
case-law has not yet extracted the juridical consequences of the affir-
mation of the existence of such obligations, nor of their violations,
and has not defined sufficiently their legal regime either. But if, on
the one hand, one has not yet succeeded in reaching the opposability
of an erga omnes obligation of protection, owed to the international
community as a whole, on the other hand the International Law of
Human Rights provides nowadays elements conducive to the con-
solidation of the opposability of obligations of protection to all
the States Parties to human rights treaties (obligations erga omnes
partes).
In the consideration of the evolving jus cogens, there has been
general acknowledgment of its expanding material content. The
absolute prohibition of grave violations of fundamental human rights
— starting with the rights to life and to the integrity of the person —
extends itself, in my view, well beyond the law of treaties. Such
absolute prohibition, likewise consolidated in contemporary custom-
1257. C. Tomuschat, “Obligations Arising for States without or against Their

Will”, 241 RCADI (1993), p. 365.
ary International Law (indeed in general International Law as a

whole), gives prominence to the obligations erga omnes of protec-
tion, owed to the international community. These obligations clearly
transcend the individual consent of States, and herald the advent
of a new international legal order, committed to the prevalence
of superior common values. The material content of jus cogens
also comprises today the principle of equality and non-discrimina-
tion 1258, as well as the access (lato sensu) to justice and the guar-
antees of the due process of law, taken necessarily together, and
generating obligations erga omnes 1259.
Erga omnes obligations are owed to the international community
as a whole, which, in my view, comprises all States as well as other
subjects of International Law. One cannot possibly approach those
obligations from a strictly inter-State perspective or dimension,
which would no longer reflect the new structure of the contemporary
international legal order. The current phenomenon of the expansion
of the international legal personality and capacity 1260 is a response to
a true need of the international community of our days. Not only
States, but all other subjects of International Law 1261, are bound by
erga omnes obligations (as evidenced by the current and unfortunate
diversification of the sources of violations — on the part of State as
well as non-State agents — of the rights of the human person), owed
to the international community as a whole.
The task before us is essentially that of the determination of the
legal regime of obligations erga omnes, with particular attention to
the positive obligations of States and the juridical consequences of
violations of erga omnes obligations. Although jus cogens generates
always obligations erga omnes but not all such obligations are gen-
erated by jus cogens, the two concepts are ineluctably intertwined.
Obligations erga omnes have been taking shape in areas of direct
concern to humankind as a whole, such as human rights protection,
environmental protection, disarmament and arms control, to name a
1258. Pursuant to, e.g., the holdings to that effect in the recent case-law of
the IACtHR, particularly its Advisory Opinion No. 18, of 2003 (cf. supra).
1259. Cf. A. A. Cançado Trindade, El Acceso Directo del Individuo a los
Tribunales Internacionales de Derechos Humanos, Bilbao, Universidad de
Deusto, 2001, pp. 29-96 ; M. El Kouhene, Les garanties fondamentales de la
personne en droit humanitaire et droits de l’homme, Dordrecht, Nijhoff, 1986,
pp. 97, 145, 148, 161 and 241.
1260. Cf. Chaps. VIII-XI, supra.
1261. To me, it is impossible here not to take into account the other subjects
of International Law, including the human person.
few. Jus cogens and obligations and rights erga omnes can be prop-
erly addressed in the context of the considerable transformations of
International Law in the last decades — which have conferred upon
it a necessary and inescapable ethical dimension — and of the cur-
rent historical process — as I perceive and sustain — of humaniza-
tion of International Law.
Ultimately, the beneficiaries of the compliance with, and due per-
formance of, obligations erga omnes are all human beings (rather
than the States). And not only States, but all other subjects of
International Law, are bound by erga omnes obligations, which are
owed not only to States, but also to the international community as a
whole, as well as to human beings. Here, again, it clearly appears
that the purely inter-State dimension of International Law has long
been surpassed. There is pressing need today — as I see it — to
overcome the strictly inter-State approach in addressing obligations
and rights erga omnes.
Even if an inter-State approach is still — however inadequately
— adopted, one cannot elude taking into account the human person
as subject of International Law. This being so, it seems to me that
the rights and duties of all subjects of International Law (including
human beings, the ultimate beneficiaries of compliance with erga
omnes obligations) should be taken into account in the determination
of the legal regime of obligations erga omnes, and in particular of
the juridical consequences of violations of such obligations. As it
becomes accepted that individuals also have rights erga omnes and
that obligations erga omnes are incumbent upon them, there remains
no cogent reason for proceeding to the determination of the juridical
consequences of violations of those obligations on a strictly inter-
State basis.
There appears to be, in fact, nothing new under the sun. Already
in the mid-eighteenth century, in his Institutiones Juris Naturae et
Gentium (originally published in 1750), C. Wolff sustained the exis-
tence of universal obligations, wherefrom there ensued a universal
law (droit universel). He further referred to the “universal justice”,
which was that which “rend au prochain son droit par rapport à
toutes les actions, en tant qu’elles regardent les autres” 1262.
1262. In his assertion, “une obligation universelle c’est ce à quoi tout homme
est tenu, par là même qu’il est homme” ; C. Wolff, Principes du droit de la
nature et des gens, Vol. I, Amsterdam, Ed. M. Michel Rey, 1758 (reprint), p. 59,
and cf. pp. 1-2.
Over two and a half centuries later, obligations erga omnes (in
their horizontal and vertical dimensions), as well as jus cogens, are
theoretical constructions of the jus gentium of our days, the Inter-
national Law for humankind. In my personal experience of serving
for more than a decade as Judge of an international human rights tri-
bunal (and of being its President for half a decade), I can report
many instances in which the Court has been faced with situations
which disclosed an unfortunate diversification of the sources of viola-
tions — on the part of State as well as non-State agents — of the
rights of the human person. This required a clear recognition of the
effects of the conventional obligations also vis-à-vis third parties (the
Drittwirkung), including individuals (identified and unidentified ones).
Hence the importance of the general obligation of States to
respect, and to ensure respect for, the protected rights, in all circum-
stances 1263. It is my view that this general duty can assist in the vin-
dication of compliance with erga omnes obligations, as, by means of
the collective guarantee of humanitarian treaties, one may at least
secure compliance with the general duty of protection of human
beings (obligation erga omnes partes). One cannot overlook the pos-
sibilities of action, particularly under human rights treaties, to that
effect. In the case-law of the IACtHR, I have on successive occa-
sions, insisted on this particular point 1264. Jus cogens, in generating
obligations erga omnes, endows them with a necessarily objective
character, encompassing all the addressees of the legal norms
(omnes) — States, international organizations, peoples and individu-
als, and humankind ; and, as to individuals, both the ones who hold
offices of the public power as well as those who act in their private
capacity.
In my understanding, obligations erga omnes incorporate common
and superior interests, as well as fundamental values. Compliance
1263. Set forth in the 1949 Geneva Conventions on International Humani-
tarian Law (and the 1977 Additional Protocol I) as well as in several human
rights treaties (cf. footnotes 1222, 1232 and 1233, supra).
1264. In my Separate Opinion in the case of Las Palmeras concerning
Colombia (Preliminary Objections, Judgment of 4.2.2000), as well as in my
Concurring Opinions in the Provisional Measures of Protection ordered by the
Inter-American Court in the cases of the Community of Peace of San José of
Apartadó (of 18.6.2002, pertaining to Colombia), of the Communities of the
Jiguamiandó and of the Curbaradó (of 6.3.2003, also against Colombia), of the
Indigenous People Kankuamo (of 5.7.2004, pertaining likewise to Colombia), of
the Indigenous People of Sarayaku (of 6.7.2004, filed against Ecuador), of the
Prison of Urso Branco (of 7.7.2004, concerning Brazil), and of the Television
Broadcasting Company “Globovisión” (of 4.9.2004, pertaining to Venezuela).
with them is required not only of States, but also of other subjects of
International Law (including international organizations as well as
peoples and individuals). Related to jus cogens, such obligations
bind everyone. Furthermore, the acknowledgment of grave breaches
of erga omnes obligations is certainly necessary, as it has been pre-
cisely the absolute prohibition of grave violations of International
Law and of fundamental human rights that have given prominence to
the obligations erga omnes of protection ; these latter, owed to the
international community, and transcending the individual consent of
States, appear instrumental in the construction of the International
Law for humankind.
365
CHAPTER XIII
CONCEPTUAL CONSTRUCTIONS : COMMON HERITAGE OF

MANKIND AND COMMON CONCERN OF MANKIND
I. Introduction
The challenges facing humankind today could hardly be faced on

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

Heritage of Mankind
The construction of the concept of common heritage of mankind

in distinct domains of Public International Law (infra) emerged from
the acknowledgment of common interests, in pursuance of the com-
mon good, of mankind. The concept stretched over time, comprising,
as beneficiaires, present as well as future generations. Explanatory
theories of the concept — such as those of res communis (peaceful
utilization by all, freedom of access and equitable sharing by all, on
behalf of all), of the international public domain (utilization by all
with gestion under public law, not open to private appropriation), of
1265. E.g., against ozone layer depletion, environmental deterioration, arms

race and trade, social marginalization and exclusion, among others.
public trust (protection and control of a common good for transmis-

sion of one generation into another, on behalf of the whole interna-
tional community, with States as “trustees” of natural resources in
the general interest) — disclosed as a common denominator the
identification of common interests, distinct from, and standing above,
interests of individual States, as well as the utilization and control of
resources on behalf of humankind, in a temporal dimension.
The concept at issue was soon to find expression, in the second
half of the twentieth century, in domains such as those of the
International Law of Outer Space, the Law of the Sea, the Inter-
national Law of Bioethics, International Environmental Law (infra).
In his thoughtful Hague Academy lectures of 1982 on the subject,
Alexandre-Charles Kiss argued that, under the concept of common
heritage of mankind, there existed a universal solidarity not only in
space (among peoples) but also in time (among successive genera-
tions), and added :
“Cette législation internationale qui consacre certains
intérêts supérieurs en cherchant à protéger les êtres humains
au-delà des objectifs immédiats des Etats — et même parfois
contre eux — n’est pas isolé dans le droit international con-
temporain. . . .
Cette notion d’intérêt commun de l’humanité est aussi le
fondement du patrimoine commun de l’humanité . . . Aucune
des dispositions conventionnelles imposant des obligations aux
Etats dans ces domaines n’a de contrepartie immédiate.” 1266
Thus, each generation is at a time user and guardian of our com-
mon natural and cultural heritage, and should thus leave it to future
generations in no worse condition than it received it. Hence the prin-
ciple of intergenerational equity (conservation of options, of quality
and of access), lucidly developed by E. Brown Weiss, as well as the
need to protect systems of sustainability of life, ecological processes,
environmental conditions and cultural resources necessary for the
1266. A. Ch. Kiss, “La notion de patrimoine commun de l’humanité”, 175

RCADI (1982), pp. 113 and 229-231. Moreover, the temporal dimension
assumes particular importance in the construction of this new concept, taking
into account also future generations :
“c’est cet élargissement du cercle des bénéficiaires aux générations à venir
qui donne ses véritables dimensions au concept de patrimoine commun de
l’humanité” ; ibid., pp. 240 and 243.
survival of humankind, and the need to preserve a healthy human

environment 1267.
Underlying the concept of common heritage of mankind, one
finds not only the notion of common good or interest (bien commun)
of humankind, by also an expansion of the circle of beneficiaires
(encompassing future generations). Here, the idea of solidarity at
universal level is manifest, in its spatial and temporal dimen-
sions 1268. It is generally recognized that certain basic principles have
oriented the construction of the new concept of common heritage of
mankind, namely : the principles of non-appropriation and of exclu-
sion of State sovereignty, of peaceful uses and purposes, of freedom
of access and scientific investigation, and of rational gestion of the
resources (of the heritage) and equitable sharing to the benefit of all
mankind.
1. In the domain of the International Law of Outer Space
The concept of common heritage of mankind was initially

asserted in the domain of the International Law of Outer Space, for
example, in the 1979 Agreement Governing the Activities of States
on the Moon and Other Celestial Bodies (Art. 11 (1) ). The
Agreement, also known as the Moon Treaty, in fact proclaims the
moon and its resources as the common heritage of mankind (Art. 11
(1) ). Elements of the concept had also been enshrined into the
earlier 1967 Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, Including the Moon
and Other Celestial Bodies 1269, which determined the whole of outer
1267. Cf., in particular, E. Brown Weiss, In Fairness to Future Generations :

International Law, Common Patrimony and Intergenerational Equity, Tokyo,
Dobbs Ferry New York, UNU, Transnational Publs., 1989, pp. 1-291.
1268. On the basis of this understanding,
“on peut jouir des bénéfices de la nature et de ses ressources mais on
doit en assurer la transmission à l’humanité à venir. On peut rappeler à cet
égard la célèbre formule : nous ne sommes pas les héritiers de nos ancêtres,
mais les débiteurs de nos enfants et de nos petits-enfants” ; A. Ch. Kiss,
“La nature, patrimoine commun de l’humanité”, 91 Naturopa (1999),
p. 11.
1269. The 1967 Outer Space Treaty, a framework treaty on the matter, setting
forth basic principles on the exploration and use of outer space, was preceded by
the 1963 Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space, where the notion of common interest
can already be found.
space as being “the province of all mankind” (Art. 1 (1) ) 1270, “not
subject to national appropriation by claim of sovereignty” (Art. 2).
Although expert writing has not been conclusive as to whether
common heritage of mankind and “province of all mankind” are or
are not to be equated 1271, the fact remains that both formulations
have jointly contributed to the general awareness prevailing now-
adays that respect for the principles underlying them and for the outer
space environment is beneficial to the whole of humankind. In fact,
in the course of the last decades, the law-making process in the
domain of the Law of Outer Space has determined the rights and obli-
gations — some of these latter of general character, erga omnes —
of the States engaged in activities in the outer space 1272 ; this law-
making process was from the start inspired by the conscience of the
existence of superior common interests 1273.
The intense normative activity in the formation of the legal
regime of the outer space, mainly of COPUOS and its Legal
Subcommittee, in the decades of the seventies and eighties and at the
beginning of the nineties, has, however, more recently, experienced
a certain slowing down, parallel to the tendency of a commercializa-
tion of certain uses of outer space 1274, and amidst the necessity of an
adequate regulation of specific areas of the legal regime of outer
space 1275. Yet, the understanding had already been formed that the
scientific-technological advances ought necessarily to revert to the
benefit of humankind as a whole 1276. In this line of thinking, the
crystallization is nowadays undeniable, in the domain of the Inter-
national Law of Outer Space, of the general principles of non-appro-
priation, of peaceful uses and purposes, and of the extension of the
1270. In the light of International Law and the UN Charter (Art. 3).
1271. Cf., e.g., D. Tan, “Toward a New Regime for the Protection of Outer
Space as the ‘Province of All Mankind’”, 25 Yale Journal of International Law
(2000), pp. 162-163.
1272. M. Lachs, The Law of Outer Space, Leiden, Sijthoff, 1972, pp. 113,
123 and 137-138.
1273. J. E. S. Fawcett, Outer Space — New Challenges to Law and Policy,
Oxford, Clarendon Press, 1984, pp. 3-4, and cf. p. 6.
1274. Already two decades ago, J. E. S. Fawcett warned that the beginning of
the engagement of private enterprises in space activities appeared “ambiguous as
well as competitive” ; ibid., p. 119, and cf. p. 116.
1275. Cf. E. W. Ploman, Space, Earth and Communication, London, F. Pinter
Publs., 1984, pp. 160-165.
1276. Cf., e.g., [Various Authors,] Ethics, Law, Science, Technology and
International Cooperation (Proceedings of the Córdoba Seminar of 1984),
Córdoba, Council of Advanced International Studies, 1987, pp. 29-188.
benefits of space exploration to the whole of humankind 1277.

The concepts of common heritage of mankind and of “province of
all mankind” have surely contributed to this general awareness.
The 1972 Convention on International Liability for Damage
Caused by Space Objects recognized, in its preamble, the “common
interest of all mankind” in furthering the exploration and use of
outer space for peaceful purposes. In its turn, the 1968 Agreement on
the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into Outer Space invoked “sentiments of human-
ity” in its preamble ; earlier, the 1967 Outer Space Treaty concep-
tualized astronauts as “envoys of mankind in outer space” (Art. 5).
And the 1976 Convention on Registration of Objects Launched into
Outer Space also recognized in its preamble the “common interest
of all mankind” in furthering the use of outer space for peaceful
purposes.
In recent years, the question of the character and utilization of
the geostationary orbit was object of attention of the Legal
Subcommittee of the Committee on the Peaceful Uses of Outer
Space (COPUOS), which, in 2000-2001, reached a consensus among
participating Delegations, in the light of the principle of equity 1278.
The understanding was in the sense that the access to the geostation-
ary orbit ought to take place in an equitable way (the orbits of satel-
lite and the spectrum of radio frequency being “limited natural
resources” 1279) ; thus, the country which had already attained such
access ought to take “all the practicable measures” to render it
possible for other countries (including developing countries) also
to have it 1280.
The UN General Assembly, in its resolutions 55/122, of
8 December 2000 1281, and 56/51, of 10 December 2001 1282, both on
1277. R. G. Steinhardt, “Outer Space”, in The United Nations and Interna-

tional Law (ed. Chr. C. Joyner), Cambridge, University Press/ASIL, 1999
(reprint), pp. 338-341 and 344-349.
1278. United Nations, Committee on the Peaceful Uses of Outer Space
(COPUOS), Report of the Legal Subcommittee (XL Session, Vienna, April
2001), UN doc. A/AC.105/763, of 24.4.2001, p. 10.
1279. In conformity with Article 44 of the ITU Constitution.
1280. United Nations, COPUOS, Report of the Legal Subcommittee (XXXIX
Session, Vienna, March/April 2000), UN doc. A/AC.105/738, of 20.4.2000,
Annex III, pp. 21-22.
1281. Para. 4 ; resolution reproduced in UN doc. A/RES/55/122, of
27.2.2001, p. 2.
1282. Para. 4 ; resolution reproduced in UN doc. A/RES/56/51, of 15.2.2002,
p. 2.
the international co-operation in the peaceful uses of outer space,

took note “with satisfaction” of the consensus referred to reached by
the Legal Subcommittee, and endorsed by COPUOS, on the question
of the character and utilization of the geoestationary orbit. Thus,
both COPUOS and the International Telecommunication Union
(ITU) contributed to reaching the recognition that the geostationary
orbit is a limited natural resource, and that all countries ought to be
able to count on the possibility of access to that orbit, for it not to be
regarded as a privilege for a given number of satellites which are
already placed in it.
The aforementioned UN General Assembly resolutions 55/122
and 56/51 stated in their preambles (second considerandum) the
belief in “the common interest of mankind in promoting and expand-
ing the exploration and use of outer space for peaceful purposes”, as
well as in “continuing efforts to extend to all States the benefits
derived therefrom”. The two resolutions supported the expansion of
the scope of international cooperation relating to “the social, eco-
nomic, ethical and human dimension in space science and techno-
logy applications” 1283.
2. In the domain of the Law of the Sea
Over the last two decades, it became generally reckoned that, of

the expressions the concept of common heritage of mankind has
found in distinct domains of International Law (supra), the most
elaborate has been the one in the Law of the Sea, endowed as it is
with an institutionalized framework (infra). The saga of such a con-
cept — enshrined in the 1982 Montego Bay Convention (Art. 136)
—, in the domain of the Law of the Sea, goes back to the 1967
address by Ambassador Arvid Pardo, of Malta, at the UN General
Assembly. The Maltese proposal — which had antecedents in the
Law of the Sea 1284 — resulted in the adoption, three years later, of the
1283. Paras. 44 and 48, respectively.

1284. Such as the consideration, by the UN International Law Commission,
in the fifties, of the idea of reserving the seabed and ocean floor and their
resources for the use of the international community, as well as the proposal of
several Delegations, at the I UN Conference on the Law of the Sea (1958), that
the continental shelf should be exploited in the interests and for the benefit of
makind as a whole ; United Nations, Office of Legal Affairs, The Law of the Sea
— Concept of the Common Heritage of Mankind . . ., op. cit. infra foot-
note 1288, pp. 1-2, and cf. p. 8.
General Assembly’s declaration that the seabed and ocean floor, and
the subsoil thereof, beyond the limits of national jurisdiction, as well
as the resources of the so-called Area, were the common heritage of
mankind 1285. In 1975 the concept was incorporated into the Informal
Single Negotiating Text of the Third UN Conference of the Law of
the Sea (UNCLOS), and was at last enshrined into the 1982 UN
Convention on the Law of the Sea 1286.
A well-documented account of the legislative history of the con-
cept of common heritage of mankind, published in 1996 by the UN
Office of Legal Affairs (Division for Ocean Affairs and the Law of
the Sea), discloses the intense common search (aiming at universal-
ity) of general principles concerning the peaceful and equitable uses
of the seabed and the ocean floor, and the subsoil thereof, beyond
the areas of national jurisdiction 1287. The aforementioned account
acknowledged difficulties in tracing back all the antecedents, at doc-
trinal level, of the concept at issue :
“It is difficult to say exactly when the concept of the com-
mon heritage of mankind first arose in human consciousness.
The idea, in one form or another, could probably be traced to
ancient times. . . . Suffice it to point out that in the 1830s a
Latin American jurist, Andrés Bello, argued that those things
which could not be held by one nation without detriment to the
others ought to be considered by the international community
as ‘common patrimony’. In 1898, A. G. de Lapradelle, a French
jurist, advanced the idea that the oceans should be ‘le patri-
moine de l’humanité’.” 1288
As advanced in the course of the III UNCLOS (1973-1982), the
concept of common heritage of mankind can be associated with the
creation of an international regime for the regulation and manage-
ment of the seabed and ocean floor beyond the limits of national
jurisdiction on behalf of the entire international community 1289. As
originally propounded in the present domain, the new concept
1285. Cf. UN General Assembly resolution 2749, of 17.12.1970.

1286. Part XI, esp. Arts. 136-145 and 311 (6).
1287. Cf. ibid., pp. 28, 95, 126, 219, 387 and 431.
1288. United Nations, Office of Legal Affairs, The Law of the Sea — Concept
of the Common Heritage of Mankind (Legislative History of Articles 133 to 150
and 311 (6) of the U.N. Convention on the Law of the Sea), New York, United
Nations, 1996, p. 1, and cf. p. 3.
1289. Cf. ibid., pp. 92-93.
sought the overcoming of unilateralisms, and heralded the advent of

a new outlook and paradigm of International Law itself, turning
attention to humankind as a whole (endowed with international sub-
jectivity) as well as to the imperative of international distributive
justice. It was not surprising that, in this new outlook, the
International Seabed Authority, created by the 1982 Montego Bay
Convention and endowed with international legal personality
(Art. 176), had been conceived so as to operate to the benefit of
humankind as a whole.
The insertion, into the Montego Bay Convention, of the concept
of common heritage of mankind, was not meant only to provide the
framework for clauses concerning the structure of the future
Authority, its financing, transfers of technology, and the like ; it went
much further than that, in giving expression to a basic principle ori-
enting the new conventional regime, opposable also to States which
were not to ratify the 1982 Convention 1290, on behalf of mankind. It
had in mind the seabed and its subsoil beyond the limits of national
jurisdiction precisely because they were the ones most exposed to
the ambitions of some States ; their resources — as common heritage
of mankind — were meant to belong to humankind, forming part of
a truly universal regime 1291. After all, the principle of liberty of
exploitation (of the traditional International Law of the Sea) appeared
no longer satisfactory, calling for the common heritage of mankind.
This latter set forth the component principles of non-appropriation
(of resources) and peaceful utilization and exploration in the interest
of mankind as a whole ; as originally conceived, the new universal
regime was to be endowed with a mechanism of its own 1292.
But as progress, in this and other areas of International Law, has
not taken place in a linear way, the International Seabed Authority
experienced vicissitudes even after the Montego Bay Convention
was concluded — as illustrated by the Agreement of 1994 for the
Implementation of Part XI of the Convention referred to. The
Agreement of 1994 much emptied the concept of common heritage
1290. G. de Lacharrière, “La réforme du droit de la mer et le rôle de la

Conférence des Nations Unies”, in Le nouveau droit international de la mer
(eds. D. Bardonnet and M. Virally), Paris, Pedone, 1983, p. 31.
1291. M. Bennouna, “Les droits d’exploitation des ressources minérales des
océans”, in Le nouveau droit . . ., op. cit. supra footnote 1290, pp. 122-123 and
128-129.
1292. C. Douay, “Le droit de la mer et la préservation du mileu marin”, in Le
nouveau droit . . ., op. cit. supra footnote 1290, pp. 238-240.
of mankind of its original content, largely depriving it of a great part

of its purpose of distributive justice, and bringing it closer to the old
notion of Roman law of res communis omnium. With that, the func-
tion of the International Seabed Authority appeared weakened.
It is not surprising that the 1994 Agreement has been received
with a critical spirit by part of the more enlightened legal doctrine,
which characterized it as a “step backwards”, for representing a vic-
tory of the pretensions of a very reduced number of States endowed
with technological capacity to explore on their own the resources of
the international seabed, over the aspirations of the great majority of
States, which sought the establishment of a new international eco-
nomic order, with more distributive justice and solidarity 1293. It
appeared as tipping the balance in favour of technologically
advanced States, whose interests prevailed over the ideal of an equi-
table distribution of benefits bearing in mind the needs of the inter-
national community as a whole 1294.
The ideal of universal solidarity, coupled with social responsibil-
ity, as emerged around the res communis humanitatis, was regret-
tably set aside in favour of the old so-called “free” and “liberal”
competition 1295. This corresponded to the distorted view of “univer-
sality” of the regime of the 1982 Law of the Sea Convention
espoused by the technologically advanced States 1296, which was pre-
cisely what the concept of common heritage of mankind purported to
overcome. Although technologically advanced States reinterpreted
the concept of common heritage of mankind as implying freedom of
access to the Area for all participating States for seabed mining (on
an equal footing under a licensing system), the fact remains that the
concept entered into the vocabulary of the law of the sea implying
distributive justice and international cooperation with preferential
treatment for the poorer countries ; this was the understanding
1293. J. A. Pastor Ridruejo, “Le droit international à la veille du vingt et

unième siècle : normes, faits et valeurs. Cours général de droit international
public”, 274 RCADI (1998), pp. 264-265.
1294. Cf., e.g., J. M. Pureza, O Património Comum da Humanidade : Rumo a
um Direito Internacional da Solidariedade ?, Porto, Ed. Afrontamento, 1998,
p. 247, and cf. p. 242.
1295. Cf. S. Paquerot, Le statut des ressources vitales en droit international
— Essai sur le concept de patrimoine commun de l’humanité, Brussels,
Bruylant, 2002, pp. 85-103.
1296. Cf., for an account, e.g., E. D. Brown, “The 1994 Agreement on the
Implementation of Part XI of the U.N. Convention on the Law of the Sea :
Breakthrough to Universality ?”, 19 Marine Policy (1995), n. 1, pp. 5-20.
espoused by most participants at the III UNCLOS 1297. As pointed

out by M. C. W. Pinto,
“It was an inspiring vision offered to a world at a time when
it seemed feasible to establish a ‘new international economic
order’ founded on distributive justice and cooperation that
would replace an old order of exploitative relationships based
essentially on power disparities and competition.” 1298
From the beginning, when it emerged in the ambit of the law of
the sea, the concept of common heritage of mankind overcame some
resistance. In fact, those who participated in the prolonged negotia-
tory process of the Montego Bay Convention of 1982 did not fail to
express their concern with the threats of a breaking down — mainly
in the ninth session, in 1980, of the III UNCLOS — of the consen-
sus formed as to the concept of common heritage of mankind 1299.
But the concept survived, and found expression in the 1982 Law of
the Sea Convention. After the adoption of the Convention, it was
regarded by some as a rather “philosophical” concept, with “the
potential to emerge and crystallize as a legal norm” 1300.
It is generally recognized nowadays that the formation of the con-
cept of common heritage of mankind has been influenced by the
movement in favour of the establishment of a new international eco-
nomic order, which gained ground mainly in the seventies 1301. In my
view, the ideal of construction of an international legal order with
more distributive justice and solidarity at universal scale is bound to
1297. M. C. W. Pinto, “ ‘Common Heritage of Mankind’ : From Metaphor to
Myth, and the Consequences of Constructive Ambiguity”, in Theory of
International Law at the Threshold of the 21st Century — Essays in Honour of
K. Skubiszewski (ed. J. Makarczyk), The Hague, Kluwer, 1996, pp. 256 and 265-
266.
1298. Ibid., p. 267.
1299. On the occasion, the Group of 77 warned of the risk of destruction of
the whole negotiatory process, and stood against what it regarded as the “ille-
gality” of unilateral national legislations contrary to the concept of common heri-
tage of mankind, seen as endowed with an imperative character ; cf. account of
J.-P. Lévy, La Conférence des Nations Unies sur le droit de la mer — histoire
d’une négociation singulière, Paris, Pedone, 1983, pp. 98-99.
1300. C. C. Joyner, “Legal Implications of the Concept of the Common
Heritage of Mankind”, 35 International and Comparative Law Quarterly (1986),
p. 199.
1301. The triumphalism of the heralds of the so-called “free market” led to
exagerations, such as that of suggesting a “requiem” for the new international
economic order ; T. W. Wälde, A Requiem for the “New International Economic
Order” — The Rise and Fall of Paradigms in International Economic Law,
Dundee, Univesity of Dundee (Discussion Paper DP8), 1997, pp. 1-57.
keep on evolving, to the extent that the human spirit is refined in

approaching and fostering the equitable application of international
norms, to States which are juridically equal but remain factually
marked by profound inequalities, if not iniquities. Just as advances
do not take place in a linear form, nor do the steps backwards appear
irreversible. The ideal of common “heritage” or “concern” of
mankind is surely alive, having managed to permeate the very evo-
lution of some domains of International Law in the last decades.
This is illustrated, for example, by a recent document (of 2002)
issued by the International Seabed Authority on the protection of the
biological biodiversity in the deep seabed 1302, which insists on
marine scientific research 1303 to be undertaken to the benefit of
mankind as a whole, pursuant to the concept of common heritage of
mankind 1304.
Another illustration lies in the treatment which continues to be
dispensed to the concept of common heritage of mankind, both
before and after the Agreement of 1994 referred to. Even those who
appeared somewhat complacent as to the circumstances of the cele-
bration of the aforementioned Agreeement recognized and antici-
pated that the normative content of the provisions on common heri-
tage of mankind appeared as “important precedents” to “force States
which have never felt any obligation to share” the wealth that they
control in order to promote international distributive justice 1305.
At doctrinal level, underlying the concept of common heritage of
mankind subsists the belief that the advances in International Law
are linked to the recognition of the necessity of interdependence,
solidarity and assertion of ethical values in the conduction of inter-
national relations 1306. As pertinently remarked by J. A. Carrillo
Salcedo, the concept of common heritage of mankind,
1302. International Seabed Authority, Deep Seabed Mineral Development,

Bio-Prospecting and the Protection of Biological Diversity in the Deep Seabed
and on the High Seas, April 2002, pp. 1-14.
1303. In the “Area” — such as defined in Article 1 of the Montego Bay
Convention of 1982 — which encompasses the marine and ocean floors and
their subsoil beyond the limits of national jurisdiction.
1304. And also in the terms of Article 143 (1) of the Montego Bay
Convention.
1305. K. Baslar, The Concept of the Common Heritage of Mankind in
International Law, The Hague, Nijhoff, 1998, p. 242, and cf. pp. 222-229.
1306. J.-A. Carrillo-Salcedo, “Contribution de la notion d’humanité au ren-
forcement de la dimension idéologique du droit international”, in K. Vasak
Amicorum Liber — Les droits de l’homme à l’aube du XXIe siècle, Brussels,
Bruylant, 1999, pp. 115-126 ; B. Conforti, “Humanité et renouveau de la pro-
“qui appartient à l’imaginaire des nations, . . . pourra servir, à

l’avenir, de fondement à des constructions juridiques qui recon-
naîtront et organiseront la destination universelle des biens,
empêcheront leur exploitation au seul profit des riches et des
puissants et permetront la répartition plus équitable de leurs
fruits” 1307.
The realization of the ideal to which the common heritage of
mankind gives expression, leaves no room for distortions of that
concept. The universality it originally aimed at was motivated by
international distributive justice, in the light of equity, rather than by
the subsequent search for profit.
3. In the domain of the International Law of Bioethics
The concept of common heritage of mankind has likewise found

expression in the evolving International Law of Bioethics. As from
the mid-twentieth century, human genetics emerged in the scientific
developments of the epoch to establish itself as a new discipline
touching upon the essence and foundation of humanity, raising
issues concerning both life and death and the finite nature of human
beings 1308, for which Law has not yet provided clear and conclusive
answers 1309. On 11 November 1997 the XXIX General Conference
of UNESCO adopted the Universal Declaration on the Human
Genome and Human Rights 1310, Article 1 of which provides that
“The human genome underlies the fundamental unity of all
members of the human family, as well as the recognition of
duction normative”, in Humanité et droit international — Mélanges R.-J. Dupuy,

Paris, Pedone, 1991, pp. 113-120 ; G. Abi-Saab, “‘Humanité’ et ‘communauté
internationale’ dans la dialectique du droit international”, in ibid., pp. 10-12 ;
R.-J. Dupuy, “Droit de la mer et communauté internationale”, Mélanges offerts
à P. Reuter — Le droit international : unité et diversité, Paris, Pedone, 1981,
pp. 223 and 229-230.
1307. J.-A. Carrillo Salcedo, “Le concept de patrimoine commun de
l’humanité”, in Ouvertures en droit international — Hommage à R.-J. Dupuy,
Paris, SFDI, Pedone, 2000, p. 62.
1308. J.-F. Mattei, “Introduction”, in Ethical Eye : The Human Genome (ed.
J.-F. Mattei), Strasbourg, Council of Europe, 2001, pp. 11-13.
1309. Cf., e.g., Council of Europe, Law and Moral Dilemmas Affecting Life
and Death (Proceedings of the Glasgow Colloquy on European Law of 1990),
Strasbourg, C.E., 1992, pp. 11-34.
1310. Endorsed one year later by the UN General Assembly itself (resolution
A/RES/53/152), coinciding with the cinquentenary of the 1948 Universal
Declaration of Human Rights.
their inherent dignity and diversity. In a symbolic sense, it is

the heritage of humanity.”
The provision was intended to draw attention to the rights and
duties of every human being over his “genetic heritage”, and to
stress that any improvement in the knowledge of the human genome
should result in the benefit, without discrimination, of humankind as
a whole ; the protection of the human genome was thus turned to the
safeguard of the integrity of the human species as such and of the
dignity of all individuals as its members 1311. In the present domain,
at regional level, reference can also be made to the 1996 Council of
Europe’s Convention on Human Rights and Biomedicine, which, in
its preamble, asserts the dignity of the individual as such and in his
belonging to the human species, and the need to secure that advances
in biology and medicine benefit humankind as a whole, encompass-
ing present and future generations.
In the preparatory work of the 1997 UNESCO Universal
Declaration on the Human Genome and Human Rights, the
International Bioethics Committee of UNESCO was engaged in the
drafting of a clear and strong provision on the concept of the com-
mon heritage of mankind to be set forth in Article 1 ; subsequently,
however, the concept was — according to an account of its final
drafting — unfortunately “watered down by government representa-
tives”, by considering the human genome only “in a symbolic sense”
to be the “heritage of humanity”. According to that account,
“Indeed, the International Bioethics Committee had em-
braced the ‘common heritage of humanity’ concept, but certain
government representatives designated to study and approve
the Committee’s final draft declaration understood the common
heritage concept as mandating possible appropriation by inter-
national conglomerates and thus a risk to State sovereignty.
Others disliked the community aspect. Ironically, other mem-
bers of the Bioethics Committee, fearful of possible State
sovereignty, preferred to protect the human genome at the level
of the individual. Finally, the French translation of heritage as
‘patrimony’ also created difficulties since it would be seen as
1311. H. Gros Espiell, “Genética y Derechos Humanos — El Anteproyecto de

Declaración de la UNESCO sobre la Protección del Genoma Humano”, in Scritti
in Onore di G. Gerin, Milan, CEDAM, 1996, pp. 217 and 221-222.
having an economic meaning. Hence, the adoption of the

expression ‘symbolic of the heritage of humanity’. ” 1312
Be that as it may, despite such vicissitudes of the drafting of the
aforementioned Declaration, this latter characterizes the human
genome as constitutive of the singularity of human beings 1313 and
affirms the responsibility of the international community as a whole
for the preservation of the human species ; by resorting to the concept
of common “heritage of humanity”, the 1997 Universal Declaration
“se situe dans le prolongement de la prise de conscience accrue
du destin commun de l’humanité et des responsabilités qui en
découlent . . . Dans la Déclaration, la mise en œuvre de la
notion de patrimoine commun vise à assurer la protection la
plus large du génome humain contre les atteintes susceptibles
de mettre en danger la pérennité même de l’humanité. Enfin, la
notion de patrimoine recouvre les connaissances accumulées
par l’homme sur lui-même, comme formant un potentiel de
progrès pour l’humanité.” 1314
UNESCO itself has clarified that the basic idea underlying the
reference to the common “heritage of humanity” in Article 1 of its
Universal Declaration on the Human Genome and Human Rights is
that research on the human genome and the applications flowing
therefrom — which may affect both individuals and the human
species — are the responsibility of the international community as a
whole, an ethical imperative of humankind. Human dignity is the
cardinal principle orienting the safeguard of the integrity of the indi-
vidual and the human species through the protection of the human
genome 1315.
It should not pass unnoticed that Article 3 of the 1997 Universal
Declaration, in referring to the “mutations” undergone by the human
genome in each individual’s natural and social environment, and
1312. B. M. Knoppers, “The Human Genome : Individual Property or

Common Heritage ?”, in Ethical Eye : The Human Genome (ed. J.-F. Mattei),
Strasbourg, Council of Europe, 2001, p. 115.
1313. That is, it applies the concept of human genome to the genome of an
individual as well as to the genomes of all human beings altogether.
1314. G. B. Kutukdjian, “Le génome humain : patrimoine commun de l’hu-
manité”, in Personne humaine et droit international — H. Gros Espiell
Amicorum Liber, Vol. I, Brussels, Bruylant, 1997, p. 609, and cf. pp. 606-607.
1315. UNESCO, Birth of the Universal Declaration on the Human Genome
and Human Rights, Paris, UNESCO, 1999, pp. 3 and 99-100.
living conditions (including health, nutrition and education), stands

against “genetic determinism” 1316. It may well be that we are here
approaching the frontiers of humanity 1317. The present and emerging
domain of International Law gives pride of place to the individual as
such and to his belonging to the human species. The principle of the
dignity of the human person as subject of International Law occupies
a central position herein. Its outlook is essentially universalist,
ineluctably transcending a strictly inter-State dimension. It discloses
a conception of the human being, in the societas gentium and ulti-
mately in the universe itself, which appears remindful of the original
foundations of the droit des gens.
4. In the domain of International Environmental Law
It is widely acknowledged nowadays that international life has

been dramatically marked by the pressures of two major challenges
of our times, namely, the necessities and requirements of protection
of the human person as well as of the environment. Environmental
issues, such as, inter alia, climate change and biological diversity,
have disclosed a truly global dimension, transcending the strictly
inter-State level and requiring a universal approach. It is thus not
surprising to find reiterated references to “mankind” in various inter-
national instruments on preservation of the environment and on sus-
tainable development, and on protection of the cultural heritage 1318
— on behalf of present and future generations —, indicating that
contemporary International Law can no longer be adequately
approached from an exclusively State-oriented perspective, and also
significantly heralding the advent of a new International Law for
humankind.
1316. That is, the false assumption that an individual would be genetically
“programmed” from the beginning of his existence.
1317. As pointed out in this connection, “we are all made from the same matter,
but we are still very, very different. . . . Our main difference in category . . . is meta-
biological, metaphysical and spiritual” ; J. Reich, “At the Frontiers of Humanity”, in
Ethical Eye : The Human Genome (ed. J.-F. Mattei), Strasbourg, Council of Europe,
2001, p. 127.
The 1997 Universal Declaration thus refutes the strictly genetic conception of
humankind and the mistaken view that an individual would amount to the sum
total of his genes ; J.-F. Mattei, “Conclusion”, in ibid., pp. 131 and 135.
1318. The notion of cultural heritage of mankind can be found, e.g., in the
Conventions for the Protection of Cultural Property in the Event of Armed
Conflict (1954) and for the Protection of the World Cultural and Natural
Heritage (1972) (cf. infra).
The 1972 Stockholm Declaration on the Human Environment

expressly refers to the “common good of mankind” (Principle 18).
Rules on the protection of the environment are adopted, and obliga-
tions to that effect are undertaken, in the common superior interest
of mankind. This has been expressly acknowledged in some treaties
in the field of the environment 1319 ; it is further implicit in references
to “human health” in some environmental law treaties 1320. Such
acknowledgment, in addition to that also found in the International
Law of the Outer Space and the Law of the Sea 1321 (supra), calls for
a reconsideration of the basic postulates of International Law bear-
ing in mind the superior common interests of humankind.
Despite semantic variations in international instruments on envi-
ronmental protection when referring to mankind, a common denom-
inator underlying them all appears to be the common interests of
humankind. There seems to be occurring lately, in the present
domain of International Environmental Law, an evolution from the
notion of common heritage of mankind (as emerged in the contexts
of the Law of the Sea and Space Law) to that of common concern of
mankind. The UN General Assembly resolution 43/53, of 1988,
introduced the recognition that climate change was a “common con-
cern” of mankind, since (in the wording of its first operative para-
graph) climate was “an essential condition which sustains life on
earth”.
Such essential or fundamental condition is inextricably linked to
1319. E.g., preambles of the 1971 Treaty on the Prohibition of the Empla-
cement of Nuclear Weapons and Other Weapons of Mass Destruction on the
Sea-bed and the Ocean Floor and in the Subsoil Thereof ; the 1972 Convention
on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on Their Destruction ; the
1977 Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques ; the 1972 Convention on the Pre-
vention of Marine Pollution by Dumping of Wastes and Other Matter ; the 1974
Convention for the Prevention of Marine Pollution from Land-Based Sources ;
the 1972 Convention for the Prevention of Marine Pollution by Dumping from
Ships and Aircraft ; the 1972 UNESCO Convention for the Protection of the
World Cultural and Natural Heritage.
1320. E.g., the 1985 Vienna Convention for the Protection of the Ozone
Layer, preamble and Article 2 ; the 1987 Montreal Protocol on Substances that
Deplete the Ozone Layer, preamble ; Article 1 of the three aforementioned
marine pollution Conventions.
1321. Cf. N. J. Schrijver, “Permanent Sovereignty over Natural Resources
versus the Common Heritage of Mankind : Complementary or Contradictory
Principles of International Economic Law ?”, in International Law and
Development (eds. P. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff,
Kluwer, 1988, pp. 95-96, 98 and 101.
the new idea of “commonness”. The newly proposed notion is

inspired in considerations of international ordre public. It appears as
a derivative of the earlier “common heritage” approach, meant to
shift emphasis from the sharing of benefits from exploitation of
environmental wealths to fair or equitable sharing of burdens in
environmental protection, and the needed concerted actions to that
effect with a social and a temporal dimensions. It could hardly be
doubted, as UNEP itself has acknowledged, that environmental pro-
tection is “decisively linked” to the “human rights issue” 1322.
References to the common heritage of mankind are likewise
found in other instruments of the present domain of International
Law. Thus, for example, the 1966 UNESCO Declaration on
Principles of International Cultural Co-operation proclaims that “all
cultures form part of the common heritage of mankind” (Art. 1 (3) ).
The constitutive charter of UNESCO itself advances the notion of
universal heritage (formed by books, works of art, and other monu-
ments of historical or scientific interest — Article 1 (2) (c) ). In its
turn, the 1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict warns in its preamble that
“damage to cultural property belonging to any people what-
soever means damage to the cultural heritage of all mankind,
since each people makes its contribution to the culture of the
world” 1323.
And the 1972 UNESCO Convention for the Protection of the
World Cultural and Natural Heritage states in its preamble that
“parts of the cultural or natural heritage are of outstanding interest
and therefore need to be preserved as part of the world heritage of
mankind as a whole” 1324 ; the Convention sets forth the responsibil-
ity and duty of the “international community as a whole” in the
present domain 1325. Most parts of the cultural or natural heritage are,
however, under the jurisdictions of the States ; as exclusion of their
sovereignty does not occur in this specific area, international co-
operation grows here in importance, so that the cultural and natural
heritage can be preserved and transmitted to future generations. On
1322. UNEP, doc. UNEP/ELIU/WG.1/1/2, pp. 1-2, para. 4, and cf. pp. 4-5,
paras. 8-9.
1323. Second considerandum.
1324. Preamble, sixth considerandum.
1325. Preamble, seventh considerandum, and Article 6 (1).
2 November 2001, the General Conference of UNESCO adopted the

Universal Declaration on Cultural Diversity, expressing the aspira-
tion to “greater solidarity on the basis of recognition of cultural
diversity, of awareness of the unity of humankind” 1326. The
UNESCO Declaration erects cultural diversity — or “plurality of the
identities of the groups and societies making up humankind” — as
“common heritage of humanity” 1327.
The universal concern with the needed preservation of the world
cultural heritage became manifest in the case of the destruction of
the Buddhas of Bamiyan in March 2001. Even before the confirma-
tion of the demolition of the Buddhas, the UN General Assembly
adopted resolution 55/243 (of 9 March 2001) 1328 warning as to “the
need to respect the common heritage of humankind” 1329. After the
demolition of the Buddhas, the General Assembly of the States
Parties to the 1972 UNESCO Convention for the Protection of the
World Cultural and Natural Heritage, likewise, adopted another reso-
lution, on 31 October 2001, condemning the “wilful destruction of
the cultural heritage of Afghanistan by the Taliban forces” as a crime
“against the common heritage of humanity”. These manifestations
acknowledged the “universal interest” in the preservation of the
world cultural heritage in the light of the 1972 UNESCO
Convention, generating obligations erga omnes partes of protec-
tion 1330.
Later on, the General Conference of UNESCO adopted, on
17 October 2003, the Declaration concerning the Intentional Destruc-
tion of Cultural Heritage, in which it characterized such “intentional
destruction” as
1326. Preamble, eighth considerandum. The 2001 Declaration stated that

“culture should be regarded as the set of distinctive spiritual, material, intellec-
tual and emotional features of a society or a social group”, and that “it encom-
passes, in addition to art and literature, lifestyles, ways of living together, value
systems, traditions and beliefs” ; preamble, fifth considerandum.
1327. Article 1. It determined that “the defence of cultural diversity is an
ethical imperative, inseparable from respect for human dignity” (Art. 4). More-
over, it supported the “pre-eminence of public policy”, as “market forces alone
cannot guarantee the preservation and promotion of cultural diversity” (Art. 11).
1328. In which it stated it was “deeply concerned and appalled by the Taliban
edict of 26.2.2001, ordering the destruction of all statues and non-Islamic
shrines of Afghanistan”, a destruction which would be “an irreparable loss for
humanity as a whole” ; preamble, fourth and sixth consideranda.
1329. Preamble, second considerandum.
1330. R. O’Keefe, “World Cultural Heritage : Obligations to the International
Community as a Whole ?”, 53 International and Comparative Law Quarterly
(2004), pp. 190 and 196-197, and cf. pp. 208-209.
“a violation of International Law or an unjustifiable offence to

the principles of humanity and dictates of public conscience, in
the latter case in so far as such acts are not already governed by
fundamental principles of International Law” 1331.
The 2003 UNESCO Declaration further expressed “serious con-
cern about the growing number of acts of intentional destruction
of cultural heritage”, and recalled “the tragic destruction of the
Buddhas of Bamiyan that affected the international community as a
whole” 1332.
On its part, the UNESCO Convention for the Safeguarding of the
Intangible Cultural Heritage, also adopted in 2003, sought the pro-
tection of the intangible cultural heritage 1333, and conceptualized this
latter as “the practices, representations, expressions, knowledge,
skills . . . that communities, groups and, in some cases, individuals
recognize as part of their cultural heritage” 1334. Subsequently,
the Executive Board of UNESCO approved (at its 167th session) the
establishment of the International Co-ordination Committee for the
Safeguarding of the Cultural Heritage of Iraq, which held its first
plenary session at UNESCO headquarters in Paris on 24-25 May
2004. Its final report began by recalling “the tragic conditions of the
Iraqi cultural heritage since beginning of the embargo and especially
since April 2003”, and stressed the need to safeguard that heritage
for the “sake of the whole humanity” 1335.
The report next warned that the long history of Iraq’s intangible
heritage 1336 was being “threatened by destruction and looting
because of the recent war and more than ten years of embargo, and
will be lost if no prompt action is taken to safeguard it” 1337. The
aforementioned report concluded by stressing the “important role of
1331. Operative part, Sect. II, para. 2.

1332. Preamble, first and second consideranda. The Declaration further
called upon States to “take all appropriate measures to prevent, avoid, stop
and suppress acts of intentional destruction of cultural heritage, wherever such
heritage is located” ; operative part, Sect. III, para. 1.
1333. Invoking to this effect the international instruments of human rights.
1334. Preamble and Article 2 (1).
1335. UNESCO, International Coordination Committee for the Safeguarding
of the Cultural Heritage of Iraq, Final Report (1st plenary session, Paris,
24-25 May 2004), p. 2, and cf. pp. 3-7 and 10-11.
1336. Namely, “five civilizations, five religions in five thousand years of
human experiences, . . . history, poetry, arts, literature, . . . and intangible cul-
ture” ; UNESCO, op. cit. supra footnote 1335, p. 2.
1337. Ibid., pp. 12-13.
intangible heritage” not only in “rebuilding societies” but also “as a

main source of cultural diversity, and as a cornerstone in the identity
of groups, communities and individuals” 1338. The General
Conference of UNESCO had, accordingly — it recalled — adopted
the aforementioned 2003 Convention for the Safeguarding of the
Intangible Cultural Heritage. The report finally formulated recom-
mendations and identified responsibilities 1339.
Shortly afterwards, the Committee held the I Cultural Forum for
Iraq on 26-27 May 2004, wherein it was further recalled that all wars
cause devastation that destroy the soul and desfigure the memory of
the cultural identity of a people ; in the case of the armed attack on
Iraq (2003) and the chaos following it, eight thousand years of
human history were now hanging in the balance. The Forum’s final
document, adopted by UNESCO in the form of an “Appeal” on
27 May 2004, expressed the determination to preserve the (tangible
and intangible) cultural heritage of Iraq 1340. On its part, the UN
Security Council, in resolution 1546 (2004), of 8 June 2004, inter
alia stressed the need for all parties “to respect and protect Iraq’s
archaeological, historical, cultural, and religious heritage” 1341.
The recent 2005 UNESCO Convention on the Protection and
Promotion of the Diversity of Cultural Expressions, adopted (on
20 October 2005) after prolonged debates 1342, reiterated the concep-
tion of cultural diversity as common heritage of mankind, pondering
that “culture takes diverse forms across time and space” and this
diversity is incorporated “in the uniqueness and plurality of the iden-
tities and cultural expressions of the peoples and societies making up
humanity” 1343. The Convention added that cultural diversity can
1338. Op. cit. supra footnote 1335, p. 13.

1339. Cf. ibid., pp. 14-17.
1340. Cf. operative paragraph 1, and sections B and C ; and cf. UNESCO-
PRESS, Press Release No. 2004/47, of 29.5.2004, p. 1. In the same line of con-
cern, and with regard to the recent invasion and occupation of Iraq, the UN
Secretary-General (K. Annan), while deploring, in April 2003, “the catastrophic
losses to Iraq’s cultural heritage” that had just occurred, expressed the determi-
nation to join forces with UNESCO in preventing trade in “stolen Iraqi objects”,
and further noted that “Iraq’s cultural treasures bear witness to an invaluable
legacy for all humanity, and their loss is a wound inflicted on all humankind” ;
United Nations/Secretary-General, Press Release of 15.4.2003, p. 1.
1341. Preamble, ninth considerandum.
1342. Cf., e.g., UNESCO, General Conference, document 33-C/23, of
4.8.2005, pp. 1-16, and Annexes ; and cf. G. Gagné (ed.), La diversité culturelle :
vers une Convention internationale effective ?, Montreal, Quebec, Ed. Fides,
2005, pp. 7-164.
1343. Preamble, consideranda 1, 2 and 7 of the Convention of 2005.
only be protected and promoted by means of the safeguard of human

rights 1344.
The projection of the notion of common heritage of mankind to
cultural and natural heritage acknowledges the configuration of the
general interest of humankind in its protection and conservation.
These latter grow in importance, given the fact that most parts of the
corresponding heritage remain under the respective State jurisdic-
tions (with no exclusion of sovereignty), there being thus an even
greater need to secure that they are preserved and duly transmitted,
as common heritage, to the future generations 1345. Furthermore, the
universal juridical conscence has evolved towards the clear recogni-
tion of the relevance of cultural diversity to the universality of
human rights, and vice versa, as well as towards the humanization of
International Law, and the configuration of a new jus gentium at
this beginning of the twenty-first century, of an International Law
for humankind. And the aforementioned triad of the UNESCO
Conventions of 1972, 2003 and 2005 affords, in my perception, one
of the many contemporary manifestations of the awakening of
human conscience to this effect.
III. The Content

and Significance of the Concept of Common
Concern of Mankind
1. The emergence of the new concept

The two concepts of common heritage and of common concern of
mankind transcend the level of strictly inter-State relations, focusing
on the needs and aspirations of humankind as a whole, encompass-
ing present and future generations. Conflicting interpretations and
controversies surrounding the earlier concept of common heritage of
mankind (in such distinct domains as the Law of the Sea and Space
Law) have led to the subsequent adoption of a derivative concept,
that of common concern of mankind (in, for example, International
Environmental Law). The emphasis of this latter falls upon concerted
actions in equitable sharing of burdens (in environmental protec-
1344. Article 2 (1) of the Convention of 2005.

1345. A. Blanc Altemir, El Patrimonio Común de la Humanidad — Hacia un
Régimen Jurídico Internacional para Su Gestión, Barcelona, Bosch, 1992,
pp. 167-172 and 246-247.
tion), rather than on the pursuance of benefits from exploitation of

natural resources 1346.
At a time when the outcome of the 1992 UN Conference on
Environment and Development (UNCED, Rio de Janeiro) could not
yet be predicted, a Group of Legal Experts was convened by the
United Nations Environmental Program (UNEP), in Malta, on 13-
15 December 1990, in order to lay down the normative basis for the
ongoing negotiating process preparatory to the 1992 UN World
Conference. The report of the Group 1347, stressing the need to relate
preventive to corrective measures, pondered that corrective measures
were being approached from an intra-generational perspective,
while preventive measures were so from an inter-generational per-
spective. In addition, there was special emphasis on the need, in the
present domain, to balance the rights of States with the interests of
the international community, an issue which brought to the fore the
equitable sharing of burdens (costs and benefits) in environmental
protection 1348.
The aforementioned UNEP Malta Meeting of 1990, in focusing
the debates on the origin, contents, rationale and implications of the
concept of common concern of mankind, recalled that
“in the past the notion of international concern had been resorted
to in the practice of UN organs in dealing with cases pertaining to
the protection of human rights and self-determination of peoples,
thus operating a reduction of the domain of domestic jurisdiction
of States. . . . The present concept of common concern of mankind,
which found expression in UN General Assembly Resolution
43/53 of December 1988, wherein climate change was so charac-
terized, went much further, disclosing a pronounced temporal and
social dimension . . ., and focusing on issues which were truly
fundamental to all mankind.” 1349
Being devoid of proprietary connotations, and of controversies on
1346. Cf. UNEP, The Meeting of the Group of Legal Experts to Examine the
Concept of the Common Concern of Mankind in Relation to Global Environ-
mental Issues (ed. D. J. Attard — Malta, 13-15 December 1990), Nairobi,
Kenya, UNEP, 1991, pp. 19-47.
1347. Co-rapporteurs, A. A. Cançado Trindade and D. J. Attard.
1348. Cf. “Report on the Proceedings of the Meeting, Prepared by Co-
Rapporteurs A. A. Cançado Trindade and D. J. Attard”, in The Meeting of the
Group of Legal Experts to Examine the Concept of the Common Concern of
Mankind . . ., op. cit supra footnote 1346, pp. 21-23, and cf. pp. 19-26.
1349. Ibid., p. 20.
exploitation of resources, the more recent concept of common con-

cern of mankind appeared more suitable to address global environ-
mental issues, with due emphasis on the element of protection. The
constitutive elements of common concern were, besides the sharing
of burdens of environmental protection (supra), the engagement of
all countries and all societies and of all peoples within countries and
societies, and the long-term temporal dimension, encompassing
present as well as future generations. Lastly, the 1990 Malta Meet-
ing acknowledged the relevance of the human rights framework also
for environmental protection, with emphasis on social dimension
and participation, once again transcending the strict and purely
inter-State dimension 1350.
The UNEP Group of Experts reconvened shortly later, in Geneva,
on 20-22 March 1991. By then a “growing interest of States” in the
concept of common concern of mankind particularly “within the
context of negotiations on legal instruments on climate change and
conservation and sustainable use of biological diversity” could be
identified. It was, however, stressed on the occasion that “the com-
mon concern concept was not meant to substitute the concept of
common heritage” 1351. It was agreed on the occasion that
“more attention by the international community would be
required with respect to environmental protection of global
commons. The provision of a life of dignity to all in a clean,
safe and healthy environment should be a matter of common
concern of mankind” 1352.
The last meeting of the UNEP Group of Experts, before the hold-
ing of UNCED in Rio de Janeiro in 1992, took place in Beijing, on
12-14 August 1991. The summary report of the Group 1353 indicated
that
“the recently emerged concept of common concern of mankind
was sufficiently flexible to warrant its general acceptance as
1350. Op. cit. supra footnote 1346, pp. 24-25.

1351. Cf. “Report of the II Meeting of the UNEP Group of Legal Experts to
Examine the Implications of the ‘Common Concern of Mankind Concept’ in
Relation to Global Environmental Issues (Geneva, 20-22 March 1991)”, repro-
duced in A. A. Cançado Trindade, Direitos Humanos e Meio Ambiente : Paralelo
dos Sistemas de Proteção Internacional, Porto Alegre, Brazil, S.A. Fabris Ed.,
1993, pp. 282-283.
1352. Ibid., p. 284.
1353. Co-rapporteurs, A. A. Cançado Trindade and A. Malhotra.
providing a broad basis for the consideration of global environ-

mental issues. . . . The concept of common concern of mankind
should relate both to environment and to development.” 1354
At last, the UN Framework Convention on Climate Change and
the Convention on Biological Diversity, adopted by UNCED in
Rio de Janeiro in 1992, lent express support, in their respective
preambles, to the new concept of common concern of mankind.
The former set forth, among its principles, that the parties should
protect the climate systems for “the benefit of present and future
generations of humankind”, on “the basis of equity” and in accord-
ance with their “common but differentiated responsibilities and
respective capabilities” (Art. 3 (1) ).
2. The contribution of the new concept
While the concept of common concern of mankind has lately been

utilized in the particular domain of International Environmental Law,
the concept of common heritage of mankind has been invoked, for a
longer time, bearing in mind distinct objects (as perspicatiously
pointed out by K. Baslar and J. M. Pureza), namely : resources in
areas beyond national jurisdiction (sharing of benefits), or preser-
vation of the global environment (sharing of burdens or responsi-
bilities), or natural resources and cultural heritages situated within
the jurisdiction of States (functional concept of trusteeship of
resources) 1355. As it is hard to have a uniform theoretical framework
1354. UNEP, Beijing Symposium on Developing Countries and International

Environmental Law (Beijing, China, 12-14 August 1991), Nairobi, UNEP, 1992,
p. 4. On this last point, the report added that “the environmental problems of
developing countries were often a reflection of the inadequacy of development” ;
it accordingly propounded an “equitable sharing of burdens”, with the “main
responsibility for cleaning up the environment” being incumbent upon those
countries primarily responsible for the “current emission of pollutants into the
environment”, namely, the developed countries. Lastly, the Beijing report
acknowledged the “linkages between the domain of environmental protection
and that of human rights” ; ibid., pp. 4 and 6-8. On such linkages, cf. A. Ch. Kiss
and A. A. Cançado Trindade, “Two Major Challenges of Our Time : Human
Rights and the Environment”, in Human Rights, Sustainable Development and
Environment (Brasilia Seminar of 1992, ed. A. A. Cançado Trindade), 2nd ed.,
Brasilia, San José, Costa Rica, IIDH, BID, 1995, pp. 289-290.
1355. K. Baslar, The Concept of the Common Heritage of Mankind . . .,
op. cit. supra footnote 1305, pp. 277-279, and cf. pp. 107-108 ; the author
further points out that the concept of common heritage of mankind and the prin-
ciple of permanent sovereignty over natural resources are not contradictory, but
applicable to all such situations, resort has been made to the term
“concern” instead of “heritage” in the ambit of International Envi-
ronmental Law ; yet, both concepts share the same notion of com-
monness and they both invoke mankind, pursuant to the same uni-
versalist outlook.
The more recent concept of “common concern of mankind” has
deliberately avoided proprietary connotations, already referred to,
and has proved particularly suitable to address global environmental
issues (for example, depletion of the ozone layer and global climate
changes). The term common (notion of commonness), in both con-
cepts, has brought to the fore the notion of obligations erga omnes,
engaging all countries and societies, and all peoples within them ; the
term concern has suggested a primary focus on the causes of prob-
lems and conflicts, the preventive character of regimes of protection
and the general obligation of due diligence ; and the term mankind,
again in both concepts, has disclosed the long-term temporal dimen-
sion (encompassing present as well as future generations) 1356.
In fact, the interests of future generations, and the responsibilities
towards these latter, nowadays not only attract increasing attention
on the part of expert writing 1357, but also recognizedly underlie some
international conventions, such as, for example, the 1992 UN Frame-
work Convention on Climate Change, the 1997 Kyoto Protocol to
the UN Framework Convention on Climate Change, the 1985 Vienna
Convention for the Protection of the Ozone Layer, the 1987
Montreal Protocol on Substances that Deplete the Ozone Layer 1358.
In addition, the General Conference of UNESCO adopted, on 12 No-
vember 1997, the Declaration on the Responsibilities of the Present
Generations towards Future Generations, so as “to ensure that the
present generations are fully aware of their responsibilities towards
future generations”, on the basis of a spirit of intra-generational and
rather complementary to each other, as the former starts where the latter ends
(ibid., pp. 135 and 138). And cf. also J. M. Pureza, O Património Comum da
Humanidade . . ., op. cit. supra footnote 1294, pp. 286-288, and cf. pp. 258-263.
1356. UNEP, The Meeting of the Group of Legal Experts to Examine the
Concept of the Common Concern of Mankind . . ., op. cit. supra footnote 1346,
pp. 20-22.
1357. Cf. E. Brown Weiss, In Fairness to Future Generations . . ., op. cit.
supra footnote 1267, pp. 1-291 ; E. Agius and S. Busuttil et al. (eds.), Future
Generations and International Law, London, Earthscan Publ., 1998, pp. 3-197.
1358. Already in 1959, the UN Declaration on the Rights of the Child, e.g.,
stated in its preamble (fifth considerandum) that “mankind owes to the child the
best it has to give”.
inter-generational “solidarity for the perpetuation of humankind” 1359.

The 1997 Declaration added, inter alia, that “the present generations
should strive to ensure the maintenance and perpetuation of human-
kind with due respect for the dignity of the human person” (Art. 3).
3. The co-existence between common heritage and common concern

of mankind, and their legacy to International Law
The concept of common concern of mankind, however, has by no

means superseded that of common heritage of mankind. The two
seem to coexist in contemporary International Law. Both are
invoked in international treaties and practice. The concept of com-
mon concern of mankind, as I well recall from the debates of the
UNEP Group of Experts (Malta, 1990 ; Geneva, 1991 ; and Beijing,
1991) on the matter, purported to rid itself of the controversies
around the element of exploitation of resources (for example, of the
seabed and ocean floors beyond national jurisdiction), associated
with, and often surrounding, the earlier expression of “common
heritage of mankind”. It was never meant to replace this latter.
In fact, as both concepts — those of common heritage and of
common concern of mankind — emerged and entered into the lexi-
con of contemporary Public International Law, they have contributed
decisively, each in its own way, to conceiving and propounding
humankind as titulaire of rights 1360, a conception which has under-
gone a significant evolution in recent years. Common heritage and
common concern of mankind, despite their differences of approach,
are akin concepts, which nowadays co-exist. This is, in a way, to be
expected, since, as already pointed out, it would be unlikely that one
sole concept could be uniformly applied always, in any context
whatsoever, even when one or more of its constitutive principles or
elements would be missing. The concept of common concern of
mankind has given its contribution to the survival of the basic ratio-
nale underlying the earlier concept of common heritage of mankind,
when this latter appeared weakened or undermined by the storm of
so-called “free-market” voluntarism in the mid-nineties.
1359. Preamble, fifth, sixth, ninth, tenth and eleventh consideranda ; and
Article 1 ; cf. also Articles 2, 7 and 8. The Declaration acknowledged the current
threats to “the very existence of humankind and its environment” ; preamble,
fourth considerandum.
1360. Cf. Chap. XI, infra.
Furthermore, even if the concept of common concern of mankind

might appear somewhat abstract when compared with that of com-
mon heritage of mankind, there is nothing that epistemologically
would impede the former to be endowed, like the latter, with the
acknowledgment of concrete legal obligations, and institutions or
mechanisms to instrumentalize compliance with such obligations.
This would bring common concern closer to common heritage of
mankind. In my view, there is here no antagonism between the two
concepts, which can in fact reinforce each other. After all, they share
a common quest for the prevalence of superior common values
shared by the international community as a whole, over the interests
of an individual State or a small group of States, the technologically
more advanced ones. Both concepts have been constructed to
respond to the needs and aspirations of humankind.
In the co-existence between common heritage and common con-
cern of mankind, there is another aspect of significance at concep-
tual level, which could not pass unnoticed here. Both concepts have
flourished in the same line of international legal thinking, with natu-
ral law roots. In their respective substantial doctoral theses on the
common heritage of mankind, José Manuel Pureza and Kemal
Baslar converge in rightly situating the matter in the realm of
natural law, as an emanation of the universal juridical conscience,
moving it away from legal positivism and protecting the State
against its own weaknesses and shortsightedness 1361. The natural law
origin of the both concepts of common heritage of mankind and
common concern of mankind bears witness of the overcoming of the
classic inter-State dimension of International Law and heralds the
advent of a universalist outlook of International Law. Such univer-
salist approach is one which legal positivism has appeared incapable
of conceiving or promoting, as its outlook is ineluctably fragmented
into sovereign units.
The conceptions of common heritage and of common concern of
mankind embody universal solidarity and social responsibility
(rather than competitiveness), emanate from human conscience
(rather than from the free “will” of States), reflect basic values of the
international community as a whole (rather than State interests), and
1361. Cf. J. M. Pureza, O Património Comum da Humanidade . . ., op. cit.

supra footnote 1294, pp. 95-98, 101-102, 117-118 and 286-288 ; K. Baslar, The
Concept of the Common Heritage of Mankind . . ., op. cit. supra footnote 1305,
pp. 8-11, 20-23, 26, 71, 354, 357, 367-368 and 379-380.
strengthen the notion of an international ordre public (rather than a

fragmented contractual vision). They do so in order to face the new
global challenges to the international community as a whole, and
indeed to all humankind, and to provide adequate and satisfactory
responses to them, which the systems of positive law by themselves
simply cannot do.
Furthermore, they disclose the shortsightedness of legal posi-
tivism, liberal mercantilism and political “realism”. They rescue the
thinking of the founding fathers of International Law 1362, and, under
the influence of the impact of the International Law of Human
Rights 1363, bear witness of the revival of natural law (apprehended
by sound human reason) and of the ideal of civitas maxima gentium.
They further bear witness of the reassuring evolution of International
Law from a State-centric international legal system into a true
International Law for humankind, as the new jus gentium of our
times.
There will of course always be those who, out of their professed
“realism”, will argue that, as such concepts of common heritage and
of common concern of mankind have not yet reached their plenitude,
they are utopian, and will never serve their purpose. Those sceptics
are, however, oblivious of the fact that those concepts, against
“realist” projections of a few years ago, have become part of contem-
porary conventional International Law. Those sceptics are equally
oblivious of the strength of ideas, so brilliantly portrayed by Stefan
Zweig. In his biography of Erasmus of Rotterdam (1467-1536),
S. Zweig, one of the more lucid writers of the twentieth century,
singled out, in the precious legacy of the great humanist, the toler-
ance — and I would here add distributive justice — and the end,
without violence, to the conflicts which divide human beings and
peoples. Although the ideal of Erasmus has not been accomplished
until now, it is not thereby devoid of value. In the penetrating
words of S. Zweig,
“An idea which does not come to be materialized is, for that
reason, invincible, since it is no longer possible to prove its
1362. Cf. Chap. I, supra.

1363. Cf. A. A. Cançado Trindade, “The Contribution of International Human
Rights Law to Environmental Protection, with Special Reference to Global
Environmental Change”, in Environmental Change and International Law : New
Challenges and Dimensions (ed. E. Brown Weiss), Tokyo, UNU Press, 1992,
pp. 244-312.
falseness ; . . . only the ideals which have not become worn-out

and committed by the realization continue acting in each gen-
eration as an element of moral impulse. Only the ideas which
have not been complied with return eternally. . . . What
Erasmus . . . left to us as legacy . . . was not anything else but
the . . . very old wish of all the religions and myths of a future
and continued humanization of humanity and of a triumph of
reason . . ., that renews faithfully, in the heart of humankind,
the idea of a future age of a higher human feeling.” 1364
IV. Concluding Observations
It is not at all surprising that, even in a classic domain of

International Law such as that of regulation of spaces, humankind
has also emerged as a subject of International Law 1365, initially
through the acknowledgment, in the domains of the law of Outer
Space and of the Law of the Sea, of the concept of common heritage
of mankind (cf. supra). Announced by successive UN General
Assembly resolutions 1366 (the most significant one having been
General Assembly resolution 2749 (XXV) of 17 December
1970 1367), the concept entered into conventional International Law
by consensus, enshrined as it was in such treaties as the 1979 Treaty
on Outer Space Including the Moon and Other Celestial Bodies and
the 1982 Law of the Sea Convention.
The basic principles are always present, informing and conform-
ing the international instruments at issue, and orienting their inter-
pretation and application : be it the International Seabed Area (prin-
ciples of non-appropriation, sharing of benefits of deep seabed
mining, peaceful uses, international management through the
Authority, and protection of the seas for future generations), be it the
outer space and celestial bodies (principles of non-appropriation,
peaceful uses, freedom of access and of scientific research), what is
1364. S. Zweig, Triunfo y Tragedia de Erasmo de Rotterdam, 5th ed.,
Barcelona, Ed. Juventud, 1986, pp. 205-207 ; S. Zweig, Erasme — Grandeur et
décadence d’une idée, Paris, Grasset, 2002 (re-ed.), pp. 183-185.
1365. Cf. Chap. XI, supra.
1366. Cf. C.-A. Colliard, “Espace extra-atmosphérique et grands fonds
marins”, Humanité et droit international — Mélanges R.-J. Dupuy, Paris,
Pedone, 1991, p. 104.
1367. Containing the Declaration of Principles governing the Seabed and the
Ocean Floor, and the Subsoil Thereof, beyond the Limits of National
Jurisdiction, approved by 108 votes to zero, with 14 abstentions.
here envisaged are not the interests of individual States, but rather
the general concern to secure the benefits for all humankind, in a
spirit of conservation of resources and their transmission, in no
worse condition, to future generations. A deeper awareness of the
temporal dimension of International Law is here manifest.
The rationale of the concept of common heritage of mankind is
clear, inspired in human solidarity, and oriented by the principles of
non-appropriation, peaceful uses and purposes and rational utiliza-
tion, and equitable sharing of benefits by all. This last principle, that
of the equitable sharing of benefits, is the one which, in practice,
was to become the bone of contention in controversies between
developing and developed countries as to the proper implementation
of the concept of common concern of mankind. Thus, despite its
conceptual clarity, the concept of common heritage of mankind, as
set forth in the 1982 UN Convention on the Law of the Sea 1368,
suffered a setback with the renegotiation — under pressure of the
United States — of Part XI of the Convention of Montego Bay,
modified by the Agreement of 1994, which favoured the technologi-
cally more advanced States in the exploitation of resources of the
seabed and ocean floor beyond the limits of national jurisdiction 1369.
But the concept at issue has survived.
Yet, it is not surprising that one of the terms of the concept of
common heritage of mankind — that of “heritage” — has, in the
ambit of International Environmental Law, been replaced by another
term, leading to the distinct formulation of common concern of
mankind. The intention was to make this latter devoid of the conno-
tation of exploitation and sharing of resources or benefits 1370. Six
constitutive elements of the concept of common concern of mankind
have been identified, namely : first, the concentration of the concept
— devoid of proprietary connotations — in truly fundamental ques-
tions for all humankind, pursuant to the notion of commonness ;
second, the necessary engagement, in the treatment of such questions
of common interest, of all countries, all societies and all the social
segments within the countries and the societies ; third — as already
1368. Part XI, especially Articles 136-145 and 311 (6).
1369. J. A. Pastor Ridruejo, “Le droit international à la veille du vingt et
unième siècle . . .”, op. cit. supra footnote 1293, pp. 264-265.
1370. Framework Convention on Climate Change (of 1992), preamble and
Article 3 (1) ; Convention on Biological Diversity (of 1992), preamble ; and
cf. Protocol (of 1991) on Environmental Protection to the Antarctic Treaty,
preamble.
pointed out (cf. supra) — the long-term temporal dimension (under-

lying the term humanity), to encompass both the present and the
future generations ; fourth, the emphasis on the element of protec-
tion, on the basis of considerations of humanity and of ordre public,
transcending reciprocity ; fifth, the attention primarily to the causes
of the problems (both for their prevention and for the responses to be
given) ; and sixth, the equitable sharing of responsibilities as an
instrumental principle in the application of the concept of common
concern of mankind.
It should not pass unnoticed — and it should perhaps be stressed
— that, in this conceptual construction, what was kept in mind was
not the sharing of resources or benefits, but rather of responsibilities.
Despite its formulation, in such a way as to overcome the controver-
sies around the element of exploitation of resources which had sur-
rounded the parallel concept of common heritage of mankind, there
has persisted a varying terminology in international legal instru-
ments. As to its object, the concept of common heritage of mankind
has appeared as a particularly rich and multifaceted one. It was ini-
tially applied as to material resources (so as to avoid State or group
appropriations and save them for mankind), then also to cultures 1371,
and more recently expanded in also applying in bioethics to the
human genome 1372. In retrospect, the oscillations of the concept of
common heritage of mankind seem to suggest that the concept at
issue has perhaps been misunderstood. It was assumed that it
referred to the sharing, or partition, of benefits or resources (cf.
supra), when it would have been more adequate to have linked it
clearly and expressly to the conservation, or transmission, of the
“common heritage” from one generation to another.
Perhaps it would have been more fruitful if the concept of com-
mon concern had preceded that of common heritage, taking the
latter as a materialization of the former 1373. As precisely the opposite
occurred, the concept of “common concern” has at least succeeded,
1371. As from the 1966 UNESCO Declaration of Principles of International

Cultural Co-operation.
1372. Cf. H. Gros Espiell, “The Common Heritage of Humanity and the
Human Genome”, 3 Law and the Human Genome Review (1995), pp. 89-101,
esp. pp. 97-100 ; M. Bedjaoui, “Le génome humain comme patrimoine commun
de l’humanité, ou la génétique de la peur à l’espérance”, Federico Mayor
Amicorum Liber, Vol. II, Brussels, Bruylant, 1995, pp. 913-915, and cf. pp. 905-912.
1373. Cf. A. Ch. Kiss, “The Common Heritage of Mankind : Utopia or
Reality ?”, 40 International Journal (1985), p. 440.
in a way, in “saving” that of “common heritage” of the misunder-

standings that were to surround it. The concept of common concern
of mankind came to stress universally shared values. This conceptual
development — which certainly requires further elaboration —
serves as a warning of the obstacles to be overcome in the construc-
tion, in a larger dimension (not only spatial but also temporal) and
pursuant to the same universalist outlook, of the new International
Law for humankind, at this beginning of the twenty-first century.
397
CHAPTER XIV
CONCEPTUAL CONSTRUCTIONS : THE RIGHT TO PEACE

AND THE RIGHT TO DEVELOPMENT
I. The Formulation of the Right to Peace

in International Law
The search for peace, and the construction of the right to peace,
have historical roots that become notorious with the projects of per-
petual peace of the eighteenth century, such as those of Saint-Pierre
(1712) and of I. Kant (1795). Yet, such projects proved incapable to
date of accomplishing their common ideal, precisely for laying too
heavy an emphasis, in their endeavours to restrict and abolish wars,
specifically on inter-State relations, overlooking the bases for peace
within each State 1374 and the role of non-State entities. It may appear
somewhat surprising that the search for peace has not yet sufficiently
related domestic and international levels, this latter going beyond a
strictly inter-State dimension. Recent attempts to elaborate on the
right to peace have, however, displayed a growing awareness that its
realization is ineluctably linked to the achievement of social justice
within and between nations 1375.
1. Elements of the right to peace in International Law
The conceptual construction of the right to peace in International

Law has antecedents in successive initiatives taken, in distinct con-
texts at international level, throughout the twentieth century 1376.
1374. The project of Kant (cf. I. Kant, Sobre la Paz Perpetua [1795], 4th ed.,
Madrid, Tecnos, 1994, pp. 3-69) at least sought to establish a link between inter-
State and the internal constitution of each State. On the insufficiencies of the
classic endeavours to abolish wars sic et simpliciter, cf. G. del Vecchio, El
Derecho Internacional y el Problema de la Paz (Spanish edition of the original
Il Diritto Internazionale e il Problema della Pace), Barcelona, Bosch, 1959,
pp. 51-52, 62-64, 67 and 121-123.
1375. Cf. ibid., pp. 52, 63-64 and 151 ; A. A. Cançado Trindade, O Direito
Internacional em um Mundo em Transformação, Rio de Janeiro, Ed. Renovar,
2002, p. 1062.
1376. Cf., generally, D. Uribe Vargas, El Derecho a la Paz, Bogotá,
Universidad Nacional de Colombia, 1996, pp. 1-250 ; D. Uribe Vargas, “El
Derecho a la Paz”, in Derecho Internacional y Derechos Humanos/Droit inter-
Elements provided by Public International Law of relevance for the

acknowledgment of the right to peace can be found in the 1928
General Treaty for the Renunciation of War (the so-called Briand-
Kellogg Pact) 1377 ; in Articles 1 and 2 (4) of the United Nations
Charter 1378, complemented by the 1970 UN Declaration on Prin-
ciples of International Law concerning Friendly Relations and Co-
operation among States 1379, the 1970 Declaration on the Streng-
thening of International Security 1380, and the 1974 Definition of
Aggression 1381 ; in the Code of Offences against the Peace and
Security of Mankind, drafted by the UN International Law
Commission ; and in resolutions of the UN General Assembly per-
taining to the right to peace 1382, relating it to disarmament.
The 1974 Charter on Economic Rights and Duties of States in fact
acknowledged the States’ duty to co-exist in peace and to achieve
disarmament 1383. Other international instruments have done the
same 1384. It has been argued that the right to peace entails as a corol-
lary the right to disarmament ; attention has in this respect been
drawn to the fact that limitations to, or violations of, the rights of the
human person have often been associated with the outbreak of con-
flicts, the process of militarization and the expenditure on arms
(especially nuclear weapons and other weapons of mass destruc-
national et droits de l’homme (eds. D. Bardonnet and A. A. Cançado Trindade),

The Hague, San José, Costa Rica, IIDH, Hague Academy of International Law
(1995 External Session), 1996, pp. 177-195.
1377. Endeavouring to overcome the dangerous system of the equilibrium of
forces by condemning war as a means of settlement of disputes and an instru-
ment of foreign policy, and heralding the new system of collective security and
the emergence of the right to peace ; J. Zourek, L’interdiction de l’emploi de la
force en droit international, Leiden, Geneva, Sijthoff, Institut H.-Dunant, 1974,
pp. 39-48.
1378. The relevant UN provisions, together with the 1928 General Treaty for
the Renunciation of War, became major sources — the legal nature of which was
unchallenged by States — of limitations of resort to force by States ;
I. Brownlie, International Law and the Use of Force by States, Oxford,
Clarendon Press, 1963 (reprint 1981), pp. 83 and 91.
1379. UN General Assembly resolution 2625 (XXV), of 24.10.1970.
1380. UN General Assembly resolution 2374 (XXV), of 16.12.1970.
1381. UN General Assembly resolution 3314 (XXIX), of 14.12.1974.
1382. UN General Assembly resolution 33/73, “Declaration on the
Preparation of Society to Live in Peace”, of 15.12.1978 ; UN General Assembly
resolution 39/11, “Declaration on the Right of Peoples to Peace”, of 12.11.1984 ;
cf. also UN General Assembly resolution 34/88, of 1979.
1383. Arts. 26 and 15, respectively.
1384. For example, references to the right to peace and disarmament can be
found in the 1982 World Charter for Nature (preamble, para. 4 (c), and
Principles 5 and 20).
tion) 1385, which have often led to arbitrary deprivation of human life
in large scale. International Law, moved ultimately by the universal
juridical conscience, has reacted to that, in prohibiting the threat or
use of all weapons of mass destruction, including nuclear
weapons 1386.
2. Recent developments in the formulation of the right to peace
The antecedents of the right to peace also comprise the long-

standing tradition of UNESCO of sponsoring studies to foster a cul-
ture of peace 1387. Within the framework of such tradition, UNESCO
launched the initiative, in 1997, of the formulation of the human
right to peace. To that end, the then Director-General of UNESCO
(F. Mayor) convened a Group of Legal Experts (acting in their indi-
vidual capacity) 1388 which, at the end of their meetings of Las
Palmas Island (February 1997) and Oslo (June 1997), produced the
Draft Declaration on the Human Right to Peace. Its preamble 1389
read that
“Peace, a common good of humanity, is a universal and fun-
damental value to which all individuals and all peoples, and in
particular the youth of the world, aspire.”
The right to peace was duly inserted into the framework of human
rights 1390, which was taken into account to assert peace as a right
and a duty. It was asserted as a right inherent in all human beings,
1385. A. A. Tikhonov, “The Inter-relationship between the Right to Life and

the Right to Peace ; Nuclear Weapons and Other Weapons of Mass-Destruction
and the Right to Life”, The Right to Life in International Law (ed. B. G.
Ramcharan), Dordrecht, Nijhoff, Kluwer, 1985, pp. 97-113 ; Ph. Alston, “Peace,
Disarmament and Human Rights”, Armement, développement, droits de
l’homme, désarmement (colloque à l’UNESCO, 1982) (ed. G. Fischer), Paris,
Brussels, Bruylant, 1984, pp. 325-330.
1386. Cf. Chap. XVII, RCADI, Vol. 317 (2005).
1387. Cf., e.g., inter alia, F. Mayor, The New Page, Paris, Aldershot,
UNESCO, Dartmouth, 1995, pp. 1-10 and 59-67 ; J. Symonides and K. Singh,
“Constructing a Culture of Peace : Challenges and Perspectives — An Intro-
ductory Note”, in From a Culture of Violence to a Culture of Peace, Paris,
UNESCO, 1996, pp. 9-30.
1388. The Group was composed of A. Aguiar, M. Bedjaoui, R. Ben Achour,
A. A. Cançado Trindade, A. Eide, H. Gros Espiell, G. Guerin, I. Nguema,
R. Ranjeva, E. Roucounas, J. Symonides, K. Vasak (rapporteur) and C. Zanghi.
1389. Seventh considerandum.
1390. A. A. Cançado Trindade, “The Right to Peace and the Conditions for
Peace”, 21 Diálogo — The Human Right to Peace : Seed for a Possible Future,
UNESCO, Paris (June 1997) pp. 20-21.
embodying demands of the human person and of peoples to the ulti-

mate benefit of humankind. The Draft Declaration called upon all
subjects of International Law (States, international organizations and
individuals) to promote and implement that right as the foundation
of a genuine culture of peace. The document was prepared as a con-
tribution of UNESCO to the 50th anniversary (in 1998) of the
Universal Declaration of Human Rights.
After the Las Palmas and Oslo meetings, UNESCO launched con-
sultations with member States, 42 of which having replied to a letter
of the Director-General up to the end of October 1997 1391. The Draft
Declaration became the object of much attention when revised by
governmental experts from 117 member States, at UNESCO head-
quarters in Paris, in March 1998. The document, as submitted to
them, affirmed that “violence in all its forms is intrinsically incom-
patible with the right of every human being to peace” 1392, and added
categorically that peace ought to be based upon “the intellectual and
moral solidarity of mankind” 1393. At the end of the debates, three
main positions of the participants were discernible : those fully in
support of the recognition of the right to peace as a human right,
those who regarded it rather as a “moral right”, and those to whom
it was an “aspiration” of human beings 1394.
The main difficulty, as acknowledged by the Report of the Paris
meeting, was its official recognition as a legal right 1395. While there
was general agreement in regarding peace as a universal value and a
common good of humankind, some governmental representatives
expressed difficulties in reckoning the existence of a true human
right to peace and its legal consequences 1396. Thus, at the close of
1391. UNESCO, General Conference (29th Session, Paris), Report by the

Director-General on the Human Right to Peace, document 29 C/59, of
29.10.1997, p. 5.
1392. Operative part I, para. 4.
1393. Considerandum 12 of preamble, and operative part I, para. 1. It further
recalled the responsibilities of present generations towards future generations, to
leave them a better world, with respect for International Law and human rights ;
considerandum 14 of preamble.
1394. UNESCO, Executive Board, Report by the Director-General on the
Results of the International Consultation of Governmental Experts on the
Human Right to Peace (Final Report), document 154 EX/40, of 17.4.1998,
p. 10.
1395. Cf. ibid., pp. 2 and 10.
1396. Cf. A. Aguiar, “Perfiles Eticos y Normativos del Derecho Humano a la
Paz”, in B. Boutros-Ghali Amicorum Discipulorumque Liber — Paix, Dévelop-
pement, Démocratie, Vol. II, Brussels, Bruylant, 1998, pp. 884-894, and cf.
pp. 878-884.
the twentieth century, it so appeared that some governments were

not yet prepared to assume legal obligations ensuing from the for-
mulated right to peace . . .
This was surely regrettable, though perhaps not so surprising,
given the turmoiled world in which we live. States seem to be over-
sensitive, perhaps more than human beings, particularly when what
they realize to be at stake is not the well-being of the human beings
they represent and are supposed to protect, but rather what they
regard — in their often incongruous practice — as being their own
vital interests, in the perception of power-holders. Be that as it may,
the aforementioned UNESCO exercise of formulation of the right
to peace is rightly oriented towards an International Law for
humankind.
It is a conceptual construction which is helpful to the formation of
a new jus gentium, responsive to the needs and aspirations of human
beings and peoples. Other relevant elements to the attainment of
peace can be found in the domain of disarmament 1397. In recent
years the recognition of the right to peace has been fostered by the
advent and evolution of the International Law of Human Rights 1398
and of International Environmental Law ; the conception of sustain-
able development, as endorsed by the 1992 UN Conference on
Environment and Development, for example, points to the ineluc-
table relationship between the rights to peace and to development.
II. The Formulation of the Right to Development

in International Law
Somewhat distinctly, the conceptual construction of the right to

development has attained, at this beginning of the twenty-first
century, a degree of consensus reflected in international instru-
ments (such as the final documents of the recent UN World
Conferences) 1399 which does not yet appear to have been achieved to
1397. Cf. Chap. XVII, RCADI, Vol. 317 (2005).

1398. In fact, as early as in 1968 the Final Act of the I World Conference on
Human Rights of the United Nations (held in Teheran) contained several refer-
ences to the relationship between the observance of human rights and the main-
tenance of peace ; cf. United Nations, Final Act of the International Conference
on Human Rights (1968), UN doc. A/CONF.32/41, New York, United Nations,
1968, pp. 4, 6, 9, 14 and 36. And the UN General Assembly, on its turn has con-
stantly been attentive to address the requirements of survival of humankind as a
whole.
1399. Cf. Chap. XXVI, RCADI, Vol. 317 (2005).
the same extent by the parallel construction of the right to peace.

Yet, the two appear ineluctably intertwined, and both the rights to
peace and to development have in recent years drawn attention, in
the domain of International Law, to the needs of humankind.
1. Elements of the right to development in International Law
From the international legal thinking of the second half of the

twentieth century a distinction emanates between the International
Law of development and the right to development. The former, with
its various components 1400, emerged as an objective international
normative system regulating the relations among juridically equal
but economically unequal States, and aimed at the transformation
of those relations on the basis of international co-operation (UN
Charter, Arts. 55-56) and considerations of equity, so as to redress
imbalances among States and to give them all — particularly the
developing countries — equal opportunities to attain develop-
ment 1401. This trend of the International Law of development was
erected upon a predominantly inter-State basis.
Distinctly, the right to development, as proclaimed in the 1986
UN Declaration on the Right to Development 1402, addressed the mat-
ter from the perspective of human beings and peoples 1403, without
excluding States from its construction. It appeared, as propounded
by the 1986 Declaration 1404, as a subjective human right, embodying
1400. Right to economic self-determination, permanent sovereignty over natural

wealth and resources, principles of non-reciprocal and preferential treatment
for developing countries and of participatory equality of developing countries in
international economic relations and in the benefits from science and technology.
1401. Cf., e.g., M. Virally, “Vers un droit international du développement”,
11 Annuaire français de droit international (1965), pp. 3-12 ; H. Gros Espiell,
Derecho Internacional del Desarrollo, Valladolid, Universidad de Valladolid,
1975, pp. 11-47 ; P. Buirette-Maurau, La participation du tiers-monde à l’élabo-
ration du droit international, Paris, LGDJ, 1983, pp. 131-137, 160-167 and 185-
202 ; M. Bulajic, Principles of International Development Law, Dordrecht,
Nijhoff, 1986, pp. 39-77 ; A. Pellet, Le droit international du développement,
2nd ed., Paris, PUF, 1987, pp. 3-124.
1402. Adopted by the UN General Assembly resolution 41/128, of 4.12.1986,
with 146 votes in favour, 1 against and 8 abstentions, and containing a preamble
with 17 paragraphs and 10 Articles in its operative part.
1403. Finding inspiration in such provisions as Article 28 of the 1948
Universal Declaration of Human Rights and Article 1 of both UN Covenants on
Human Rights.
1404. Cf., e.g., M. M. Kenig-Witkowska, “The UN Declaration on the Right
to Development in the Light of Its Travaux Préparatoires”, in International Law
and Development (eds. De Waart, P. Peters and E. Denters), Dordrecht, Nijhoff,
demands of the human person and of peoples which ought to be

respected, to the benefit, ultimately, of humankind. The aforemen-
tioned Declaration contained elements already embodied, mutatis
mutandis, both in the International Law of Human Rights and in
sources of International Development Law 1405. Not surprisingly, the
conceptual construction of the right to development went well
beyond the strictly inter-State dimension.
This new and significant trend was in a way heralded, at norma-
tive level, by the 1981 African Charter on Human and Peoples’
Rights, in providing for the right of all peoples to their economic,
social and cultural development (Art. 22). Five years later, the 1986
UN Declaration on the Right to Development not only placed the
human person as the “central subject of development” 1406, but also
qualified the right to development as an inalienable human right of
“every human person and all peoples”, by virtue of which they are
“entitled to participate in, and contribute to, and enjoy economic,
social, cultural and political development”, in which all human
rights “can be fully realized” (Art. 1). It is clear from the 1986 UN
Declaration that the active subjects or beneficiaries of the right to
development are the human beings and peoples, and the passive sub-
jects are those responsible for the realization of that right 1407, with
special emphasis on the obligations conferred upon the States, indi-
1988, pp. 381-388 ; G. Abi-Saab, “Le droit au développement”, 44 Annuaire

suisse de droit international (1988), pp. 9-24 ; A. A. Cançado Trindade,
“Environment and Development : Formulation and Implementation of the Right
to Development as a Human Right”, 3 Asian Yearbook of International Law
(1994), pp. 15-40 ; J. Álvarez Vitta, Derecho al Desarrollo, Lima, Cult. Cuzco
Ed., 1988, pp. 8-108. And cf., even before the 1986 Declaration, K. M’Baye,
“Le droit au développement comme un droit de l’homme”, 5 Revue des droits de
l’homme/Human Rights Journal (1972), pp. 505-534 ; J. A. Carrillo Salcedo, “El
Derecho al Desarrollo como Derecho de la Persona Humana”, 25 Revista
Española de Derecho Internacional (1972), pp. 119-125.
1405. Such as, e.g., the 1974 Charter of Economic Rights and Duties of
States, the 1974 Declaration (and Programme of Action) on the Establishment of
a New International Economic Order, and relevant UN General Assembly reso-
lutions ; cf., e.g., J. Castañeda, “La Charte des droits et devoirs économiques des
Etats”, 20 Annuaire français de droit international (1974), pp. 31-77 ; P. J. I.
M. de Waart, “Permanent Sovereignty over Natural Resources as a Cornerstone
for International Economic Rights and Duties”, 24 Netherlands International
Law Review (1977), pp. 304-322 ; A. Eide, “Maldevelopment and ‘the Right to
Development’ : A Critical Note with a Constructive Intent”, in Le droit au
développement au plan international (colloque de l’Académie de droit interna-
tional de La Haye, 1979), The Hague, Sijthoff, Nijhoff, 1980, pp. 400-410.
1406. Art. 2 (1), and preamble.
1407. Mainly States but also human beings — cf. Arts. 3 (1) and (3), 4 (1),
2 (2) and 8.
vidually and collectively. The measures envisaged for that realiza-

tion extend to both national and international levels 1408. The major
significance of this trend lies in the recognition or assertion of the
right to development as an “inalienable human right” 1409.
The 1986 UN Declaration on the Right to Development saw it fit
to underline that, in order to promote development, equal and urgent
attention should be given to the implementation of civil, political,
economic, social and cultural rights (given their indivisibility and
interdependence), and the observance of certain human rights cannot
thus justify denial of others ; likewise, all aspects of the right to
development are indivisible and interdependent and each of them is
to be considered in the context of that right as a whole 1410. The
recognition of the right to development as a human right by the UN
Declaration can only come to reinforce other previously formulated
human rights 1411.
In fact, in the context of development initiatives, the right to
development reinforces existing rights, and renders it unwarranted to
invoke so-called requirements of material development in order to
try to justify restrictions to the exercise of guaranteed human rights.
The right to development was meant to enhance, never to restrict,
pre-existing rights. This is so, given the complementary nature of all
human rights. All aspects of the right to development, in their turn,
are likewise interdependent and to be taken into account in the con-
text of the whole 1412. The formulation of the right to development
could only have been undertaken in the light of the conceptual unity
and indivisibility of all human rights. It was at last understood that
economic development was not an end in itself, but rather a means
to achieve wider social objectives as imperatives of social justice.
The right to development as a human right has emerged and crystal-
lized to serve this purpose.
In this framework, economic, social and cultural rights became
1408. Arts. 3 (1), 4, 8 and 10. On the identification of obstacles to overcome,

cf. Arts. 5 and 6 (3) and Preamble.
1409. Art. 1 (1).
1410. Arts 6 (2) and 9 (1), and Preamble.
1411. Moreover, it has contributed to focus on the promotion and protection
of the rights pertaining at a time to individuals and to members of human col-
lectivities as well as on the priority search for solutions to generalized gross and
flagrant violations of human rights.
1412. Thus, a denial of the right to development is bound to entail adverse
consequences for the exercise of civil and political as well as economic, social
and cultural rights.
deserving of special attention ; as warned in the work of the UN

Working Group on the Right to Development, the State cannot
simply abandon its responsibility in this domain to the forces of
the market. There is urgent need to put an end to the tendency to
separate economic development from social development, macro-
economic policies (aiming at economic growth) from the social
objectives of development ; the concepts contained in the 1986
Declaration on the Right to Development should be incorporated
into the policies and programmes of all agencies and organs of the
United Nations system, including the Bretton Woods institutions
(World Bank and International Monetary Fund) 1413.
2. Crystallization of the right to development as a human right
The crystallization of the right to development as a human right is

to a large extent due to the universalist perspective pursued by the
United Nations, prompted by the fundamental changes undergone,
and challenges 1414 faced, by the international community. When, in
1990, the UN Global Consultation on the Right to Development as a
Human Right was held at the UN Palais des Nations in Geneva, the
right to development appeared, as I well remember, already incorpo-
rated in the lexicon of International Law. An aspect which was par-
ticularly emphasized in the UN Global Consultation 1415 was the rele-
vance of participation of all individuals (and particularly of those
coming from the most vulnerable sectors of societies) and the much-
needed equality in the distribution or sharing of the benefits of
development 1416. In my intervention at that UN Global Consultation,
while referring to the temporal dimension of the right to develop-
ment, I saw it fit to alert inter alia that
“the requirements of material development could not be
invoked to justify restrictions to the exercise of guaranteed
human rights ; this is so given the interaction between
1413. UN doc. E/CN.4/AC.45/1994/L.4/Rev.1, of 14.10.1994, pp. 1-26.

1414. Inter alia, decolonization, erradication of chronic poverty, imperatives
of social justice, safeguard of human rights, disarmament, environmental sus-
tainability, reshaping of the world scenario in the post-cold war era.
1415. Which counted on five thematic rapporteurs (as distinct aspects of the
subject), namely, G. Abi-Saab, A. A. Cançado Trindade, V. Kartashkin, A. Pellet
and D. Türk.
1416. UN Centre for Human Rights, The Realization of the Right to Develop-
ment, New York, United Nations, 1991, pp. 25, 33-38, 44-47 and 53.
human rights and development . . . and the [1986] Declaration’s

warning that all aspects of the right to development are also
indivisible and interdependent and to be taken into account in
the context of the whole” 1417.
In fact, in the decade following that of the formulation of the
1986 Declaration, the right to development found significant
endorsements in the final documents adopted by the UN World
Conferences of the nineties 1418, which have brought it into the con-
ceptual universe of contemporary International Law. In any case, this
seemed to have been the understanding of the UN General Assembly
decision 48/141 (of 20 December 1993) 1419, which, in its preamble,
reaffirmed inter alia that “the right to development is a universal and
inalienable right which is a fundamental part of the rights of the
human person”. The implementation of the right to development as a
human right can be considered appropriately within the universe of
International Human Rights Law, as the UN Declaration itself refers
in its preamble to the relevant instruments of the United Nations and
its specialized agencies 1420.
3. The conceptual construction of human development
It is significant that, four years after the formulation of the right to

development as a human right in the 1986 UN Declaration on the
matter, the United Nations Development Programme (UNDP) started
working on the elaboration of the concept of human development, in
1417. A. A. Cançado Trindade, Legal Dimensions of the Right to

Development as a Human Right : Some Conceptual Aspects, UN doc. HR/RD/
1990/CONF.36, of 1990 (UN Global Consultations on the Right to Development
as a Human Right), pp. 1-17, esp. p. 43. And, for a detailed account of the afore-
said UN Global Consultation, cf. A. A. Cançado Trindade, Direito das
Organizações Internacionais, 3rd ed., Belo Horizonte, Belo Horizonte, Brazil,
Ed. Del Rey, 2003, pp. 409-442.
1418. Cf. Chap. XXVI, RCADI, Vol. 317 (2005).
1419. On the creation of the post of United Nations High Commissioner for
Human Rights.
1420. For the implementation of this right one could thus consider the uti-
lization of mechanisms developed in the field of human rights, such as, e.g., the
reporting system, the monitoring (by a working group or a special rapporteur) of
situations manifestly resulting from the condition of underdevelopment (directly
affecting the realization of the right to development), the undertaking of in-
depth studies (identifying problems concerning some economic and social
rights, for example, pertaining to health, housing, education). A. A. Cançado
Trindade, Legal Dimensions of the Right to Development . . ., UN doc. HR/
RD/1990/CONF.36, of 1990, op. cit. supra footnote 1417, pp. 1-17.
the framework of a reassessment of the guidelines of the three pre-

vious United Nations Decades for Development. The turning point
was its first Human Development Report, of 1990, which, question-
ing the propriety of statistical indicators such as the gross national
product (GNP) to measure development adequately, turned attention
to other aspects through the adoption of a new index, called human
development index (HDI) 1421.
It was asserted that any measure of development should not be
limited to the search for economic growth (GNP) only, but should be
much more comprehensive, combining indicators of education,
health and income. It was soon realized that to the new HDI index
other indicators of human progress should be added, such as human
freedom and the advances in the cultural domain : hence the pro-
posed new index of political freedom, so as to evaluate the situation
of this latter in the light of human rights 1422. The concept of human
development propounded by the UNDP was directly linked also to
the issue of the observance of human rights 1423. In the fourth Human
Development Report, of 1993, the UNDP centred attention on the
basic theme of people’s participation, warning that
“although the achievements in human development have been
significant during the past three decades, the reality is continu-
1421. It comprised three key components — longevity (life expectancy),

knowledge (education) and income (decent living standards) — so as to provide
a more comprehensive measurement of human progress ; cf. UNDP, Human
Development Report 1990, New York, UNDP, 1990, pp. 1-113. The UNDP
started from the premises that human beings ought to be at the centre of all
development, and that human development is “a process of enlarging people’s
choices” ; ibid., pp. iii, 1, 6 and 11.
1422. Cf. PNUD, Desarrollo Humano : Informe 1991, Bogotá, PNUD, Tercer
Mundo Ed., 1991, pp. 51-57, and cf. pp. 17-235. The UNDP next called for the
establishment of a network — at international level — of social security for
those in need, and of global consultations conducive to a new “international
covenant” on human development placing people in the centre of national poli-
cies and international co-operation for development ; cf. PNUD, Desarrollo
Humano : Informe 1992, Bogotá, PNUD, 1992, pp. 25, 30 and 35, and cf. pp. 21
and 85-112.
1423. Human development, besides not limiting itself to certain social sectors
(such as education or health), stresses the necessity to develop human capaci-
ties ; freedom itself — in a democracy — constitutes a vital component of
human development. In the understanding of UNDP, the sources of information
should not be limited to the “negative aspects” (such as human rights viola-
tions), but should also encompass the responses and achievements of each coun-
try in this area. Human development and freedom and political participation are
closely related, but in this wide outlook one is equally to consider the situation
of economic and social rights (cf. ibid., pp. 39, 69-72, 77 and 83-84, and cf.
p. 64).
ing exclusion. More than a billion of the world’s people still

languish in absolute poverty, and the poorest fifth find that the
richest fifth enjoy more than 150 times their income.” 1424
Earlier UNDP Reports concentrated on the components of devel-
opment of the people (investing in human capabilities) and for the
people (ensuring that economic growth is distributed widely and
fairly), whereas the 1993 Report approached developmnent by the
people (giving everyone a chance to participate) 1425. The implica-
tions of placing people at the centre of politico-economic
changes 1426 are considerable, and do challenge traditional concepts :
one moves, for example, from national to people’s security (food,
health, employment, safe environment), from old models of devel-
opment to new models of sustainable human development, from out-
moded forms of international co-operation to new forms of interna-
tional cooperation directly focused on people’s needs 1427. The new
emphasis placed on people’s empowerment and the strengthening of
democracy has a direct bearing on human rights protection 1428.
Subsequently, the UNDP came to focus on the new dimensions of
human security as a universal concern, no longer related to the terri-
tory of nation-States, but rather to people, to their needs in daily life
(for example, protection from the threats of hunger, disease, unem-
ployment, crime, social conflicts, political repression, environmental
hazards) 1429. It further pointed out that the paradigm of the concept
1424. UNDP, Human Development Report 1993, New York, Oxford, Oxford
University Press, 1993, p. 1. The UNDP pondered that the new motivation in our
times ought to be the rebuilding of societies around genuine human needs and
the fight against “global poverty”, as “poverty anywhere is a threat to prosperity
everywhere” ; ibid., pp. 1 and 8-9. Here, again, poverty was seen as a
“formidable barrier to participation, whether within or between nations” ; ibid.,
pp. 27 and 21.
1425. Ibid., p. 3.
1426. As recent UN World Conferences have rightly done ; cf. Chap. XXVI,
infra.
1427. Cf. ibid., pp. 1-8.
1428. Democratic practices cannot in fact be confined within national bor-
ders ; they are to be followed at international level by all countries, and interna-
tional financial agencies, in assuming responsibility to prevent economic reces-
sion and unemployment and their negative impact upon economic, social and
cultural rights. For a study, cf., e.g., A. A. Cançado Trindade, “Democracia y
Derechos Humanos : Desarrollos Recientes, con Atención Especial al Continente
Americano”, Federico Mayor Amicorum Liber — Solidarité, Egalité, Liberté,
Brussels, Bruylant, 1995, pp. 371-390.
1429. UNDP, Human Development Report 1994, New York, Oxford, Oxford
University Press, 1994, pp. 22 and 24, and cf. pp. 22-40.
of sustainable human development values the quality of human life

as an end in itself, rather than wrongfully seeing human beings as
merely the means of producing material goods 1430. Human develop-
ment challenges for the twenty-first century, in the view of the
UNDP, include providing basic services to all deprived people,
accelerating job-led growth, reducing population growth, and
making global compacts for fighting poverty and improving the
physical environment. Empowering people, the UNDP argued, “is a
sure way to link growth and human development”, and this latter
discloses a “holistic development paradigm” embracing “both pro-
ductivity and equity, both economic and social development”,
placing people at the centre of its concerns 1431.
4. Lessons from the crystallization of the right to development
The links between human development and human rights hardly

require any demonstration 1432. Development is now seen as encom-
passing social justice and the strengthening of democratic institu-
tions (public participation). Within this framework, the centrality of
people in all development strategies or process is beyond question.
Likewise, the whole construction of the right of development in the
framework of inter-State relations has yielded to the formulation of
the right to development as a human right. Here, again, the anthro-
pocentric framework has come to prevail. The wide acknowledg-
ment of the right to development has contributed to the earned
centrality of human beings, of humankind, in contemporary
International Law.
The 1990 UN Global Consultation on the Right to Development
(supra) drew attention to the need for “greater transparency in nego-
1430. Op. cit. supra footnote 1429, pp. 13 and 17.

1431. Ibid., pp. 122-123. People are regarded “not merely as the beneficiaries
of economic growth but also as the real agents of every change in society —
whether economic, political, social or cultural. To establish the supremacy of
people in the process of development — as the classical writers always did — is
not to denigrate economic growth. It is to rediscover its real purpose” ; ibid.,
p. 124. And cf., generally, A. A. Cançado Trindade, “Human Development and
Human Rights in the International Agenda of the XXIst Century”, in
Compilation — Human Development and Human Rights Forum (August 2000),
San José, Costa Rica, UNDP/Inter-American Court of Human Rights, 2001,
pp. 23-38.
1432. A. A. Cançado Trindade, “Human Development and Human Rights in
the International Agenda of the XXIst Century”, in op. cit. supra footnote 1431,
pp. 23-38.
tiations and agreements between States and international financial

and aid institutions” and for democratization of intergovernmental
financial agencies 1433. Its final report significantly warned that “pre-
vailing models of development have been dominated by financial
rather than human considerations” ; these models
“largely ignore the social, cultural and political aspects of
human rights and human development, limiting the human
dimension to questions of productivity. They foster greater
inequalities of power and control of resources among groups
and lead to social tensions and conflicts. . . . The growing bur-
den of indebtedness and structural adjustment falls heaviest on
the poorest and weakest sectors of society and has clear human
rights implications. . . . The prevailing terms of trade, monetary
policy, and certain conditions tied to bilateral and multilateral
aid, which are all perpetuated by the non-democratic decision-
making processes of international economic, financial and trade
institutions, also frustrate the full realization of the right to
development as a human right.” 1434
The 1986 Declaration, the follow-up endeavours of the UN
Working Group on the Right to Development, and the final docu-
ments of the recent UN World Conferences convened in the nineties
have been attentive to conditions of life, and, more particularly, to
the condition of vulnerable groups, in special need of protection.
Given the current phenomenon of aggravation of poverty, which
affects a considerable part of humankind, International Law cannot
be indifferent to the current search for new models of development
conducive to the eradication of poverty and the attainment of sus-
tainable development. There still remains a long way to go in order
to achieve the full realization of the right to development, but
its conceptual construction as a human right has succeeded in intro-
ducing ethical considerations in the conduct and assessment of the
contemporary practice of International Law. In humanizing the con-
ception and process of development itself, the right to development
has brought about the need to devise some form of its institutional-
ized implementation in the years to come.
1433. UN Centre for Human Rights, The Realization of the Right to Develop-
ment, New York, United Nations, 1991, pp. 50-51.
1434. Ibid., p. 48.
The experience in International Human Rights Law and in

International Development Law can assist in that purpose, as it has
not been confined to meeting basic human needs, but has in fact
gone much further, towards empowerment, in the civil, political,
economic, social and cultural domains. Meeting basic needs and
achieving people’s empowerment go hand in hand. The concern with
living conditions everywhere has come at last to permeate the present-
day international legal system, corresponding to a new ethos of our
times. The international agenda of this beginning of the twenty-first
century has, with the crystallization of the right to development as a
human right, continued to expand considerably, besides rescuing the
central position of human beings in the universe of the law of
nations, pursuant to a necessarily anthropocentric outlook, which
points towards the emergence of the new jus gentium, the Inter-
national Law for humankind 1435.

Humanos, Vol. II, Porto Alegre, Brazil, S.A. Fabris Ed., 1999, pp. 412-420.
412
CHAPTER XV
CONCEPTUAL CONSTRUCTIONS : RESPONSIBILITY FOR

INTERNATIONAL CRIMES AND UNIVERSAL JURISDICTION
I. Introduction
Recent international case-law in the domain of human rights pro-

tection has brought to the fore the recurrent theme of the comple-
mentarity between the international responsibility of the State and
the international criminal responsibility of the individual. The sub-
ject at issue has gained momentum in the light of recent develop-
ments in the law on the international responsibility of the State as
well as in International Criminal Law. The co-existence and comple-
mentarity of the international responsibility of States and the inter-
national criminal responsibility of individuals is related to the cur-
rent trend towards the criminalization of grave violations of human
rights, as well as the relationship between State responsibility
and the struggle against impunity and the endeavours towards the
realization of justice. The conceptualization of the crime of State, its
configuration and the relationship of that notion with the superior
interests of the international community, deserve closer attention
from contemporary international legal doctrine, as much as the
juridical consequences of the crime of State, and the principle of
universal jurisdiction.
II. The International Responsibility of the State and of the

Individual : Recent Developments
The complementarity of the international responsibility of the

State and of the individual for grave violations of human rights has
clearly ensued from successive cases of massacres recently lodged
with the Inter-American Court of Human Rights (IACtHR) — such
as the cases of Myrna Mack Chang (2003) and of the Massacre of
Plan de Sánchez (2004) concerning Guatemala, of the 19 Tradesmen
(2004) and of the Massacre of Mapiripán (2005) concerning
Colombia, and of the Moiwana Community v. Suriname (2005).
Such cases cannot pass unnoticed in the examination of the theme of
the co-existence and complementarity of the international responsi-

bility of States and the international criminal responsibility of indi-
viduals.
In its Judgment on the merits and reparations in the case of Myrna
Mack Chang v. Guatemala, of 25 November 2003, the IACtHR
established that the violation of the right to life of Myrna Mack
Chang occurred in aggravating circumstances, as it resulted from “a
covered-up operation of military intelligence undertaken by the
Presidencial Office (Estado Mayor) and tolerated by several authori-
ties and institutions”, amidst “a pattern of selective extrajudicial
executions launched and tolerated by the State itself”, and a “climate
of impunity” 1436. Moreover, the Court established that the afore-
mentioned operation of military intelligence of the Presidencial
Office (Estado Mayor)
“sought the hiding of the facts and the impunity of those
responsible for them, and, to that end, under the tolerance of
the State, resorted to all types of measures, among which were
found hostilities, threats and murders of those who collaborated
with justice”,
affecting the independence of the Judiciary 1437. That this case was
one of aggravated international responsibility of the State was
further evidenced by the aforementioned facts and the abusive invo-
cation of the so-called “secret of State” leading to an obstruction
of justice 1438.
In the case of the Massacre of Plan de Sánchez (2004), the
IACtHR established Guatemala’s responsibility for grave human
rights violations under the American Convention on Human Rights.
As demonstrated in the case, the crimes committed in the course of
the execution, by military operations, of a State policy of “tierra
arrasada”, including the massacre of Plan de Sánchez perpetrated
on 18 July 1982, were intended to destroy wholly or in part the
members of indigenous Maya communities. The respondent State
accepted its international responsibility under the American
Convention for the grave human rights violations resulting from the
1436. Paras. 138-139, 150, 154 and 157 of the Judgment.

1437. Para. 215 of the Judgment.
1438. Cf. paras. 174-181 of the Judgment ; and cf. also, on the matter, CEH,
Guatemala, Memoria del Silencio — Informe de la Comisión para el Esclare-
cimiento Histórico, Vol. VI, Annex I, Guatemala, 1999, pp. 242 and 244.
massacre of Plan de Sánchez. In its Judgment on the merits of the

case, of 29 April 2004, the IACtHR determined that those violations
“gravely affected the members of the maya-achí people in their iden-
tity and values”, and, in so far as they occurred within a “pattern of
massacres”, they had “an aggravated impact” in the establishment of
the international responsibility of the State 1439.
In turn, earlier on, the Guatemalan Commission for the Historical
Clarification, in its report Guatemala — Memoria del Silencio, had
established the occurrence of 626 massacres committed by the forces
of the State during the armed conflict, mainly the Army, supported
by paramilitary structures 1440. In the view of the Guatemalan Truth
Commission, the grave and massive human rights violations engaged
both the individual responsibility of the “intellectual or material
authors” of the “acts of genocide” as well as the “responsibility of
the State”, as most of those acts were the product of a State “policy
preestablished by a superior command to its material authors” 1441.
In the recent case of the massacre of the Moiwana Community, the
IACtHR ordered (Judgment of 15 June 2005) distinct measures of
reparations to the surviving, and forcefully displaced, members of
that Surinamese community, so as also to preserve their cultural
identity 1442. And in the likewise recent case of the Massacre of
Mapiripán (Judgment of 15 September 2005), Colombia accepted
international responsibility before the Court, specifically for the acts
of its own agents, but the IACtHR when further, in determining the
responsibility of the State for the deaths of 49 persons perpetrated by
the so-called paramilitary (as “third parties”), who counted in the cas
1439. Para. 51 of the Judgment.

1440. 95 per cent of them had been perpetrated between 1978 and 1984 (with
violence intensified in 1981-1983), and in this period 90 per cent had been exe-
cuted in areas inhabited predominantly by the Maya people. The acts of extreme
violence, in the assessment of that Commission, disclosed the characteristics of
“acts of genocide” — specifically against members of the peoples maya-ixil,
maya-achi, maya-k’iche’, maya-chuj and maya-q’anjob’al, in four regions of the
country ; Comisión para el Esclarecimiento Histórico, Guatemala — Memoria
del Silencio, Vol. III, Guatemala, CEH, 1999, pp. 316-318, 358, 375-376, 393,
416 and 417-423.
1441. Ibid., p. 422.
1442. In my lengthy Separate Opinion in that case, I dwelt upon the legal
subjectivity of peoples in International Law, the reaction of the universal juridi-
cal conscience to the projection of suffering in time, the duties of the living
towards their dead in the origins and development of International Law, and the
reparations for damages to what I deemed fit to term the “project of life as well
as of post-life”, bearing in mind the cultural manifestations of the victimized
members of the Moiwana Community (paras. 1-93 of my Separate Opinion).
d’espèce on the tolerance, acquiescence or collaboration of the

armed forces of the State 1443.
III. State Responsibility, the Criminalization of Grave Violations of

Human Rights and the Realization of Justice
The process of criminalization of grave violations of human

rights and of International Humanitarian Law 1444 has effectively
accompanied pari passu the evolution of contemporary International
Law itself : the establishment of an international criminal juris-
diction 1445 is regarded in our days as an element which strengthens
International Law itself, overcoming a basic lack and its insufficien-
cies of the past as to the incapacity to judge and punish those
responsible for grave violations of human rights and of International
Humanitarian Law. In fact, the travaux préparatoires of the Statute
of Rome of 1998 on the International Criminal Court (ICC) led to
the prompt acknowledgment, in the ambit of its application 1446, of
the international criminal responsibility of the individual for the
most serious international crimes.
Such initiative has given a new impetus to the struggle of the
international community against impunity, as a violation per se of
1443. Paras. 96.30-39, 96.43 and 116 of the Judgment.

1444. Cf. G. Abi-Saab, “The Concept of ‘International Crimes’ and Its Place
in Contemporary International Law”, in International Crimes of State — A
Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (eds. J. H. H.
Weiler, A. Cassese and M. Spinedi), Berlin, W. de Gruyter, 1989, pp. 141-150 ;
B. Graefrath, “International Crimes — A Specific Regime of International
Responsibility of States and Its Legal Consequences”, in ibid., pp. 161-169 ;
P.-M. Dupuy, “Implications of the Institutionalization of International Crimes of
States”, in ibid., pp. 170-185 ; M. Gounelle, “Quelques remarques sur la notion
de ‘crime international’ et sur l’évolution de la responsabilité internationale de
l’Etat”, Mélanges offerts à P. Reuter — Le droit international : unité et diversité,
Paris, Pedone, 1981, pp. 315-326 ; L. C. Green, “Crimes under the I.L.C. 1991
Draft Code”, 24 Israel Yearbook on Human Rights (1994), pp. 19-39 ; S. R.
Ratner and J. S. Abrams, Accountability for Human Rights Atrocities in Interna-
tional Law, Oxford, Clarendon Press, 1997, pp. 11, 13-15 and 22-23.
1445. Comprising the establishment by the UN Security Council of the ad
hoc Tribunals for former Yugoslavia in 1993, and for Rwanda in 1994, and the
adoption of the 1998 Rome Statute of the permanent International Criminal
Court.
1446. Attention is to be drawn to the superior universal values which under-
lie the whole theme of the creation of an international criminal jurisdiction, with
a permanent basis. It may be recalled that the 1998 Rome Statute of the ICC
succeeded in setting forth general principles of criminal law, notwithstanding
the conceptual differences between the Delegations of countries of droit civil
and those of countries of common law.
human rights 1447 ; by means of the affirmation and crystallization of

the international criminal responsibility of the individual for interna-
tional crimes, it has thus sought to prevent future crimes 1448. In the
ambit of the inter-American system of human rights, in the case
Paniagua Morales and Others v. Guatemala (Judgment of 8 March
1998), the IACtHR had the occasion to formulate a clear warning as
to the duty of the State to fight impunity 1449. The IACtHR affirmed
the duty of the State 1450 to “organize the public power to guarantee
to persons subject to its jurisdiction the free and full exercise of
human rights”, a duty which — the Court significantly added —
“applies irrespectively of whether those responsible for the viola-
tions of those rights are agents of the public power, private individ-
uals, or groups of them” (para. 174). The recognition of the State’s
duty to fight impunity 1451 nowadays finds expression in the jurispru-
dence constante of the IACtHR.
While an international tribunal of human rights (such as the
European and Inter-American Courts, and, in the future, the African
Court) cannot determine the international criminal responsibility of
the individual, and an international criminal tribunal (such as the ad
hoc International Criminal Tribunals for the former Yugoslavia
(ICTFY) and for Rwanda (ICTR), and the ICC) cannot determine the
1447. W. A. Schabas, “Sentencing by International Tribunals : A Human

Rights Approach”, 7 Duke Journal of Comparative and International Law
(1997), pp. 461-517.
1448. Cf., on the matter, e.g., D. Thiam, “Responsabilité internationale de
l’individu en matière criminelle”, in International Law on the Eve of the Twenty-
First Century — Views from the International Law Commission/Le droit inter-
national à l’aube du XXe siècle — Réflexions de codificateurs, New York,
United Nations, 1997, pp. 329-337. Furthermore, the criminalization of grave
violations of human rights and of International Humanitarian Law has found
expression in the establishment, in our time, of the principle of universal juris-
diction ; cf. A. A. Cançado Trindade, Tratado de Direito Internacional dos
Direitos Humanos, Porto Alegre, Brazil, S.A. Fabris Ed., Vol. III, 1st ed., 2003,
p. 413, and ibid., Vol. II, 1st ed., 1999, pp. 385-400 and 404-412.
1449. Since “impunity fosters chronic recidivism of human rights violations,
and total defenselessness of victims and their relatives” (IACtHR, Series C,
No. 37, para. 173).
1450. Under Article 1 (1) of the American Convention on Human Rights.
1451. Those considerations by the IACtHR were reiterated by it in new obiter
dicta in the Judgments on reparations in the cases Loayza Tamayo (1998,
para. 170), Castillo Páez (1998, para. 107), Blake (1999, para. 64), Villagrán
Morales y Otros (2001, para. 100), Cesti Hurtado (2001, para. 63), Cantoral
Benavides (2001, para. 69), Bámaca Velásquez (2002, para. 64), Trujillo Oroza
(2002, para. 97), to which other obiter dicta in the same sense may be added
in its recent Judgments in the cases Juan Humberto Sánchez (2003, para. 143)
and Bulacio (2003, para. 120).
responsibility of the State, impunity is most likely bound to persist,

being only partially santioned by one and the other. The international
responsibility of the State contains elements of both civil and penal
nature, in the present stage of evolution of International Law. Such
responsibility of the State is neither exclusively civil (as suggests the
duty of reparation for damages), nor exclusively penal (as suggests
the legitimacy of a sanction). It appears as a collective responsibility
of the State, parallel to the international criminal responsibility of
the individual.
Reparations can be endowed with a sanctioning or repressive
character 1452, so as to secure the realization of justice and put an end
to impunity (cf. infra). The fulfilment of the exemplary or dissuasive
purposes can — and must — be sought by means not only of indem-
nizations, but also of other (non pecuniary) forms of reparation.
One ought to, moreover, keep in mind that, while the reparation
(material and moral) benefits directly the injured party, the sanction
(or repressive action against the transgressing State), in turn, benefits
the international community itself as a whole ; not to admit that
would amount to consent that the State responsible for the violation
subtracts itself from the Law 1453.
Already by the mid-twentieth century there was doctrinal support
for the co-existence of the international responsibility both of indi-
viduals (physical persons) and of States (juridical persons), as
International Law binds them all (as their subjects). In the case
of the States, their responsibility is collective, and H. Kelsen, for
example, admitted that a State, in incurring into a grave violation
of International Law, commits a delict or a crime 1454. In warning
that the individual responsible for such violation acted in the name of
the State, H. Kelsen also admitted that the responsibility of the State
can be both objective and absolute, as, in given circumstances, it
can also have as basis the fault or culpa 1455.
In fact, even if one admits the principle of the objective or abso-
lute responsibility of the State (as did the IACtHR in the case of
“The Last Temptation of Christ”, concerning Chile, Judgment of
1452. M. Gounelle, “Quelques remarques sur la notion de ‘crime interna-

tional’ . . .”, op. cit. supra footnote 1444, pp. 317-318.
1453. H. Lauterpacht, op. cit. infra footnote 1464, pp. 355-357.
1454. Cf. H. Kelsen, Principles of International Law, New York, Rinehart &
Co. Inc., 1952, pp. 9, 11-13, 97-100, 104-105, 107 and 114-117.
1455. Ibid., pp. 122-123.
5 February 2001), this does not mean that the responsibility based
on fault or guilt is entirely dismissed in every and any hypothesis or
circumstance. There are cases — such as the aforementioned cases
of Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the
19 Tradesmen, of the Massacre of Mapiripán, of the Moiwana
Community — in which the intention of the State to cause the
damage or its negligence in avoiding it can be demonstrated ; the
fault or guilt (intent) becomes, here, on the indispensable basis of the
responsibility of the State 1456, aggravated by this circumstance.
IV. Complementarity between the International Responsibility

of States and the International Criminal Responsibility
of Individuals
The international responsibility of the State and the international

criminal responsibility of the individual do not exclude, but rather
complement, each other. This is so because a public agent operates
on behalf of the State, and both the State and its agent answer for the
acts or omissions imputable to both. The international tribunals of
human rights pronounce on the international responsibility of the
State, and the ad hoc international criminal tribunals (for the former
Yugoslavia and for Rwanda) and the ICC on that of the individuals
at issue. Neither the former, nor the latter, encompass the totality of
the matter in its present stage of evolution. Yet, there does not appear
to be any juridical impediment for the concomitant determination of
the international responsibility of the State and the international
criminal responsibility of the individuals — despite the insufficient
development of the matter, reflected in the persistent compartmen-
talized approach to the international responsibility of the State and
the international criminal responsibility of individuals.
The evolution of the law on international responsibility should not
yield to the rigid compartmentalization between civil and criminal
responsibility found in the national legal systems. Nothing seems to
impede that it contains elements of one and the other, both conform-
ing the international responsibility. This latter is endowed with a
specificity of its own. A State can be internationally responsible for
1456. Cf., in this sense, H. Lauterpacht, op. cit. supra footnote 1464, pp. 359-
361 and 364.
a crime, imputable both to its agents who committed it, and to the
State itself as juridical person of International Law. To deny this
would be to create an obstacle to the development of International
Law in the present domain of the international responsibility.
Even those who sustain that criminal responsibility falls only
upon the individuals who commit the crimes and not upon the col-
lective persons (the States), as societas delinquere non potest, admit,
nevertheless, the existence and evolution nowadays of forms of
criminal responsibility of juridical persons in the domestic law of
distinct countries 1457. The engagement of the criminal responsibility
of the juridical person (for example, in environmental protection)
results from the very capacity to act and the necessity to preserve
superior social and common values. The State, juridical person
(although of abstract quality) and subject of International Law, has
rights and duties governed by this latter ; its conduct is directly and
effectively foreseen and regulated by the law of nations (droit des
gens) 1458. The State, as well as its agents, ought, thus, to be account-
able for the consequences of their acts or omissions.
In a situation such as the one aforementioned, the determination
of the international criminal responsibility of the individual is not,
thus, sufficient, as the State, in whose name its agents committed a
crime, contributed itself, as a juridical person of International Law, to
the perpetration or occurrence of such crime. In the recent cases
of Myrna Mack Chang, of the Massacre of Plan de Sánchez, of the
19 Tradesmen, of the Massacre of Mapiripán, of the Moiwana
Community, the crimes of State were materialized both by the exe-
cution (planned as from the highest rank of the public power) of the
crimes, as well as by the subsequent cover-up of the facts, the pro-
longed obstruction of justice, and the impunity of those responsible
for it, thus generating an aggravated responsibility. At conceptual
level, it is surely difficult not to admit the occurrence of a crime of
State in general International Law, above all in so far as there is
intention (fault or guilt), or tolerance, acquiescence, negligence,
action or omission, on the part of the State in relation to grave
violations of human rights and of International Humanitarian Law
1457. Cf. J. Barboza, “International Criminal Law”, 278 RCADI (1999),

pp. 82 and 96.
1458. Cf., e.g., G. Arangio-Ruiz, Diritto Internazionale e Personalità
Giuridica, Bologna, Coop. Libr. Univ., 1972, pp. 9-19 ; J. A. Barberis, Los
Sujetos del Derecho Internacional Actual, Madrid, Tecnos, 1984, pp. 26-35.
perpetrated by its agents, in pursuance of a State policy. In such

circumstances, societas delinquere potest.
In the domain of Law, every person constitutes a centre or unity
of imputation. In the case of the physical person, one is before the
concrete and living unit of each human being, while the juridical
person, which is a creation or construction of Law, also constitutes a
centre or unit of imputation for conducts attributed to individuals
who act on their own behalf, and for the consequences for which the
juridical person itself, as well as its agents, ought to be accountable.
In sum, the juridical personality of a collective entity (such as the
State) is a construction of the Law, and constitutes a unit of imputa-
tion of its conducts, undertaken by the individuals who compose
such collective entity and act on its behalf ; thus, both the juridical
person as well as those individuals ought to be accountable for the
consequences of their acts or omissions 1459, particularly when they
bring about grave violations of human rights and of International
Humanitarian Law. In my view, the international responsibility of
the State and the international criminal responsibility of the individ-
ual do not exclude each other, but, quite on the contrary, they appear
complementary to each other and ineluctably intertwined.
V. Some Considerations on the Crime of State Revisited
1. Configuration of the crime of State
This leads me to the consideration of the typology of culpability,

and, in the framework of this latter, of the configuration of the crime
of State. In his masterly monograph The Problem of Guilt, the jus-
philosopher Karl Jaspers distinguished four types of culpability,
namely, the criminal, political, moral and metaphysical ones 1460.
1459. In this sense, L. Recaséns Siches, Tratado General de Filosofía del

Derecho, 16th ed., Mexico, Ed. Porrúa, 2002, p. 272.
1460. The criminal one resulted from acts which objectively breached
unequivocal laws, and which were demonstrable before a tribunal ; the political
one resulted from actions of the governors, of the State, of which the governed
ones were co-responsible, as “every person is co-responsible of how he is gov-
erned” ; the moral one resulted from the actions of each individual, having by
judge the conscience itself ; and the metaphysical one, whereby “there is a soli-
darity between men . . . which makes each one responsible for . . . the crimes
which take place in their presence or with their knowledge”. K. Jaspers, El
Problema de la Culpa, Barcelona, Ed. Paidós, Universidad Autónoma de
Barcelona, 1965 (re-ed. in Spanish, 1998), pp. 53-54.
After addressing the distinct consequences of those modalities of

culpability 1461, K. Jaspers persuasively concluded that “there are
crimes of State, which are always and at the same time crimes of
given individuals” ; if such crimes were always judged by the inter-
national community, he added,
“Humanity would be united in an ethos comprehensible to
all. What we have ourselves suffered would no longer be
repeated . . .” 1462
In the same line of thinking, another jusphilosopher, Paul Ricœur, in
his essay La mémoire, l’histoire, l’oubli, in evoking the thought of
K. Jaspers, referred likewise to the culpability for State policies
of criminal responsibility, and expressly utilized the term “crime
of State” 1463.
Also in the more lucid doctrine of International Law one can find
elements conducive to the configuration of the crime of State. Thus,
already in 1937, Hersch Lauterpacht warned that the traditional
respect for State sovereignty hindered the development of the law of
the international responsibility, particularly where it marked more
presence, namely, as to the consequences of responsibility. Thus, the
traditional theory limited responsibility only to the reparation for
damages (material and moral), without it being possible for States,
as a result of their sovereignty, to be punished. This vision, however,
in exempting the State from the consequences of its own violations
of the Law, appeared entirely arbitrary, limiting the action of justice
at international level 1464. This being so, argued that author with
vehemence and against the then prevailing doctrine,
1461. Namely : the criminal one leading to sanction or punishment ; the

political one to responsibility ; the moral one to regret and renovation ; and the
metaphysical one to “a transformation of the human conscience of himself
before God” ; op. cit. supra footnote 1460, p. 57.
1462. Ibid., p. 131.
1463. P. Ricœur, La mémoire, l’histoire, l’oubli, Paris, Ed. du Seuil, 2000,
pp. 423, 434 and 609. Such political culpability
“résulte de l’appartenance de fait des citoyens au corps politique au nom
duquel les crimes ont été commis. . . . Cette sorte de culpabilité engage les
membres de la communauté politique indépendamment de leurs actes indi-
viduels ou de . . . leur degré d’acquiescement à la politique de l’Etat. Qui a
bénéficié des bienfaits de l’ordre public doit d’une certaine façon répondre
des maux créés par l’Etat dont il fait partie” ; ibid., pp. 615 and 620.
1464. H. Lauterpacht, “Règles générales du droit de la paix”, 62 RCADI
(1937), pp. 339 and 349-350.
“la violation du droit international peut être telle qu’elle néces-

site, dans l’intérêt de la justice, une expression de désapproba-
tion dépassant la réparation matérielle. . . . Abolir ces aspects
de la responsabilité entre les Etats serait adopter, du fait de leur
souveraineté, un principe qui répugne à la justice et qui porte
en lui-même un encouragement à l’illégalité. Ce serait per-
mettre aux individus, associés sous la forme d’Etat, d’acquérir,
quant aux actes criminels commis . . ., un degré d’immunité
qu’ils ne possèdent pas agissant isolément ; c’est une immunité
couvrant des actes qui, parce qu’ils sont collectifs et aidés par
la puissance presque infinie de l’Etat moderne, jouissent d’un
pouvoir de destruction virtuellement illimité.
C’est la personnification courante de l’Etat, impliquant une
distinction artificielle entre l’association et les membres qui la
composent, qui a contribué a suggérer ce principe anarchique
d’irresponsabilité morale et juridique. . . . Il ne peut guère y
avoir d’espoir pour le droit international et la morale si l’indi-
vidu, agissant comme l’organe de l’Etat peut, en violant le droit
international, s’abriter effectivement derrière l’Etat imperson-
nel et métaphysique ; et si l’Etat, en cette capacité, peut éviter
le châtiment en invoquant l’injustice de la punition collec-
tive.” 1465
As well pointed out by C. Th. Eustathiades in a substantial and
pioneering study half a century ago, States and individuals are
subjects of International Law, and one cannot pretend that the inter-
national criminal responsibility of the individual replaces or “elimi-
nates” that of the State ; the responsibility of this latter can also be
engaged by an international delict, bringing about sanctions in
International Law which have a “repressive function” 1466. The indi-
vidual and the State responsibility can perfectly cumulate 1467.
In our days, the consolidation of the specificity of crimes against
humanity seems to point into the same direction. Such crimes, pur-
porting to humiliate and “dehumanize” the victims and thus affecting
humanity itself, are particularly grave, and are not committed by
1465. Op. cit. supra footnote 1464, pp. 350-352.

1466. C. Th. Eustathiades, “Les sujets du droit international et la responsabi-
lité internationale — nouvelles tendances”, 84 RCADI (1953), pp. 415, 417, 448,
604 and 607-608.
1467. Ibid., p. 603.
individuals acting in isolation or on their own. On the contrary, more

often than not, they are perpetrated collectively, they pursue dis-
criminatory and criminal policies, in a complex, organized and
coldly planified way 1468 ; as they, thus, quite often amount to State
policies, they are true crimes of State, surrounded by attempts to
secure impunity and by obstructions of justice. The 1998 Rome
Statute of the ICC lists a series of acts, amounting to crimes against
humanity, when “committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of
the attack” (Art. 7).
To the extent that such acts conform systematic practices of grave
violations of human rights as part of a State policy, they are true
crimes of State (crimes d’Etat) 1469. The determination of the respon-
sibility of the State for them fulfils a legitimate concern of the inter-
national community as a whole 1470. Furthermore, the succession of
genocides perpetrated along the twentieth century 1471 stands as a
serious warning that massive violations of the rights of the human
person have been accompanied by a State policy of “dehumaniza-
tion” of the victims, so as to pretend to act in pursuance of an
alleged “right of the State to persecute or to massacre” 1472 ; or, in
other words, to perpetrate a true crime of State.
These are not “abstractions”, as part of the legal doctrine insists
on portraying them, so as to elude consideration of the matter. It is
well known that many crimes of the kind have been surrounded
by public campaigns of propaganda or “dehumanization” of the
victims, added to other strategies, depriving them of their homes,
their property, their agriculture of subsistence, their nationality, their
cultural identity, their modus vivendi itself — for the final perpetra-
tion of crimes of State. Moreover, it should not pass unnoticed that
1468. Y. Jurovics, Réflexions sur la spécificité du crime contre l’humanité,

Paris, LGDJ, 2002, pp. 14-15, 21-23, 52-53, 72-73, 92-93, 132-133, 183, 192,
198-199, 228-229, 279, 283, 329, 331, 335, 360-361, 375-376, 405 and 439, and
cf. pp. 440.
1469. Cf. J. Verhaegen, Le droit international pénal de Nuremberg : acquis et
régressions, Brussels, Bruylant, 2003, pp. 10-11, 22, 51-53, 62 and 86.
1470. Cf., e.g., R. Besné Mañero, El Crímen Internacional — Nuevos
Aspectos de la Responsabilidad Internacional de los Estados, Bilbao,
Universidad de Deusto, 1999, pp. 78-79, 186, 215, 218, 221 y 230-231.
1471. Armenia, Soviet Rusia, the Holocaust, Cambodia, former Yugoslavia,
Rwanda.
1472. B. Bruneteau, Le siècle des génocides — Violences, massacres et pro-
cessus génocidaires de l’Arménie au Rwanda, Paris, A. Colin Ed., 2004, pp. 222
and 233.
reiterated and considerable difficulties have been encountered when

it comes to “demobilizing”, or putting an end to, the mounted State
apparatus of extermination 1473 of various kinds (whether it be com-
posed of secret police, so-called “intelligence” services, death
squads, so-called paramilitary, police battalions, or whatever).
2. The crime of State in relation to the fundamental or superior

interests of the international community
There is another aspect to be singled out in relation to the con-

figuration of the crime of State, linked to the protection of the fun-
damental or superior interests of the international community itself
as a whole 1474. Thus, from this perspective, the crime of State appears
as a grave violation of peremptory International Law (jus cogens),
which affects directly its principles and foundations, and which con-
cerns the international community as a whole, not having to be dealt
with by analogy with categories of domestic criminal law. In any
case, the concept of crime of State ought to be studied in depth, and
not to be avoided.
The crime of State appears, in sum, as a particularly grave viola-
tion of International Law bringing about an aggravated responsibil-
ity (amidst aggravating circumstances, thus evoking a category of
criminal law) ; the gravity of the violation affects directly the funda-
mental values of the international community as a whole 1475. The
detractors of the concept of crime of State, instead of keeping in
mind such values, were to relate that concept to a mistaken analogy
with criminal law in the sense that it is endowed with in domestic
law.
It was necessary to wait for years for new doctrinal developments
to pave the way for a certain “criminalization” of the relationship of
1473. For the historical example of denazification, cf., e.g., J. H. Herz, “An
Historical Perspective”, in State Crimes — Punishment or Pardon (1988
Conference Papers), Queenstown, Maryland, Aspen Institute, 1989, pp. 11-22.
1474. Cf., e.g., J. Barboza, “International Criminal Law”, op. cit. supra foot-
note 1457, p. 97 ; J. Quigley, “The International Law Commission’s Crime-
Delict Distinction : A Toothless Tiger ?”, 66 Revue de droit international de
sciences diplomatiques et politiques, Geneva (1988), pp. 119-120.
1475. A. Pellet, “Can a State Commit a Crime ? Definitely, Yes !”, 10
European Journal of International Law (1999), pp. 426-427 ; C. Tomuschat,
“International Crimes by States : An Endangered Species ?”, in International
Law : Theory and Practice — Essays in Honour of Eric Suy (ed. K. Wellens),
The Hague, M. Nijhoff, 1998, pp. 253 and 265.
responsibility, reducing the space occupied earlier by State volun-

tarism. A former rapporteur of the UN International Law Commission
(ILC) on the theme of the International Responsibility of the State,
Roberto Ago, established, beyond the previous theoretical schemes, a
gradation of violations of the State obligations, therefrom emerging,
in 1976, his well-known proposal of Article 19 of the Draft on the
Responsibility of the States, incorporating the concept of “inter-
national” crime and distinguishing it from “international delict” 1476.
The acts of “particularly serious nature” would correspond to “inter-
national crimes” affecting the fundamental values of the inter-
national community, and the others — not revealing the same degree
of gravity — would amount to “international delicts” 1477. A new
vision of the law on international responsibility began to emerge,
taking into account the basic values and the needs of the interna-
tional community as a whole.
Nevertheless, the advances in this area have taken place not in a
steady way, but rather — as often so occurs — moving back and
forth, like a pendulum. The fact that the final Draft Articles on the
Responsibility of the States, adopted by the ILC in 2001, entered
into details on the so-called “countermeasures” (which reflect what
there is of most primitive in International Law, that is, the use of
reprisals in a new version), and discarded and filed, somewhat
lightly, the concept of international crime or “crime of State”, is a
reflection of the world in which we live. Ubi societas, ibi jus. The
relatively summary treatment dedicated by the Articles on the
Responsibility of the States (2001) of the ILC to the grave violations
— and their consequences — of obligations under peremptory norms
of general International Law (essentially in Articles 40-41) 1478,
reveals the insufficient conceptual development of the matter until
1476. The ILC itself, in its commentary on the matter, compared the adoption
of the formulation which recognized the distinction between the two concepts
(international crimes and delicts) in the codification of the law on the interna-
tional responsibility of the State with the setting forth of the category of jus
cogens in the law of treaties ; United Nations, Yearbook of the International Law
Commission (YILC) (1976-II), Part II, para. 73, p. 122. With the proposed
Article 19 of the aforementioned Draft of the ILC, two regimes of responsibility
would be formed : one for non-compliance of obligations of fundamental impor-
tance to the international community as a whole, and another for non-compli-
ance with of obligations of minor or less general importance.
1477. Cf. comments and examples in ibid., pp. 95-122.
1478. Cf. comments in J. Crawford, The International Law Commission’s
Articles on State Responsibility, Cambridge, University Press, 2002, pp. 242-
253.
our days, in an international community which is still in search of a

greater degree of cohesion and solidarity.
As well recalled by G. Abi-Saab, an analogy with domestic crimi-
nal law was not what Roberto Ago had in mind in advancing in
1976 the concept of international crime or crime of State in the well-
known Article 19 of the Draft Articles on the Responsibility of the
State of the ILC. The distorted analogy with domestic criminal law
ignores the specificity of the crime of State in International Law, and
regrettably minimizes the recognition of the fundamental or superior
interests of the international community, the emergence — in its
wide dimension — of jus cogens in the domain of the international
responsibility of the States, and the necessity to establish an aggra-
vated regime of the international responsibility of the State 1479. And
the main purpose of this regime is precisely
“to defend the normative integrity of the legal system itself
against patterns of behaviour which go against its most funda-
mental principles and thus undermine its regular functioning
and credibility. . . . It can legitimately be feared that setting
aside the dual regime of responsibility would be widely per-
ceived as a reversal of the evolution of general International
Law from a community-oriented system back to a purely inter-
subjective one.” 1480
The reaction to the grave and systematic violations of human
rights and of International Humanitarian Law came to constitute in
our days a legitimate concern of the international community as a
whole 1481. This takes place even more forcefully when the victims
are vulnerable and defenceless (as in the aforementioned cases),
and when the structure of public power is distorted and comes to be
utilized to breach the rights inherent to the human person. As from the
moment when the international community starts to profess certain
fundamental and superior values, one has to accept the consequence
of the establishment of a special regime of aggravated responsibility
1479. The establishment of such regime was precisely the purpose of the
aforementioned Article 19 of the Draft Articles on the Responsibility of the State
of the ILC ; G. Abi-Saab, “The Uses of Article 19”, 10 European Journal of
International Law (1999), pp. 339-351.
1480. Ibid., pp. 350-351.
Humanos, Porto Alegre, Brazil, S.A. Fabris Ed., Vol. I, 2nd ed., 2003, p. 244 ;
ibid., Vol. III, 1st ed., 2003, p. 415.
(corresponding to the crime of State) whenever there is an attempt

against those values or a violation of the norms which protect
them 1482. One ought to definitively rescue the outlook of the matter
which bears in mind the fundamental or superior interests of the
international community, which has led to the configuration of the
crime of State, endowed with a specificity of its own in Interna-
tional Law.
VI. Juridical Consequences of the Crime of State
The aggravated responsibility is, precisely, that which corre-

sponds to a crime of State. The crime of State becomes evident when
the State’s intention (fault or culpa) to cause the damage, or its neg-
ligence to avoid, can be demonstrated, as in the aforementioned
recent cases of Myrna Mack Chang, of the Massacre of Plan de
Sánchez, of the 19 Tradesmen, of the Massacre of Mapiripán, and of
the massacre of the Community Moiwana ; the responsibility of the
State is aggravated by that circumstance. The well-known Article 19
of the Draft on the Responsibility of the State (1976) of the ILC
(supra), in providing on “international crimes”, had in mind pre-
cisely the establishment of an aggravated degree of responsibility,
for given violations of International Law 1483. It did not intend at any
moment al all to suggest an analogy with categories of domestic
criminal law. Once accepted the aggravated responsibility, one ought
to determine its juridical consequences.
Already in 1939, well before being rapporteur of the ILC on the
International Responsibility of the States, Roberto Ago pondered that
one same material fact can be apprehended by distinct rules of a
same legal order, attributing to it legal circumstances also distinct,
generating the obligation to repair or legitimating the application of
a sanction 1484. Thus, either the obligation of reparation, or the appli-
cation of a sanction, or both at the same time can be conformed ; to
R. Ago, “sanction and reparation can thus subsist one beside the
other, with effects of the same delict” 1485. A same legal fact can,
1482. G. Abi-Saab, “The Concept of ‘International Crimes’ and Its Place in

Contemporary International Law”, in International Crimes of State . . ., op. cit.
supra footnote 1444, pp. 144-145.
1483. I. Sinclair, “State Responsibility : Lex Ferenda and Crimes of State”, in
International Crimes of State . . ., op. cit. supra footnote 1444, p. 242.
1484. Roberto Ago, “Le délit international”, 68 RCADI (1939), pp. 424 and 426.
1485. Ibid., pp. 428-429.
thus, generate distinct consequences, such as reparation and sanc-

tion. For a particularly grave wrongfulness (for example, a grave
violation of human rights or of International Humanitarian Law), the
compensatory reparation (for the victim or her relatives) may not be
sufficient, the punitive reparation (for example, investigation of the
facts and punishment of those responsible for them) being also
necessary. Both may appear necessary for the realization of justice.
In 1958, the Cuban jurist F. V. García Amador, rapporteur of the
ILC on the Responsibility of the States, observed that certain forms
of reparation have a clear and distinctly punitive purpose (punitive
damages/dommages-intérêts punitifs), implying the imputation of
responsibility of a penal character to the State for violation of certain
international obligations — in particular, grave violations of funda-
mental human rights, similar to the crimes against humanity 1486.
Thus, the duty itself “to provide reparation” (with a connotation ini-
tially of civil law) varies in accordance with “the character and role
of the reparation” in given cases ; in this way, the reparation not
always assumes the same form, and not always has the same pur-
pose, and, in so far as punitive damages are concerned (cf. infra), it
contains a penal element of responsibility 1487.
The whole chapter of the reparations for violations of human
rights requires a greater conceptual and jurisprudential development,
as from the recognition of the close relationship between the right to
reparation and the right to justice. Such development is imperative,
particularly in face of the grave and systematic violations of human
rights, which, in turn, require a firm disapproval of the illicit conduct
of the State, and reparations of a dissuasive character, so as to guar-
antee the non-repetition of the harmful facts, bearing in mind both
the expectations of the relatives of the victim as well as the superior
needs and interests of the social milieu.
In fact, one cannot deny the close link between the reparation and
the struggle against impunity, as well as the guarantee of non-repeti-
tion of the harmful facts, always and necessarily from the perspec-
tive of the victims. The true reparatio, linked to the realization of
justice, requires the overcoming of the hindering of the duties of
investigation and sanction of those responsible for the facts, and the
1486. F. V. García Amador, “State Responsibility — Some New Problems”,

94 RCADI (1958), pp. 396-398.
1487. Ibid., p. 409.
end to the impunity. That is, reparations can perfectly be endowed

with a character both compensatory and sanctioning, with the purpose
of putting an end to impunity and of securing the realization of jus-
tice — this being perfectly in accordance with the current stage of
evolution of International Law 1488.
Reparations with exemplary or dissuasive purposes, correspond-
ing to an aggravated responsibility, can assist in the guarantee of
non-repetition of the harmful facts, and in the struggle against
impunity. In my several years of experience as Judge of the IACtHR,
I have been able to verify that the States have less difficulty in com-
plying with pecuniary reparations than with reparations pertaining to
the duty of investigating and sanctioning those responsible for the
violations of human rights, that is, ultimately, to the realization of
justice. Non-pecuniary reparations are often much more important
than what one could prima facie assume, even for putting an end to
the violations and removing their consequences, in the terms of
Article 63 (1) of the American Convention.
Although the figure of the “punitive damages” is not strange to
the comparative national case-law, nor to the international arbitral
case-law 1489, it is not my purpose here to invoke it in the sense in
which it has been utilized — in other contexts — of exemplary repa-
ration of a necessarily pecuniary character (implying considerable
amounts 1490). Far from it. In the present context of protection,
endowed with a specificity of its own, other forms of reparation, of
non-pecuniary character, have been commonly identified as “obliga-
tions of doing”, once again suggesting a reductionist analogy with
solutions proper of civil law. These forms of reparation can be per-
fectly considered as endowed with a character at a time compen-
1488. The ample terms of Article 63 (1) of the American Convention on

Human Rights, e.g., have in fact opened to the IACtHR a wide horizon in the
matter of reparations.
1489. Cf., e.g., inter alia, R. W. Hodgin and E. Veitch, “Punitive Damages
Reassessed”, 21 International and Comparative Law Quarterly (1972), pp. 119-
132 ; and cf. examples of (national and international) practice in D. Shelton,
Remedies in International Human Rights Law, Oxford, University Press, 2000,
pp. 74-75 and 288-289. And there are those who behold a tendency to a clear
recognition of punitive damages in international law ; cf., e.g., N. H. B.
Jorgensen, “A Reappraisal of Punitive Damages in International Law”, 68
British Year Book of International Law (1997), pp. 247-266. And, for a project
of doctrinal construction, cf. G. Arangio-Ruiz, “Second Report on State
Responsibility”, in United Nations, YILC (1989-II), Part I, pp. 31-35, 40-43 and
47-54.
1490. And bringing about the risk of a “commercialization” of justice.
satory and sanctioning 1491 (containing elements of both civil and

penal nature).
They have exemplary or dissuasive purposes, in the sense of pre-
serving the memory of the violations occurred, of providing satisfac-
tion (a sense of realization of justice) to the relatives of the victim,
and of contributing to guaranteeing the non-repetition of those viola-
tions (also by means of the education and in-training in human
rights) 1492. “Punitive damages” can also be conceived in this sense,
resembling “obligations of doing” of both compensatory as well
as sanctioning character (thus overcoming the dichotomy between
civil and penal, proper of the regime of responsibility in domestic
law).
Reparations of the kind have effectively a character at a time
compensatory and sanctioning ; thus understood, “punitive damages”
in reality have already been applied, for a long time, in the domain of
the international protection of human rights 1493 — a practice remind-
ful of the evocation of the expression of the well-known character of
Molière, Monsieur Jourdain, qui parlait la prose sans le savoir 1494.
1491. Whether those reparations are termed “exemplary”, or else “punitive
damages”, their basic purpose remains the same, in recognizing the gravity of
the facts, sanctioning the State at issue for the grave violations incurred, recog-
nizing and alleviating the great suffering of the survivors, and seeking the guar-
antee of non-repetition of the breaches ; in providing adequate redress, they pur-
port to reconstruct the harmed social milieu. IACtHR, case of the Massacre of
Plan de Sánchez (Reparations, 2004), Separate Opinion of Judge A. A. Cançado
Trindade, para. 25.
1492. To these effects were the reparations ordered by the IACtHR in the
case of Myrna Mack Chang concerning Guatemala (Judgment of 25.11.2003).
1493. From the rich case-law of the IACtHR in the matter of reparations, for
example, some significant examples may be recalled. In the case of Aloeboetoe
v. Suriname (Judgment of 10.9.1993), the Court ordered the reopening of a
school and the creation of a foundation to assist the beneficiaries. In the case of
Villagrán Morales and Others v. Guatemala (case of the “Street Children”,
Judgment of 26.5.2001), the IACtHR ordered the designation of an educative
centre with a name referring to the victims of the case ; likewise, in the case of
Trujillo Oroza v. Bolivia (Judgment of 27.2.2002), the Court again ordered the
designation of an educative centre with the name of the victim. In the case of
Cantoral Benavides v. Peru (Judgment of 3.12.2001), the IACtHR ordered the
State to provide a scholarship of university studies to the victim. In the case of
Barrios Altos concening Peru (Judgment of 30.11.2001), the IACtHR ordered
reparations in educative services and the payment of expenses of health services.
And in the case of Durand and Ugarte v. Peru (Judgment of 3.12.2001), the
Court again ordered the payment of expenses of health assistance or services and
psychological support.
1494. M. Jourdain : “ . . . Il y a plus de quarante ans que je dis de la prose
sans que j’en susse rien, et je vous suis le plus obligé du monde de m’avoir
appris cela”. Molière, Œuvres complètes (Le bourgeois gentilhomme, 1670,
Act II, Scene V), Paris, Ed. Seuil, 1962, p. 515.
In contemporary International Law in evolution, “punitive damages”

lato sensu 1495 (beyond the purely pecuniary outlook inadequately
attributed to them) can appear as an appropriate response or reaction
of the international legal order against the crime of State 1496.
Truth Commission reports published in recent years 1497 disclose
the systematic occurrence of crimes of State, resulting from the exe-
cution of State policies, devised at the highest level, of torturing,
murdering, and forcefully disappearing persons 1498. They warn
against responding to crimes committed by non-State entities
(including terrorist groups) with crimes perpetrated by the State
itself : the results are invariably the disruption of the rule of law
(Etat de droit), social decomposition, killings of innocent people,
impunity and corruption 1499.
In those reports, there is provision for punitive damages, of the
aforementioned kind ; for example, in its Final Report (adopted on
27 August 2003), the Commission on Truth and Reconciliation of
Peru, in referring to “reconciliation by means of the education in
values” 1500, recommended a series of educational measures and
courses of “humanistic formation”, so as to achieve “the most inte-
gral formation of the person” 1501. Such measures, conceived as a
form of reparation, disclosed a wider dimension, being also measures
of prevention against violence and abuses victimizing the human
person, and revealing a temporal dimension. They bear witness of
1495. It ought not to pass unnoticed that, e.g., the Declaration adopted by the
United Nations World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance (Durban, 2001), in foreseeing measures of
reparation, compensation, indemnization and of other kinds for the human
sufferings and the “tragedies of the past” (paras. 98-106), and the correspond-
ing Programme of Action, in providing for reparations and indemnizations
(paras. 165-166), utilize a language which discloses affinities with the concep-
tion of “punitive damages” lato sensu.
1496. N. H. B. Jorgensen, The Responsibility of States for International
Crimes, Oxford, University Press, 2003, pp. 231 and 280.
1497. Such as, e.g., those of Peru, Guatemala, Chile, Argentina, among
others.
1498. G. Citroni, L’Orrore Rivelato — L’Esperienza della Commissione della
Verità e Riconciliazione in Perù : 1980-2000, Milan, Giuffrè, 2004, pp. 1-163.
1499. Cf., e.g., Comisión de la Verdad y Reconciliación (CVR), Informe
Final — Conclusiones Generales, Lima, Peru, CVR, 2003, pp. 11-20, 30 and 34-
43, and cf. pp. 24 and 26-29 ; and for a recent evaluation, cf. Defensoría del
Pueblo (DP), A Dos Años de la Comisión de la Verdad y Reconciliación, Lima,
Peru, DP, Informe Defensorial No. 97, 2005, pp. 17-333.
1500. Para. 4.2.7 of the Report.
1501. Informe Final de la Comisión de la Verdad y Reconciliación, Lima,
27.8.2003, pp. 133-134.
the acknowledgment that, in the mid- and long run, many of the
challenges to human rights protection can be faced with efficacy
only through education.
VII. The Principle of Universal Jurisdiction
The study of responsibility for grave violations of international

law necessarily encompasses the principle of universal jurisdiction.
This latter has a long history, which dates back to the thinking of the
founding fathers of the law of nations. Throughout the history of the
discipline, jurisdictional powers have been asserted and exercised on
the basis mainly of certain basic principles, namely, those of terri-
toriality 1502, of nationality or active personality 1503, of passive per-
sonality 1504, and of protection 1505 ; in addition, that of universal
jurisdiction, with its variations in history, has been resorted to for
sanctioning mainly grave violations of International Humanitarian
Law and International Human Rights Law 1506. There is an interplay
among such principles, in the struggle against impunity.
The assertion of the principle of universal jurisdiction for sanc-
tioning those grave violations discloses the understanding that these
latter affect not only the victims and their communities, but the inter-
national community as a whole 1507. Attentive and responsive to the
gravity of the crimes perpetrated, the principle of universal jurisdic-
tion bears witness of shared core values of the international commu-
nity as a whole, pursuant to a universalist approach on the basis of
1502. Although widely applied in traditional International Law, for facts

occurred in the State’s territory, the principle is not an absolute one, co-existing
with the other principles.
1503. When the alleged wrongs were committed by nationals of the State at
issue.
1504. For facts attributed to non-nationals of the State, perpetrated outside
the State’s territory, whenever the victims are its nationals.
1505. For facts occurred outside the State’s territory, irrespective of the
nationality of the authors, when the alleged wrongs affect the State’s interests or
the exercise of its prerogatives.
1506. The nationality of the perpetrators, and the State territory where the
alleged wrongs were committed, become thus immaterial.
1507. M. Itsouhou Mbadinga, “Le recours à la compétence universelle pour
la répression des crimes internationaux : étude de quelques cas”, 81 Revue de
droit international de sciences diplomatiques et politiques (2003), pp. 286-287 ;
A. Remiro Brotons, “La Responsabilidad Penal Internacional por Crímenes
Internacionales y el Principio de Jurisdicción Universal”, in Creación de una
Jurisdicción Penal Internacional (ed. C. Escobar Hernández), Madrid, Escuela
Diplomática (Colección No. 4), 2000, pp. 204-205.
concepts of natural law 1508. It is a principle proper to the Inter-

national Law for humankind.
The principle of universal jurisdiction was initially admitted in
cases of piracy 1509, and later in cases of war crimes, as well as slave
trading 1510 ; in relation to such crimes it became regarded as part of
the jus gentium. The duty aut dedere aut judicare (to extradite or to
exercise jurisdiction) came to be further applied in crimes against
internationally protected persons 1511. The international practice on
the matter is not wholly uniform, presenting variations, from certain
national jurisdictions which also seek to base themselves on the prin-
ciple of universal jurisdiction 1512, to contemporary international tri-
bunals — such as the ad hoc ICTFY and ICTR, and the ICC —
which envisage to operate on the basis of that principle in a comple-
mentary way with national jurisdictions (principle of complementar-
ity) 1513.
Yet, a clear evolution can here be perceived : as from the 1948
Convention against Genocide (providing for territorial jurisdiction,
with competence of the forum commissi delicti), a step forward was
taken, a quarter of a century later, by the 1973 UN Convention
against Apartheid, moving from territoriality to an optional exercise
of universal jurisdiction ; and one decade later, yet another step for-
1508. M. Ch. Bassiouni, “The History of Universal Jurisdiction and Its Place
in International Law”, in Universal Jurisdiction — National Courts and the
Prosecution of Serious Crimes under International Law (ed. S. Macedo),
Philadelphia, Univ. of Pennsylvania Press, 2004, pp. 42-43.
1509. Cf., nowadays, on the repression of piracy on the high seas or in any
other place outside the jurisdiction of any State, the 1982 UN Convention on the
Law of the Sea, Arts. 100-101.
1510. Both the 1928 Bustamante Code and the 1940 Montevideo Treaty on
International Penal Law, for example, provided universal jurisdiction over slave
trading ; cf. Amnesty International, Universal Jurisdiction : The Duty of States to
Enact and Implement Legislation (Chap. II : The History of Universal Juris-
diction), London, A.I., 2001, pp. 2, 10-11, 18 and 28, and cf. pp. 32-33.
1511. Cf., e.g., the 1973 Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons Including Diplomatic Agents,
the 1979 International Convention against the Taking of Hostages, the 1988
Convention for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation. And cf. also, in the same line, the 1970 Hague Convention for the
Suppression of Unlawful Seizure of Aircraft, the 1971 Montreal Convention for
the Suppression of Unlawful Acts against the Safety of Civil Aviation.
1512. For a comparative study, cf., e.g., [Various Authors,] El Principio de
Justicia Universal, Madrid, Ed. Colex, 2001, pp. 103-158 ; and, for a case-study,
cf., e.g., J. Lagos Erazo, El ‘Caso Pinochet’ ante las Cortes Británicas,
Santiago, Edit. Jur. de Chile, 1999, pp. 17-336.
1513. Cf. the 1998 Rome Statute of the ICC, preamble, para. 10, and
Arts. 12-14).
ward was taken, by the 1984 UN Convention against Torture, which

sets forth the duty to try those responsible for acts of torture, thus
enhancing the principle aut dedere aut judicare 1514.
On their turn, the 1949 Geneva Conventions on International
Humanitarian Law, in acknowledging grave breaches of their corpus
juris (I Convention, Art. 49 ; II Convention, Art. 50 ; III Convention,
Art. 129 ; IV Convention, Art. 146) and the corresponding needed
universal repression of such breaches 1515, contributed to the afore-
mentioned evolution. The need for such repression of those breaches
was reasserted by Protocol I of 1977 (Art. 85) 1516 to the Geneva
Conventions, in the same line of evolution of the matter.
The opinio juris communis on universal jurisdiction is still in the
process of formation, which is a steady process, with the decay of
the static oulook of the legal positivism of the past ; that process
advances in face of crimes which affect the “essence of humanity”
and call for repression and justice, in an international legal order
determined to ensure a minimum of ordre public 1517. Universal juris-
diction responds to the universal need to sanction and prohibit grave
violations of International Law, of International Humanitarian Law,
and International Human Rights Law, and to fight impunity 1518 any-
where, irrespective of territorial or national links with the crimes
perpetrated. On the basis of concepts of natural law, the principle of
universal jurisdiction thus acknowledges that those grave violations
do affect the international community as a whole, and therefore one
ought to go well beyond the classic principles of territoriality and
nationality in their sanction and erradication, and in the pursuance of
values shared by the international community as a whole 1519.
1514. A. Peyró Llopis, La compétence universelle en matière de crimes

contre l’humanité, Brussels, Bruylant, 2003, pp. 17, 23, 25 and 28 ; for the sug-
gestion that the principle of universal jurisdiction would be a corollary of the
obligations erga omnes, cf. ibid., pp. 43-44.
1515. Cf., e.g, C. Swinarski, A Norma e a Guerra, Porto Alegre, Brazil, S.A.
Fabris Ed., 1991, pp. 43-44.
1516. Cf. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary
on the Additional Protocols of 08 June 1977 to the Geneva Conventions of
12 August 1949, Geneva, ICRC, Nijhoff, 1987, pp. 989-1004.
1517. Ibid., pp. 2-4, 9, 34, 38 and 130-131.
1518. To this end, the 1968 Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes against Humanity, e.g., recognizes the
need “to secure its universal application” (preamble, seventh considerandum).
1519. The principle of universal jurisdiction thus gives concrete expression to
common or fundamental values of the international community as a whole ; the
fundamental principle of the dignity of the human person requires the absolute
prohibition of grave violations of International Law, as well as the fight against
In this respect, the ICTFY stressed the significance of the

advances of the principle of universal jurisdiction in the D. Tadic
case ; in its decision of 2 October 1995 on the cas d’espèce, the
ICTFY (Appeals Chamber) pondered that
“one cannot but rejoice at the thought that, universal jurisdic-
tion being nowadays acknowledged in the case of international
crimes, a person suspected of such offences may finally be
brought before an international judicial body . . .” 1520.
Earlier on, in the same D. Tadic case, the ICTFY (Trial Chamber), in
its decision of 10 August 1995, stated that
“the crimes which the International Tribunal has been called
upon to try are not crimes of a purely domestic nature. They are
really crimes which are universal in nature, well recognized in
International Law as serious breaches of International
Humanitarian Law, and transcending the interest of any one
State. . . . In such circumstances, the sovereign rights of States
cannot and should not take precedence over the right of the
international community to act appropriately as they affect the
whole of mankind and shock the conscience of all nations of
the world. There can therefore be no objection to an inter-
national tribunal properly constituted trying these crimes on
behalf of the international community.” 1521
Yet another reference to the “collective conscience” was made by the
ICTFY (Trial Chamber), in its Judgment of 29 November 1996, in
the Erdemovic case, where it added that crimes against humanity are
characterized essentially by the concept of “humanity as victim” 1522.
The principle of universal jurisdiction, in sum, entails the non-
applicability of statutory limitations in relation to crimes which
affect humanity itself, thus transcending the traditional principle of
territoriality of criminal law ; universal jurisdiction is in a way
shared by all States, and any of them can prosecute those respon-
sible for such crimes, as member of the international community.
impunity of such breaches which affect humankind as a whole. [Various
Authors,] Crimes internationaux et juridictions internationales (eds. A. Cassese
and M. Delmas-Marty), Paris, PUF, 2002, pp. 21, 63, 71, 198, 256 and 260-261,
and cf. pp. 24, 26 and 259-261.
1520. Para. 62.
1521. Para. 42.
1522. Paras. 27-28.
Thus, in the struggle against impunity, it is the entire international

community itself that responds and takes action, and the principle of
universal jurisdiction prevails over norms of domestic law, to avoid
the application of these latter leading to impunity 1523.
In the struggle against impunity, the IACtHR was the first inter-
national tribunal to declare null and void — lacking legal effects —
provisions of domestic law (laws of self-amnesty) incompatible with
the American Convention on Human Rights, in its Judgment of
14 March 2001 in the case of Barrios Altos, concerning Peru. The
IACtHR stated that
“all amnesty provisions, provisions on prescription and the
establishment of measures designed to eliminate responsibility
are inadmissible, because they are intended to prevent the
investigation and punishment of those responsible for serious
human rights violations such as torture, extra-judicial,
summary or arbitrary execution and forced disappearance, all
of them prohibited because they violate non-derogable rights
recognized by International Human Rights Law” 1524.
Subsequently, in the same line of reasoning, in its Judgment of
18 September 2003 in the Bulacio v. Argentina case, the IACtHR
added that
“In accordance with the conventional obligations assumed
by the States, no provision or institute of domestic law, among
which the prescription, could be opposed to the compliance
with the decisions of the Court as to the investigation and sanc-
tion of those responsible for violations of human rights. If it
were otherwise, the rights set forth in the American Convention
[on Human Rights] would be deprived of an effective protec-
tion. This understanding of the Court is in conformity with the
letter and the spirit of the Convention, as well as the general
principles of law ; one of those principles is that of pacta sunt
servanda, which requires that to the provisions of a treaty the
effet utile is secured at the level of the domestic law of the
States Parties.” 1525
1523. [Various Authors,] Crímen Internacional y Jurisdicción Universal (El
Caso Pinochet) (eds. M. García Arán and D. López Garrido et al.), Valencia, Ed.
Tirant lo Blanch, 2000, pp. 52, 64-65, 67, 71-72, 76 and 85.
1524. Para. 41.
1525. Para. 117.
VIII. Concluding Observations
The reaction to the grave and systematic violations of human

rights and of International Humanitarian Law constitutes nowadays a
legitimate concern of the international community as a whole ; such
reaction imposes itself even more forcefully when the victims are
vulnerable and defenceless 1526, and the structure of public power is
deformed and put at the service of the repression and not of the
search for the common good. The international criminal responsibil-
ity of the individual does not exempt that of the State ; the two kinds
of responsibility co-exist, an acknowledgment of this being of cru-
cial importance to the eradication of impunity. Both the State and its
agents are direct addressees of norms of contemporary International
Law ; the conduct of both is foreseen and regulated by this latter ;
thus, both the State and its agents are to be held accountable for the
consequences of their acts and omissions.
All of us who have had the experience and responsibility to work
with dedication in the international contentieux of human rights
know that the crimes of State effectively do exist, and we know what
that means. The international criminal responsibility of the individ-
ual does not exempt that of the State. We are still in the beginning of
a long process of evolution in this area, in which the recent estab-
lishment of the ICC constitutes a point of major relevance in the
struggle against impunity, but not the culminating point in what per-
tains to the international responsibility of the States. This latter falls
outside the ambit of competence of the ICC.
The determination of the international responsibility of the States
is rather of the competence of the international tribunals of human
rights, which, in their turn, cannot determine the international crimi-
nal responsibility of individuals. This compartmentalized conception
of international responsibility — of States and of individuals —
leads, in one case and the other, to the eradication of impunity only
in a partial way. For such eradication to be total, integral, one ought
to affirm and determine, concomitantly, the responsibility both of the
State and of the individual (the State agent), complementary as they
are.
1526. As in the cases of Myrna Mack Chang (2003) and of the Massacre of
Plan de Sánchez (2004) concerning Guatemala, of the 19 Tradesmen (2004) and
of the Massacre of Mapiripán (2005) concerning Colombia, and of the Moiwana
Community v. Suriname (2005), recently decided by the IACtHR.
The crime of State is much more than a possibility, it is a reality,

as disclosed by the facts, for example, of the aforementioned recent
cases of Myrna Mack Chang, of the Massacre of Plan de Sánchez, of
the 19 Tradesmen, of the Massacre of Mapiripán, and of the
Moiwana Community. The contemporary doctrine of International
Law should not keep on attempting to elude the question. If the
expression “crime of State” may appear to many international
lawyers (apparently petrified by the spectre of State sovereignty)
objectionable for suggesting an inadequate analogy with juridical
categories of domestic criminal law, this does not mean that the
crime of State does not exist. The facts of the aforementioned recent
cases provide clear evidence that it does indeed exist. Even if one
keeps on searching for it another denomination, this does not thereby
mean that the crime of State ceases to exist.
While it keeps on intending to elude the question, the contempo-
rary doctrine of International Law will be succumbing to the spectre
of State sovereignty, and withholding the evolution itself of the law
of nations in the present domain in our days. While it keeps on deny-
ing the existence of the crime of State, it will be depriving the
human person, ultimate titulaire of the rights inherent to her — and
which precede, and are superior to, the State — of the safeguard and
the exercise of such rights, starting with the right to justice ; it will,
moreover, be depriving the human person of the proper reparations
for the violations of those rights.
While the existence of the crime of State keeps on being denied
by the contemporary doctrine of International Law, this latter will be
depriving the State — hostage of a deformed structure of repression
and impunity — of its proper end, the realization of the common
good. While it keeps on denying the existence of the crime of State,
it will be depriving Law itself of its ultimate end, precisely the reali-
zation of justice. While it keeps on intending to elude the question,
the treatment dispensed to the central chapter of the law on the inter-
national responsibility of the State will keep on being juridically
unconvincing and conceptually incomplete. It will thereby be regret-
tably postponing the construction and consolidation of a true rule of
law, and, in the framework of this latter, of a true right to the Law,
that is, the right to a legal order which effectively safeguards the
fundamental rights of the human person.
The current acknowledgment of the universal need to prohibit
and sanction grave violations of human rights and International
Humanitarian Law has brought about a revitalization of the principle

of universal jurisdiction. This is occurring on the basis of concepts
of natural law, taking up the struggle against impunity well beyond
the confines of the classical principles of territoriality and national-
ity. This is yet another development disclosing common and superior
values shared by the international community as a whole, and
heralding the advent of a new jus gentium, the International Law for
humankind.

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335

CONSTRUCTION OF THE INTERNATIONAL LAW FOR

CONCEPTUAL CONSTRUCTIONS : JUS COGENS AND

I. Introduction : Fundamental Values of the International

humankind as a whole). Above the will stands the conscience. The

II. International Jus Cogens (Peremptory Norms of General

1. Emergence and content of jus cogens

1182. Inter-American Court of Human Rights (IACtHR), Advisory Opinion

Jus cogens was definitively incorporated into the conceptual uni-

cogens became the object of analysis of a wide specialized biblio-

International and Comparative Law Quarterly (1970), pp. 66-69 ; I. M. Sinclair,

to the principles of the UN Charter), or any other criminal act under

2. Evolving scope of jus cogens

1194. Cf. A. A. Cançado Trindade, Tratado de Direito Internacional dos

acts (including the unilateral ones), and having an incidence

1196. Cf. E. de Wet, “The Prohibition of Torture as an International Norm of

Judgments of the IACtHR in the cases Cantoral Benavides v. Peru

be protected, shared by the international community as a whole,

Just as, in the ambit of the International Law of Refugees, the

1210. Cf. J. Allain, “The Jus Cogens Nature of Non-Refoulement”, 13 Inter-

3. Jus cogens as a pillar of the new jus gentium, the International

Jus cogens, nowadays established well beyond the law of treaties,

1213. Cf. Chap. III, supra.

International Law have emerged to confer an ethical and universal

1216. Li Haopei, “Jus Cogens and International Law”, in Selected Articles

III. Obligations Erga Omnes of Protection

1. Emergence and scope of the obligations

protection can be well served by the identification of, and compli-

legal regime either. The ICJ had a unique occasion to do it in the

1225. A. A. Cançado Trindade, “O Caso do Timor-Leste (1999) : O Direito de

Palestinian Territory, the ICJ asserted the right erga omnes of

1229. ICJ Reports 2004, p. 172, para. 88.

to secure the integrity and effectiveness of such treaties. That general

1234. Cf. IDI, 63 Annuaire de l’Institut de droit international (1989-II),

their growing awareness of the need to achieve greater cohesion and

1238. K. Zemanek, “New Trends in the Enforcement of Erga Omnes

positive obligations and the juridical consequences of the violations

2. Horizontal and vertical dimensions of the obligations

As I had occasion to hold in my Concurring Opinion in the

forth in Article 1 (1) of the American Convention, to respect and

by the opinio juris as a manifestation of the universal juridical con-

A. J. J. de Hoogh, “The Relationship between Jus Cogens, Obligations Erga Omnes

IV. Obligations Erga Omnes and the Emergence of Actio Popularis

present context. It may be recalled that that duty, as formulated in

1249. F. Kalshoven, “The Undertaking to Respect and Ensure Respect in All

certain human rights treaties bears witness of considerations of such

1252. A. A. Cançado Trindade, The Application of the Rule of Exhaustion of

human rights protection, of application of International Humanitarian

fundamental right to life) extends itself, in my view, well beyond the

1257. C. Tomuschat, “Obligations Arising for States without or against Their

ary International Law (indeed in general International Law as a

CONCEPTUAL CONSTRUCTIONS : COMMON HERITAGE OF

The challenges facing humankind today could hardly be faced on

II. The Content and Significance of the Concept of Common

The construction of the concept of common heritage of mankind

1265. E.g., against ozone layer depletion, environmental deterioration, arms

public trust (protection and control of a common good for transmis-

1266. A. Ch. Kiss, “La notion de patrimoine commun de l’humanité”, 175

survival of humankind, and the need to preserve a healthy human

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

The concept of common heritage of mankind was initially

1267. Cf., in particular, E. Brown Weiss, In Fairness to Future Generations :