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The ICJ and the Individual

In: International Community Law Review
Author:
Martin Scheinin Åbo Akademi University

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Abstract

Procedurally, individuals do not have access to the Court, or standing before the ICJ. Pursuant to the relevant articles 34.1 and 65 of the ICJ Statute individuals cannot be parties in contentious cases or in advisory opinions respectively. Individuals can be heard as witnesses and experts but this does not transform the persons in question to parties. However the individual is not completely ignored by the ICJ. On the contrary, the rights of the individuals are a core element of the legal reasoning in several decisions of the Court. These rights can be dwelt upon through an examination of the relevant human rights and humanitarian law sources. Rough this approach the court can take the individual in consideration either in an abstract fashion or in a more clearly defined way. Findings of violations in abstracto without reference to named individuals were made in the Democratic Republic of Congo v. Uganda Case, and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion. On the other hand, the Court may identify violations that affect clearly identified individuals, as was the case in the Breard, LaGrand and Avena cases. In some of these cases not only was a violation found but the Court went even further by addressing the issue of reparation owed. It is, consequently, evident that through the examination of human rights and humanitarian law sources and the decisions of the relevant human rights bodies the individual, although not a direct party to the dispute may, nevertheless, constitute a source of inspiration for the legal thought-processes of the Court.

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