7
17.
As to doctrine, if it were not sufficient to count on the previously summarized
considerations, developed in my Opinions in earlier cases before this Court (cf. pars. 39, supra, of the present Concurring Opinion), I would limit myself to refer, in addition,
to the writings, on the subject, of two great jusinternationalists of the XXth century,
Eduardo Jiménez de Aréchaga and Roberto Ago. In a study published in 1968, Jiménez
de Aréchaga, - who was later to become President of the International Court of Justice,
- recalled that the unsuccessful Hague Conference on the Codification of International
Law (1930), at least contributed with the "general recognition" of the responsibility of
States for judicial decisions clearly incompatible with the international obligations
contracted by the respective States. On the occasion, several Delegates pointed out
that, though it was certain that the independence of the Judicial Power constituted a
"fundamental principle in constitutional law", nevertheless it was an "irrelevant" factor
in international law18.
18.
This being so, - added the Uruguayan jurist, - one had to admit that the activity
of the Judicial Power of a State effectively engaged the responsibility of the State
whenever it appeared contrary to the international obligations of such State. Although
independent from the Executive Power, the Judicial Power is not independent from the
State, but quite on the contrary, it is part of the State, for international purposes, as
much as the Executive Power19. Thereby, already seventy years ago, there were no
longer traces of the surpassed doctrinal attempts, of the XIXth and beginning of the
XXth centuries, that sought in vain to avoid the extension to the Judicial Power of the
principle of the international responsibility of the State for acts or omissions of all its
powers and organs.
19.
On his turn, Roberto Ago, as special rapporteur of the United Nations
International Law Commission on the theme of the Responsibility of the State, was
categorical in that respect, in his substancial Third Report (of 1971), titled "The
Internationally Wrongful Act of the State, Source of International Responsibility":
Party to put an end to the violation of Article 19 (right to freedom of expression) of the Covenant on Civil
and Political Rights, "amending the [national] law" as it ought to; U.N., document
CCPR/C/47/D/359/1989-385/1989/Rev.1, of 05.05.1993, p. 17, par. 13 (restricted circulation). Likewise,
in its Views (of 31.03.1994) in the case N. Toonen versus Australia (communication 488/1992), the
Human Rights Committee pointed out that "except in Tasmania, all the laws which sanctioned
homosexuality have been derogated all over Australia", and that in the present case it was necessary to
derogate the "wrongful law" (provisions of the Criminal Code of Tasmania), in breach of Articles 17(1)
and 2(1) (right to private or family life, and general obligation to respect the protected rights,
respectively) of the Covenant on Civil and Political Rights; U.N., document CCPR/C/50/D/488/1992, of
04.04.1994, p. 13, pars. 8-11 (restricted circulation). In its turn, the African Commission on Human and
Peoples' Rights, in the cases (ns. 60/91 y 87/93) of the Constitutional Rights Project (1994), concerning
Nigeria, established a violation inter alia of Article 7 (right to a fair trial) of the African Charter on Human
and Peoples' Rights, resulting from the operation of "special tribunals" by a decree; cf. Decisions of the
African Commission on Human and Peoples' Rights (1986-1997), Series A, vol. 1, Banjul, 1997, pp. 55-59
and 101-104. And the old European Commission on Human Rights, even in the examination of petitions
which it rejected as inadmissible, admitted, however, that, in principle, an individual can complain of a
law which, by its existence itself, would be incompatible with the European Convention of Human Rights,
if he runs the risk of being directly affected by it. Cf., to this effect, e.g., application n. 24877/94, A.
Casotti and Others versus Italy, decision of 16.10.1996, in 87 Decisions and Reports (1996) pp. 63 and
65; and application n. 24581/94, N. Gialouris, G. Christopoulos and 3333 Other Customs Workers versus
Greece, decision of 06.04.1995, in 81-B Decisions and Reports (1995) pp. 123 and 127.
18
.
Eduardo Jiménez de Aréchaga, "International Responsibility", in Manual of Public International Law
(ed. Max Sorensen), London/N.Y., MacMillan/St. Martin's Press, 1968, p. 551.
19
.
Ibid., p. 551.