Antonio A.

Cançado Trindade, ‘Conclusions: International Law for Humankind –

Towards a New Jus Gentium,’ Recueil des Cours, vol. 317, pp. 269- 282.

CHAPTER XXVII - CONCLUSIONS : INTERNATIONAL LAW FOR HUMANKIND —

TOWARDS A NEW JUS GENTIUM [p690]

I - The Process of Gradual Humanization of Public International Law

In the course of the last century International Law has undergone an extraordinary
development, which gradually took the shape of an historical process of its humanization.
Traditional International Law, in force at the beginning of the twentieth century, was
characterized by unlimited State voluntarism, reflected in the permissiveness of recourse to
war, secret diplomacy and the celebration of unequal treaties, the maintenance of colonies
and protectorates and zones of influence. Against this oligarchical and unjust order arose
principles such as those of the prohibition of war of aggression and of the use and threat of
force — and of the non-recognition of situations generated by these latter —, of the juridical
equality of States, and of the peaceful settlement of international disputes. Moreover, the
struggle against inequalities started, with the abolition of the capitulations, the establishment
of the system of protection of minorities under the League of Nations, and the early
international labour Conventions of the International Labour Organization (ILO).

In mid-twentieth century the necessity was recognized of the reconstruction of International

Law with attention turned to the rights of the human being, an eloquent testimony of which
having been given by the adoption of the 1948 Universal Declaration of Human Rights,
followed, in the course of over five decades, by more than 70 treaties of human rights
protection nowadays in force at global and regional levels. In the era of the United Nations,
and by influence of this latter and its specialized agencies, as well as of regional
organizations, International Law came to experience an extraordinary expansion. The
emergence of the new States, amidst the historical process of decolonization, was to
profoundly mark its evolution in the decades of the fifties and sixties, in the framework of
the great impact within the United Nations of the emerging right of self-determination [p691] of
peoples. The process of democratization of International Law was then launched.

Thus, already by the mid-twentieth century, the more enlightened doctrine of International
Law moved definitively away from the Hegelian and neo-Hegelian formulation of the State
as an assumed final repository of the freedom and responsibility of the individuals who
composed it. The development of the universal movement in favour of human rights, in the
last five decades, contributed decisively to the historical rescue of the human being as subject
of International Law — a development which I regard as the most precious legacy of the
evolution of legal science in the twentieth century.

The United Nations gradually turned attention also to the economic and social domain,
parallel to international trade and development, without prejudice of the initial and continuing
concern with the preservation of international peace and security. In transcending the old
parameters of the classic law of peace and war, International Law equipped itself to respond
to the new demands and challenges of international life, with greater emphasis on
international co-operation. In the decades of the sixties to the eighties, multilateral forums

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dedicated themselves to an intense process of elaboration and adoption of successive treaties
and resolutions of regulation of the spaces, in distinct areas such as those of the outer space
and the law of the sea.

The notable transformations in the contemporary world scenario launched, as from 1989, by
the end of the cold war and the outbreak of numerous internal conflicts, have characterized
the nineties as a moment in history marked by a profound reflection, in a universal scale, on
the very bases of the international community and the gradual formation of the international
agenda of the twenty-first century. The cycle of the World Conferences of the United Nations
at the end of the twentieth century proceeded to a global reassessment of many concepts in
the light of the consideration of themes which affected humankind as a whole. Its common
denominator was the special attention to the conditions of living of the population
(particularly of the vulnerable groups, in special need of protection), therefrom resulting the
universal recognition of the necessity to place human beings definitively at the centre of all
process of development.

In fact, the great challenges of our times — the protection of the human being and of the
environment, disarmament, the erradication [p692] of chronic poverty and human
development, and the overcoming of the alarming disparities among countries and within
them —, have fostered, in a universal dialogue, the revitalization of the very foundations and
principles of contemporary International Law, tending to make abstraction of jurisdictional
and spatial (territorial) classic solutions and replacing the emphasis on the notion of
solidarity. Looking back in time, elements can indeed be found, in the recent cycle of UN
World Conferences, as well as in the recent work of UNESCO, in support of the new outlook
of a world-wide dialogue, rather than “clash”, of civilizations.

Traditional international order, marked by the predominance of State sovereignties and

exclusion of the individuals, was not able to avoid the intensification of the production and
the use of weapons of mass destruction, nor the gross and flagrant violations of human rights
perpetrated in all the regions of the world, and the successive atrocities of the twentieth
century, including the contemporary ones — such as the holocaust, the gulag, followed by
new acts of genocide, for example, in South-East Asia, in Central Europe (ex-Yugoslavia)
and in Africa (Rwanda). Such atrocities have awakened the universal juridical conscience to
the necessity of reconceptualizing the very bases of the international legal order.

At this beginning of the twenty-first century, we effectively have the privilege to witness the
process of humanization of International Law, which comes to occupy itself more directly
with the realization of common superior goals. The recognition of the centrality of human
rights corresponds to a new ethos of our times. Such process of humanization manifests itself,
in my view, as I have been sustaining for years, in all domains of the discipline : the
foundations of International Law, its subjects, its new conceptual constructions, the basic
considerations of humanity permeating all its chapters, and the quest for the international rule
of law for the realization of justice and maintenance of peace. Such process, in turn, discloses
the new jus gentium of our times, the International Law for humankind.

II - The New Jus Gentium : International Law for Humankind

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The new jus gentium of the beginning of the twenty-first century, emerging of
the fragmentation of jus inter gentes, rescues, in its reconstruction, the vision and ideals of
the founding fathers of the [p693] discipline. It propounds a universalist outlook, going beyond
purely inter-State relations. Its foundations are independent of the “will” of its subjects of
law (States and others). It ultimately stems from human conscience, and is erected upon
ethical foundations incorporating basic human values, shared by the international community
as a whole and humankind. It thus paves the way for the future evolution of the international
legal order.

The temporal dimension is inherent in legal science and underlies the whole domain of
International Law, which is formed, interpreted and applied in time. Rather than implying
historical “relativism”, this evidences that Law accompanies the evolution of the relations it
is meant to regulate, giving responses to the needs and aspirations of humankind. In its
protective function, it discloses an increasingly relevant preventive dimension. What is
preventive and anticipatory is Law, and not the use of force. The needs and aspirations of
humankind can be fulfilled by Law, rather than discretionary use of force, in the pursuit of
the realization of justice. It draws attention to common responsibilities towards present and
future generations.

1 - Foundations

General principles of law are inextricably linked to the very foundations of Law, and
International Law makes no exception to that. Such principles inform and conform the norms
and rules of International Law, and account for their evolution. Those principles are a
manifestation of the universal juridical conscience ; in the evolving jus gentium, basic
considerations of humanity have an important role to play. General principles of law have
inspired not only the interpretation and application of its norms, but also the very formation
of law, the law-making process itself.

There are general principles of law (such as that of the dignity of the human person) which
are truly fundamental, identified with the very foundations of the legal system, and
conforming the substratum of this latter. They have always been present in the quest for
justice. They have been repeatedly restated, and retain their full validity in our days. Legal
positivist thinking has always tried, in vain, to minimize the role played by those principles,
but the truth remains that, without them, there is no legal system at all, national or
international. They give expression to the idea of an objective justice, expressing the
universal juridical conscience, and paving the way to [p694] a universal International Law, the
new jus gentium, the International Law for humankind.

General principles of International Law, projected in time and reiterated in the last decades,
retain their full validity in our days, and the fundamental principle of the prohibition of the
threat or use of force in inter-State relations, endowed with judicial recognition, makes no
exception to that. What is preventive or “anticipatory” is law itself, not the use of force. The
emerging right to humanitarian assistance focuses on the fulfilment of the needs of protection
of its titulaires, rather than on “intervention”. Force only generates force, and one cannot
pretend to erect a new “international order” on the basis of unwarranted use of force, outside
the framework of the UN Charter. The violation of the basic principle of International Law

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of the prohibition of the threat or use of force does not generate a “new practice”, but rather
engages the international responsibility of the wrongdoers. The primacy of International Law
over force is a cornerstone of contemporary International Law, and an imperative of jus
cogens.

International law-making today goes well beyond the consideration of the formal “sources”
of International Law ; these latter were never meant to be exhaustive, and resort to them has
been nothing more that an exercise of an outmoded analytical positivism, which has never
found nor provided a convincing explanation of the validity of international legal norms.
Such formal “sources” were equated with the ways and means whereby International Law
has been formed. The formation of contemporary International Law constitutes a much wider
process than the formulation and acknowledgment of its formal “sources”, seeking the
legitimacy of international norms through the expression of the opinio juris communis (going
well beyond the subjective element of custom), as well as the fulfilment of the public interest
and the realization of the common good of the international community as a whole. It points
towards a universal International Law, the new jus gentium, emanating ultimately from the
universal juridical conscience, which stands well above the “will” of the subjects of law
(among which are the States).

The consideration of the formal “sources” of International Law alone fails to take into
account the basic issue of the validity of International Law and the substratum of legal norms
(beliefs, values, ethics, ideas, human aspirations). It is not possible to consider the legal order
making abstraction of ethics. Hence the necessity to [p695] examine the formal “sources”
together with the ultimate material source of International Law, the universal juridical
conscience, also to enable International Law to face the new challenges of our times.
The recta ratio is deeply rooted in human thinking, and reiterated invocations of the universal
juridical conscience (going well beyond legal positivism) can be found, for the identification
of a communis opinio juris, in treaty-making and international treaties themselves, in the
historical projection of the Martens clause, in judicial proceedings and international case-
law, in United Nations resolutions, and in a longstanding trend of international legal doctrine.
The universal juridical conscience is the ultimate material source of International Law (as of
all Law), and accounts for the current construction of a new jus gentium, asserting the idea
of an objective justice — the International Law for humankind.

2 - Subjects

The gradual formation of a new jus gentium has been marked by the phenomenon of the
expansion of international legal personality, which, in turn, discloses the current process of
humanization of International Law. States themselves have contributed to that expansion,
aware of their insufficiencies to face individually the contemporary challenges of
international life, in particular those which are the concern of humankind as a whole. Even
in approaching their own rights and duties, States have reckoned that they cannot ignore the
international community as a whole. They no longer insist on the plea of domestic
jurisdiction, and, no longer fearing the end of their past monopoly of international legal
personality, have learned to work together with international organizations, with individuals
and civil society, in pursuance of the common good.

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International organizations, assuming a life of their own, have put an end to the former State
monopoly of international legal personality and of privileges and immunities, have expanded
the treaty-making power, have, in sum, changed the structure of International Law itself,
which would nowadays be inconceivable without them. They have rendered the formation of
International Law multifaceted, and the rules pertaining to their own structure, composition
and decision-making ever more complex. Their resolutions, of varying contents and legal
effects, have contributed to the ascertainment of the communis opinio juris. They have
adjusted themselves to the [p696] new times and, responding to the needs and aspirations of the
international community as a whole, they have enriched the International Law-making
process and the function of international regulation itself, in covering issues of concern to
the whole of humankind.

The rescue of the condition of the human person as subject of International Law is the most
precious legacy of the international legal thinking of the second half of the twentieth century.
It is in line with the contemporary process of humanization of contemporary International
Law, of which it appears as one of its most basic features. Individuals are
subjects (titulaires) of rights and bearers of duties, which emanate directly from International
Law. They have begun to participate, integrating entities of the civil society, in consultations
conducive to the elaboration of contemporary international instruments. They have been
assuming an increasingly significant role, directly or indirectly, in the formation of
the communis opinio juris. They are not only “actors”, but true subjects, of the new jus
gentium. The widespread recognition of the international legal personality — active and
passive — of the individual has responded to a true need of the international community as
a whole.

To such personality necessarily corresponds the legal capacity of individuals to act, and
vindicate their rights, at international level. This is materialized through their direct access
— understood lato sensu — to international justice, implying a true right to the Law (droit
au Droit). The consolidation of their legal capacity, through the exercise of their right of
individual petition at international level, is one of the most significant features of the new jus
gentium : it marks the emancipation of the individual from his own State. It is properly
illustrated by the jus standi of individuals before the European Court of Human Rights, and
the locus standi in judicio of individuals in the whole procedure before the Inter-American
Court of Human Rights. The right of access (lato sensu) to international justice has at last
crystallized as the right to the realization of justice at the international level.

Humankind as such has emerged as a subject of International Law, coexisting with other
subjects without replacing them. The principle of humanity permeates the whole corpus juris
of International Law. This has been acknowledged in the case-law of the ad hoc International
Criminal Tribunals for the former Yugoslavia and for Rwanda, singling out the feeling of
humaneness, evidenced even when humanity itself is victimized by international crimes. On
their [p697] part, the Inter-American and European Courts of Human Rights have asserted in
their case-law the fundamental principles of the dignity of the human person and of the
inalienability of the rights inherent to her.

When one comes to the expansion of international legal personality, it is more precisely
humankind (rather than humanity) that one has in mind, encompassing all the members of

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the human species as a whole, comprising, in a temporal dimension, present as well as future
generations. Humankind has already been marking its presence in the more lucid
international legal doctrine — a presence which has lately been accentuated by the human
rights framework. The present challenge lies in the devising and completion of the conceptual
construction of the legal representation of humankind, conducive to the consolidation of its
international juridical capacity, in the ambit of the new jus gentium of our times.

3 - Conceptual constructions

In the gradual building of the International Law for humankind, conceptual constructions are
now in course. International jus cogens by definition goes well beyond the law of treaties,
extending itself to the domain of State responsibility and, ultimately, to any juridical act. It
encompasses the whole of International Law, and projects itself into domestic law as well,
invalidating any measure or act incompatible with it. Jus cogens has a direct bearing on the
foundations of a universal International Law, and is a pillar of the new jus gentium.

The existence of erga omnes obligations has met with judicial recognition of contemporary
international tribunals ; it now remains to determine the legal consequences for States of their
breach. Those obligations mark their presence in distinct domains of International Law (such
as human rights protection, environmental protection, disarmament and arms control).
Obligations erga omnes have a horizontal dimension, in the sense that they are owed to the
international community as a whole, and a vertical dimension, in the sense that they bind
everyone, the organs and agents of the State, as well as individuals themselves. When the
legal regime of obligations erga omnes consolidates itself (encompassing the juridical
consequences of their violation), the acknowledgment of actio popularis at the international
level may take place without uncertainties. These developments take place, again, in the
process of the humanization [p698] of International Law, as the beneficiaries of compliance
with, and due performance of, obligations erga omnes, are, ultimately, all human beings.

Theoretical constructions of the new jus gentium have been purporting to face the challenges
confronting humankind today. The concept of common heritage of mankind (in the Law of
Outer Space, and, endowed with some degree of institutionalization, in the Law of the Sea),
for example, discloses the temporal dimension of the links of solidarity uniting succeeding
generations. Despite shortcomings in its application, it was conceived bearing in mind the
existence of superior common interests, and the imperative of international distributive
justice. The same vision inspired the concept of common concern of mankind (in
International Environmental Law), devoid of proprietary connotations, and coexisting with
the former concept, as well as with that of common heritage of humanity (in the International
Law of Bioethics). All these constructions, instead of visualizing humanity from the
perspective of the States, recognize the limits of the States from the perspective of the
fulfilment of the needs and aspirations of humankind.

Recent endeavours (for example, by UNESCO) in the formulation of the right to peace in
International Law have inserted it, beyond the level of inter-State relations, in the framework
of the rights of the human person and of peoples to the ultimate benefit of humankind. The
same applies to the right to development, which, on its part, as from the 1986 UN Declaration
and the 1990 UN Global Consultation on the matter, has become definitively incorportated

6
into the lexicon of contemporary International Law, embodying demands of the human
person and peoples to be fulfilled to the ultimate benefit of humankind, well beyond the strict
inter-State dimension.

Recent developments in the new jus gentium have pointed towards the complementarity
between the international responsibility of States and the international criminal responsibility
of individuals (with their legal consequences). Such complementarity, in the struggle against
impunity and the pursuance of the realization of justice at international level, bears witness
of the acknowledgment of the fundamental or superior interests of the international
community, which have, in turn, brought about a revitalization of the principle of universal
jurisdiction (going well beyond the confines of the classical principles of territoriality and
nationality).

4 - Basic considerations of humanity [p699]

There is awareness today that never as in the twentieth century was there so much scientific-
technological progress accompanied tragically by so much destruction and cruelty and
human suffering. In reaction to this great paradox, the universal juridical conscience has
awakened to humanize contemporary International Law. In fact, basic considerations of
humanity permeate today the whole corpus juris of the law of nations, as acknowledged by
contemporary international instruments, by international case-law and by the more lucid
international legal doctrine.

The search for peace remains a permanent goal of humankind as a whole, for its own survival.
The initiative of the creation of zones of peace, and of nuclear-weapon-free zones (Treaties
of Tlatelolco, Rarotonga, Bangkok and Pelindaba) bears witness of this aim. The same
applies to current endeavours towards complete disarmament. Under the new jus gentium,
transcending the strictly inter-State dimension, and moved by the universal juridical
conscience, all weapons of mass destruction — including nuclear weapons — are illegal, in
any circumstances whatsoever, and are in breach of International Humanitarian Law. From
the perspective of the new jus gentium, the threat or use of such weapons is a crime against
humanity.

A classic chapter of International Law such as that of the law of treaties has also been
permeated by basic considerations of humanity. The dynamic interpretation of human rights
treaties and humanitarian treaties (as living instruments) is one illustration in this regard,
asserting the objective character of the obligations of protection, the autonomous meaning of
its terms, and the emphasis on their effet utile, the realization of their object and purpose. The
system of reservations to treaties enshrined in the two Vienna Conventions on the Law of
Treaties (of 1969 and 1986) has proven inadequate to human rights treaties, endowed with
mechanisms of supervision of their own ; international supervisory organs have lately
displayed their preparedness to proceed to the determination of the compatibility or otherwise
of reservations with the object and purpose of the respective treaties.

The denunciation of treaties is no longer entirely at the mercy of the denouncing States, there
being today humanitarian safeguards, as illustrated by the pertinent provisions of the 1949
Geneva [p700] Conventions on International Humanitarian Law, the 1984 UN Convention

7
against Torture, and the European and American Conventions on Human Rights. The same
applies to the termination and suspension of the operation of treaties, as acknowledged by
the relevant provisions of the two Vienna Conventions on the Law of Treaties (1969 and
1986). The law of treaties is thus nowadays open to basic considerations of humanity.

Such considerations further encompass the central chapter of State responsibility, which can
originate in any act or omission of any power (Executive, Legislative or the Judiciary) or
organ of State, irrespective of hierarchy. The prerequisites for the implementation of State
responsibility bear likewise witness of basic considerations of humanity : the rule of
exhaustion of local remedies, for example, as a condition of admissibility of international
claims, has an incidence in human rights protection distinct from that in diplomatic
protection, with due attention to, and adjustments dictated by, the particularities and
imperatives of the former, a law of generalized protection. Furthermore, the international
community as such, and the peremptory norms of International Law, mark their presence
nowadays in the conceptual universe of the law on State responsibility.

Basic considerations of humanity also comprise the chapter of State succession : recent
developments have disclosed support for the continuity of conventional obligations of human
rights protection, without interruptions. There is nowadays a presumption that successor
States are regarded, or regard themselves, as bound by such obligations concerning the rights
inherent to the human person, which have primacy over territorial mutations in general.

A classic chapter such as that of territory is nowadays approached from a much wider
outlook. Respect for State territory and its frontiers is regarded as crucial for the maintenance
of international peace. In addition, of the prerequisites of statehood, attention is increasingly
shifted to the living conditions of the population. Non-self-governing territories acquired an
international status in the major interest of their inhabitants. The Antarctica system, in its
turn, illustrates the concerted initiative of a regime of non-militarization and peaceful uses,
in addition to other zonal initiatives for peace. And, bearing in mind the historical precedents
of the Saar Territory and the Free City of Danzig (in the League of Nations era), the recent
cases of Kosovo and East Timor provide examples, in the [p701] United Nations era, of
transitional administration of territory on behalf of the international community.

Diplomatic and consular law, having attained universality, nowadays undergo likewise a
process of humanization. Their basic postulates are an irreducible minimum constructed by
humankind as a whole over the centuries. The right to information on consular assistance is
an individual right, which, as asserted by the Inter-American Court of Human Rights in a
pioneering way, is currently situated in the framework of the guarantees of the due process
of law. Here, once again, basic considerations of humanity have played an important role,
and have been exerting a considerable impact on international legal thinking and practice.

Throughout the last two decades, the intensification of the convergences and interactions of
the regimes of protection of International Human Rights Law, International Humanitarian
Law and International Refugee Law have maximized the protection of the human person in
any circumstances whatsoever. Such increasing convergences and interactions have taken
place at normative, interpretative and operational levels, to the ultimate benefit of all human
beings.

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5 - International rule of law

Although the classic chapter of peaceful settlement of international disputes has been marked
by the ambivalence between the general duty (ensuing from a principle) of peaceful
settlement and the faculty (not a principle) of free choice of means of the contending parties,
some advances have been achieved in this domain, amidst the pursuance of common values
and considerations of ordre public. Several multilateral treaties of various kinds have
specified choices of means of peaceful settlement, decreasing the discretion left to the
contending parties. The 1982 UN Convention on the Law of the Sea affords an example in
this respect. There is greater awareness nowadays that peaceful settlement of disputes
transcends the interests of the contending parties and is in keeping with the general interests
of the international community as a whole.

The old ideal of international compulsory jurisdiction is a manifestation of the endeavours

towards the international rule of law and the quest of the international community as a whole
for the realization of justice at the international level. It is a reality in our days,
as [p702] exemplified by the Court of Justice of the European Communities, the European
Court of Human Rights, the International Criminal Court, and recent development in the
Regulations of the Inter-American Court of Human Rights in this direction. The recent case-
law of this latter and its European counterpart provide illustrations of advances in the
construction of the right of direct access to justice (lato sensu) at the international level and
the preservation of the integrity of the respective mechanisms of protection. The multiplicity
of international tribunals is a reassuring phenomenon ; the aforementioned Tribunals of
human rights, together with the Law of the Sea Tribunal, the ad hoc International Criminal
Tribunals for the former Yugoslavia and for Rwanda, and the internationalized criminal
courts (for Cambodia, East Timor, Kosovo and Sierra Leone) coexist nowadays with the
International Court of Justice, serving the common cause of the realization of justice at the
international level.

III - Epilogue : A Message of Confidence

More than an epoch of transformation, we live in a transformation of epoch. The recent cycle
of UN World Conferences throughout the nineties and by the turn of the century has produced
the international agenda of this beginning of the twenty-first century, and reassessed many
issues which affect humankind as a whole. It has conducted a dialogue at universal level. It
has drawn attention to the conditions of life of all people everywhere, and to special needs of
protection in particular of vulnerable groups and the poorer segments of the population. It
has identified the needs and aspirations of the international community as a whole
(comprising States and other subjects of International Law, including humankind itself). It
has placed peoples and human beings at the centre of international concerns, not only to meet
their basic needs, but also to foster their empowerment.

This contemporary universal dialogue has been conducted amidst the profound crisis of
values in which we live, demonstrating that there is reason for hope and confidence in the
future of International Law, moved ultimately by the universal juridical conscience. This is
the basic message that I wish to leave with you, the new generations of scholars of the
discipline : to foster the revitalization of the very foundations and basic principles of

9
contemporary International Law, bearing witness of the expansion of international legal
personality, [p703] with the primacy of International Law over force, in the search of the
realization of international justice so as to leave a better world to our descendants. For three
weeks we sustained, in this auditorium of the Hague Academy, in this summer of 2005, an
intergenerational dialogue ourselves, in an experience which will remain unforgettable for
you as well as for myself. In bidding you farewell, and thanking you for the attention with
which you distinguished me, I dare to express my own confidence that, being faithful to the
humanist and universalist vision of the founding fathers of our discipline you will succeed to
keep on, in the years to come, constructing the new jus gentium of this new century, the
International Law for humankind.

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