International Court of Justice

“ In its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, the Court rejected an argument that it should refuse to respond to the General Assembly's request on the ground that the General Assembly had not explained to the Court the purposes for which it sought an opinion, stating that
"it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions. The General Assembly has the right to decide for itself on the usefulness of an opinion in the light of its own needs." ”

“ Judge Bennouna believes that the Court cannot substitute itself for the Security Council in exercising its responsibilities, nor can it stand legal guarantor for a policy of fait accompli based simply on who can gain the upper hand. The Court's duty is to preserve its role, which is to state the law, clearly and independently. That is how it will safeguard its credibility in performing its functions, for the benefit of the international community. ”

“ In assessing whether or not the declaration of independence is in accordance with international law, the Court must be free to examine the entire record and decide for itself whether that declaration was promulgated by the Provisional Institutions of Self-Government or some other entity. ”

“ The context in which the present case comes before the Court is well-known. On 24 February 2022, the President of the Russian Federation, Mr. Vladimir Putin, declared that he had decided to conduct a “special military operation” against Ukraine. Since then, there has been intense fighting on Ukrainian territory, which has claimed many lives, has caused extensive displacement and has resulted in widespread damage. The Court is acutely aware of the extent of the human tragedy that is taking place in Ukraine and is deeply concerned about the continuing loss of life and human suffering. ”

“ Ukraine asserts that, in assessing whether the condition of urgency is satisfied in cases involving ongoing conflict, the Court typically considers whether the population at risk is particularly vulnerable, the fragility of the overall situation, including the likelihood of aggravation of the dispute, and the risk of reoccurrence of harm. Ukraine submits that the Court has frequently stated that loss of life constitutes an irreparable harm. ”

“ Under this outlook, Judge Cançado Trindade reassesses territorial integrity in the framework of the humane ends of the State, and considers the principle of selfdetermination of peoples applicable, beyond decolonization, in new situations of systematic oppression, subjugation and tyranny. He stresses the fundamental importance, in the context of the Kosovo crisis, of the principles of humanity, and of equality and non-discrimination, so as to extract the basic lesson: no State can use territory to destroy the population ”

“ Ukraine contends that it has a right to demand good faith performance of obligations under the Genocide Convention by the Russian Federation, in accordance with the object and purpose of the Convention. ”

“ On the contrary, State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence. During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation. A great many new States have come into existence as a result of the exercise of this right. ”

“ He ponders that ours is the age of an ever-increasing attention to the advances of the 'rule of law at both national and international levels. The international community expects that the Court acts at the height of the responsibilities incumbent upon it; it is incumbent upon the Court to say what the Law is (juris dictio) , and it ought thus to deliver, as it has just done, the requested Advisory Opinion, thus fulfilling faithfully its duties as the principal judicial organ of the United Nations. ”

“ It deems it necessary to emphasize that all States must act in conformity with their obligations under the United Nations Charter and other rules of international law, including international humanitarian law. ”

“ Contemporary international law is no longer indifferent to the fate of the population, the most precious constitutive element of statehood. The advent of international organizations has helped to put an end to the reversal of the ends of the State, and the expansion of international legal personality has entailed the expansion of international accountability. ”

“ The ultimate goal is the formation and consolidation of a multi-ethnic democratic society, under the rule of law, with the prevalence of the fundamental principle of equality and non-discrimination, the exercise of the right of participation in public life, and of the right of equal access to justice by everyone. ”

“ The Universal Declaration placed the principle in a wider dimension, and projected it at universal level, by taking the individual qua individual, qua human being, irrespective of being a member of a minority, or an inhabitant of a territory under the mandates system, or, later on, under the trusteeship system. ”