Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
11. Other considerations were taken into account, in approaching those experiments. Resort to private law analogies is one of them. For example, the relation of the mandates, the analogy with the original mandatum, a consensual contract in Roman law; the roots of "trust" and "tutelage" in the tutela of Roman law (a sort of guardianship of infants); the English trust, to some extent a descendant of the fideicomissa of Roman law (in "fiduciary" relations). In any case, a new relationship was thereby created, in the mandates and trusteeship systems, on the basis of confidence (the "sacred trust") and, ultimately, of human conscience. What ultimately began to matter was the well-being and human development of the population, of the inhabitants of mandated and trust territories, rather than the notion of absolute territorial sovereignty. Those experiments were intended to give legal protection to newly-arisen needs of the "people" or the "population"; and the mandatory, tutor or trustee had duties, rather than rights.
12. Beyond those private law analogies, and well before them, were the teachings of the so-called "founding fathers" of the law of nations (le droit des gens), characterized by their essentially humanist outlook, supported by Judge Cançado Trindade. He recalls (Parts V and VI of the present separate opinion) that, from a historical as well as a deontological perspectives, peoples assumed a central position already in the early days of the emergence of the droit des gens (the jus gentium emancipated from its private law origins). The droit des gens was originally inspired by the principle of humanity lato sensu, with the legal order binding everyone (the ones ruled as well as the rulers); the droit des gens regulates an international community constituted by human beings socially organized in States and co-extensive with humankind (F. Vitoria, De Indis — Relectio Prior, 1538-1539); thus conceived, it is solely Law which regulates the relations among members of the universal societas gentium (A. Gentili, De Jure Belli, 1598). This latter (totus orbis) prevails over the individual will of each State (F. Vitoria). There is thus a necessary law of nations, and the droit des gens reveals the unity and universality of humankind (F. Suárez, De Legibus ac Deo Legislatore, 1612).
13. The raison d' État has limits, and the State is not an end in itself, but a means to secure the social order pursuant to the right reason (recta ratio), so as to perfect the societas gentium, which comprises the whole of humankind (H. Grotius, De Jure Belli ac Pacis, 1625). The legislator is subject to the natural law of human reason (S. Pufendorf, De Jure Naturae et Gentium, 1672), and individuals, in their association in the State, ought to promote together the common good (C. Wolff,Jus Gentium Methodo Scientifica Pertractatum, 1749). Since the times of those writings, the world of course has entirely changed, but human aspirations have remained the same. The advent, along the XXth century, of international organizations, has much contributed to put an end to abuses against human beings, and gross violations of human rights and international humanitarian law. The United Nations, in our times, has sought the prevalence of the dictates of the universal juridical conscience, particularly when aiming to secure dignified conditions of living to all peoples, in particular those subjected to oppression.
14. The old Permanent Court of International Justice (PCIJ) gave its own contribution to the rescue of the "population" or the "people", and some of its relevant obiter dicta in this respect seem to remain endowed with contemporaneity. Thus, even well before the 1948 Universal Declaration of Human Rights, the fundamental principle
34
