1. GATT: Fundamental principles
The predecessor of WTO, GATT, aims at the reduction of tariffs and the elimination of discriminatory treatment in international commerce (Preamble GATT 1994). Note that parties to the WTO have given their consent to be bound by the treaty; therefore, it is only logical that GATT imposes obligations on these state parties.
Among the fundamental legal principles of GATT are the most-favoured nation clause (MFN, Article I GATT), the National Treatment clause (NT, Article III GATT), the General Elimination of Quantitative Restrictions (Art. XI (1) GATT) and Anti-dumping and Countervailing Duties (Art. VI GATT).
1.1. Non-discrimination
Taken together, the MFN (Art. I GATT) and NT (Art. III GATT) underlie the non-discrimination principle.
Art. I (1) GATT provides that any advantage granted by any contracting party to any product originating or destined for any other country, shall be accorded immediately and unconditionally to the like product originating or destined for the territories of all other contracting parties.
Art. III (2) GATT provides that the products of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied to like domestic products; moreover, the products imported into the territory of another contracting party shall be accorded treatment no less favourable than that accorded to like products of national origin (only differential charges may be applied, based on the means of transport and not nationality of the product).
1.2. Market liberalization
Aiming at the liberalization of the global trade, tariffs need to be reduced and consolidated, Article II GATT (Schedules of Concessions). For the conditions of liberalization to be satisfied, Article III GATT is as necessary as it is for realizing the non-discrimination principle. Without the provisions of Art. III GATT, Article II GATT would be rendered of its practical value.
An example to explain this. State Q. confines itself to the reduction and consolidation of the tariff on imported cigarettes- the tariff is 10%. State R. imports cigarettes into the territory of State Q.
State Q. lower the tariff on domestic cigarettes (which would be considered like products by the Dispute Body) to 5%.
Should Article III GATT not be applicable, then it would be possible for State Q. to ultimately render the Schedules of Consessions from their effect; it could simply do so by favouring its internal market. From this example, it should be clear that provisions on market liberalization cannot do without the principle of non-discrimination (not without reason, MFN and NT are fundamental principles).
1.3. Exceptions
A state member to the WTO, restricting the import of products by another state member, could invoke exeptions to justify the application of restrictive measures. General exceptions are found in Article XX GATT; important exceptions are, for example, the protection of human, animal and plant life or health (b) and the conservation of exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption.
Is the restrictive measure jusitified, the measure needs to meet the requirements under the "Chapeau", the Introductory Clause to Article XX GATT. Measures shall not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.
Thus, assuming that a measure is related to one of the purposes of the general or specific exceptions, any discriminating application of the measure is a violation of the exceptions provided.
2. WTO Dispute Settlement Understanding (WTO-DSU)
Before bringing a dispute before the Panel, Members should utilize diplomatic means, the first of these being consultations (Article 4 DSU). If the consultations fail to settle a dispute within sixty days after the date of receipt of the request for consultations, the establishment of an ad hoc panel may be requested (Art. 4(7) DSU). The Procedures before the Panel are set out in Article 12 DSU.
The Appellate Body hears appeals from panel cases (Appellate review, Art. 17 DSU). Only parties to the dispute may appeal a panel report, but third parties which have notified the DSB of a substantial interest in the matter, pursuant to Article 10(2) DSU, may make submissions to and be given an opportunity to be heard by the AB (Art. 17(4) DSU). The appeal shall be limited to issues of law, covered in the panel report and legal interpretations developed by the panel (Art. 17(6) DSU).
Both the panel procedure and appellate review work on a system of negative consensus: the DSB panel report will be adopted, unless all member decide by consensus not to adopt the report (Article 17 DSU). Following the appellate review, an AB report shall be adopted by the Dispute Settlement Body, consisting of all WTO Members. Again, the report shall be adopted by negative consensus (Art. 14 DSU). This mechanism is often referred to as "quasi-automatic", as a decision by one or more, but not all Members, cannot affect the adoption of the report.
Posts tonen met het label Mercedes Bouter international law. Alle posts tonen
Posts tonen met het label Mercedes Bouter international law. Alle posts tonen
vrijdag 10 maart 2017
maandag 6 maart 2017
On international human rights law and enforcement mechanisms
1.1. Internationalization of human rights law
With regards to the internationalization of human rights, the UN Charter refers in several Articles to the human rights movement, of which 1(3) contains an important principal objective: "The purposes of the UN are [..] to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction.." In this respect, other articles worth noting are 13(1)(b), 55 (Eco-Soc operation), 62(2) and 68 of the UN Charter.
2. Doctrine: categorization of human rights
2.1. Duty bearers v. rights holders
Traditionally, the State is the principal duty bearer, whereas the individual is primary the rights holder. The State could ultimately be held accountable or even responsible if acts that violate human rights and which are performed by non-state actors, are attributable to the State.
2.2. Generations of human rights
Proposed by K. Vasak is a division of human rights in three generations, the first being the classic freedoms (negative State obligations, not to interfere), the second ecosoc-cultural rights (positive obligations, to pro-actively fulfil human rights). The third generation, solidarity rights (peace and environmental rights), raises questions on the position of bearers of duties and holders of human rights. Also, human rights law still mainly emphasizes the universal acceptance of indiviual rights.
2.3. Beneficiary
As the individual is traditionally the rights holder, it is important to note that human rights can be enjoyed by the collective and by people in an association. An example is the protection of persons belonging to a minority group, as set out in Article 27 of the ICCPR (International Convenant on Civil and Political Rights).
2.4. Negative v. positive obligations
The last category to discuss is one of importance. Whereas the classic negative obligations (to a great extent stemming from the Age of Enlightenment) impose on States the obligations to refrain from interference and to respect human rights, a fundamental human right like the right to life also requires that a state proactively promotes the safety of its citizens. The obligation to "protect and fulfil" imposes positive obligations on states.
2.4.1. Zooming in on negative vs. positive obligations: ECtHR, Judgment of 9 June 2009, application no. 33401/02
Alleged violation of Article 2(1) of the ECHR: the Right to life
The Court reiterates that the first sentence of Art. 2(1) enjoins the State not only to refrain from the international and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions (para 128).
Where there is an allegation that authorities have violated their positive obligation to protect the right to life, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life (para 130).
Upon the alleged failure to protect life, the Court decides on questions concerning the scope of the case (i), whether the local authorities could have foreseen a lethal attack by the offender (ii), whether the authorities have displayed due diligence to protect the right to life (iii) and the effectiveness of the criminal investigation by the authorities.
The Court reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome, is sufficient to engage the responsibility of the State (para 136).
2.4.2. The duty to strike a balance between positive and negative obligations
Although there is no general consensus among States Parties regarding the pursuance of criminal prosecution when a victim withdraws his or her complaints, there seems to be an acknowlegdement of the duty on the part of the authorities to strike a balance between the Article 2, 3 or 8 rights in deciding on course of action. Factors to be taken into account are listed by the ECtHR (para 138).
Taking these factors into consideration, the prosecution should continue in the public interest, even if a victim withdraws a complaint (para 139).
In any event, the Court would underline that in this case, a perpetrators' rights (as the authorities hold the view that interference would amount to a breach of the victims' rights under Article 8 and that private matters are incompatible with positive obligations) cannot supersede victims' human rights to life and to physical and mental integrity (para 147).
3. A clash of human rights: which right should prevail?
Well-known to States Parties to the ECHR and ICCPR is an ongoing discussion on the clash of human rights. As people likely tend to forget or wish to forget to alter the outcome of the debate on social and cultural human rights, the provisions on the freedom of expression contain a clause in the second or third paragraph.
For example, take Article 10(2) of the ECHR and Article 19(3) of the ICCPR: "The exercise of the freedom of expression, since it carries with it duties and responsibilities, may be subject to such formalities, restrictions and penalties as are prescribed by law and are necessary in a democratic society". From this follows that the rights holder is not free of responsibility. These provisions aim to ensure the human rights of other individuals.
Thus, the requirements for governmental interference are: the interference has to be in accordance with the law (prescribed by law), a legitimate aim has to be pursued (rights of others in a democratic society) and interference should be necessary to ensure a democratic society. Upon deciding whether certain measures, e.g. restrictions and punishment should be deemed necessary, the ECtHR mentions the existence of a "pressing social need" and the proportionality of the measures in question.
On the freedom of expression, the ECtHR has decided in the Handyside case that: " Freedom of expression is applicable, not only to "information" or "ideas" that are favourably received or regarded as inoffensive [..] but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no "democratic society".
3.1. ECtHR Judgment of 13 September 2005, application no. 42571/98
3.1.1. Alleged violation of Article 10 of the ECHR (Freedom of expression)
As paragraph 2 of Article 10 recognizes, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context [..] may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane. This being so, as a matter of principle it may be considered necessary to punish improper attacks (para 24).
3.1.2. Margin of appreciation with respect to the necessity criterion: pressing social need
In examining whether restrictions to the rights and freedoms can be considered "necessary in a democratic society", the Court has frequently held that the Contracting States enjoy a certain but not unlimited margin of appreciation. In case, the Contracting States have a wider margin of appreciation as there is no uniform European conception of the requirements (para 25).
The Court considers that the measure taken, was intented to provide protection against offensive attacks. In that respect, it finds that the measure may reasonably be held to have met a "pressing social need". The authorities cannot be said to have overstepped their margin of appreciation
(paras 30, 31).
As to the proportionality of the impugned measure, the Court is mindful of the fact that the insignificant fine imposed was proportionate to the aims pursued (para 32).
The Court decides that there has been no violation of Article 10 of the ECHR. Contrary to this judgment, the dissenting judges state that the "offense of the majority does not appear to be a sufficient reason in a democratic society to impose the mentioned sanctions; otherwise, the dictum from Handyside would be deprived of all effect. In our view, this consistent case-law seems to place too much emphasis on conformism or uniformity of thought".
4. Human rights protection: Charter-based and treaty-based enforcement mechanisms
Before discussing the Charter-based and treaty-based enforcement mechanisms, a distinction between UN monitoring (enforcement) mechanisms and regional monitory/ supervisory mechanisms (as is the ECtHR): the UN monitoring mechanism is not such a strong enforcement mechanism.
4.1.1. Charter-based enforcement mechanisms
According to the UN Library, the general characteristics of charter-based bodies are:
a. their establishment derives from provisions, contained in the UN Charter;
b. these bodies hold broad human rights mandates;
c. charter-based bodies address an unlimited audience;
d. actions are based on majority voting.
The Human Rights Council (HRC) and its predecessor (Commission on Human Rights) are Charter-based, as they were established by resolutions of principal organs of the UN, whose authorities flow from the UN Charter. In fact, the General Assembly has established the HRC and the task of the HRC is to report its universal periodic review to the UNGA. The current Subsidiary Bodies are the Universal Periodic Review Working Group and the Human Rights Council Advisory Committee. The HRC has responsibility for Special Procedure mechanisms.
The role of the UNGA is laid down in Article 13 of the UN Charter. Articles 62(2) and 68 of the UN Charter provide that ECOSOC is able to make recommandations and to set up commissions.
4.1.2. Treaty-based enforcement mechanisms
Treaty-based bodies share the following traits:
a. they derive their existence from provisions contained in a specific legal instrument;
b. treaty-based bodies hold narrow mandates, in accordance with the set of issues, codified in the legal instrument (= treaty in question);
c. they address a limited audience: only the countries that have ratified the treaty;
d. decision-making is based on consensus.
Currently, there are nine UN human rights conventions with monitoring bodies to supervise the implementation of the treaty provisions, among which the mostly discussed are:
1. HRC (Human Rights Committee), monitoring the ICCPR;
2. CESCR (Committee on ECOSOC), monitoring the ICESCR;
3. CAT (Committee against torture), monitoring the CAT.
4.1.2.1. Human Rights Committee on ICCPR: the issuing of documents
Article 28 of the ICCPR stipulates the establishment of the HRC, which shall be composed of nationals of the States Parties to the Convenant.
The types of issued documents are, as follows:
1. The ICCPR Convenant provides in Article 40 that reports shall be submitted ("States parties reports" or "concluding observations");
2. General comments provide the Committee's interpretation of the content of human rights provisions;
3. Inter-state complaints may be issued in accordance with Art. 41 ICCPR;
4. In addition, the Committee may consider individual communications relating to States parties to the First Optional Protocol. These "views", based on Art. 1 OP, are not legally binding.
4.1.2.2. Committee on Economic, Social and Cultural Rights ( CESCR on ICESCR)
Established by the ECOSOC Resolution, Article 16 of the ICESCR stipulates that reports shall be submitted to the Secretary General of the UN, who shall transmit copies to the ECOSOC for considerations in accordance with the provisions of the Convenant. By issuing general comments, the
Committee provides the interpretation of the content of human rights provisions. The State reporting mechanism, according to Article 16 ICESCR, implies that the Committee can address these reports by means of concluding observations.
The Optional Protocol to the ICESCR provides an individual complaints procedure, Art. 2 OP (non-binding views) and an inter-state complaints procedure, Art. 10 OP.
4.2. Bill of Rights
The predecessor of the Human Rights Council sent its draft on the Bill of Rights to the Charter-based ECOSOC. The UN General Assembly adopted the Universal Declaration of Human Rights through Resolution 217 A III, referred to as an instrument of "soft law", as this document is legally not-binding. Together with the UDHR, the later on adopted treaties ICCPR and ICESCR form the International Bill of Rights. The "soft law" character of the resolutions notwithstanding, the human rights conventions ultimately have a legally binding effect, as the UDHR general standards are translated into treaties for universal and regional protection.
5. Regional human rights protection: enforcement body of the ECHR
Articles 33 and 34 of the ECHR provide the jurisdiction of the ECtHR. The admissibility conditions are to be found in Article 35 ECHR: these are the exhaustion of local remedies and the condition that a complaint must not be ill-founded.
As was said before, the UN monitoring mechanisms are not quite as strong as the regional enforcement mechanisms. The explanation of the distinction is simple: the monitoring body of the ECHR is the European Court of Human Rights. As a judicial body, the ECtHR is able to issue legally binding judgments, in accordance with Article 46 ECHR. The treaty-based nature of the ECHR implies that these judgments are, as an integral part, binding for Member States, parties to this Convenant. Ultimately, the strong enforcement mechanism stems from the parties' consent to be bound under treaty law.
Sources
Hot topics 85, State Library of South Wales;
Moscrop, Enforcing International Human Rights Law, 2014;
Human Rights Enforcment Mechanisms, ESCR;
Human Rights Bodies, Office of the High Commissioner;
Treaty-based and Charter-based bodies, Dag Hammarskjöld Library (available via Research.un.org);
Lowe, International law, Oxford University Press (2007).
With regards to the internationalization of human rights, the UN Charter refers in several Articles to the human rights movement, of which 1(3) contains an important principal objective: "The purposes of the UN are [..] to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction.." In this respect, other articles worth noting are 13(1)(b), 55 (Eco-Soc operation), 62(2) and 68 of the UN Charter.
2. Doctrine: categorization of human rights
2.1. Duty bearers v. rights holders
Traditionally, the State is the principal duty bearer, whereas the individual is primary the rights holder. The State could ultimately be held accountable or even responsible if acts that violate human rights and which are performed by non-state actors, are attributable to the State.
2.2. Generations of human rights
Proposed by K. Vasak is a division of human rights in three generations, the first being the classic freedoms (negative State obligations, not to interfere), the second ecosoc-cultural rights (positive obligations, to pro-actively fulfil human rights). The third generation, solidarity rights (peace and environmental rights), raises questions on the position of bearers of duties and holders of human rights. Also, human rights law still mainly emphasizes the universal acceptance of indiviual rights.
2.3. Beneficiary
As the individual is traditionally the rights holder, it is important to note that human rights can be enjoyed by the collective and by people in an association. An example is the protection of persons belonging to a minority group, as set out in Article 27 of the ICCPR (International Convenant on Civil and Political Rights).
2.4. Negative v. positive obligations
The last category to discuss is one of importance. Whereas the classic negative obligations (to a great extent stemming from the Age of Enlightenment) impose on States the obligations to refrain from interference and to respect human rights, a fundamental human right like the right to life also requires that a state proactively promotes the safety of its citizens. The obligation to "protect and fulfil" imposes positive obligations on states.
2.4.1. Zooming in on negative vs. positive obligations: ECtHR, Judgment of 9 June 2009, application no. 33401/02
Alleged violation of Article 2(1) of the ECHR: the Right to life
The Court reiterates that the first sentence of Art. 2(1) enjoins the State not only to refrain from the international and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions (para 128).
Where there is an allegation that authorities have violated their positive obligation to protect the right to life, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life (para 130).
Upon the alleged failure to protect life, the Court decides on questions concerning the scope of the case (i), whether the local authorities could have foreseen a lethal attack by the offender (ii), whether the authorities have displayed due diligence to protect the right to life (iii) and the effectiveness of the criminal investigation by the authorities.
The Court reiterates that a failure to take reasonable measures which could have had a real prospect of altering the outcome, is sufficient to engage the responsibility of the State (para 136).
2.4.2. The duty to strike a balance between positive and negative obligations
Although there is no general consensus among States Parties regarding the pursuance of criminal prosecution when a victim withdraws his or her complaints, there seems to be an acknowlegdement of the duty on the part of the authorities to strike a balance between the Article 2, 3 or 8 rights in deciding on course of action. Factors to be taken into account are listed by the ECtHR (para 138).
Taking these factors into consideration, the prosecution should continue in the public interest, even if a victim withdraws a complaint (para 139).
In any event, the Court would underline that in this case, a perpetrators' rights (as the authorities hold the view that interference would amount to a breach of the victims' rights under Article 8 and that private matters are incompatible with positive obligations) cannot supersede victims' human rights to life and to physical and mental integrity (para 147).
3. A clash of human rights: which right should prevail?
Well-known to States Parties to the ECHR and ICCPR is an ongoing discussion on the clash of human rights. As people likely tend to forget or wish to forget to alter the outcome of the debate on social and cultural human rights, the provisions on the freedom of expression contain a clause in the second or third paragraph.
For example, take Article 10(2) of the ECHR and Article 19(3) of the ICCPR: "The exercise of the freedom of expression, since it carries with it duties and responsibilities, may be subject to such formalities, restrictions and penalties as are prescribed by law and are necessary in a democratic society". From this follows that the rights holder is not free of responsibility. These provisions aim to ensure the human rights of other individuals.
Thus, the requirements for governmental interference are: the interference has to be in accordance with the law (prescribed by law), a legitimate aim has to be pursued (rights of others in a democratic society) and interference should be necessary to ensure a democratic society. Upon deciding whether certain measures, e.g. restrictions and punishment should be deemed necessary, the ECtHR mentions the existence of a "pressing social need" and the proportionality of the measures in question.
On the freedom of expression, the ECtHR has decided in the Handyside case that: " Freedom of expression is applicable, not only to "information" or "ideas" that are favourably received or regarded as inoffensive [..] but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no "democratic society".
3.1. ECtHR Judgment of 13 September 2005, application no. 42571/98
3.1.1. Alleged violation of Article 10 of the ECHR (Freedom of expression)
As paragraph 2 of Article 10 recognizes, the exercise of that freedom carries with it duties and responsibilities. Among them, in the context [..] may legitimately be included a duty to avoid expressions that are gratuitously offensive to others and profane. This being so, as a matter of principle it may be considered necessary to punish improper attacks (para 24).
3.1.2. Margin of appreciation with respect to the necessity criterion: pressing social need
In examining whether restrictions to the rights and freedoms can be considered "necessary in a democratic society", the Court has frequently held that the Contracting States enjoy a certain but not unlimited margin of appreciation. In case, the Contracting States have a wider margin of appreciation as there is no uniform European conception of the requirements (para 25).
The Court considers that the measure taken, was intented to provide protection against offensive attacks. In that respect, it finds that the measure may reasonably be held to have met a "pressing social need". The authorities cannot be said to have overstepped their margin of appreciation
(paras 30, 31).
As to the proportionality of the impugned measure, the Court is mindful of the fact that the insignificant fine imposed was proportionate to the aims pursued (para 32).
The Court decides that there has been no violation of Article 10 of the ECHR. Contrary to this judgment, the dissenting judges state that the "offense of the majority does not appear to be a sufficient reason in a democratic society to impose the mentioned sanctions; otherwise, the dictum from Handyside would be deprived of all effect. In our view, this consistent case-law seems to place too much emphasis on conformism or uniformity of thought".
4. Human rights protection: Charter-based and treaty-based enforcement mechanisms
Before discussing the Charter-based and treaty-based enforcement mechanisms, a distinction between UN monitoring (enforcement) mechanisms and regional monitory/ supervisory mechanisms (as is the ECtHR): the UN monitoring mechanism is not such a strong enforcement mechanism.
4.1.1. Charter-based enforcement mechanisms
According to the UN Library, the general characteristics of charter-based bodies are:
a. their establishment derives from provisions, contained in the UN Charter;
b. these bodies hold broad human rights mandates;
c. charter-based bodies address an unlimited audience;
d. actions are based on majority voting.
The Human Rights Council (HRC) and its predecessor (Commission on Human Rights) are Charter-based, as they were established by resolutions of principal organs of the UN, whose authorities flow from the UN Charter. In fact, the General Assembly has established the HRC and the task of the HRC is to report its universal periodic review to the UNGA. The current Subsidiary Bodies are the Universal Periodic Review Working Group and the Human Rights Council Advisory Committee. The HRC has responsibility for Special Procedure mechanisms.
The role of the UNGA is laid down in Article 13 of the UN Charter. Articles 62(2) and 68 of the UN Charter provide that ECOSOC is able to make recommandations and to set up commissions.
4.1.2. Treaty-based enforcement mechanisms
Treaty-based bodies share the following traits:
a. they derive their existence from provisions contained in a specific legal instrument;
b. treaty-based bodies hold narrow mandates, in accordance with the set of issues, codified in the legal instrument (= treaty in question);
c. they address a limited audience: only the countries that have ratified the treaty;
d. decision-making is based on consensus.
Currently, there are nine UN human rights conventions with monitoring bodies to supervise the implementation of the treaty provisions, among which the mostly discussed are:
1. HRC (Human Rights Committee), monitoring the ICCPR;
2. CESCR (Committee on ECOSOC), monitoring the ICESCR;
3. CAT (Committee against torture), monitoring the CAT.
4.1.2.1. Human Rights Committee on ICCPR: the issuing of documents
Article 28 of the ICCPR stipulates the establishment of the HRC, which shall be composed of nationals of the States Parties to the Convenant.
The types of issued documents are, as follows:
1. The ICCPR Convenant provides in Article 40 that reports shall be submitted ("States parties reports" or "concluding observations");
2. General comments provide the Committee's interpretation of the content of human rights provisions;
3. Inter-state complaints may be issued in accordance with Art. 41 ICCPR;
4. In addition, the Committee may consider individual communications relating to States parties to the First Optional Protocol. These "views", based on Art. 1 OP, are not legally binding.
4.1.2.2. Committee on Economic, Social and Cultural Rights ( CESCR on ICESCR)
Established by the ECOSOC Resolution, Article 16 of the ICESCR stipulates that reports shall be submitted to the Secretary General of the UN, who shall transmit copies to the ECOSOC for considerations in accordance with the provisions of the Convenant. By issuing general comments, the
Committee provides the interpretation of the content of human rights provisions. The State reporting mechanism, according to Article 16 ICESCR, implies that the Committee can address these reports by means of concluding observations.
The Optional Protocol to the ICESCR provides an individual complaints procedure, Art. 2 OP (non-binding views) and an inter-state complaints procedure, Art. 10 OP.
4.2. Bill of Rights
The predecessor of the Human Rights Council sent its draft on the Bill of Rights to the Charter-based ECOSOC. The UN General Assembly adopted the Universal Declaration of Human Rights through Resolution 217 A III, referred to as an instrument of "soft law", as this document is legally not-binding. Together with the UDHR, the later on adopted treaties ICCPR and ICESCR form the International Bill of Rights. The "soft law" character of the resolutions notwithstanding, the human rights conventions ultimately have a legally binding effect, as the UDHR general standards are translated into treaties for universal and regional protection.
5. Regional human rights protection: enforcement body of the ECHR
Articles 33 and 34 of the ECHR provide the jurisdiction of the ECtHR. The admissibility conditions are to be found in Article 35 ECHR: these are the exhaustion of local remedies and the condition that a complaint must not be ill-founded.
As was said before, the UN monitoring mechanisms are not quite as strong as the regional enforcement mechanisms. The explanation of the distinction is simple: the monitoring body of the ECHR is the European Court of Human Rights. As a judicial body, the ECtHR is able to issue legally binding judgments, in accordance with Article 46 ECHR. The treaty-based nature of the ECHR implies that these judgments are, as an integral part, binding for Member States, parties to this Convenant. Ultimately, the strong enforcement mechanism stems from the parties' consent to be bound under treaty law.
Sources
Hot topics 85, State Library of South Wales;
Moscrop, Enforcing International Human Rights Law, 2014;
Human Rights Enforcment Mechanisms, ESCR;
Human Rights Bodies, Office of the High Commissioner;
Treaty-based and Charter-based bodies, Dag Hammarskjöld Library (available via Research.un.org);
Lowe, International law, Oxford University Press (2007).
zondag 5 maart 2017
International humanitarian law
1. Ius ad bellum & ius in bello: Hague law and Geneva law
There is a distinction between ius ad bellum and ius in bello, the first regarding the waging of war, the latter regarding warfare. Armed conflict is governed by the Hague law on one hand, aiming to curb the conduct of hostilities, and Geneva law, aiming to protect the victims of an armed conflict.
Both the Hague law and Geneva law are recognized as a fundamental part of customary international law, as the Court states in para 79, 80 of the Nuclear Weapons Advisory Opinion (a reference to the 1949 Corfu Channel case is made):
"It is undoubtedly [..] rules of humanitarian law applicable in armed conflict are so fundamental to the respect of [..] "elementary considerations of humanity", that the Hague and Geneva Conventions are to be observed by all States, whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law" (para 79). Furhermore, the Court notes that these principles of humanitarian law are part of ius cogens (para 83).
From this follows that, regardless of the act of ratification by States, the rules codified in the Hague and Gevena Conventions apply to armed conflict, because these conventions embody the rules of customary international law.
1.2. The Hague law
Since the 1868 St. Petersburg Declaration, the Hague law has incorporated conventions to outlaw certain types of weaponry, as the 1993 Chemical Weapons Convention is one of these coventions being considered part of the Hague law.
1.3. Geneva Conventions and their Additional Protocols
The four Geneva Conventions are, in a particular order, as follows:
Convention I: protection of wounded and sick members of armed forces;
Convention II: protection of wounded, sick and shipwrecked members of armed forces at sea;
Convention III: treatment of prisoners of war;
Convention IV: protection of civilians
The three additional protocols are:
AP I: detailed rules of protection of victims in international armed conflicts (IAC);
AP II: regulation of non-international armed conflicts (NIAC);
AP III: rules on additional distinctive emblem of the red crystal
2. The scope of humanitarian law: defining an armed conflict
There always uncertainty on the precise scope of humanitarian international law. Common Article 2 of the Geneva Convention provides that the Convention "shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them".
Hence, the concept of an "armed conflict" has to be defined. The ICTY Appeals Chamber does so in the 1995 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadić case (2 October 1995): "..we find that an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Humanitarian law extends beyond the cessation of hostilities" (para 70).
As you might have noticed, the threshold for a NIAC is higher than is the case with an IAC. Humanitarian international law applies at the very moment of any act of force between States- with respect to international humanitarian law, one could say it is "war at first shot", as Common Article 2 of the Geneva Convention implicitly makes clear. NIACs, on the other side, require "protracted or large-scale armed violence" for international humanitarian law to be applicable.
2.1. Lotus doctrine and si omnes clause
The rationale behind this distinction is State sovereignty. International law would foremost be applied in conflicts between States, or High Contracting Parties to the Conventions. A si omnes clause has a very limited scope, stipulating that provions could only apply if States, party to a conflict, were both parties to the convention that would be applied. According the Lotus doctrine, only the specific prohibition of methods of warfare would govern interstate conflicts; otherwise, much was permissible.
2.2. Martens' clause
Фёдор Фёдорович Мартенс, Fjodor Martens, designed the general savings clause. This clause is included in Article 1(2) of AP I; furthermore, Common art. 2 of the Geneva Convention expressly rejects the si omnes clause. It does so by stating "Although one of the Powers [to a conflict] may not be a party to the present Convention.."
Note that paras 1-3 from Art. 60 of the VCLT do not apply to provisions relating to humanitarian treaties, Art. 60(5) VCLT. This provision stresses the importance of international humanitarian law: treaties concerning humanitarian law should not be terminated along the line of material breach by another party.
3. Principles of humanitarian law
Four principles underlie the rules of international humanitarian law as expressed in the conventions and additional protocols:
I. Principle of distinction;
II. Principle not to cause unnecessary suffering/ humanity principle;
III. Principle of military necessity and proportionality;
IV. Principle of precaution.
3.1. Principle of distinction
A distinction must be drawn between combatants ( defined by art. 43 of AP I) and civilians (defined by Art. 50 AP I). A civilian is any person who does not belong to one of the categories referred to in Art. 4 (A)(1)(2)(3) and (6) of Convention III and art. 43 of AP I. Unless they take direct part in hostilities, civilians shall enjoy protection (Art. 51 (3) AP I). As Articles 48 (basic rule), 51(2) and 52(2) express, civilians cannot lawfully be made objects of attack. Note that enemies hors de combat will be safeguarded by Art. 41 of AP I; Article 41(2) AP I defines persons hors de combat which cannot be made objects of attack.
A combatant cannot be deprived of his right to be combatant, whether he has violated rules of international law or not, Art. 44(2) AP I. Members of the armed forces of a Party to a conflict, have the right to participate directly in hostilities, Art. 43(2) AP I. Any combatant as defined in Art. 43, who falls into the power of an adverse Party, shall enjoy the prisoner-of-war-status, Art 44(1) AP I. If a combatant fails to distinguish himself from civilians, Art. 44(3) AP I, he will not enjoy the prisoner-of-war-status, Art. 44(4) AP I; however, he will be given the equivalent of the protection accorded by Convention III and AP I. In order to garantuee as much protection as possible to all categories of combatants and non-combatants, main rule prescribes that anyone who cannot be considered a combantant in line with Art. 43 AP I, will be considered a civilian, Art. 50 AP I.
Civilians that take part in hostilities, become objects of attack (Art. 51(3) AP I), but they will not enjoy the status of prisoner-of-war when captured; if article 4 of Geneva Convention III does not apply, Article 45(3) in conjunction with Article 75 AP I affords the person, who is not entitled to prisoner-of-war-statues, the right to protection. Otherwise, Geneva Convention IV may apply.
There is a difference between civilians taking part in organized hostilities and civilians participating in levée en masse. The latter, spontaneously participating in non-organized hostilities, do become prisoners-of-war in the event of being captured, Article 4A (6) of Geneva Convention III.
Indiscriminate attacks are prohibited, Art. 51(4) and (5) AP I. Some conventions are designed to expressly prohibit the use of certain weaponry, such as the 2010 Convention on Cluster Munitions.
The Threat and use of nuclear weapons Advisory Opinion of 8 July 1996 discusses both the principles of distinction and the principle not to cause unnecessary suffering in paras 95-97. The Court's summary of the principles that constitute "the fabric of humanitarian law" is to be found in para 78.
3.2. Principle not to cause unnecessary suffering (humanity)
Necessity cannot be invoked to justify military actions at any cost, as Martens' clause aims to codify. The basic rules in Art. 35 of AP I stress this principle not to cause unnecessary suffering as a result of warfare. From the application of Common Article 3 follows that the humanity principle applies to NIACs as well.
Regarding Common Article 3, the ICJ notes in the Nicaragua case that:
"The importance of the principles that the Geneva Conventions and other relevant instruments purport to codify is [..] demonstrated by Articles 63, 62, 142 and 158 of Geneva Conventions I, II, III and IV respectively. These provisions allow for state parties to denounce the conventions unilaterally. However, the denunciation: "Shall in no way impair the obligations which the parties to the conflict shall remain bound to fulfil by virtue of the principle of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity and the dictates of public conscience" (para 218).
3.3. Principle of military necessity and proportionality
As the Court states in the Threat or use of nuclear weapons Advisory Opinion, it is prohibited to use weapons causing the combatants unnecessesary harm, that is to say, a harm greater than unavoidable to achieve legitimate military objectives (para 78).
The last sentence of Art. 51(5)(b) AP I classifies "attacks that are excessive in relation to the military advantage anticipated" as indiscriminate and therefore prohibited.
To NIACs, customary international law imposes on parties to the conflict an equal obligation to refrain from causing greater harm than unavoidable to achieve military objectives.
3.4. Principle of precaution
The principles of humanity and military necessity imply the principle to take precautionary measures. In the conduct of military operations, Art. 57 AP I stipulates that constant care shall be taken to spare civilians and civilian objects. While AP I does not apply to NIACs, customary international law imposes on the parties to a NIAC the obligation to take precautions in order to prevent unnessary suffering.
4. NIACs
4.1. Defining NIACs and the application of Common Art. 3
On deciding whether the armed conflict in the Tadić case could be considered an international armed conflict, the Appeals Chamber in the Judgment of 15 July 1999 stated that "in order to attribute the acts of military or paramilitary groups to a State, it must be proved that the State wields overall control [..]" (para 131).
Although its scope is limited, Geneva Convention Common Art. 3 applies to NIACs. In the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in the Tadić case, the ICTY Appeals Chamber makes clear that a higher threshold has to be passed for an internal conflict to qualify as a NIAC (para 70).
In the Tadić trial of 7 May 1999, the ICTY Trial Chamber has set out which requirements have to be met in order to pass the threshold for the application of rules regarding a NIAC: "The test applied to the existence of an armed conflict for the purpose of the rules contained in Common Article 3 focuses on two aspects of a conflict: the intensity of the conflict and the organization of the parties to the conflict" (para 562).
4.2. NIACs and AP II
Many of the provisions of AP II represent customary international law. The threshold in Additional Protocol II (which governs NIACs) can be derived from Article 1(1) AP II:
"..organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations".
The scope of AP II is, thus, limited, as Article 1(2) AP II puts it: "This Protocol shall not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence."
Like I noted before, the explanation for the restricted reading of the regulation of NIACs is State sovereignty. Also, States might not want to qualify internal conflicts with armed (rebel) groups as NIACs, for qualifying a conflict as such, implicitly means recognizing and eventually legitimizing the existence and actions of those groups.
5. The value of humanitarian law
What is exactly the value of international humanitarian law? Although the (codification of) customary international law aims to guarantee human rights and stems from universal human ideals of what global society should be like, it goes to show that many (non-) state actors don't live up to guarantee those rights. When non-State actors and States lack natural authority, one could image well how these actors resort to the threat with or use of violence and how they would rely on an arms race to scare off future, existent or imaginary enemies; living up to their human rights commitments would be the last to be concerned about. In practice, non-compliance is the rule rather than the exception. Even if all parties to a (human rights) treaty give their consent to be bound, there will always be ambiguity when conflicts arise. That is why many of the rules of international law apply in theory, but not in practice.
Recommended reading:
Typology of armed conflicts in international humanitarian law, S. Vité, March 2009;
International Humanitarian Law, H.P. Gasser, March 2011, available at Oxford PIL.
There is a distinction between ius ad bellum and ius in bello, the first regarding the waging of war, the latter regarding warfare. Armed conflict is governed by the Hague law on one hand, aiming to curb the conduct of hostilities, and Geneva law, aiming to protect the victims of an armed conflict.
Both the Hague law and Geneva law are recognized as a fundamental part of customary international law, as the Court states in para 79, 80 of the Nuclear Weapons Advisory Opinion (a reference to the 1949 Corfu Channel case is made):
"It is undoubtedly [..] rules of humanitarian law applicable in armed conflict are so fundamental to the respect of [..] "elementary considerations of humanity", that the Hague and Geneva Conventions are to be observed by all States, whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law" (para 79). Furhermore, the Court notes that these principles of humanitarian law are part of ius cogens (para 83).
From this follows that, regardless of the act of ratification by States, the rules codified in the Hague and Gevena Conventions apply to armed conflict, because these conventions embody the rules of customary international law.
1.2. The Hague law
Since the 1868 St. Petersburg Declaration, the Hague law has incorporated conventions to outlaw certain types of weaponry, as the 1993 Chemical Weapons Convention is one of these coventions being considered part of the Hague law.
1.3. Geneva Conventions and their Additional Protocols
The four Geneva Conventions are, in a particular order, as follows:
Convention I: protection of wounded and sick members of armed forces;
Convention II: protection of wounded, sick and shipwrecked members of armed forces at sea;
Convention III: treatment of prisoners of war;
Convention IV: protection of civilians
The three additional protocols are:
AP I: detailed rules of protection of victims in international armed conflicts (IAC);
AP II: regulation of non-international armed conflicts (NIAC);
AP III: rules on additional distinctive emblem of the red crystal
2. The scope of humanitarian law: defining an armed conflict
There always uncertainty on the precise scope of humanitarian international law. Common Article 2 of the Geneva Convention provides that the Convention "shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them".
Hence, the concept of an "armed conflict" has to be defined. The ICTY Appeals Chamber does so in the 1995 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in the Tadić case (2 October 1995): "..we find that an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. Humanitarian law extends beyond the cessation of hostilities" (para 70).
As you might have noticed, the threshold for a NIAC is higher than is the case with an IAC. Humanitarian international law applies at the very moment of any act of force between States- with respect to international humanitarian law, one could say it is "war at first shot", as Common Article 2 of the Geneva Convention implicitly makes clear. NIACs, on the other side, require "protracted or large-scale armed violence" for international humanitarian law to be applicable.
2.1. Lotus doctrine and si omnes clause
The rationale behind this distinction is State sovereignty. International law would foremost be applied in conflicts between States, or High Contracting Parties to the Conventions. A si omnes clause has a very limited scope, stipulating that provions could only apply if States, party to a conflict, were both parties to the convention that would be applied. According the Lotus doctrine, only the specific prohibition of methods of warfare would govern interstate conflicts; otherwise, much was permissible.
2.2. Martens' clause
Фёдор Фёдорович Мартенс, Fjodor Martens, designed the general savings clause. This clause is included in Article 1(2) of AP I; furthermore, Common art. 2 of the Geneva Convention expressly rejects the si omnes clause. It does so by stating "Although one of the Powers [to a conflict] may not be a party to the present Convention.."
Note that paras 1-3 from Art. 60 of the VCLT do not apply to provisions relating to humanitarian treaties, Art. 60(5) VCLT. This provision stresses the importance of international humanitarian law: treaties concerning humanitarian law should not be terminated along the line of material breach by another party.
3. Principles of humanitarian law
Four principles underlie the rules of international humanitarian law as expressed in the conventions and additional protocols:
I. Principle of distinction;
II. Principle not to cause unnecessary suffering/ humanity principle;
III. Principle of military necessity and proportionality;
IV. Principle of precaution.
3.1. Principle of distinction
A distinction must be drawn between combatants ( defined by art. 43 of AP I) and civilians (defined by Art. 50 AP I). A civilian is any person who does not belong to one of the categories referred to in Art. 4 (A)(1)(2)(3) and (6) of Convention III and art. 43 of AP I. Unless they take direct part in hostilities, civilians shall enjoy protection (Art. 51 (3) AP I). As Articles 48 (basic rule), 51(2) and 52(2) express, civilians cannot lawfully be made objects of attack. Note that enemies hors de combat will be safeguarded by Art. 41 of AP I; Article 41(2) AP I defines persons hors de combat which cannot be made objects of attack.
A combatant cannot be deprived of his right to be combatant, whether he has violated rules of international law or not, Art. 44(2) AP I. Members of the armed forces of a Party to a conflict, have the right to participate directly in hostilities, Art. 43(2) AP I. Any combatant as defined in Art. 43, who falls into the power of an adverse Party, shall enjoy the prisoner-of-war-status, Art 44(1) AP I. If a combatant fails to distinguish himself from civilians, Art. 44(3) AP I, he will not enjoy the prisoner-of-war-status, Art. 44(4) AP I; however, he will be given the equivalent of the protection accorded by Convention III and AP I. In order to garantuee as much protection as possible to all categories of combatants and non-combatants, main rule prescribes that anyone who cannot be considered a combantant in line with Art. 43 AP I, will be considered a civilian, Art. 50 AP I.
Civilians that take part in hostilities, become objects of attack (Art. 51(3) AP I), but they will not enjoy the status of prisoner-of-war when captured; if article 4 of Geneva Convention III does not apply, Article 45(3) in conjunction with Article 75 AP I affords the person, who is not entitled to prisoner-of-war-statues, the right to protection. Otherwise, Geneva Convention IV may apply.
There is a difference between civilians taking part in organized hostilities and civilians participating in levée en masse. The latter, spontaneously participating in non-organized hostilities, do become prisoners-of-war in the event of being captured, Article 4A (6) of Geneva Convention III.
Indiscriminate attacks are prohibited, Art. 51(4) and (5) AP I. Some conventions are designed to expressly prohibit the use of certain weaponry, such as the 2010 Convention on Cluster Munitions.
The Threat and use of nuclear weapons Advisory Opinion of 8 July 1996 discusses both the principles of distinction and the principle not to cause unnecessary suffering in paras 95-97. The Court's summary of the principles that constitute "the fabric of humanitarian law" is to be found in para 78.
3.2. Principle not to cause unnecessary suffering (humanity)
Necessity cannot be invoked to justify military actions at any cost, as Martens' clause aims to codify. The basic rules in Art. 35 of AP I stress this principle not to cause unnecessary suffering as a result of warfare. From the application of Common Article 3 follows that the humanity principle applies to NIACs as well.
Regarding Common Article 3, the ICJ notes in the Nicaragua case that:
"The importance of the principles that the Geneva Conventions and other relevant instruments purport to codify is [..] demonstrated by Articles 63, 62, 142 and 158 of Geneva Conventions I, II, III and IV respectively. These provisions allow for state parties to denounce the conventions unilaterally. However, the denunciation: "Shall in no way impair the obligations which the parties to the conflict shall remain bound to fulfil by virtue of the principle of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity and the dictates of public conscience" (para 218).
3.3. Principle of military necessity and proportionality
As the Court states in the Threat or use of nuclear weapons Advisory Opinion, it is prohibited to use weapons causing the combatants unnecessesary harm, that is to say, a harm greater than unavoidable to achieve legitimate military objectives (para 78).
The last sentence of Art. 51(5)(b) AP I classifies "attacks that are excessive in relation to the military advantage anticipated" as indiscriminate and therefore prohibited.
To NIACs, customary international law imposes on parties to the conflict an equal obligation to refrain from causing greater harm than unavoidable to achieve military objectives.
3.4. Principle of precaution
The principles of humanity and military necessity imply the principle to take precautionary measures. In the conduct of military operations, Art. 57 AP I stipulates that constant care shall be taken to spare civilians and civilian objects. While AP I does not apply to NIACs, customary international law imposes on the parties to a NIAC the obligation to take precautions in order to prevent unnessary suffering.
4. NIACs
4.1. Defining NIACs and the application of Common Art. 3
On deciding whether the armed conflict in the Tadić case could be considered an international armed conflict, the Appeals Chamber in the Judgment of 15 July 1999 stated that "in order to attribute the acts of military or paramilitary groups to a State, it must be proved that the State wields overall control [..]" (para 131).
Although its scope is limited, Geneva Convention Common Art. 3 applies to NIACs. In the Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction of 2 October 1995 in the Tadić case, the ICTY Appeals Chamber makes clear that a higher threshold has to be passed for an internal conflict to qualify as a NIAC (para 70).
In the Tadić trial of 7 May 1999, the ICTY Trial Chamber has set out which requirements have to be met in order to pass the threshold for the application of rules regarding a NIAC: "The test applied to the existence of an armed conflict for the purpose of the rules contained in Common Article 3 focuses on two aspects of a conflict: the intensity of the conflict and the organization of the parties to the conflict" (para 562).
4.2. NIACs and AP II
Many of the provisions of AP II represent customary international law. The threshold in Additional Protocol II (which governs NIACs) can be derived from Article 1(1) AP II:
"..organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations".
The scope of AP II is, thus, limited, as Article 1(2) AP II puts it: "This Protocol shall not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence."
Like I noted before, the explanation for the restricted reading of the regulation of NIACs is State sovereignty. Also, States might not want to qualify internal conflicts with armed (rebel) groups as NIACs, for qualifying a conflict as such, implicitly means recognizing and eventually legitimizing the existence and actions of those groups.
5. The value of humanitarian law
What is exactly the value of international humanitarian law? Although the (codification of) customary international law aims to guarantee human rights and stems from universal human ideals of what global society should be like, it goes to show that many (non-) state actors don't live up to guarantee those rights. When non-State actors and States lack natural authority, one could image well how these actors resort to the threat with or use of violence and how they would rely on an arms race to scare off future, existent or imaginary enemies; living up to their human rights commitments would be the last to be concerned about. In practice, non-compliance is the rule rather than the exception. Even if all parties to a (human rights) treaty give their consent to be bound, there will always be ambiguity when conflicts arise. That is why many of the rules of international law apply in theory, but not in practice.
Recommended reading:
Typology of armed conflicts in international humanitarian law, S. Vité, March 2009;
International Humanitarian Law, H.P. Gasser, March 2011, available at Oxford PIL.
zaterdag 25 februari 2017
Immunity from foreign (domestic) jurisdiction for States and HRSO
1.1. State immunity: par in parem non habet imperium
Codified in the UN Convention on Jurisdictional Immunities of States and Their Property (abbreviated UNCSI), the rules on State immunity are of customary international law. Though in issues governed by certain treaties like the 1972 European Convention, general customary law does not apply. General customary law shall only be excluded when immunity issues between member States of the European Convention arise.
As Article 5 of UNCSI reads:
"A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention".
Subsequently, Art. 6 obliges States to refrain from exercising jurisdiction before its court against another State.
The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State could and should not be prosecuted before a domestic foreign court. Note that State immunity is derived from State sovereignty, which relates to the rule that incumbent high-ranking State officials are also immune from the jurisdiction of foreign States. States have legal personality, therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.
1.2. Subjects of State immunity
For the purposes of the Convention on Jurisdictional State Immunities, a "State" means, Art. 2(1):
i. the State and its various organs of government;
ii. units of fa ederal State or political subdivisions which are entitled to perform acts in the exercise of sovereign authority and are acting in that capacity;
iii. agencies " ";
iv representatives of the State, acting in that capacity.
From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a result of the classic view on sovereign immunity, as discussed under para 1.1.
1.3. Relative immunity
A distinction is drawn between acta iure imperii (governmental acts) and acta iure gestionis. States could not enjoy absolute immunity for their acta iure gestionis, see Art. 10(1) of UNCSI:
"If a State engages in a commercial transaction with a foreign natural or juridical person [..] the State cannot invoke immunity from that jurisdictio in a proceeding arising out of that commercial transaction". Paragraph 1 does not apply in case of one of the exceptions, mentioned in the second paragraph of Art. 10.
How does one determine, whether a contract or transaction is an acta iure gestionis? According to Article 2 of the UNCSI, reference should be made primarily to the nature of the contract or transaction; however, its purpose should also be taken into account. The focus shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States from using the "veil" of acta iure imperii in order to escape their obligations by invoking full immunity from foreign jurisdiction.
Other proceedings in which a State cannot invoke immunity, concern: contracts of employment
(Art. 11), personal injuries and damage to property (Art. 12), ownership (Art. 13), intellectual property (Art. 14) and so on, see Part III of UNCSI.
1.4. Waiver of immunity
No problems will arise when a State has expressly consented to the exercise of jurisdiction by a foreign court, in the cases, mentioned in Article 7 of UNCSI. A State could be considered to have consented to the exercise of a foreign court implicitly, as Article 8(1) makes clear, unless paras 2-4 of Art. 8 UNCSI apply.
1.5. Jurisdictional Immunities of the State, ICJ 3 February 2012
Ferrini case: Germany v. Italy, Greece intervening
To an important extent, State immunity is based on the rules of customary international law, as the ICJ sets out in paras 53-58 of the 2012 Immunities case.
State immunity does not imply that a State cannot be held responsible for its actions; as was discussed before, State immunity solely implies that a State could not be prosecuted before a domestic foreign court. See para 53: "The Court is not called upon to decide whether these acts were illegal; the question for the Court is whether or not, in proceedings regarding claims for compensation arising out of those acts, the Italian (domestic) courts were obliged to accord Germany immunity". A State prosecuting another State, could in its turn be held responsible for violating the right to invoke immunity from foreign jurisdiction.
1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect of the "Territorial Tort Principle", even is an act on the territory of a forum State was performed iure imperii? The Court considers it is not called upon in the present proceedings to resolve the question, whether there is in customary law a "tort exception" to State immunity to acta iure imperii in general (para 65).
The Court agrees that the result of Art. 31 of the European Convention as a clause, is that the immunity of a State for the acts of its armed forces, falls out of the Convention and has to be determined by reference to customary law.The consequence is, however, that the inclusion of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is not entitled to immunity for torts, commited by its armed forces (para 68).
Moreover, State practice in the form of judicial decisions, supports the proposition that State immunity for acta iure imperii continues to extend to civil proceedings for acts occasioning [..] by the armed forces, even if the acts take place on the territory of the forum State. That practice is accompanied by opinio iuris, as a number of national courts made clear that customary law required immunity. The almost complete absence of contrary jurisprudence is significant (para 77).
The Court concludes that, under customary law, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law. The question of whether immunity might apply in criminal proceedings is, however, not an issue in the present case (para 91).
As to the relationship between ius cogens and State immunity, the Court considers that there exists no conflict between the two legal concepts, as the two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought, was lawful or unlawful. Recognizing State immunity does not amount to recognizing as lawful the breach of ius cogens and so cannot contravene the principle in Article 41 of the ILC on State Responsibility
(para 93).
2. Immunity from jurisdiction for High-Ranking State Officials (HRSO)
As was set out above, the immunities in respect of HRSO are derived from the principle of sovereign immunity; the immunities of a HRSO are interrelated with State immunity. As a matter of fact, only a State can waive the immunity of an HRSO. An incumbent HRSO enjoys both immunity rationae materiae and rationae personae. Note that, after a HRSO ceases to hold the office, he or she will no longer hold all of the immunities. A State may try a former HRSO in respect of acts committed in a private capacity (Arrest Warrant 2002, DRC Congo v. Belgium, para 61).
2.1. Relevant considerations in the Arrest Warrant Judgment of 11 April 2002
Yerodia Ndombasi case, Congo v. Belgium
2.1.1. HRSO and full immunities, regardless of a official or private capacity
Certain holders of high-ranking office in a State enjoy immunities from jurisdiction in other States, both civil and criminal. It is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs, that fall for the Court to consider (para 51).
The rationale behind the immunity for HRSO is as follows. In customary international law, the immunities accorded to [..] are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States (para 53).
When abroad, a HRSO (as is a Minister for Foreign Affairs i.c.) enjoys full immunity from criminal jurisdiction throughout the duration of his office [...] to protect the individual against any act of authority by another State which would hinder him in the performance of his duties (para 54).
In this respect, no distinction can be drawn between actes performed by a HRSO in an "official" capacity, and those claimed to have been performed in a "private" capacity (para 55).
2.1.2. Considerations regarding Opinion ex parte Pinochet
According to Belgium, the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that "international law cannot be supposed to have established a crime [..] or when Lord Phillips said that "no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime" (para 56).
The Congo cites Lord Browne-Wilkinson's statement that "this immunity, enjoyed by a head of state in power is a complete immunity, attached to the person of the head of state and rendering him immune from all actions or prosecutions" (para 57).
The Court has been unable to deduce from [..] practice that there exists under customary law, any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers, where they are suspected of having commited war crimes. The rules concerning criminal responsibility of HRSO likewise do not enable to conclude that any such exception exists in customary law in regard to domestic courts (para 58).
2.1.3. Is impunity a result of immunity?
It should be noted that the rules governing the jurisdiction of foreign courts must be distinguished from those, governing jurisdictional immunities; jurisdiction does not imply absence of immunity and absence of immunity does not imply jurisdiction. The obligations of prosecution and extradition of serious crimes that are imposed on States, do in no way affect immunities under customary law, including those of HRSO (para 59).
The immunity from jurisdiction enjoyed by HRSO does not mean that they enjoy impunity in respect of crimes committed, as immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts, the first being of a procedural nature, the latter being a question of substantive law (para 60).
Acccordingly, the immunities enjoyed by an incumbent or former HRSO do not represent a bar to criminal prosecution in certain circumstances. The Court nouns four examples, the first being that jurisdictional immunity does not apply to trial in the domestic court of the HRSO; subsequently, the waiver of immunity by the represented State will cease the immunity from foreign jurisdiction; as mentioned, after a HRSO ceases to hold the office, he will no longer enjoy immunity for his acts commited in private (para 61).
2.1.4. Jurisdiction of International Criminal Tribunals
One important remark is that International Criminal Tribunals can trial HRSO in criminal proceedings, as the Rome Statute in Article 27(2) provides that immunities of an incumbent or former HRSO shall not bar the Court from exercising its jurisdiction over such a person.
3. X v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No 3)
3.1.1. Defining the scope
The ICY reasoned in its Jurisdictional Immunities case (Ferrini) of 2012, that a clear distinction should be made between State immunity and the criminal jurisdiction of a former HRSO: "Pinochet concerned the immunity of a former Head of State from criminal jurisdiction of another State, not the immunity of the State itself in proceedings to establish its liability to damages"(para 87 Fellini case).
3.1.2 Could torture, committed by a former HRSO, be considered an official act?
Immunity ratione personae attaches to the office, meaning that a former HRSO cannot invoke immunity with respect to acts committed in private during his time in office, while immunity ratione materiae can be invoked for the official acts that have been committed during his time in office.
Regarding the Pinochet case, it is important to note that "The Republic of Chile accepted that the international law prohibiting torture, has the character of ius cogens or a peremptory norm". Chile is a party to the Torture Convention (Convention Against Torture, CAT).
The question which has to be answered, is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an official act, committed as a Head of State. It is not enough to say that it cannot be part of his functions to commit a crime. Actions which are criminal under local law, can still have been done officially and therefore give rise to immunity ratione materiae. Can it be said that the commission of a crime which is an international crime against humanity and ius cogens, is an act done in an official capacity on behalf of the state?
Under the CAT the international crime of torture can only be committed by an official [...] If immunity applies, there can be no case outside of Chile in which a succesful prosecution can be brought (unless the State is prepared to waive its right to its officials' immunity). One of the main objectives of the CAT: universal jurisdiction over torture, committed by HRSO, would be frustrated by upholding immunity for former HRSO. The notion of continued immunity for former HRSO is inconsistent with the provisions of CAT.
Codified in the UN Convention on Jurisdictional Immunities of States and Their Property (abbreviated UNCSI), the rules on State immunity are of customary international law. Though in issues governed by certain treaties like the 1972 European Convention, general customary law does not apply. General customary law shall only be excluded when immunity issues between member States of the European Convention arise.
As Article 5 of UNCSI reads:
"A State enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another State subject to the provisions of the present Convention".
Subsequently, Art. 6 obliges States to refrain from exercising jurisdiction before its court against another State.
The underlying principle is that all States are sovereign and equal (as Article 2(1) of the UN Charter puts it). Thus, the UNCSI solely applies to immunity from foreign jurisdiction: a State could and should not be prosecuted before a domestic foreign court. Note that State immunity is derived from State sovereignty, which relates to the rule that incumbent high-ranking State officials are also immune from the jurisdiction of foreign States. States have legal personality, therefore they enjoy immunity ratione personae: immunity from jurisdiction and enforcement.
1.2. Subjects of State immunity
For the purposes of the Convention on Jurisdictional State Immunities, a "State" means, Art. 2(1):
i. the State and its various organs of government;
ii. units of fa ederal State or political subdivisions which are entitled to perform acts in the exercise of sovereign authority and are acting in that capacity;
iii. agencies " ";
iv representatives of the State, acting in that capacity.
From this follows that incumbent HRSO enjoy full immunity from foreign jurisdiction, a result of the classic view on sovereign immunity, as discussed under para 1.1.
1.3. Relative immunity
A distinction is drawn between acta iure imperii (governmental acts) and acta iure gestionis. States could not enjoy absolute immunity for their acta iure gestionis, see Art. 10(1) of UNCSI:
"If a State engages in a commercial transaction with a foreign natural or juridical person [..] the State cannot invoke immunity from that jurisdictio in a proceeding arising out of that commercial transaction". Paragraph 1 does not apply in case of one of the exceptions, mentioned in the second paragraph of Art. 10.
How does one determine, whether a contract or transaction is an acta iure gestionis? According to Article 2 of the UNCSI, reference should be made primarily to the nature of the contract or transaction; however, its purpose should also be taken into account. The focus shifts from the initial purpose of a transaction, to the nature of a transaction, to prevent States from using the "veil" of acta iure imperii in order to escape their obligations by invoking full immunity from foreign jurisdiction.
Other proceedings in which a State cannot invoke immunity, concern: contracts of employment
(Art. 11), personal injuries and damage to property (Art. 12), ownership (Art. 13), intellectual property (Art. 14) and so on, see Part III of UNCSI.
1.4. Waiver of immunity
No problems will arise when a State has expressly consented to the exercise of jurisdiction by a foreign court, in the cases, mentioned in Article 7 of UNCSI. A State could be considered to have consented to the exercise of a foreign court implicitly, as Article 8(1) makes clear, unless paras 2-4 of Art. 8 UNCSI apply.
1.5. Jurisdictional Immunities of the State, ICJ 3 February 2012
Ferrini case: Germany v. Italy, Greece intervening
To an important extent, State immunity is based on the rules of customary international law, as the ICJ sets out in paras 53-58 of the 2012 Immunities case.
State immunity does not imply that a State cannot be held responsible for its actions; as was discussed before, State immunity solely implies that a State could not be prosecuted before a domestic foreign court. See para 53: "The Court is not called upon to decide whether these acts were illegal; the question for the Court is whether or not, in proceedings regarding claims for compensation arising out of those acts, the Italian (domestic) courts were obliged to accord Germany immunity". A State prosecuting another State, could in its turn be held responsible for violating the right to invoke immunity from foreign jurisdiction.
1.5.1. Do the breach of ius cogens and territorial torts allow for denial of immunity?
Does customary international law prevent a State from lawfully invoking immunity in respect of the "Territorial Tort Principle", even is an act on the territory of a forum State was performed iure imperii? The Court considers it is not called upon in the present proceedings to resolve the question, whether there is in customary law a "tort exception" to State immunity to acta iure imperii in general (para 65).
The Court agrees that the result of Art. 31 of the European Convention as a clause, is that the immunity of a State for the acts of its armed forces, falls out of the Convention and has to be determined by reference to customary law.The consequence is, however, that the inclusion of the "Territorial Tort Principle" cannot be treated as support for the argument that a State is not entitled to immunity for torts, commited by its armed forces (para 68).
Moreover, State practice in the form of judicial decisions, supports the proposition that State immunity for acta iure imperii continues to extend to civil proceedings for acts occasioning [..] by the armed forces, even if the acts take place on the territory of the forum State. That practice is accompanied by opinio iuris, as a number of national courts made clear that customary law required immunity. The almost complete absence of contrary jurisprudence is significant (para 77).
The Court concludes that, under customary law, a State is not deprived of immunity by reason of the fact that it is accused of serious violations of international human rights law. The question of whether immunity might apply in criminal proceedings is, however, not an issue in the present case (para 91).
As to the relationship between ius cogens and State immunity, the Court considers that there exists no conflict between the two legal concepts, as the two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought, was lawful or unlawful. Recognizing State immunity does not amount to recognizing as lawful the breach of ius cogens and so cannot contravene the principle in Article 41 of the ILC on State Responsibility
(para 93).
2. Immunity from jurisdiction for High-Ranking State Officials (HRSO)
As was set out above, the immunities in respect of HRSO are derived from the principle of sovereign immunity; the immunities of a HRSO are interrelated with State immunity. As a matter of fact, only a State can waive the immunity of an HRSO. An incumbent HRSO enjoys both immunity rationae materiae and rationae personae. Note that, after a HRSO ceases to hold the office, he or she will no longer hold all of the immunities. A State may try a former HRSO in respect of acts committed in a private capacity (Arrest Warrant 2002, DRC Congo v. Belgium, para 61).
2.1. Relevant considerations in the Arrest Warrant Judgment of 11 April 2002
Yerodia Ndombasi case, Congo v. Belgium
2.1.1. HRSO and full immunities, regardless of a official or private capacity
Certain holders of high-ranking office in a State enjoy immunities from jurisdiction in other States, both civil and criminal. It is only the immunity from criminal jurisdiction and the inviolability of an incumbent Minister for Foreign Affairs, that fall for the Court to consider (para 51).
The rationale behind the immunity for HRSO is as follows. In customary international law, the immunities accorded to [..] are not granted for their personal benefit, but to ensure the effective performance of their functions on behalf of their respective States (para 53).
When abroad, a HRSO (as is a Minister for Foreign Affairs i.c.) enjoys full immunity from criminal jurisdiction throughout the duration of his office [...] to protect the individual against any act of authority by another State which would hinder him in the performance of his duties (para 54).
In this respect, no distinction can be drawn between actes performed by a HRSO in an "official" capacity, and those claimed to have been performed in a "private" capacity (para 55).
2.1.2. Considerations regarding Opinion ex parte Pinochet
According to Belgium, the Pinochet decision recognizes an exception to the immunity rule when Lord Millett stated that "international law cannot be supposed to have established a crime [..] or when Lord Phillips said that "no established rule of international law requires state immunity ratione materiae to be accorded in respect of prosecution for an international crime" (para 56).
The Congo cites Lord Browne-Wilkinson's statement that "this immunity, enjoyed by a head of state in power is a complete immunity, attached to the person of the head of state and rendering him immune from all actions or prosecutions" (para 57).
The Court has been unable to deduce from [..] practice that there exists under customary law, any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers, where they are suspected of having commited war crimes. The rules concerning criminal responsibility of HRSO likewise do not enable to conclude that any such exception exists in customary law in regard to domestic courts (para 58).
2.1.3. Is impunity a result of immunity?
It should be noted that the rules governing the jurisdiction of foreign courts must be distinguished from those, governing jurisdictional immunities; jurisdiction does not imply absence of immunity and absence of immunity does not imply jurisdiction. The obligations of prosecution and extradition of serious crimes that are imposed on States, do in no way affect immunities under customary law, including those of HRSO (para 59).
The immunity from jurisdiction enjoyed by HRSO does not mean that they enjoy impunity in respect of crimes committed, as immunity from criminal jurisdiction and individual criminal responsibility are quite separate concepts, the first being of a procedural nature, the latter being a question of substantive law (para 60).
Acccordingly, the immunities enjoyed by an incumbent or former HRSO do not represent a bar to criminal prosecution in certain circumstances. The Court nouns four examples, the first being that jurisdictional immunity does not apply to trial in the domestic court of the HRSO; subsequently, the waiver of immunity by the represented State will cease the immunity from foreign jurisdiction; as mentioned, after a HRSO ceases to hold the office, he will no longer enjoy immunity for his acts commited in private (para 61).
2.1.4. Jurisdiction of International Criminal Tribunals
One important remark is that International Criminal Tribunals can trial HRSO in criminal proceedings, as the Rome Statute in Article 27(2) provides that immunities of an incumbent or former HRSO shall not bar the Court from exercising its jurisdiction over such a person.
3. X v. Bow Street Metropolitan Stipendary Magistrate, Ex parte Pinochet Ugarte (No 3)
3.1.1. Defining the scope
The ICY reasoned in its Jurisdictional Immunities case (Ferrini) of 2012, that a clear distinction should be made between State immunity and the criminal jurisdiction of a former HRSO: "Pinochet concerned the immunity of a former Head of State from criminal jurisdiction of another State, not the immunity of the State itself in proceedings to establish its liability to damages"(para 87 Fellini case).
3.1.2 Could torture, committed by a former HRSO, be considered an official act?
Immunity ratione personae attaches to the office, meaning that a former HRSO cannot invoke immunity with respect to acts committed in private during his time in office, while immunity ratione materiae can be invoked for the official acts that have been committed during his time in office.
Regarding the Pinochet case, it is important to note that "The Republic of Chile accepted that the international law prohibiting torture, has the character of ius cogens or a peremptory norm". Chile is a party to the Torture Convention (Convention Against Torture, CAT).
The question which has to be answered, is whether the alleged organisation of state torture by Senator Pinochet (if proved) would constitute an official act, committed as a Head of State. It is not enough to say that it cannot be part of his functions to commit a crime. Actions which are criminal under local law, can still have been done officially and therefore give rise to immunity ratione materiae. Can it be said that the commission of a crime which is an international crime against humanity and ius cogens, is an act done in an official capacity on behalf of the state?
Under the CAT the international crime of torture can only be committed by an official [...] If immunity applies, there can be no case outside of Chile in which a succesful prosecution can be brought (unless the State is prepared to waive its right to its officials' immunity). One of the main objectives of the CAT: universal jurisdiction over torture, committed by HRSO, would be frustrated by upholding immunity for former HRSO. The notion of continued immunity for former HRSO is inconsistent with the provisions of CAT.
On state responsibility: internationally wrongful acts and case law (Tadić, Nicaragua, 2007 Genocide case)
Crawford provides us with an accurate description of the rationale behind state responsibility:
"State responsibility results from the general legal personality of States under international law and the fact that States are principal bearers of international obligations".
As Crawford continues, "What amounts to a breach of international law by a State depends on the actual content of that State's obligations , and this varies from one State to the next". Of importance is the remark that "..the underlying concepts of State responsibility- attribution, breach, excuses and consequences- are general in character". Would you like to read this full article, a copy is available from the Max Planck Institute/ Oxford PIL.
Two of the mentioned underlying concepts or basic principles of state responsibility are that states can be held responsible for acts that are attributable to them and that states can be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful Acts (ILC, some prefer to use the abbreviation ASR or A on RS), there is an internationally wrongful act of a State when conduct consisting of an action or omission:
a. is attributable to the State under international law and;
b. constitutes a breach of an international obligation of the State.
1.1. Breach of obligations
There is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by organs of the State or persons/ entities empowered to exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State, shall be considered an act of that State. Shall the insurractional movement succeed in establishing a new State in part of the territory, the conduct of that movement shall be considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be considered an act of that State, if and to the extent that the State acknowledges and adopts the conduct in question as its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be considered as something "secondary" or "marginal", having regard to the principles involved (para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points of view. First, it must determine how far, legally, the acts in question may be regarded as imputable to the State. Secondly, it must consider their compatibility or incompatibility with the obligations under treaties in force, or any other rules of international law that may be applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they executed their attack, had any form of official status as recognized "agents" or organs of the State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The information does not suffice to establish the existence at that time, of such a link between the militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself imputable to the State, does not mean that the State is in fact free of any responsibility, for its own conduct was in conflict with its international obligations- by a number of provisions under the Vienna Convention of 1961 and 1963, the State was placed under the most categorical obligations as a receiving State, to take appropriate steps to ensure protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission, Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in question are not merely contractual obligations, but also obligations under general international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on their part; c. had the means at their disposal to perform their obligations; d. completely failed to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during the completion. The action required of the Government by the Vienna Convention and by general international law, was manifest. Its plain duty was at once to make every effort [...] (para 69).
The seal of official government approval was finally set by a decree (para 73). The result of that policy was fundamentally to transform the legal nature of the situation. The approval given by organs of the State and the decision to perpetuate the mentioned facts, translated the acts into acts of that State. The authors of the invasion had now become agents of the State, for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off diplomatic relations. At no time before the events had the Government declared or indicated any intention to declare, any member of the diplomatic staff persona non grata. The Government did not, therefore, employ the remedies placed at its disposal. The receiving State may at any time and without having to explain its decision, notify the sending State that any particular member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The difference in outcome between the Nicaragua and Tadić is best explained as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law, is the result of uncoordinated and functional development of regimes in international law, meaning that different regimes have developed from a focus on "problem-solving" within the scope of a certain regime- a good example is environmental law. Functional necessity, therefore, undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the diversification of international law underlying the establishment of numberous and different courts, not only for specific topics, but also regional. The "overall control" test, developed by the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ. To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, provided and to the extent that restitution is not materially impossible and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case, both parties could be held responsible for the injuries caused and therefore, both States could claim compensation. In the Chorzów factory case, both restitution and compensation are expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or satisfaction, or a combination of forms of reparation for injuries.
"State responsibility results from the general legal personality of States under international law and the fact that States are principal bearers of international obligations".
As Crawford continues, "What amounts to a breach of international law by a State depends on the actual content of that State's obligations , and this varies from one State to the next". Of importance is the remark that "..the underlying concepts of State responsibility- attribution, breach, excuses and consequences- are general in character". Would you like to read this full article, a copy is available from the Max Planck Institute/ Oxford PIL.
Two of the mentioned underlying concepts or basic principles of state responsibility are that states can be held responsible for acts that are attributable to them and that states can be held responsible for internationally wrongful acts.
1. Internationally wrongful acts
According to Art. 2 of the Articles on the Resonsibility of States for Internationally Wrongful Acts (ILC, some prefer to use the abbreviation ASR or A on RS), there is an internationally wrongful act of a State when conduct consisting of an action or omission:
a. is attributable to the State under international law and;
b. constitutes a breach of an international obligation of the State.
1.1. Breach of obligations
There is a breach of an international obligation by a State, when an act of that State is not in conformity with what is required of it by that obligation, regardless of the origin of its character (art. 12 ILC).
1.2. Attribution of conduct to a State: overview of the most important cases
a. Organs of a State (art. 4 ILC)
The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions;
b. Persons or entities exercising elements of governmental authority (art. 5 ILC)
The conduct of a person or entity, not being an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of governmental authority shall be considered an act of the State, provided that the person/ entity is acting in that capacity;
c. Ultra vires (art. 7 ILC)
A State can be held responsible for excess of authority or contravention of instructions by organs of the State or persons/ entities empowered to exercise elements of governmental authority;
d. Conduct directed or controlled by a State (art. 8 ILC)
If a person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct, the conduct shall be considered an act of that State;
e. Conduct of an Insurrectional or other movement (art. 10 ILC)
The conduct of an inssurectional movement which becomes the new government of a State, shall be considered an act of that State. Shall the insurractional movement succeed in establishing a new State in part of the territory, the conduct of that movement shall be considered an act of the new State under international law;
f. Conduct acknowledged and adopted by a State as its own (art. 11 ILC)
Conduct which is not attributable to a State under the preceding articles, shall nevertheless be considered an act of that State, if and to the extent that the State acknowledges and adopts the conduct in question as its own.
2. International law cases on attribution of conduct to States
2.1. United States Diplomatic and Consular Staff Judgment and Merits of 24 May 1980
The Court made it clear that the detention of internationally protected persons cannot be considered as something "secondary" or "marginal", having regard to the principles involved (para 36).
The facts, set out earlier in the judgment, have to be looked at by the Court from two points of view. First, it must determine how far, legally, the acts in question may be regarded as imputable to the State. Secondly, it must consider their compatibility or incompatibility with the obligations under treaties in force, or any other rules of international law that may be applicable. The events fall into two phases (para 56).
With regards to the first phase, no suggestion had been made that the militants, when they executed their attack, had any form of official status as recognized "agents" or organs of the State. Their conduct cannot, therefore, be regarded as imputable to the State on that basis. The information does not suffice to establish the existence at that time, of such a link between the militants and any competent organ of the State (para 58).
Other subsequent statements of approval, though highly significant in another context shortly to be considered, do not alter the initially independent and unofficial character of the attack (para 59).
The conclusion just reached by the Court, that the attack cannot be considered as in itself imputable to the State, does not mean that the State is in fact free of any responsibility, for its own conduct was in conflict with its international obligations- by a number of provisions under the Vienna Convention of 1961 and 1963, the State was placed under the most categorical obligations as a receiving State, to take appropriate steps to ensure protection (para 61).
Thus, after solemny proclaiming the inviolability of the premises of a diplomatic mission, Art. 22 of the 1962 Convention continues: "The receiving State is under a special duty to take all appropriate steps to protect [..] ". In the view of the Court, the obligations here in question are not merely contractual obligations, but also obligations under general international law (para 62).
This inaction by itself constituted clear and serious violation of the obligations under a number of provisions (para 66, 67). The Court is therefore led to conclude, in regard to the first phase, that the authorities:
a. were fully aware of their obligations; b. were fully aware of the urgent need for action on their part; c. had the means at their disposal to perform their obligations; d. completely failed to comply with these obligations (para 68).
The second phase of the events comprises the whole series of facts with followed during the completion. The action required of the Government by the Vienna Convention and by general international law, was manifest. Its plain duty was at once to make every effort [...] (para 69).
The seal of official government approval was finally set by a decree (para 73). The result of that policy was fundamentally to transform the legal nature of the situation. The approval given by organs of the State and the decision to perpetuate the mentioned facts, translated the acts into acts of that State. The authors of the invasion had now become agents of the State, for whose acts the State itself was internationally responsible (para 74).
What is more to say (M.B.): in the present case, the Government did not break off diplomatic relations. At no time before the events had the Government declared or indicated any intention to declare, any member of the diplomatic staff persona non grata. The Government did not, therefore, employ the remedies placed at its disposal. The receiving State may at any time and without having to explain its decision, notify the sending State that any particular member of its mission is persona non grata (para 87, 85).
2.2. Military and paramilitary activities in and against Nicaragua, Judgment of 27 June 1986
The Court provides a very strict criterion to decide whether the US could be held responsible for military and paramilitary operations in the course of which the alleged violations were commited. For this conduct to give rise to legal responsibility, it would in principle have to be proved that that State had effective control (para 115).
In the view of the Court, while the arming and training of the contras can certainly be said to involve the threat or use of force, this is not necessarily so in respect of all the assistance given by the US. The mere supply of funds does not in itself amount to a use of force (para 202).
2.3. Dusko Tadić , ICTY Appeals Chamber, 15 July 1999
The strict "effective control" test is a far cry from the test as formulated in the Dusko Tadić case. The ICTY applied the test of "overall control": for the attribution to a State of acts of [mentioned] groups, it is sufficient to require that the group as a whole be under the overall control of the State. If an organised group is under the overall control of a State, it must perforce to engage the responsibility of that State for its activities, whether or not each of them was specifically imposed, requested or directed by the State. The Youmans case with regard to State responsibility for acts of State military officials should hold true for acts of organised groups over which a State exercises overall control (paras. 120-123).
The Appeals Chamber adds: "The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control". In para 132 the AC considers that "In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group [..]. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law".
2.3.1. Difference in outcome Nicaragua and Tadic: fragmentation and proliferation
The difference in outcome between the Nicaragua and Tadić is best explained as a divergence between the ICJ and ICTY. According to Benedict Kingsbury, on one hand the phenomenon of fragmentation of international law, is the result of uncoordinated and functional development of regimes in international law, meaning that different regimes have developed from a focus on "problem-solving" within the scope of a certain regime- a good example is environmental law. Functional necessity, therefore, undermines the coordinated development of regimes in international law.
On the other hand, proliferation refers to the uncoordinated rise of judicial bodies, with the diversification of international law underlying the establishment of numberous and different courts, not only for specific topics, but also regional. The "overall control" test, developed by the ICTY, is not in conformity with the previous "effective control" test, applied by the ICJ. To address this divergence, it is the proliferation of the ICJ and ICTY that leads to further fragmentation in the interpretation of public international law.
2.4. Bosnia and Herzegovina vs. Serbia and Montenegro Genocide Judgment of 2007
In response to the Tadić doctrine as was adopted by the ICTY, the Court notes that the "overall control" test has the major drawback of broadening the scope of State responsibility well beyong the fundamental principle governing the law of international responsibility (that is, a State's responsibility can be incurred for acts commited by persons or groups only if, assuming those acts are internationally wrongful, they are attributable to it under the rule of customary international law, reflected in Article 8 of the ILC Articles on State Responsibility.
In this regard, the "overall control" test is unsuitable, for it stretches too far, almost to a breaking point, the connections which must exist between the conduct of a State's organs and its international responsibility (para 404, 406).
3. Conclusion
In the Diplomatic Staff case of 1980, there was a breach of obligations and certain provisions were violated. The receiving State had previously agreed upon a special duty to take all appropriate steps to protect the diplomatic staff, yet failed to do so in the first phase. In the second phase, it became clear that the approval, given by the authorities, had transformed acts by individuals into acts of the State. In legal terms, Article 11 of the ILC Articles on State Responsibility is applicable to this case: the conduct, which was originally not attributable to the State, shall be considered an act of the State because of the acknowledgement of the conduct by the State in question.
The Tadić case shoves the 1986 Nicaragua "effective control" test aside and replaces it with an "overall control" test. According to the Court in the Srebrenica Genocide Judgment of 2007, the
"Tadić doctrine" is unsuitable, for it stretches too far the connections between the conduct of a State's organs and its responsibility. That means, the causality between the act of an indidiual, group or organ and the responsibility of the State for an internationally wrongful act, is too distant.
4. Circumstances precluding wrongfulness
a. Consent (art. 20 ILC/ ASR)
It goes without saying, that no internationally wrongful act can exist as long as another State has given valid consent;
b. Self-defence (art. 21 ILC/ ASR)
The wrongfulness is precluded if an act of self-defence is in conformity with art. 2(4) of the UN Charter, which means that the State should refrain from threat of force;
c. Countermeasures in respect of an internationally wrongful act (art. 22 ILC/ ASR).
The countermeasures should be in accordance with articles 49 to 54 of the ILC on State Responsibility. Note that proportionality is an essential criterion;
d. Force majeure (art. 23 ILC)
The wrongfulness of an act of a State, not in conformity with its obligations, is precluded if the act is due to the occurence of an irresistible force or an unforseen event, beyond the control of the State, making it impossible to perform the obligations. Take note of the provisions in paragraph 2 (a)(b);
e. Distress (art. 24 ILC)
Distress differs from force majeure, in this sense that the author of the act has had no other reasonable way of saving lives, but mind paragraph 2 (a)(b);
f. Necessity (art. 25 ILC)
As was clear from the Gabcikovo case, necessity may be invoked to preclude the wrongfulness of an act, if:
a. the act was the only way to safeguard an essential interest against a grave and imminent peril;
b. does not seriously impair an essential interest of the State toward which the obligation exists.
5. Legal consequences of an internationally wrongful act
As the General principles show, the legal consequences of an internationally wrongful act do not affect the continued duty of the responsible State to perform the obligation breached (art. 29 ILC of the ASR). The State is under an obligation of cessation and non-repetition (art. 30 ILC). Also, the responsible State is obliged to make full reparation for the injury caused by the wrongful act (arr. 31 ILC).
5.1. Reparation for injury
a. Restitution (art. 35 ILC of ASR)
A State can be held responsible to make restitution, provided and to the extent that restitution is not materially impossible and does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation;
b. Compensation (art. 36 ILC)
Insofar damage is not made good by restitution, the responsible State is under an obligation to compensate for the damage caused by an internationally wrongful act. The compensation shall cover any financial damage, including loss of profits;
c. Satisfaction (art. 37 ILC)
Insofar the injury cannot be made good by restitution or compensation, the responsible State is under an obligation to give satisfaction, which may (para 2) consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality. Satisfaction shall not be out of proportion to the injury and may not take a form humiliating to the responsible State.
As the lives of two jailers in the LaGrand case could not be recovered, the responsible State was obliged to give a combination of compensation and satisfaction. In the Gabcikovo case, both parties could be held responsible for the injuries caused and therefore, both States could claim compensation. In the Chorzów factory case, both restitution and compensation are expressly mentioned as classic forms of reparation for injuries. One form of reparation doesn't set the other possible form aside, as the LaGrand case shows.
Thus, assuming that there is an internationally wrongful act, (1) when conduct consisting of an action or omission (2) is attributable to a State and (3) constitutes a breach of an obligation of that State, that State is, under any circumstances:
a. always obliged to continue the performance of the duty of the obligation breached;
b. obliged to cessation and non-repetition;
c. obliged to make full reparation, consisting of either restitution, compensation or satisfaction, or a combination of forms of reparation for injuries.
Reservations to treaties and the legal effects of either acceptance or objection by other States (part II)
2.3. Article 19 of the VCLT: different scenarios
Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the prohibition of reservations. Another means of establishing consensus is, in that case, the CBDR: Common But Differentiated Responsibility Principle. Differentiation between states' obligations is deemed tolerable.
Subparagraph b. Only specified reservations may be made or certain reservations are prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are allowed, unless the reservation is incompatible with a particular provision and the reservation is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the same criterion as would be applied to the 1951 case.
Subparagraph c. The treaty remains silent on reservations
Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that "..reservations are allowed in principle, unless sub-para a or b applies, or unless the reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".
Remark that these provisions on reservations apply to multilateral treaties. If a reservation refers to a bilateral treaty, a revision of the treaty in question or its components may be required.
2.4. Acceptance of and objection to reservations (art. 20 VCLT)
1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of the VCLT reads, a reservation expressly authorized by a treaty does not require any subsequent acceptance by other contracting States, unless the treaty so provides. This must be the ideal scenario;
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it appears from the limited number of negotiating States and the object and purpose of a treaty, that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty;
3. when a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the object and purpose of a treaty, each treaty partner has to decide on the acceptance of and objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:
a. Another contracting State can expressly accept the reservation, which constitutes the reserving State a party to the treaty in relation to that other State when the treaty is in force for those States.
b. An objection made by another contracting States, does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and objecting States, as long as the objecting State does not expressly discard treaty relations with the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
d. A contracting State remains silent. According to paragraph 5, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation, or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
2.5. Acceptance of or objection to reservations in relation to its legal effects
A summary of the legal effects of acceptance of or objection to reservations:
1. Whether the Accepting State expressly or silently accepts the reservation (implicit acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is that a treaty has been established between the Reserving and Accepting State and that either of the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
Subparagraph a. Reservations prohibited by the treaty
The purpose of, for example, multilateral anti-pollution treaties, sometimes requires the prohibition of reservations. Another means of establishing consensus is, in that case, the CBDR: Common But Differentiated Responsibility Principle. Differentiation between states' obligations is deemed tolerable.
Subparagraph b. Only specified reservations may be made or certain reservations are prohibited by the treaty
With reference to human rights treaties, the ECHR of 1950 concludes that reservations are allowed, unless the reservation is incompatible with a particular provision and the reservation is of a general character (art. 57 ECHR relating to art. 19 VCLT). This is pretty much the same criterion as would be applied to the 1951 case.
Subparagraph c. The treaty remains silent on reservations
Read the more extensive "Reservations to the Convention of Genocide, Advisory Opinion, ICJ Reports of 1951, page 15". As I've mentioned before, the conclusion reads that "..reservations are allowed in principle, unless sub-para a or b applies, or unless the reservation is contrary to the object and purpose of the treaty in question (art. 19 (c) VCLT)".
Remark that these provisions on reservations apply to multilateral treaties. If a reservation refers to a bilateral treaty, a revision of the treaty in question or its components may be required.
2.4. Acceptance of and objection to reservations (art. 20 VCLT)
1. the first way to "permit" a reservation could not be any more clear: as article 20, para 1 of the VCLT reads, a reservation expressly authorized by a treaty does not require any subsequent acceptance by other contracting States, unless the treaty so provides. This must be the ideal scenario;
2. according to the 2nd paragraph, a reservation requires acceptance by all parties, when it appears from the limited number of negotiating States and the object and purpose of a treaty, that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty;
3. when a treaty is a constituent instrument of an international organization and unless it otherwise provides, a reservation requires the acceptance of the competent organ of that organization.
2.4.1. Scenarios involving the acceptance of or objection to reservations
Problems arise when the treaty does not provide any means of acceptance or when none of paragraphs 1 to 3 are applicable. To determine whether a reservation is compatible with the object and purpose of a treaty, each treaty partner has to decide on the acceptance of and objection to reservations.
From art. 20 para 4 and 5 VCLT follows that:
a. Another contracting State can expressly accept the reservation, which constitutes the reserving State a party to the treaty in relation to that other State when the treaty is in force for those States.
b. An objection made by another contracting States, does not preclude the entry into force of the treaty as between the objecting and reserving States, unless a contrary intention is definitely expressed by the objecting State.
Thus, despite the objection, the reservation will enter into force between the reserving and objecting States, as long as the objecting State does not expressly discard treaty relations with the reserving State.
c. An act expressing a State's consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.
d. A contracting State remains silent. According to paragraph 5, a reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of twelve months after it was notified of the reservation, or by the date on which it expressed its consent to be bound by the treaty, whichever is later.
2.5. Acceptance of or objection to reservations in relation to its legal effects
A summary of the legal effects of acceptance of or objection to reservations:
1. Whether the Accepting State expressly or silently accepts the reservation (implicit acceptance = art. 20(5) VCLT), art. 20(4)(a) and art. 21(1) VCLT do apply. The legal effect is that a treaty has been established between the Reserving and Accepting State and that either of the parties to the treaty can invoke the reservation;
2. If a contracting State does object to a reservation, but does not wish to discard treaty relations with the Reserving State (art. 20(4)(b)), the provision to which the reservation relates, does not apply between parties to the extent of the reservation, as art. 21(3) VCLT prescribes the legal effect of the objection;
3. The fourth scenario is that a State objects to a reservation and discards treaty relations with the Reserving State, art. 20(4)(b). The treaty does not enter into force between the Reserving and Objecting State, the latter ultimately not being a "contracting" party to the treaty.
The conditions for making lawful reservations to treaties
Do reservations diminish the object and purpose of a Treaty?
This question could well be posed by a naturalist. From a naturalist point of view, one could state that reservations do undermine the purpose of a Treaty, for, what is the use of a Treaty, if states are- de facto- allowed to exclude the (ICJ) jurisdiction, especially when it comes to treaties concerning human rights, as is one of the main topical issues, the multilateral Convention on the prevention and punishment of the crime of genocide, Art. IX?
1.1. Positivist approach: efficiency and efficacy
From a positivist approach, however, to some extent, compromises are inevitable in the treaty-making process; the treaty-making process requires efficiency. Efficiency could not be reached if every party to a treaty has to vote unanimously on a large number of matters- which was, in fact, the case before 1940. It goes to show that negotiations often take decades before a "final" decision is issued.
Another positivist argument on the permissibility of reservations can be found in the efficacy of international rules. States are more likely to adhere to certain rules if they are able to shape the rules, more or less, to their own discretion.
1.2. The USSR case and the ICJ Opinion on Reservations
The conclusion that reservations to treaties are permissible, stems from the 1948 Genocide Convention. Not having recognized the jurisdiction of the International Court of Justice, the USSR proposed reservations to article IX of the Genocide Convention, discarding the jurisdiction of the ICJ to enforce article IX. The advisory opinion holds that reservations to a treaty are permissible, as long as these reservations are compatible with the object and purpose of the treaty. As you'll notice, this conclusion has found its way into the VCLT, particularly into article 19. Although the ICJ aims at creating a balance between interests of states and the purpose of - in case- the Convention- one could say that the advisory opinion works in favour of the party proposing reservations to a treaty. In the end, state sovereignty prevails.
Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state to attach a reservation is a means of imposing obligations on this state, being or expressing its will to become a party to the treaty. The question is hence, to what extent reservations to treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally wrong acts, for example) case, there will, by nature, always be ambiguity. There are no "hard and fast rules" in global politics.
Before I am going to discuss what conditions make reservations to treaties permissible, let's explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties (abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear that the VCLT is not applicable to cases prior to 1980- if you would like to know which treaties and conventions could be applied to previous cases, look up the International Court of Justice database.
2.1. Law of Treaties
The Law of Treaties is said to be governed by the VCLT and international customary law. Since the Vienna Convention is a mere codification of customary international law, can these two "sources" of law actually be separated? H.L.A. Hart has drawn a distinction between primary and secondary rules of international law, the first type of rules concerning (substantive) obligations (such as the prohibition of genocide), the second type governing the application and interpretation of primary rules (often mentioned examples of secondary rules include the regimes of state responsibility and the law of treaties). The ILC emphasizes state responsibility for the sake of efficacy.
The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states". Art. 2, para 1 (a) defines "treaties" as:
"International agreements concluded between States, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
In two cases, the SS Lotus case (1927) and the SS Wimbledon case (1923), the Permanent Court of International Justice (PCIJ) has given rise to the idea that two principles underlie the law of treaties. One is that states are sovereign, therefore no valid treaty can do without the free consent of states entering into the treaty, i.o. words consensualism is an essential feature; the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a treaty requires that states perform these treaties in good faith. However, the old Roman brocard "pacta sunt servanda" originally applies to civil law.
2.1.2. Ius cogens
Note that peremptory norms are regarded certain overriding principles of international law, which, speaking with I. Brownlie (Principles of International Law), form a "body of ius cogens". No State may derogate from these principles by way of a treaty. Treaties conflicting with a peremptory norm of general international law are void, art. 53 VCLT. The VCLT makes clear that a peremptory norm of international law is "a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general internation law, having the same character".
2.2. Reservations
According to article 2 (1)(d) a "reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State".
One main rule conducts the formulation of reservations. As article 19 makes clear, a State may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the object and purpose of the treaty.
Highly inspired by the Advisory Opinion of 28 May 1951, the last sub-paragraph has led to an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for there is no general rule to define these concepts of a treaty.
As Scheinin puts it: "..one might think that the VCLT cannot provide solutions to reservations problems in relation to human rights treaties because many of its provisions are written to reflect the operation of multilateral treaty between States in issues where States act in their own interest in respect of other States [...] where the treaty does not establish an independent international mechanism for its application and interpretation" (read "Reservations by States under the ICCPR and its optional protocols", in I. Ziemele, "Reservations to human rights treaties and the Vienna Convention Regime").IUs
This question could well be posed by a naturalist. From a naturalist point of view, one could state that reservations do undermine the purpose of a Treaty, for, what is the use of a Treaty, if states are- de facto- allowed to exclude the (ICJ) jurisdiction, especially when it comes to treaties concerning human rights, as is one of the main topical issues, the multilateral Convention on the prevention and punishment of the crime of genocide, Art. IX?
1.1. Positivist approach: efficiency and efficacy
From a positivist approach, however, to some extent, compromises are inevitable in the treaty-making process; the treaty-making process requires efficiency. Efficiency could not be reached if every party to a treaty has to vote unanimously on a large number of matters- which was, in fact, the case before 1940. It goes to show that negotiations often take decades before a "final" decision is issued.
Another positivist argument on the permissibility of reservations can be found in the efficacy of international rules. States are more likely to adhere to certain rules if they are able to shape the rules, more or less, to their own discretion.
1.2. The USSR case and the ICJ Opinion on Reservations
The conclusion that reservations to treaties are permissible, stems from the 1948 Genocide Convention. Not having recognized the jurisdiction of the International Court of Justice, the USSR proposed reservations to article IX of the Genocide Convention, discarding the jurisdiction of the ICJ to enforce article IX. The advisory opinion holds that reservations to a treaty are permissible, as long as these reservations are compatible with the object and purpose of the treaty. As you'll notice, this conclusion has found its way into the VCLT, particularly into article 19. Although the ICJ aims at creating a balance between interests of states and the purpose of - in case- the Convention- one could say that the advisory opinion works in favour of the party proposing reservations to a treaty. In the end, state sovereignty prevails.
Thus, the question is no longer if reservations to a treaty are permissible, for allowing a state to attach a reservation is a means of imposing obligations on this state, being or expressing its will to become a party to the treaty. The question is hence, to what extent reservations to treaties are permissible.
Whether it concerns the decision-making process or judging an international (internationally wrong acts, for example) case, there will, by nature, always be ambiguity. There are no "hard and fast rules" in global politics.
Before I am going to discuss what conditions make reservations to treaties permissible, let's explore the subject, "law of treaties", according to the Vienna Convention on Law of Treaties (abbreviation: VCLT).
Note that the VCLT just entered into force on 27 January 1980; therefore, it should be clear that the VCLT is not applicable to cases prior to 1980- if you would like to know which treaties and conventions could be applied to previous cases, look up the International Court of Justice database.
2.1. Law of Treaties
The Law of Treaties is said to be governed by the VCLT and international customary law. Since the Vienna Convention is a mere codification of customary international law, can these two "sources" of law actually be separated? H.L.A. Hart has drawn a distinction between primary and secondary rules of international law, the first type of rules concerning (substantive) obligations (such as the prohibition of genocide), the second type governing the application and interpretation of primary rules (often mentioned examples of secondary rules include the regimes of state responsibility and the law of treaties). The ILC emphasizes state responsibility for the sake of efficacy.
The scope of the Vienna Convention is presented in article 1, which states that
"The VCLT applies to treaties between states". Art. 2, para 1 (a) defines "treaties" as:
"International agreements concluded between States, in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".
In two cases, the SS Lotus case (1927) and the SS Wimbledon case (1923), the Permanent Court of International Justice (PCIJ) has given rise to the idea that two principles underlie the law of treaties. One is that states are sovereign, therefore no valid treaty can do without the free consent of states entering into the treaty, i.o. words consensualism is an essential feature; the other principle is that commiting to a treaty imposes obligations on states: the efficacy of a treaty requires that states perform these treaties in good faith. However, the old Roman brocard "pacta sunt servanda" originally applies to civil law.
2.1.2. Ius cogens
Note that peremptory norms are regarded certain overriding principles of international law, which, speaking with I. Brownlie (Principles of International Law), form a "body of ius cogens". No State may derogate from these principles by way of a treaty. Treaties conflicting with a peremptory norm of general international law are void, art. 53 VCLT. The VCLT makes clear that a peremptory norm of international law is "a norm accepted and recognized by the international community of States as a whole, from which no derogation is permitted and which can only be modified by a subsequent norm of general internation law, having the same character".
2.2. Reservations
According to article 2 (1)(d) a "reservation" means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State".
One main rule conducts the formulation of reservations. As article 19 makes clear, a State may formulate a reservation, unless:
a. the formulation is prohibited by the treaty itself;
b. the treaty provides that only specified reservations, not including the reservation in question, may be made;
c. in cases not falling under sub-paragraphs a and b, the reservation is incompatible with the object and purpose of the treaty.
Highly inspired by the Advisory Opinion of 28 May 1951, the last sub-paragraph has led to an enduring discussion on the "compatibility" with the "object and purpose of a treaty", for there is no general rule to define these concepts of a treaty.
As Scheinin puts it: "..one might think that the VCLT cannot provide solutions to reservations problems in relation to human rights treaties because many of its provisions are written to reflect the operation of multilateral treaty between States in issues where States act in their own interest in respect of other States [...] where the treaty does not establish an independent international mechanism for its application and interpretation" (read "Reservations by States under the ICCPR and its optional protocols", in I. Ziemele, "Reservations to human rights treaties and the Vienna Convention Regime").IUs
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