Editor’s Note: This post is a continuation of a discussion engendered by a previous post by André de Hoogh. Readers will benefit from reading that previous post and the comments made in response to it. The previous post is available here
Earlier this month, I posted some thoughts on the aspects of the Report of the Georgia Fact-Finding Mission dealing with the relationship between international law and national law. That post generated some interesting questions and comments from Dapo Akande, John Dehn and Tobias Thienel. Somewhat belatedly, I am taking the opportunity to respond and to make some observations on some of the issues raised by that discussion.
First of all, Dapo, I would answer that I both reject the justification of rescuing nationals as an exercise of the right of self-defence, and the application of the suggested justification to that effect to the facts of the situation. Population as an essential ingredient of statehood cannot be taken to refer to the population (or citizens) of a State wherever located, but only to the population resident or present on the territory of a State (article 1 of the Montevideo Convention refers to a permanent population). Additionally, I have my doubts as to whether a self-standing justification to rescue nationals exists under customary international law.
Secondly, John, your reference to an international obligation that would relate solely to a matter of internal governance, and the possibility for a State to invoke its own foundational constitutional requirements, does not clarify why an appeal to that State’s constitutional law would be required at all. If the matter refers to an area within the domestic jurisdiction of States, there will be no need for a State to invoke its constitutional law since all it needs to do is to invoke the absence of any rule of international law regulating the topic. Where an international obligation does exist, whether under a treaty or a rule of customary international law, a State is barred from invoking its internal law including its constitution. Read the rest of this entry…