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.

With respect to a matter of internal governance, the question appears to relate more to who can invoke the international obligation and in that respect I would refer to article 48 DSR, which allows States ‘other’ than injured States to invoke the responsibility of a State when the obligation concerned is owed to a group and intended to protect the collective interests of that group or when the obligation is owed to the international community as a whole. At that point it might become interesting for a State to invoke its internal law or constitution, but under the rules of State responsibility this will not have any impact since the characterization of an act or omission as a breach of international obligation is governed by international law (cf. article 3 DSR).

Suppose that the constitution would prohibit the death penalty and extradition of persons liable to be subject to that penalty (and not being a party to any human rights treaty prohibiting the death penalty), while at the same time bound by an extradition treaty not envisaging such a concern as a ground for refusal. The constitution would not offer any justification not to perform the extradition treaty. Or suppose that a State’s constitution would determine a particular religion as that of the State and people and denies individuals any choice in this, and suppose the State had concluded a commercial treaty with another State prescribing freedom of goods between the two (without any relevant restriction), it would not be able to invoke its constitution to deny the import of religious books and materials other than those accepted in its own religion.

Thirdly, John and Tobias, to follow up on the latter example and the reference to CEDAW and the position of Islamic countries, no doubt such States could invoke their constitution or internal law to explain or justify their reservations (politically), but whether or not such reservations are admissible is to be determined by reference to the treaty itself or the law of treaties. In this case, CEDAW indicates that reservations incompatible with the object and purpose of the Convention shall not be permitted (article 28(2)). Having taken a look at some reservations, certainly that of Saudi Arabia appears to be incompatible, since it indicates that it will not be bound to the Convention to the extent that it contradicts norms of Islamic law. Then again, a reservation such as that of Kuwait relating to article 7 on equality in the political and public life (since withdrawn) only attracted limited opposition (Denmark).

Not just States with Islamic populations may find themselves in trouble regarding article 7. The Netherlands (in Europe) has been found in violation of CEDAW by its own courts for not taking (appropriate) measures against a political party (SGP), founded on Christian beliefs and represented in parliament, which bars female members of the party to stand for public office. When approval of CEDAW was being discussed in parliament, the politically responsible minister in reply to questions of that very same political party did not see the need to enter any reservation for The Netherlands.

Fourthly, John and Tobias, even if there is a hierarchy of international human rights (and at present I decline to take position on this point), this does not affect the questions of what obligations are imposed and whether or not they have been violated. To put it in different terms, the normativity and character of ‘inferior’ human rights are not affected, and this is what article 12 DSR intends to convey when it stipulates that there is a breach of an international obligation “regardless of its origin or character”. Hence the absolute character of any human right, the superior character of some human rights as distinguished from others, or acceptance and recognition of particular human rights into the body of jus cogens, have no bearing on the binding character of the obligation imposed and hence the rules of article 27 VCLT and article 3 DSR are applicable in any case.

As an aside, I am perfectly happy to quibble about interpretations provided by the ECtHR of its own constituent treaty or indeed any court’s interpretation of any treaty. Furthermore, from an interpretation perspective I would discount ECHR jurisprudence with respect to the ICCPR and CAT, since for these treaties the European Convention of Human Rights cannot be considered to lay down a “relevant rule applicable in the relations between the parties” (article 31(3c) VCLT). Though under heavy attack, ‘the parties’ in this provision means all the parties to the treaty to be interpreted, meaning that the relevant rule must apply to all the parties of the ICCPR or CAT.

Fifthly, John, I don’t see how any “[d]ecisions of any international tribunal are always persuasive evidence of the matters under discussion.” Similar to the absence of a rule of precedent in international law, I would posit that there is also no rule requiring decisions of international tribunals to be treated as persuasive. Any decision is persuasive only to the extent that it contains thorough and methodologically sound reasoning and evidence. As such any particular court may take decisions of other courts or tribunals into account, though I also think that academics ought to be particularly rigorous in assessing decisions critically.

Nitpicking a bit here, I’d like to point out that the ICCPR and the ECHR do have the same legal force, irrespective of differences of enforcement, and that lack of enforcement or means of enforcement may simply lead to non-compliance and hence diminish effectiveness.

Lastly, John and Tobias, I think we are in agreement that theoretically a rule might develop allowing a State to invoke its constitution or core foundational rules thereof as justification not to perform an international obligation. However, it seems more likely that in particular instances appeals by States to their constitutions would undermine either opinio juris or, if words are put into practice, State practice. Hence it seems more likely, when it comes to a particular rule of customary international law, that this will lead to abandonment of the rule concerned. In the hypothesis of a developing rule, it would indeed be necessary for a State to protest the application of the rule to its situation for it to escape the applicability of the rule (all this assuming that ‘persistent objection’ is accepted as a bar to such applicability). Where a significant segment of the international community of States fails to put a certain (alleged) rule into practice, such as Islamic States with freedom of religion, this jeopardizes the coherence of State practice and in the absence of protests by other States will make the establishment of opinio juris tenuous.

Editor’s Note: This post is part of a series discussing the the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia. Other posts in this series include Gazzini, “Criteria for Statehood as Applied by the EU’s Independent Fact-Finding Mission on the Conflict in Georgia“ , Andre de Hoogh, “Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence” and Zoran Oklopcic’s “Reflections on self-determination, and the status of Kosovo in light of the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia“

Under the heading of ‘rescuing Russians as a case of self-defence’, the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia quite sensibly and with good cause rejects this claim on the part of Russia and observes that attacks on nationals or members of the nation abroad cannot be equated to an attack against the territory of a State. However, in its application to the specific case, it then observes (volume 2, p. 288) that:

“[t]he constitutional obligation to protect Russian nationals (…) cannot serve as a justification for intervention under international law. Domestic law can in principle not be invoked as a justification for a breach of an international legal rule” (italics not in original; the attached footnote 211 then refers to article 26 VCLT, which is probably intended as a reference to article 27 VCLT).

But the Report then surprisingly, not to say shockingly, appears to envisage the possibility that:

“[a]t most, domestic constitutional law could be invoked as a defence against obligations imposed on a state by international law if those obligations contradict core elements of the national constitution” [italics not in original].

 The Report then claims that article 61(2) of the Russian Constitution, which proclaims that “[t]he Russian Federation guarantees its citizens defence and patronage beyond its boundaries”, is not a basic principle of Russian constitutional law.

Aside from the already mentioned fleeting reference in footnote 211 to article 26 VCLT, laying down the principle of pacta sunt servanda, the Report fails to address article 27 which precisely excludes an appeal to internal law as a justification for the non-performance of treaties (the reference in that provision to article 46 VCLT is not relevant for present purposes, as it only allows an appeal to rules of internal law of fundamental importance for the expression of consent to treaties). Nor is any thought given to the provision of article 3 of the Draft on the Responsibility of States for Internationally Wrongful Acts (DSR; cf. also article 32 DSR) which observes “… The characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law.” Similar provisions have been introduced into the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (article 27(2-3)), and the Draft on the International Responsibility of International Organizations (DIOR, adopted on first reading by the International Law Commission this year (article 31(1) DIOR; inclusion of a provision into the DIOR similar to article 3 DSR has been rejected by the ILC, cf. ILC, Report 2009, pp. 54-55). 

What has moved the drafters of the Report to even consider allowing the invocation by a State of its own constitutional law as a justification for non-observance of international obligations cannot be fathomed. Though restricted, apparently, to an invocation of core elements or basic principles of a State’s constitution (or those constitutive of a national constitutional identity), the Report provides no authority or support whatsoever for its proposition. And in view of the ICJ’s more recent rulings in the LaGrand and Avena cases, it seem unlikely that any authority or support could be found. As all organs of a State may display conduct that constitutes a breach of an international obligation, and are bound as a matter of international law to give effect to such an obligation (cf. article 4 DSR and LaGrand, Order on Provisional Measures, para. 28, and Judgment, paras. 111-115), the rule of article 27 VCLT operates to prevent even a division of powers between the federal and state governmental institutions (cf. also article 29 VCLT), clearly basic to the national constitutional identity of any federation, being invoked as a defence. The position that internal law and in particular also a constitution cannot be invoked to justify non-performance of international obligations was already confirmed in the advisory opinion of the Permanent Court of International Justice (Treatment of Polish Nationals, Series A/B, no. 44, p. 24), in which it emphatically stated that: “… a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force.”

Furthermore, the drafting history of article 27 of the Vienna Convention confirms that the reference to internal law comprises the constitution of a State party. In fact, the amendment proposed by Pakistan initially claimed “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith, and no party may invoke the provisions of its constitution or its laws as an excuse for its failure to perform this duty” (Vienna Conference, Documents, p. 145; adopted: 55 in favour, none against, 30 abstentions (Vienna Conference, First Session, p. 158)). Though certain hesitations may be observed on the part of the participants in the Vienna Conference in 1968-1969 to support the resulting provision (adopted: 73 in favour, 2 against, 24 abstentions; Vienna Conference, Second Session, p. 54), as to this particular point, the provision did find favour and only two States (Venezuela and Iran) expressed their opposition suggesting the primacy of their constitutional law over treaties. Two States (Venezuela and Guatemala) specifically attached reservations on this point, against which objections have been raised by certain other States (see  here).

The rules given expression in article 27 VCLT and article 4 DSR, are broadly accepted as reflections of longstanding, existing rules of customary international law (cf. M. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Martinus Nijhoff Publishers, Leiden, 2009, pp. 374-375, and Commentary Article 4 DSR, YBILC 2001, Volume II, Part Two, p. 38, paras. 1-9), and may be deemed to be part of the international constitutional identity or meta-law on international norm-creation of international law at large. Indeed, any other construction than the inability to invoke the internal law, including the constitution, of a State would not be viable, since this would allow a State an (easy) escape of its own (unilateral) design from the observance of international law. Though in the present day and age many constitutions are entrenched and envisage their amendment by weighted procedures, the suggestion made by the Report would put a bonus on reconsidering such procedures in view of the possibility to invoke constitutional provisions against a State’s international obligations.

Dr André de Hoogh is a senior lecturer in International Law at the University of Groningen. His Ph.D. dissertation (1995) dealt with the topics of obligations erga omnes and international crimes of State.  Recent publications have focussed on the powers of the Security Council, the attribution of conduct to States, legislative powers of UN peacekeeping operations, the war against Iraq, the Bush doctrine of pre-emptive self-defence, and jurisdiction of States.

The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, solicited by the European Union, covers an impressive breadth of topics ranging, aside from factual matters, from statehood, self-determination and secession, use of force, human rights and international humanitarian law. Having read the Report with appreciation and generally agreeing with its conclusions, nevertheless various queries and concerns may be raised by the Mission’s treatment of the regulation of the use of force in international law. Some concerns relate to the treatment of sources of international law, others concern matters of substantive analysis. This comment will consecutively deal with the applicability and interpretation of the prohibition of the threat and use of force in article 2(4) of the Charter, the requirement of a report on measures of self-defence to the Security Council, and the permissible goals of self-defence under international law.

The Applicability of the Prohibition of the Use of Force

The Report concludes that the use of force, in the Georgian-South Ossetian conflict, “is ‘inconsistent with the Charter of the United Nations’, and therefore the prohibition of the use of force is applicable to the conflict, for the following reasons.” Besides putting the horse behind the cart (after all, if the prohibition is not applicable, how could force be inconsistent with the Charter?), the reasons then set forth do not quite support the applicability of the prohibition in article 2(4) Charter. First to be mentioned in the Report is a clause in the preamble of the 1992 Sochi Agreement, which reaffirms “the commitment to the UN Charter and the Helsinki Final Act”. This is said to amount to Georgian acceptance of the applicability of the prohibition, because, though South Ossetia is not a party to the Agreement, the purpose of the Agreement is to “bring about a cessation of bloodshed” and achieve a settlement of the Ossetian-Georgian conflict. The Report considers, sensibly enough, the prohibition to be included in the reference to the Charter, but fails to consider the (legal) status of a clause in a preamble and does not, as such, account for the fact that the reference may be explained by Georgia and Russia being parties to the Agreement.

Continuing, the Report the calls attention to two further agreements. First of all to the 1994 Agreement on the Georgian-South Ossetian Conflict and the Joint Control Commission, which far more clearly sets out that the parties commit to settle their disputes peacefully, without resort to force or threat of force. Though the Report does not indicate the legal provision in which this is written down, the parties to the 1994 Agreement are Georgia, Russia, South Ossetia and North Ossetia. Because this Agreement is “not that of a treaty in its own right”, the Report argues it is based on the Sochi Agreement and hence “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” (art. 31(3b) VCLT). Apparently uncertain of the legal status of the 1994 Agreement under international law, the Report finds it necessary to resort to subsequent practice as an aid to treaty interpretation and tries in this way to bolster its conclusion on applicability of the prohibition of the use of force in the Sochi Agreement. Secondly, the Report refers to the 1996 Memorandum on Measures to Provide Security and Strengthen Mutual Trust, which proclaims “The Parties to the conflict shall denounce application of force or threat of force …” This again is seen as subsequent practice in the application of the Sochi Agreement, though the Report does note that, again, the parties to the agreement are different.

The question one would have wished to be answered, but for which one searches in vain, is whether those Agreements are able to make the prohibition of the use of force in article 2(4) of the Charter applicable in the relations between a State and a non-State entity. The prohibition of the threat or use of force applies in international relations, and quite obviously it does not apply to the armed conflict between Georgia and South Ossetian militias or armed forces. A more persuasive position would have been to argue that Georgia had agreed, under several agreements governed by international law (cf. article 3 in conjunction with article 2(1a) VCLT), not to resort to the use of armed force against South Ossetia, and hence violated such Agreements by its military offensive of 7 August 2008. As such, whatever else may be said, Georgia could not be considered to have violated its obligations under article 2(4) of the Charter.

This conclusion might perhaps change upon a reading of the Declaration of Principles of International Law (GA Resolution 2625 (XXV)), as the Declaration stipulates the non-use of armed force with respect to international boundaries, international (territorial) disputes, and international lines of demarcation (such as armistice lines) established by or pursuant to international agreements. This last part appears to apply to the situation at hand and could be invoked to justify a conclusion of violation of article 2(4) Charter. However, considering the context, this rule being set out under the principle pertaining to non-use of force in a State’s international relations, this still would not lead to a different conclusion as to Georgia’s military offensive of 7 August.

The Interpretation of Article 2(4) of the UN Charter

Another point of interpretation of the terms in article 2(4) may be raised in that the Report suggests (p. 242) that only physical force above a certain “minimum threshold of intensity” would be covered by the prohibition. In the accompanying footnote 49 this is further specified by considering that “[o]nly very small incidents lie below this threshold, for instance the targeted killing of single individuals, forcible abductions of individual persons, or the interception of a single aircraft.” The Report then continues by measuring various acts of Georgia against the standards of article 3 of the Definition of Aggression (GA Resolution 3314 (XXIX)).

It remains unclear to this author on what grounds the Report bases its claim that only acts above a certain minimum level would be covered by the prohibition and why the examples mentioned would not constitute a use of armed force under article 2(4) Charter (aside from the reference in the footnote to R. Kolb, Ius contra bellum: Le droit international relatif au maintien de la paix, 2^nd edition, Helbing Lichtenhahn/Bruylant, 2009, p. 247). No doubt it might be possible to argue application of the Roman maxim de minimis non curat praetor, but an inability to seize the magistrate or court of a case because of its minimal significance would not detract from the scope of the rule at stake and would not rule out its (possible) violation. Small incidents such as those mentioned as examples would take on (far greater) significance if the targeted (single) individual were to be a head of State or government, or the abduction of an individual person were to concern the commander in chief, or the interception of a single aircraft were to relate to a nuclear bomber.

Case-law has not considered this particular point, though the International Court of Justice (Oil Platforms, para. 72) did “not rule out that the mining of a single military vessel might be sufficient to bring into play the ‘inherent right to self-defence’ ”. Earlier on it had held (Nicaragua Case, para. 191) that one ought to distinguish the “most grave forms of the use of force (those constituting an armed attack) from other less grave forms.” And even though article 2 of the Definition of Aggression states that the Security Council may take into account that certain acts are not of sufficient gravity to justify a conclusion of aggression, this cannot be taken to mean that the same acts would not constitute a use of armed force prohibited under article 2(4) Charter. However, the Report is clearly on point in arguing (e.g. p. 243) that all the examples of aggression set out in article 3 of the Definition constitute, a fortiori, uses of force.

Later on in the Report (p. 286) it is argued, discussing intervention to rescue nationals abroad, that “[a] ‘Blitz’-type action is legal if it does not fall under the scope of the prohibition of the use of force, because it remains below the threshold of gravity, and/or because it is not ‘directed against the territorial integrity or political independence’ of a state”. Apparently such a Blitz-type of action (exemplified in footnote 205 by reference to the Entebbe incident) may also fall below the minimum threshold, even though this kind of operation is not in line with the examples of targeting or abducting single individuals or intercepting single aircraft. Even more troublesome is the Report’s suggestion that armed force not directed against the territorial integrity or political independence of States is not covered by the prohibition of article 2(4) Charter. As the prohibition covers the use of force inconsistent with the purposes of the United Nations, and applies in international relations, any cross-border use of armed force is inconsistent with the UN’s primary purpose “[t]o maintain international peace and security” (article 1(1) Charter).

Overall the conclusions of the Report are not materially affected by the above observations, as Georgia did violate its obligations under the international agreements mentioned above. In the same vein the Report’s affirmation of the availability of self-defence for an entity short of statehood (pp. 241-242) is not undermined, since Georgia’s commitment to settle the dispute peacefully and not to use armed force is governed by international law and may be invoked by South Ossetia. However, the inapplicability of the prohibition of the use of force in article 2(4) of the Charter combined with the applicability of the Agreements does allow for the possibility that if the Agreements were to be terminated –i.e. as a result of unilateral denunciation or by invocation of material breach as a ground for terminating a treaty (cf., analogously, articles 56 and 60 VCLT), followed possibly by a withdrawal of consent to the presence of peacekeeping troops–, Georgia’s obligations in this respect would also come to an end and allow for a resumption of armed action. At that point, it may be noted, Georgia’s use of armed force would not give rise to a right of self-defence on the part of South Ossetia (whether under article 51 of the Charter, as the Report posits (i.e. pp. 241-242 and 280) consequent upon its finding of applicability of the prohibition, or otherwise).

Self Defence

Turning then to matters of self-defence, with respect to the requirement of a report to the Security Council the Report concludes (pp. 246-247 and 269 respectively) that “Georgia did not formally and ‘immediately’ notify the Security Council”, whereas a Russian letter to the Council “was an ‘immediate’ report in the sense of Art. 51 of the UN Charter, and thus an indication that Russia was itself convinced that it was acting in self-defence.” Striking in its treatment of the issue is that the Georgian statement claiming self-defence in an emergency meeting of the Council on 8 August does not constitute an ‘immediate’ report, but Russia’s letter of 11 August does fulfil the requirement of an ‘immediate’ report. Though the word ‘immediate’ is put in quotation marks by the authors of the Report in both cases, perhaps their assessment rested more on the consideration that Georgia, unlike Russia, did not put its report in a ‘formal’ letter. Such a demand of formalism is not inherent to the text of article 51 Charter, since no qualification applies to the word ‘reported’ other than that it ought to be done ‘immediately’ and the Georgian statement to the Council, made within a day of the start of its military offensive, surely qualifies as such.

Another issue that ought to have been given more attention is the question of the permissible goals of self-defence. At various locations (pp. 249, 250, 251, 271, 275), the Report observes that repelling an armed attack is the only permissible objective of self-defence. However, over and above this primary objective, flowing quite naturally from the nature of defence, at least one other may be mentioned, namely the recovery of (occupied) territory. Though the permissibility of this particular goal of self-defence has been denied in the Partial Award on Jus Ad Bellum by the Eritrea Ethiopia Claims Commission (paras. 9 and 10), it ought to be noted that the Commission confused the goal of recovery of occupied territory in a continuing situation of self-defence with the legal prescription that States shall refrain from the threat or use of force to settle international and territorial disputes. In the situation at hand this would have permitted Georgia to counter incursions into and occupation of areas controlled by Georgia, whether initially by South Ossetian militia or armed forces or later on in response to the Abkhaz and Russian military operations. Whether Georgia would still be entitled to exercise its right of self-defence after an extended period of time may, in the light of requirements of immediacy and necessity, be doubted.

Concluding Remarks

More generally speaking, there is no restriction under international law disallowing Georgia to invoke its sovereignty to reassert, by use of armed force, control over territory held by the armed forces of a secessionist entity. Any international obligations Georgia has to abstain from the use of armed force results from its acceptance of the earlier mentioned Agreements. Whether those Agreements were voluntarily accepted by Georgia may be open to doubt. The factual account set out in the Report (see, e.g. pp. 4-7) shows strong Russian interference in Georgia and Russian support for the Abkhaz and South Ossetian causes. However, to the extent that Georgia wished to counter Russia’s dominance and the creeping annexation of the Abkhaz and South Ossetian territories (Report, pp. 18-19), denunciation of the Agreements and withdrawal of its consent to the presence of peacekeeping forces would have been opportune and would have called into question both the legality and the legitimacy of a continued Russian military presence.

Failing these preliminary (legal) actions on the part of Georgia, the Report makes an admirable attempt to assess the responsibilities of the various parties to the armed conflict based upon their obligations under international law. Though the present author takes rather different views on many of the legal aspects concerned, this should not close one’s eyes to the contribution the Report makes to clarifying such responsibilities. Nevertheless, this comment only scratches the surface, as further discussion could follow on a variety of topics such as the Report’s treatment of threats of force, its discussion of imminent armed attacks, the (non-)attribution of acts of Abkhaz and South Ossetian authorities or (groups of) persons to Russia, the equation of an attack on Russian peacekeepers to an attack on Russian territory, the scale and effects of armed attacks, and so on and so forth. Treatment of such issues stands postponed.